Thirdly, That it ought to be made by an authorized magistracy, it cannot be doubted, be the government of what kind soever. For it falleth otherwise under the title of those decrees called violentiæ, or iniquæ constitutiones; "violences," or "wicked constitutions."

Of human law there are four properties, especially answering these four conditions in the former definition. First, As it is drawn out of the law of nature; so every particular of the human law may be resolved into some principle or rule of the natural.

Secondly, It is to be considered as it is referred unto, and doth respect the common good.

Thirdly, It is to be made by public authority.

Fourthly, Concerning the matter of the law, it prescribeth and directeth all human actions. And so is the law as large and diverse, as all human actions are diverse which may fall under it. For, according to Thomas, " Alia lex Julia de adulteriis, alia Cornelia de sicariis; "The law of Julian

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against adultery is one, the Cornelian against ruffians is "another." Now the human law, generally taken, is, in respect of the first of these considerations, divided into the law of nations, and the civil.

The law of nations is taken less or more properly; less properly for every law which is not of itself, but from other higher principles deduced; and so it seemeth that Ulpian understands it: for he defineth jus gentium, or the "law "of nations," to be that which is only common amongst men, as religion, and the worship of God; which is not in the very nature of this law of nations; but from the principles of the scriptures, and other divine revelations. But the law of nations properly taken, is that dictate, or sentence, which is drawn from a very probable, though not from an evident principle, yet so probable that all nations do assent unto the conclusion, as that the free passage of ambassadors be granted between enemies, &c. which national law, according to divers acceptions, and divers con

"Tho. q. 95. art. 2.

siderations had of the human law, may be sometimes taken for a species of the natural, sometimes of the human.

X

Jus civile, or the civil law, is not the same in all commonwealths, but in divers estates it is also diverse and peculiar; and this law is not so immediately derived from the law of nature as the law of nations is; for it is partly deduced out of such principles as all nations do not agree in, or easily assent unto; because they depend on particular circumstances, which are diverse, and do not fit all estates. Hereof Ulpian; * Jus civile neque in totum a naturali et gentium recedit, neque per omnia ei servit : itaque cum aliquid addimus vel detrahimus juri communi, jus proprium, id est civile, efficimus; "The civil law," saith he, "doth "neither wholly differ from the law of nature and nations, "nor yet in all points obey it; therefore, when we add ❝ought to, or take from the law that is common, we make "a law proper, that is, the civil law."

The law now commonly called the civil law had its birth in Rome; and was first written by the decemviri 303 years after the foundation of the city. It was compounded as well out of the Athenian and other Grecian laws, as out of the ancient Roman customs and laws regal. The regal laws were devised by the first kings, and called leges regiæ, or Papyriana, because they were gathered by Papyrius, Tarquin then reigning. For though so many of the former laws as maintained kingly authority were abolished with the name; yet those of y Servius Tullius, for commerce and contracts, and all that appertained to religion and common utility, were continued, and were a part of the laws of the twelve tables. z To these laws of the twelve tables were added (as the times gave occasion) those made by the senate, called senatus-consulta; those of the common people, called plebiscita; those of the lawyers, called responsa prudentum, and the edicts of the annual magistrate; which edicts being first gathered and interpreted by Julian, and presented to Adrian the emperor, they were by him confirmed

x In leg. 6. ff. de justitia jure. y Dion. Hal.

z C. Sigon. 1. 1. out of Pomponius.

and made perpetual laws, and the volume styled, edictum perpetuum; as those and the like collections of Justinian afterwards were.

The difference anciently between laws and edicts, which the French call réglements, consisted in this, that laws are the constitutions made or confirmed by sovereign authority, (be the sovereignty in the people, in a few, or in one,) and are withal general and permanent: but an edict (which is but jussum magistratus, unless by authority it be made a law) hath end with the officer who made the same, saith Varro: Qui plurimum edicto tribuunt, legem annuam esse dicunt; "They who ascribe the most unto an edict, say "that it is a law for one year." Though Isidore doth also express by the word constitutions, or edicts, those ordinances called acts of prerogative: as, Constitutio vel edictum est, quod rex, vel imperator, constituit, vel edicit; "An ordinance or edict is that which a king or emperor doth or،، dain or proclaim."

