empire, but office," said Seneca ;-and therefore the Greeks call kings, ἄνακτας ἀπὸ τοῦ ἀνακῶς ἔχειν, says Plutarch, " that signifies persons appointed to take care of and to defend the people." Tu civem patremque geras, tu consule cunctis, Non tibi; nec tua te moveant, sed publica damna a : "Take care of the public, not of thy particular; and let the common calamity move thee most:" and since the power itself is designed for the public good, the laws must be so too. And therefore when the law says, that a law ought to be a common precept; that is, 'pro communi utilitate statutum,' says the gloss "; that is, 'it must be for the common good.'" Conditur utilitatis gratia lex," says Plato ©; “Every just law is made for the good of the people:"-and from him Marsilius Ficinus defines a law to be, "a true manner of governing, which by profitable ways tends to the best end," that is, the public good :—and Isidored says, "Lex erit omne quod ratione constiterit, duntaxat quod religioni congruat, quod disciplinæ conveniat, quod saluti proficiat ;” “A law is that which agrees with reason, that is consonant to religion, and accords with discipline, and is profitable and does good." -And therefore if a prince make a law which is for his own profit, and not for the public good, he is a tyrant; and his laws have no sanction but fear, and no tie at all upon the conscience. And this is the doctrine of Aristotle, 'O μèv γὰρ τύραννος τὸ ἑαυτῷ συμφέρον σκοπεῖ· ὁ δὲ βασιλεὺς τὸ τῶν ápxoμévwv. "A king and a tyrant differ very much: a tyἀρχομένων. rant considers his own profit, a king the profit of his people:" and under this consideration comes that prince, that lays grievous burdens upon his people. Τοὺς γὰρ τὰ μεγάλα, μὴ ὅθεν δεῖ, λαμβάνοντας, μηδὲ ἃ δεῖ, οὐδὲ λέγομεν ἀνελευθέρους, οἷον τοὺς τυράννους, πόλεις πορθοῦντας, καὶ ἱερὰ συλῶντας, ἀλλὰ πονηροὺς μᾶλλον, καὶ ἀσεβεῖς, καὶ ἀδίκους, “Those that take great sums from them they ought not, and those which they ought not,-as tyrants, destroyers of cities and robbers of temples, we do not call them covetous, but wicked, and impious, and unjust."-And therefore they who do such things by laws made on purpose, do it by tyranny, and thereGesner, vol. 1. p. 105. c In Hippia. Ethic. lib. 8. cap. 10. Wilkinson, p. 346. Lib. 4. Eth. cap. 1. Wilkinson, pag. 142. -- a Claud. 4. Cons. Hon. 294. d Lib. 3. cap.3. fore not by law, or just authority, and consequently by none. In such cases we must suffer as it happens: but we may avoid the burden of the law, where we can peaceably and privately. For all such things as are against the good of the subjects, the law itself declares to be no law; that is, to be more than the superior hath right or leave to do. "Nulla juris actio aut benignitas patitur, ut quæ salubriter pro hominum utilitate introducuntur, ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem;" says the law: "No law, no charity, suffers us to make that by interpretation hard and against their profit, for whose profit it was first decreed by a salutary sanction." And therefore it is observable, that all laws do infinitely decline all harsh senses, and are ambitious of gentle and benign interpretations; which is, in the whole world, the greatest declaration that lawgivers, as they ought not, so, they profess, they do not, intend, to grieve the subject by an unequal burden. It was a princely saying of Trajan", when he put a sword upon the thigh of the prefect of the prætorian bands "Cape hunc, et, si quidem recte et ex utilitate omnium imperavero, pro me: sin aliter, contra me utere;" "Use this sword on my behalf, if I govern rightly and to the public benefit: if not, use it against me."-That was too much, but his purpose was excellent; he knew it was his duty to rule by that measure only; beyond that his power was incompetent. Ο γὰρ μὴ τοιοῦτος, κληρωτὸς ἄν τις εἴη βασιλεύς· ἡ δὲ τυραννὶς ἐξ ἐναντίας ταύτη “He that does not so, is a king by fortune, but indeed a tyrant, and any thing rather than a king.” Τὸ γὰρ ἑαυτῷ ἀγαθὸν διώκει, says Aristotle'; "For he pursues his own, not his people's good :" and that is φαυλότης μοναρχίας, “ the stain of monarchy,” that is, plainly tyranny.-Tiberius said well," Dixi et nunc et sæpe alias, patres conscripti, bonum et salutarem principem, quem vos tanta et tam libera potestate instruxistis, senatui servire debere, et universis civibus; sæpe ac plerumque etiam singulis, neque id dixisse me pœnitet." A good and a gentle prince ought to serve the profit of his nobility, his senate, and citizens; not only all but each single citizen, as there is occasion; and therefore Rodolphus of Austria was very an Lib. nulla, ff. de Legibus. h Aurel. Victor. xiii. 2. Dion. Xiph. p. 778. 1 Ubi supra. gry with his guards for hindering petitioners to come to him; "Let them come," says he, "for I was not made an emperor to be shut up in a box."-" Sinite parvulos ad me venire," saith our blessed Lord, the King of kings, and the Lord of lords, "Suffer my little ones to come unto me.”—But the reason and demonstration of all are contained in those words of Seneca, saying a prince should think with himself, "Ego ex omnibus mortalibus placui, electusque sum, qui in terris Deorum vice fungerer," "I am chosen from the heap of mortals to stand in the place of God," to do as he does; that is, to do all things justly, and to do all things for the benefit of the people now since the prince hath his power from God, he can have no power to do otherwise than God does.—" Admittere in animum totius reip. curam, et populi fata suscipere, et oblitum quodammodo sui, gentibus vivere; noctes omnes diesque perpeti solicitudinem, pro salute omnium cogitare;" so Pliny describes the office of a prince,-" to take care of the whole republic, to live to them not to himself; days and nights to suffer anxiety in thinking for the profit and welfare of all."