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tion of things commanded or forbidden, is an effect common to all laws; and it is twofold, the one constraineth us by fear of our consciences, the other by fear of external punishment. These two effects the law performeth by the exercise of those two powers, to wit, coactive and directive.
The second of these two effects remembered by Modestinus, is instigation, or encouragement to virtue, as Aristotle makes it the end of the law, to make men virtuous. For laws being such as they ought to be, do, both by prescribing and forbidding, urge us to well-doing; laying before us the good and the evil, by the one and the other purchased. And this power affirmative commanding good, and power negative forbidding evil, are those into which the law is divided, as touching the matter, and in which David comprehendeth the whole body and substance thereof; saying, d Declina a malo et fac bonum ; “ Decline from evil, and
“ do good."
SECT. XVI. That only the prince is exempt from human laws, and in what
sort. NOW whether the power of the human law be without exception of any person, it is doubtfully disputed among those that have written of this subject, as well divines as lawyers; and namely, whether sovereign princes be compellable; yea, or no? But whereas there are two powers of the law, as aforesaid, the one directive, the other coactive: to the power directive they ought to be subject, but not to that which constraineth. For as touching violence or punishments, no man is bound to give a prejudicial judgment against himself: and if equals have not any power over each other, much less have inferiors over their superiors, from whom they receive their authority and strength.
And speaking of the supreme power of laws, simply then is the prince so much above the laws, as the soul and body united is above a dead and senseless carcass. For the king is truly called jus vivum et lex animata; “ an animate and “ living law.” But this is true, that by giving authority to laws, princes both add greatness to themselves, and conserve it, and therefore was it said of Bracton, out of Justinian : Merito debet rex tribuere legi, quod lex attribuit ei : nam lex facit ut ipse sit rex ; “ Rightfully ought the king “ to attribute that to the law, which the law first attribut“eth to the king; for it is the law that doth make kings."
d Psalm xxxvii.
But whereas e Bracton ascribeth this power to the human law, he is therein mistaken. For kings are made by God, and laws divine ; and by human laws only declared to be kings. As for the places remembered by the divines and lawyers, which infer a kind of obligation of princes, they teach no other thing therein than the bond of conscience, and profit arising from the examples of virtuous princes, who are to give an account of their actions to God only.
f Tibi soli peccavi, saith David ; “ Against thee only “ have I sinned;" therefore the prince cannot be said to be subject to the law; Princeps non subjicitur legi: for seeing, according to the schoolmen, the law human is but quoddam organum et instrumentum potestatis gubernative: non videtur posse ejus obligatio ad eum se extendere, ad quem ipsa vis potestatis humanæ non pertinet : sed vis potestatis humanæ non se extendit ad gubernatorem, in quo illa residet. Ergo neque lex condita per talem potestatem obligare potest ipsum conditorem. Omnis enim potentia activa est principium transmutandi aliud : “ Seeing human law," say they, « is but a kind of organ or instrument of the power that “governeth, it seems that it cannot extend itself to bind any
one whom no human power can control or lay hold of; 6 but the governor himself, in whom the governing power “ doth reside, is a person that cannot by himself, or by his
own power, be controlled. And therefore the law which is “ made by such a power cannot bind the lawmaker himself: “ for every active ability is a cause or principle of alteration “ in another body," not in the body in which itself resides. And seeing princes have power to deliver others from the obligation of the law, Ergo etiam potest ipsemet princeps sive legislator sua se voluntate pro libito ab obligatione legis liberare ; “ Therefore also may a prince or lawmaker at his “ own will and pleasure deliver himself from the bond of the “ law." Therefore in the rules of the law it is thus concluded: Subditi tenentur leges observare necessitate coactionis, princeps vero sola voluntate sua, et intuitu boni communis ; “ The subjects are bound to fulfil the law by “ necessity of compulsion, but the prince only by his own “ will, and regard of the common good.”
i Psal. I. ff. de leg. & Greg. de Valentia de leg.
e Bract. 1. 2.