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Lastly, The human law is divided into the secular, and into the ecclesiastical, or canon. The secular commanding temporal good, to wit, the peace and tranquillity of the commonwealth: the ecclesiastical the spiritual good, and right government of the ecclesiastical commonwealth, or church: Illud naturæ legem, hoc divinam spectant; “That 66 respecteth the law of nature, this the law of God." And so may jus civile be taken two ways; first, as distinguished from the law of nations, as in the first division; secondly, as it is the same with the secular, and diverse from the ecclesiastical. But this division of the schoolmen is obscure : for although the civil be the same with the secular, as the civil is a law; yet the secular is more general, and comprehendeth both the civil and all other laws not ecclesiastical. For of secular laws, in use among Christian princes, and in Christian commonweals, there are three kinds; the civil, which hath every where a voice, and is in all Christian estates (England excepted) most powerful; the laws of England called common, and the laws of custom or provincial. In Spain, besides the law civil, they have the cus

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toms of Castile, and other provinces. In France, besides the civil, the customs of Burgundy, Bloys, Berry, Nivernois, and Lodunois, &c. a Tous lieux situés et assis en Lodunois, seront gouvernez selon les costumes du dit pays; "All places lying within the precincts of Lodunois shall be governed according to the customs of that place." There are also in France the customs of Normandy, and these of two kinds, general and local; and all purged and reformed by divers acts of the three estates. The charters of confirmation of these ancient customs, before and since their reformation, have these words: Nos autem registrum prædictum, usus laudabiles, et consuetudines, antiquas, &c. laudamus, approbamus, et authoritate regia confirmamus ; "The register aforesaid, laudable use, and ancient cus"toms, we praise, approve, and by our kingly authority "confirm." The common law of England is also compounded of the ancient customs of the same, and of certain maxims by those customs of the realm approved. Upon which customs also are grounded those courts of record, of the chancery, king's bench, common pleas, and exchewith other small courts.

quer,

These ancient customs of England have been approved by the kings thereof, from age to age; as that custom by which no man shall be taken, imprisoned, disseised, nor otherwise destroyed, but he must first be put to answer by the law of the land, was confirmed by the statute of Magna Charta. It is by the ancient custom of England, that the eldest son should inherit without partition; in Germany, France, and elsewhere otherwise, and by partition. In Ireland it is the custom for all lands, (that have not been resigned into the king's hands,) that the eldest of the house shall enjoy the inheritance during his own life; and so the second and third eldest (if there be so many brothers) before the heir in lineal descent; this is called the custom of tanistry. For example, If a lord of land have four sons, and the eldest of those four have also a son, the three brothers of the eldest son shall, after the death of their brother,

Art. 3. tit. 5. G. Cust.

enjoy their father's lands before the grandchild; the custom being grounded upon the reason of necessity. For the Irish in former times having always lived in a subdivided civil war, not only the greatest against the greatest, but every baron and gentleman one against another, were enforced to leave successors of age and ability to defend their own territories. Now as in Normandy, Burgundy, and other provinces of France, there are certain peculiar and petty customs, besides the great and general custom of the land; so are there in England, and in every part thereof. But the greatest bulk of our laws, as I take it, are the acts of parliament; laws propounded and approved by the three estates of the realm, and confirmed by the king, to the obedience of which all men are therefore bound, because they are acts of choice and self-desire: Leges nulla alia causa nos tenent quam quod judicio populi receptæ sunt; "The "laws do therefore bind the subject, because they are re"ceived by the judgment of the subject." Tum demum humanæ leges habent vim suam, cum fuerint non modo institutæ, sed etiam firmatæ approbatione communitatis ; "It is then that human laws have their strength, when they shall not only be devised, but by the approbation of "the people confirmed."

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Isidore fasteneth these properties to every Christian law, that the same be honest, that it be possible, that it be according to nature, and according to the custom of the country; also for the time and place convenient, profitable, and manifest, and without respect of private profit, that it be written for the general good. He also gives four effects of the law, which Modestinus comprehends in two; to wit, obligation and instigation: the former binds us by fear, to avoid vice; the latter encourageth with hope, to follow virtue. For, according to Cicero, Legem oportet esse vitiorum emendatricem, commendatricemque virtutum; "It behoveth "the law to be a mender of vices, and a commender of vir"tues." The part obligatory, or binding us to the observa

C

Ulp. ff. de Leg. Leg. 32.

Aug. de vera relig. cap. 31. Gratian. in dec. dist. 4. cum in istis.