thus made more evident by examining mixed laws, wherein they at first sight seem blended together.

An explanation has already been given of the diversity between temporal and spiritual laws, with reference to the place which the Church and the law of the Church hold in the system of universal jurisprudence. Some further points in the same subject remain to be considered with regard to the distinction of the two legislative powers, temporal and spiritual.

Though those two sorts of laws resemble each other in all the features constituting the essentials of law, and though they have certain objects in common, yet both their matter and their spirit are different and distinct. For as the one law is temporal and the other spiritual, so the matter of the former is temporal and that of the latter spiritual. And it cannot be objected to this diversity, that both may command in matters relating to all the virtues. For, as Suarez shows, the immediate matter (materia proxima) of the law is the act itself, and that which it concerns or affects; and that may be either the thing or the person regarding which the act commanded or forbidden is done. But other things consequentially belong to the matter of the law by reason of the nature of the act. Thus the immediate and principal matter of the spiritual law is a supernatural act, such as an act of faith; and therefore all laws relating to faith are ecclesiastical, because their matter is entirely spiritual. So it is with respect to the acts of the sacraments. And thus acts, which in other respects are natural and human (such as matrimony, inasmuch as it is a human contract), belong to ecclesiastical law, because they are elevated into sacraments. It is the same with regard to other sacred acts, and those especially which belong or relate to Divine worship. And from thence the consequence has been drawn that the things which those actions relate to, immediately belong to the matter of the ecclesiastical law, as for instance sacred persons, places and churches, sacred vessels and utensils, and the like.

It follows also, that the wrongs contrary to the acts and things above referred to, belong also to the matter of canonical law which forbids them. And as all sinful acts are adverse to spiritual good and to the supernatural end of man, and are injuries against God, therefore they belong to the same order, and are the matter of ecclesiastical law, so far as it is useful to make laws regarding them.

Suarez remarks that this declaration of the matter of the canonical law shows that of the temporal or civil law. For that matter, fit for human law, which does not reach the degree of spiritual things, is temporal, in which are included proximately the moral acts necessary to human society, and mediately all the things to which those acts

relate, and also persons, inasmuch as the state or human polity (civitas) is composed of them.d

Suarez gives, as a second difference between the two laws, that the spiritual law is more universal and of a more excellent nature. Of its universality we have already treated, in order to show that it is a necessary part of universal jurisprudence, though it stands, as it were, by the side of the municipal law in each state. We must here consider the other quality attributed to it by Suarez.

e

Cardinal Contarini, in his book on the Constitution of Venice, makes the following valuable reflections on the nature and spirit of municipal laws. He speaks of positive laws, or at least of laws considered as such, that is to say, as emanating from the human legislative authority.

"It has been much doubted whether the government of a city should be given to one man, to a few, or to a multitude. And it has, in my opinion, been most excellently and wisely held that the government of men should not be granted to one man, but that there must be something more divine to which the office of government should be given. And this may be seen clearly from the example of animals, which are not under the rule of one of their own nature, but of a far more excellent creature, that is to say, man. Therefore as the commonwealth is ordained for the government of its citizens in the use of the duties of life and of virtue; the highest reason shows that something more excellent than man ought to govern men, in order that those objects may be successfully attained.

"But as no creature in worldly affairs known to the senses is of a more excellent nature than man, and he is an animal constituted of different parts, being similar to beasts in the inferior impulses of his mind, and approaching a Divine nature in the superior powers of his soul, it is therefore right that that which in man is Divine should have the office of government. This office must therefore not be entrusted to a man, for he is often swayed and diverted from the paths of reason by the inferior forces of his mind; but it should be committed to the mind, pure and free from those perturbations. And for this reason, as that object could not otherwise be effected, it seems that by the invention of laws, mankind has by Divine council obtained this, that the office of governing commonwealths be committed to the mind and to reason free from passions. I know not whether this gift of God can be deemed inferior to any other, if the utility of laws be judiciously considered. For before they are ordained, many wise men assemble

d Suarez, De Leg. lib. 4, cap. 11, § 6—8.

e Della Repub. e Magistr. di Venetia del Card. Contarini, lib. 1, p. 22—24.

together, who, educated in the experience of many things, compare the inventions of others and the examples of past times, and after long consultation they decide that which they think best; nor are they turned by hatred, friendship or any other passion, because a private man has not an individual interest in the making of laws, as is the case in decisions on particular matters. When the laws are once established, if any man violate them and suffer the penalty which those laws command, he cannot reasonably feel aggrieved on that account against any one. And, therefore, there is not danger of seditions or strife in such cases. Whereas, if any one is punished by a judgment, not of the law but of men, serious discord and enmities are apt to arise, for we cannot help feeling ill-disposed towards any one who has done us any mischief. Therefore I know not whether nature, the mother of all things, ever gave to the human species anything greater than this invention of laws, which was by the ancients reasonably consecrated to the Gods. And Aristotle, prince of the philosophers, in that book which he wrote to King Alexander, found nothing resembling God, except the ancient law of a well-governed city. This is therefore the opinion of the great philosopher, that God is in the universe what that ancient law is in a civil community. And in the books wherein he treats of the republic, he says that the law is a mind without appetite, meaning that it is a mind pure, lucid, and unstained by any infirmity of passions. From these things, even a man of slow apprehension may see why it is most necessary that something more divine than man should rule and govern communities of men."