Now concerning the politic laws, given by Moses to the nation of the Israelites, whether they ought to be a precedent, from which no civil institutions of other people should presume to digress, I will not presume to determine, but leave it as a question for such men to decide, whose professions give them greater ability. Thus much I may be bold to affirm, that we ought not to seem wiser than God himself, who hath told us, that there are no laws so righteous as those which it pleased him to give to his elect people to be governed by. True it is, that all nations have their several qualities, wherein they differ, even from their next borderers, no less than in their peculiar languages; which disagreeable conditions to govern aptly one and the same law very hardly were able. The Roman civil laws did indeed contain in order a great part of the then known world, without any notable inconvenience, after such time as once it was received and become familiar; yet was not the administration of it alike in all parts, but yielded much unto the natural customs of the sundry people which it governed. For whether it be through a long continued persuasion, or (as astrologers more willingly grant) some influence of the heavens, or peradventure some temper of the soil and climate, affording matter of provocation to vice, (as plenty made the Sybarites luxurious ; want, and opportunity to steal, makes the Arabians to be thieves,) very hard it were to forbid by law an offence so common with any people, as it wanted a name whereby to be distinguished from just and honest. By such rigour was the kingdom of Congo unhappily diverted from the Christian religion, which it willingly at the first embraced, but after with great fury re
RALEGH, HIST. WORLD. VOL. II.
jected, because plurality of wives was denied unto them, I know not how necessarily, but more contentiously than seasonably. In such cases, methinks, it were not amiss to consider, that the high God himself permitted some things to the Israelites, rather in regard of their natural disposition, (for they were hardhearted,) than because they were consonant unto the ancient rules of the first perfection. So, where even the general nature of man doth condemn (as many things it doth) for wicked and unjust, there may the law given by Moses worthily be deemed the most exact reformer of the evil, which forceth man, as near as may be, to the will and pleasure of his Maker. But where nature or custom hath entertained a vicious, yet not intolerable habit, with so long and so public approbation, that the virtue opposing it would seem as uncouth, as it were to walk naked in England, or to wear the English fashion of apparel in Turkey; there may a wise and upright lawgiver, without presumption, omit somewhat that the rigour of Moses's law required; even as the good king Hezekiah did, in a matter merely ecclesiastical, and therefore the less capable of dispensation, praying for the people; h The good Lord be merciful unto him that prepareth his whole heart to seek God, the Lord God of his fathers, though he be not cleansed according to the purification of the sanctuary: which prayer the Lord heard and granted.
To this effect it is well observed by Master Dr. Willet, that the moral judicials of Moses do partly bind, and partly are let free. They do not hold affirmatively that we are tied to the same severity of punishment now, which was inflicted then; but regatively they do hold, that now the punishment of death should not be adjudged, where sentence of death is not given by Moses : Christian magistrates ruling under Christ the i Prince of peace, that is, of clemency and mercy, may abate of the severity of Moses's law, and mitigate the punishment of death, but they cannot add unto it, to make the bụrden more heavy; for to shew more rigour than Moses becometh not the gospel.
2 Chron. xxx. 18, 19.
i Isaiah ix.
But I will not wander in this copious argument, which hath been the subject of many learned discourses, neither will I take upon me to speak any thing definitively in a case which dependeth still in some controversy among worthy divines. Thus much (as in honour of the judicial law, or rather of him that gave it) I may well and truly say, that the defence of it hath always been very plausible. And surely, howsoever they be not accepted (neither were it expedient) as a general and only law, yet shall we hardly find any other ground, whereon the conscience of a judge may rest with equal satisfaction, in making interpretation, or giving sentence upon doubts, arising out of any law besides it. Hereof, perhaps, that judge could have been witness, of whom Fortescue, that notable bulwark of our laws, doth speak, complaining of a judgment given against a gentlewoman at Salisbury, who being accused by her own man, without any other proof, for murdering her husband, was thereupon condemned, and burnt to ashes; the man who accused her, within a year after being convict of the same offence, confessed that his mistress was altogether innocent of that cruel fact, whose terrible death he then (though over-late) grievously lamented: but this judge, saith the same author, k Sæpius ipse mihi fassus est, quod nunquam in vita sua animum ejus de hoc facto ipse purgaret; “ He “ himself often confessed unto me, that he should never,
during his life, be able to clear his conscience of that “ fact.” Wherefore that acknowledgment which other sciences yield unto the metaphysics, that from thence are drawn propositions, able to prove the principles of sciences, which out of the sciences themselves cannot be proved, may justly be granted by all other politic institutions, to that of Moses; and so much the more justly, by how much the subject of the metaphysics, which is, ens quatenus ens, “ being as it is being,” is infinitely inferior to the ens entium, “ the being of beings,” the only good, the fountain of truth, whose fear is the beginning of wisdom. To which purpose well saith St. Augustine, Conditor legum tempora
k Isaiah v. 3.