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"It matters little," said Bartoline; "all I mean to say is, that Porteous has become liable to the poena extra ordinem, or capital punishment which is to say, in plain Scotch, the gallows simply because he did not fire when he was in office, but waited till the body was cut down, the execution whilk he had in charge to guard implemented, and he himself exonered of the public trust imposed on him."
Callistratus in Dig., 48, 19, 26: crimen vel poena paterna nullam maculam filio infligere potest. namque unusquisque ex suo admisso sorti subicitur nec alieni criminis successor constituitur; idque divi fratres Hierapolitanis rescripserunt. Paulus, v, xii, 1. Paulus, v, xii, 12. Ulpian in Dig., 48, 4, 11. Ulpian in Dig., 48, 4, 11. Hermogenianus in Dig., 48, 4, 9.
The weapons are full glasses, there is an umpire who gives the word, and he who empties his glass the first is the conqueror. The president can order any one to drink a certain quantity pro poena, as a penalty for breaking a known rule, and the fellows have the same privilege in regard to the novices. There is another element, and a very important one, in the conduct of the jovial meetings.
The justice of the poena conventionalis was recognised by Alexander of Hales, and by Duns Scotus, who gives a typical form of the stipulation as follows: 'I have need of my money for commerce, but shall lend it to you till a certain day on the condition that, if you do not repay it on that day, you shall pay me afterwards a certain sum in addition, since I shall suffer much injury through your delay. The poena conventionalis must not be confused with either of the titles damnum emergens or lucrum cessans, which we are about to discuss; it was distinguished from the former by being based upon a presumed injury, whereas the injury in damnum emergens must be proved; and for the latter because the damage must be presumed to have occurred after the expiration of the loan period, whereas in lucrum cessans the damage was presumed to have occurred during the currency of the loan period.
Humana autem anima rationalis est, quae mortalibus peccati poena tenebatur, ad hoc diminutionis redacta ut per conjecturas rerum visibilium ad intelligenda invisibilia niteretur; that is, "The human soul is still rational, but in such a manner that, being by the punishment of sin detained in the bonds of death, it is so far reduced that it can only endeavour to arrive at the knowledge of things invisible through the visible."
The first thing to be noted on passing from the poena conventionalis to interest proper is that the latter ground of compensation was generally divided into two kinds, damnum emergens and lucrum cessans.
But vengeance was coming, and before many years were over his head Freeman had occasion to remember the Hornfinn tag: Raro antecedentem scelestum Deseruit pede poena claudo. Froude himself took the matter very lightly.
Either death brought an absolute unconsciousness, or the soul soared into space. "Lex non poena mors" "Death is a law, not a penalty" was the ancient saying. It was, as it were, the close of a banquet or the fall of the curtain. "While we are, death is not; when death has come, we are not". Cicero brings forward the testimony of past ages to prove that death is not a mere annihilation.
The order of the world is overthrown by the iniquities of men; it is we who have provoked the exercise of the divine justice, and called down the tokens of his vengeance. The misery and disaster that surround us like a cloak are the penalty of our crimes and the price of our expiation. As the divine St. Thomas has said: Deus est auctor mali quod est poena, non autem mali quod est culpa.
And all were there the lady who wrote for the Press, and the lady with the two daughters, the girls in blue; and Sir Tom's parliamentary friends standing up against the mantelpiece, and Mr. Derwentwater by himself, more curious than any one, keeping one eye on Montjoie, as if he would have liked to send him to the pupil-room to do a poena; and Jock indifferent, with his back to the door.
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