We must next examine the nature and spirit of the various sorts of laws which govern mankind, and which are all derived from those two primary fundamental Divine Laws.

CHAPTER VII.

ON THE NATURE AND SPIRIT OF LAWS.

IMMUTABLE LAWS.

In the last chapter a plan of society has been drawn on the foundation of the two great first Laws, by showing the relation which the state of man in this life has to each of them, and the way in which God having destined man to society has constituted the ties which engage him in that state.

We have seen that it is by those ties or engagements that God forms the order of the society of mankind to link them together in the exercise of the second Law. And as God marks in every engagement what He enjoins to those who are bound by it, so the characters of the different sorts of engagements show the foundations of the several rules prescribing that which justice and equity require of every person according to the conjunctures in which his particular engagements place him. We have seen how ties or engagements imply and require the use and advantage of a civil government to restrain every one within the order of those that belong to him. And we have seen also that there are four foundations of the order of society in its present state, that is to say, the general knowledge of justice or right and wrong, the government of God over society, the authority which God gives to supreme powers, and true religion, which includes and explains the three first.

And in a former chapter I have shown the origin and necessity of laws, whereby the actions of men are regulated in all the relations and engagements in which they are placed on earth; and this according to the definition of St. Thomas Aquinas, who says, Lex est quædam regula et mensura secundum quam inducitur aliquis ad agendum vel non agendum.

We must now proceed to examine the nature and spirit of laws and their different kinds.

Suarez first divides laws into Eternal and Temporal Laws. By the former he means (following St. Augustine) what Plato calls Divine Law, that is to say, a law existing in God himself and the same with the reason of Divine Providence. The latter differs from it as that which is created differs from that which is uncreated. It includes that kind of

Divine Law, which God creates, as it were, extraneously to himself, as well as all other laws that are not eternal.

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Suarez then gives the distinction recognised by all the theologians, and frequently used in the works of the Saints, that is to say, that of natural from positive law. It is also to be found in the Pandects. This distinction is the basis of the system of Domat, to which we will principally direct our attention.

Domat begins by laying it down that every sort of laws may be reduced to two kinds, which comprehend all laws of whatever nature. One is, of the laws which are immutable, and the other of those that are arbitrary. These two characters are the most essential part of the nature of all laws.

The former class of laws include those which the theologians comprise under the term Lex æterna. St. Augustine says, Legem æternam esse summam rationem in Deo existentem cui obtemperandum est. The latter words show that he means natural law, considered as a rule of conduct applied to men, and this remarkable passage agrees with the definition of St. Thomas Aquinas. Lex naturalis nihil aliud est quam participatio legis æternæ in rationali creatura. But this part of the subject should be fully explained before we proceed, because it is important to establish fundamental doctrines as clearly as possible.

St. Thomas Aquinas discusses the question whether it can properly be said that the attribute of justice belongs to God, and, according to his usual method, he states divers objections, the chief point of which consists in the difficulty of supposing justice where there is perfect freedom of will, and no duty or obligation.

He answers that there are two species of justice. One consists in mutual obligations or giving and accepting, such for instance as buying and selling, and other communications or commutations of like nature, which is called commutative justice. And this cannot be an attribute of God. The other species consists in distribution, and is called distributive justice, according to which a governor gives to each in proportion to his deserts. Grotius explains the same distinction, and says, that distributive justice, considered as a rule of human actions, is the companion of the virtues which tend solely to the advantage of others, such as liberality, compassion and wise conduct in the govern

ment of a state.

b Suarez, De Leg. lib. 1, cap. 3, § 6, 7.

c Pand. lib. 1, tit. 1, 1. 9.

d L. 1, De liber. Arbitr. c. 6.

1, 2, quæst. 91, art. 2.

f Div. Thom. Summa Theol. par. 1, quæst. 21, art.1.

Grot. Dr. de la G. 1. 1, ch. 1, § 8; Pufend. Dr. de la N. et des Gens, l. 1, ch. 7, § 11.

St. Thomas continues, "As therefore the fitting and due government of a family, or of any multitude, shows this sort of justice in their ruler, so the order of the universe, which appears both in natural things and in voluntary things, shows the justice of God." "As a right apprehended by the intellect is the object of will, it is impossible that God should will anything except that which is according to the rule of his wisdom. Hence he does justly according to his will, as we do justly what we do according to the law. But we act according to the law of a superior, whilst God is a law to himself." St. Thomas goes on to show that in one sense things may be due from the Divine will. For it is due to things created that they should have that to which they are ordained, and so God works justice by giving to each that which is due to it according to the principles of its nature and condition as Divine wisdom has ordained. So that God's justice consists in the fulfilment of His wisdom. On the other hand it is due of right to God that his wisdom and his will should be fulfilled. Debitum est Deo ut impleatur in rebus id quod ejus sapientia et voluntas habet et quod suam bonitatem manifestat: et secundum hoc justitia Dei respicit decentiam ipsius secundum quam reddit sibi quod sibi debetur.h

From these doctrines several important consequences may be deduced. They explain the celebrated dispute between Barbeyrac and Leibnitz respecting the efficient cause of natural law. Leibnitz charged Pufendorf with seeking that efficient cause, not in the nature of things and the maxims of right reason conformable thereto, and which emanate from the Divine mind, but simply in the will of a superior. Barbeyrac, however, shows that Pufendorf admits, in accordance with St. Thomas, a natural law, founded on the nature of things, which the Divine will could not contravene without being inconsistent with itself. And then he continues thus: "Our author does not pretend that all that is called right or justice emanates from the arbitrary will of a superior. He speaks of right and justice which are fitting for independent beings. And he seeks for the rule of human actions. He says that God is supremely just and follows inviolably the rules of justice, which are in conformity with His infinite perfections; so that He cannot act otherwise, but also, no one can require Him to act in a particular manner. And Pufendorf holds that with regard to men, though they are entirely dependant on the Creator, yet God has not made right and justice by an arbitrary will; and that God could not,

b Div. Thom. Summa Theol. par. 1, quæst. 21, art. 1. And see Grotius, Dr. de la G. 1. 1, ch. 1, § 10, num. 5.