These profound observations of Contarini, whose wisdom had been matured in some of the highest offices in his republic, agree with the celebrated description of law by Papinian. Lex est commune præceptum ; virorum prudentum consultum; delictorum. . . coercitio; communis reipublicæ sponsio. And so Hooker says: "Even they which brook it worst that men should tell them their duties, when they are told the same by the law think very well and indifferently of it. For why? They presume that the law doth speak with all indifferency: that the law hath no onesided respect to their persons: that the law is as it were an oracle proceeding from wisdom and understanding. Howbeit that laws do not take their force from the quality of such as devise them, but from that power which doth give them strength of laws."f

This important part of the spirit of municipal laws belongs also to the canonical laws considered in the light of municipal laws of the Church; but with this difference, that they are made for a super

L. 1, ff. De Legib.; Hooker, Eccles. Polit. b. 1, § 10. And Mariana says, “ Est enim lex ratio omni perturbatione vacua, a mente Divina hausta, honesta et salutaria præscribens, prohibensque contraria." De Rege, lib. 1, cap. 2.

natural end which must be universal, because it embraces all mankind, and has relation to a point of unity beyond human society. Consequently, their spirit must partake of the nature of that end even when they are purely positive laws, in the same way that the spirit of temporal laws belongs to the nature of their own end, which is that of the civil state.

This diversity of the spirit of the temporal and spiritual laws is a further proof that they are made by legislative powers separate and distinct from each other. They both spring from the two primary fundamental laws directly or indirectly, and yet they have distinct. immediate ends,-the one considering man as a member of human society, and of a particular community of men, and the other regarding him as belonging to a commonwealth or body politic comprehending the whole world, and whose end is supernatural. This fundamental doctrine of Public Law, that the temporal and the spiritual powers are distinct and separate and independent of each other, is the only one that can solve the various problems which the relation between the Church and the State in different countries give rise to.

We have now shown the nature and origin of the legislative power in its two great branches, and the diversity of the laws springing from each. And by placing temporal and ecclesiastical laws as it were side by side, we have been enabled more fully to understand the spirit and characteristics of both. This will be an answer to those who may be surprised to find so much ecclesiastical matter in a legal treatise. A comprehensive method is indeed particularly necessary for the study of Public Law, which ought to include the system of all those rules, whatever be their origin, whereby human society is constructed and regulated, and mankind led, under Divine Providence, to the end for which they were created.

CHAPTER IX.

OF THE NATURE AND SPIRIT OF LAWS.-OF ARBITRARY OR
POSITIVE LAWS.

THE nature and spirit of arbitrary or positive laws cannot be explained without a careful examination of their use in human society. We have seen that they are those which not being necessary consequences of the two primary laws on which society is founded, may be established, changed, and abolished, without injury to the principles of social order.

But though these laws are thus mutable,-for which reason they are called arbitrary or positive laws, yet their arbitrary nature must be understood in a somewhat modified sense. For we have seen it laid down by Domat, that all the laws which regulate society, even in the state in which it is, (so strangely different from what the Divine law requires,) are consequences of the two primary fundamental laws." His meaning is, that as human society is grounded on these two laws, the rules of conduct directing the actions of man therein must bear a relation to them, unless they be repugnant to the end of society. For as we see in the nature of man his destination to the accomplishment of the first law (which is very fully shown by St. Augustine), so we find therein his destination to society, and the several ties which engage him to it. And these ties, which are consequences of the destination of man to exercise the two primary laws, are also the foundation of the particular rules of all his duties, and the fountain of all laws. Municipal laws may be more or less calculated for the end which the lawgiver ought to have in view; but such is the nature which the Creator has given to man, that all municipal laws not contrary to that nature are consequences direct or indirect of the two primary laws. And thus Suarez lays it down, that all human laws are originally derived in some way or another from the Divine law, and he cites this fine passage of St. Augustine :--Conditor legum temporalium, si vir bonus et sapiens est, legem æternam consulit, ut secundum ejus immutabiles regulas, quid sit pro tempore jubendum vetandumque discernat. Reiffenstuel holds that all laws are derived from the eternal law.' And St. Thomas Aquinas says, that all human laws are derived from natural law. Some explanation is required to show the meaning of those great writers.

Suarez teaches, on the authority of St. Thomas Aquinas and others, that a human civil law is binding on the conscience of those who are subject to it; and he proves this by showing that the civil legislator makes laws as the minister of and by power received from God; that Divine and natural law require obedience to the laws of the civil authority; and that the power of making laws is necessary for the due government of human commonwealths.'

These propositions have already been proved, and they lead to the conclusion that the authority of human positive laws is from the

Domat, Loix Civiles, Traité des Loix, ch. 1, § 8.

h Div. August. De Civitate Dei, lib. 19.

Suarez, De Leg. lib. 1, cap. 3, § 17; Div. August. De Vera Religione, c. 31; Reiffenstuel, Jus Canon. prom. § 13.

k Apud Suarez, De Leg. lib. 3, cap. 21, § 10.

1 Suarez, De Leg. lib. 3, cap. 21, § 5-7.