-This is the limit of a prince's power so far as he relates to conscience. For beyond this the conscience is not bound. The body is, and we must suffer patiently the evil which we cannot deprecate; but laws that are made to purposes beyond these measures, do no ways oblige the conscience. "He is the minister of God for thy good," saith St. Paul; otherwise he is not God's minister, and hath to other purposes none of God's authority, and therefore cannot oblige the conscience to an active obedience in such things where his power is incompetent to command. 6. (5.) Thus, when a law by the change of things or cases is become an enemy to the common good, it is not to be observed, saith Aquinas; and he gives this instance: A law is made that in the time of sieges, the gates of a city be always kept shut; but the guards are not tied to obey this law, when the citizens fly thither from the danger of the enemy: and so in all equal cases, concerning which this is the rule. : 7. The prince is to be presumed good and gentle and if he be not so, he is to be supposed so, and made so at least by fiction of law: whatsoever case therefore does happen in which the citizens are grieved, it is to be supposed that it is De Clement. i. 1, 2. Ruhkopf, vol. 1. p. 434. besides the intention of the law, and was not in the provision of the prince; but we are to rely upon this, that he who is good and gentle, and a father of his country, would, if he were here and observed this evil, untie the law, that he might not tie us to the evil: and because he is not here, but his will is here, the law with so much evil to us is not to be observed; for his leave to break it is to be presumed. 8. (6.) Hither is to be reduced the injustice of unequal distributions; such as is a law forbidding beggars to go from place to place to seek relief, when there is no relief at home; the law of commanding every village or parish to provide for their poor, which indeed is piously and charitably intended, but because when it is reduced to practice, it falls heavily upon some, and others touch it not with the top of their fingers, the law which was good in thesi,' proves unjust 'in hypothesi,' and therefore does not oblige the conscience; but they who are under it, may not only seek relief by petition, but by avoiding it where they can piously and charitably, according to the measures by and by to be described. For it is the voice of natural justice and reason, which St. Paul urges to his charges, "not that there should be ease to one and burden to another :" this is against equity, as having in it so great disproportionate inequality. 9. (7.) Lastly, of the same consideration it is, that, in the making laws of burden, there be equality and proportion between the burden and the cause of the imposition; that the burden be not greater than the evil it intends to remedy, nor the remedy greater than the disease needs, nor yet greater than men can bear. For what is excessive in these cases, is against the charity and justice of the prince, and is matter of rapine and impiety, not of subsidy and prudent provisions: and therefore, though it may oppress the subject, who hath no remedy but prayers and tears; yet the conscience is at liberty, and may procure remissions by any ways of peace and piety. 10. But in the reducing of this to practice, these cautions are to be observed. (1.) That though the conscience be free from all laws, which are unjust upon any of these accounts, yet that the law be not disobeyed with the scandal and offence of others, it must be so done that none be taught to rebel, or evacuate the law upon pretences and little regards; nor that our duty and religion be evil spoken of, nor that the superior be made jealous and suspicious. When our blessed Saviour had proved himself free from tribute, and that in conscience he was not bound to pay it, yet that he might not give offence, he submitted to the imposition. And this caution is given by all the doctors, who follow Bartholus' in it. 11. (2.) The inconvenience of the republic must not be trifling and contemptible, but so great as must, in the judgment of good and prudent men, be a sufficient cause of annulling the law, so great as must reasonably outweigh the evil of material disobedience. And therefore, in the injustice of unequal distributions, and imposition of taxes, we are not to complain for every little pressure, nor yet to weigh the proportions in gold scales; for it is a greater duty of charity that the subject quietly bear a little load for peace' sake and example and compliance, than it can be of duty in the prince to make such exact, curious, and mathematical proportions. 12. (3.) The inconvenience and injustice must be certain, notorious, and relied upon, before it can be made use of to the breach of a law. For it is no warranty to disobey, that I fancy the law to be unjust; and therefore, in this case the best scrutiny we can have, is, that either it be so declared by the voice of all men, or the more sober accents of the wise men, or be evident in itself according to the strictest measures; for where there is a doubtful case, the presumption always is for obedience, not against it: for although usually in doubts, the presumption is for liberty, yet that is either between private persons, or when the superior makes a doubt concerning his own laws, then he is to judge for liberty and ease; but in our own cases, and in dispute with a law, the presumption is on behalf of the law, because ordinarily that is the greatest interest, and the greatest reason. 13. (4.) When there is a favourable case for breaking a law, if we have time and opportunity, we must ask leave of the superior. Because as that does honour to the superior, and gives value to the law; so it is the greatest course of security, because it makes him judge, who only can complain. But to this we are not obliged, if the case be evident, or if the danger of evil be imminent and sudden, and there be no 1 Capite 1. de Constitutionibus. |