Jugement d'un Anonyme, p. 406, printed with the Devoir de l'Homme et du Citoyen, edit. Amsterdam, 1735.

Pufend. Droit de la Nat. et des Gens, 1. 1, ch. 2, § 5, 6.

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without inconsistency with his own perfections, prescribe to men any other rules than those of justice. But our writer maintains, notwithstanding, that the will of God, who, as their sovereign master, has full right to restrain their freedom as he thinks fit, is the proper and direct reason why men are obliged, and under a moral necessity, to obey the rules of justice."

The doctrine of St. Thomas respecting the nature of Divine justice, and Barbeyrac's explanation of Pufendorf's meaning, show that the idea of justice is not necessarily connected with that of a superior, if justice be regarded abstractedly. But if considered as a law for mankind, that is to say, as a rule of human actions, its obligatory force must emanate from a superior. Thus Grotius defines natural law to be principles of right reason which enable us to know that a certain action is right or wrong, according to its congruity or incongruity with the reasonable and social nature of man, and, consequently, that God, who is the author of nature, commands or forbids the action.' And with this definition the canonists agree." And we have seen in the preceding chapter, that the light retained by man after his fall, which teaches him the natural rules of right and wrong, is one of the causes whereby God sustains society, and one of the natural foundations of order therein.

The doctrines of St. Thomas regarding Divine justice also show why it is that natural law is immutable. For, as it is impossible to suppose that God can prescribe to men any rules of conduct inconsistent with the Divine justice, so those rules must be immutable with the justice from which they emanate."

We have now to discover the root of those immutable laws. Domat tells us that they are called immutable, because they are naturally so just, always and everywhere, that no authority can change or abolish them, whereas arbitrary laws are those which a lawful authority can establish, change, and abolish, according to circumstances. And he continues thus-"These immutable or natural laws are all those which are necessary consequences of the two primary laws, and so essential to the engagements which form the order of society, that they could not be altered without injuring or destroying the foundations of that order. But arbitrary laws are those which may be differently established, changed, or even abolished, without violating the spirit of the two primary laws, and without wounding the principles of the order of society." "

1 Grot. Dr. de la G. 1. 1, ch. 1, § 10.

Zallinger, Inst. Jur. Nat. et Eccles. lib. 1, c. 2, § 8, 11; Reiffenstuel, Jus Canon. prom. §14.

Zallinger, ubi sup. § 10; Suarez, De Leg. lib. 2, c. 13.

• Domat, Traité des Loix, c. 11, § 1.

Grotius was somewhat misled by this idea of universality attached to natural law. He says that a thing may be proved to be of natural law in two ways,-either a priori or a posteriori. The first method is in substance that of Domat. It consists in showing the conformity or inconsistency of a given act with the reasonable and social nature of man. The second concludes that anything is of natural law, because it is held to be so among all nations, at least the most civilized. For as an universal effect presupposes an universal cause, such general consent of mankind can scarcely be attributed to anything but to what is called common sense. Without going so far as Hobbes, who argues that an appeal to the consent of mankind would require absolute unanimity, it must be admitted, that Pufendorf and Barbeyrac rightly reject this argument a posteriori, as unsafe and surrounded by a multitude of difficulties. Grotius has overloaded his pages with quotations and references, for the purpose of showing that consent.

Equally unsound is his position that there is a jus gentium or law of nations, which has acquired force by the consent of all nations, or at least of several.' The consent of all is not to be found, as Pufendorf justly remarks. And indeed this voluntary jus gentium, distinct from natural law, is shown by Pufendorf and Barbeyrac to have no existence. For in the first place, the name of law cannot correctly be given to that, the obligation of which springs, not from the authority of a superior, but from consent; and as all independent nations are naturally equal, no one nation can impose a law on others, nor can they together prescribe laws to themselves.t

The rights of ambassadors are placed by Grotius among the things which belong to this supposed customary law of nations. But the sacredness of these persons springs, as Pufendorf observes, from natural law, because it is necessary for procuring, preserving, and confirming peace among nations, and cannot without injustice be denied to persons employed for such purposes." And so it is with other things which have been attributed to this voluntary or arbitrary law of nations. They for the most part rest on natural law.

There are indeed certain arbitrary customs used among civilized nations. But if a sovereign think fit to give full and due notice that he does not intend to observe them, he can only be blamed at most for a want of courtesy and liberality, provided he do not violate any

P Grot. Dr. de la G. 1. 1, ch. 1, § 12.

a Pufend. Droit de la Nat. et des Gens, 1. 2, ch. 3, §7. Grot. Dr. de la G. ubi sup. § 14. And see l. 3, ch. 7, 9.

• Pufend. ubi sup.

t Pufend. Droit des Gens, 1. 2, c. 3, § 23, and notes.

Grot. Dr. de la G. 1. 2, ch. 18.