§ 1. To enact salutary laws for the state belongs to the highest prudence and authority; but to observe them belongs to a most excellent citizen. For nothing is more useful or honorable to a city than the guardianship of good laws. Therefore, to discuss laws, to judge laws, to recommend new ones, to amend old ones, and to pronounce that some must be abrogated appears to belong to a prince—and to a supreme prince; to venerate and kiss the laws and to undertake what has been commanded belongs to subjects. Shall I too, then, discuss laws? That, indeed, is necessary for the theologian and the philosopher; but the whole subject matter of the jurisconsult is law, for he blushes to speak without law. The statesman, however, will have constituted the state in the best and most solid manner if he brings it about that the best laws are enacted and flourish widely. For law is the soul of the city: by its vegetative influence this great body lives, and by its nod it is governed. And just as we greatly shudder at τὰς ἀνόμους κινήσεις, the lawless convulsions, of epileptics and the delirious, because they twist the members of the body contrary to the will of the mind, so too, when law has been lulled to sleep or suppressed, the state is agitated by violent movements, suffers from the falling sickness, and is about to fall suddenly with a tremendous crash. Therefore I too must speak concerning laws.
I shall not speak concerning individual laws, for that would be a work without end and would not belong to my profession. That discussion would encompass the whole of jurisprudence—the knowledge and treatment of sacred and civil laws. I shall therefore speak generally concerning the nature of right and laws, their causes and effects, and their properties and parts: those things which suffice for ordering a city and conduce to understanding and establishing particular decrees. And I shall do this chiefly according to the judgment of emperors, kings, and the most learned men, drawn from the trustworthy experience of histories—that is, of the human race.
Nor was the Persian law just—ἀνομίαν εἶναι πένθ᾽ ἡμερῶν—that there should be no law for five days after the king had died. For that period was long enough for crimes to be conceived and perpetrated.
§ 2. But since the institutions and customs not only of different nations but even of the same people are so various that, although falsely, someone once said nevertheless not without occasion, “The distinction between honorable and base rests upon opinion alone,” I shall be free to judge according to my own judgment concerning the institutions of all states. Nor ought my judgment to be constrained by the prior judgment of one state if the decrees of other cities support me. And let the judgments of others likewise be free concerning my own judgment.
I shall therefore weigh the laws and furnish the state with them. Divine law, indeed, must be considered day and night. “The law of God, therefore,” says Ambrose in On the Mansions of the Children of Israel, at the twenty-eighth mansion, “must be examined by every most exact test and observed with the greatest diligence possible, lest perhaps we fall away from it. This present mansion teaches us this. For Bene-jaakan signifies a stirring-up. But he who thoroughly cultivates the law of God observes diligently, lest even the smallest syllable or stroke slip away through negligence.”
§ 3. For this consideration directs the conscience, illuminates the mind, and gives form to the state. For this reason many of the ancients and not a few writers of the middle age treated laws, while in our own time innumerable writers have done so. The most ancient of all whose monuments survive is Plato, whose twelve books are still in our hands today: learned if you regard their antiquity, but insufficiently exact if you regard our times. Various writers then followed him, but their monuments have perished. Cicero, the foremost of the Romans, expounded Plato’s judgment in three books. Before him, the eminent men who flourished in the state gave opinions concerning right and laws.
Cicero, book 1 of On the Laws: “I remember that there were eminent men in our state who were accustomed to interpret it for the people and to give opinions; but, though professing great things, they were occupied with small ones. For what is so great as the power of the state? Yet what is so slight as the function of those who are consulted? How necessary it is to the people!”
Then, in the age of the emperors, hosts of jurisconsults followed. But they generally drew their doctrines from the Twelve Tables, decrees of the senate, plebiscites, decrees of princes, and opinions of the learned—not, as the ancients also had done, from the inner depths of philosophy. They discussed how people might make provision by law, how they might defend their property, and the law concerning walls, boundaries, roads, and rainwater falling from roofs. They touched sparingly upon the entire basis of universal right and law. Cicero therefore complains with justice that the ancients “professed great things but were occupied with small ones.” For the civil law which they chiefly treat “is confined to a small and narrow place. But the nature of right must be explained by us, and it must be derived from the nature of the human being. The laws by which cities ought to be governed must be considered; then those rights and commands of peoples which have been compiled and written down must be treated, among which those of our own people, which are called civil laws, will not lie hidden.”
Thus Cicero; and he had previously given the reason: “In no kind of discussion is it more honorably disclosed what has been bestowed upon the human being by nature, how great a power of the best things the human mind contains, for the sake of cultivating and accomplishing what duty we were born and brought into the light, what the association of human beings is, and what natural fellowship exists among them. For when these things have been explained, the source of laws and right can be found.” You think, therefore, that the discipline of right must be drawn neither from the praetor’s edict, as most now think, nor from the Twelve Tables, as earlier men thought, but from the inner depths of philosophy.
§ 4. This method was followed by St. Thomas in I–II, question 90; Antoninus, part 1, title 11; Hugo, On the Power of Laws; Gerson, part 3, On the Spiritual Life, and in the first part, On Ecclesiastical Power and the Origin of Right and Laws; Vincent of Beauvais in the Moral Mirror, book 1, page 2; Alfonso de Castro, On Penal Law; William of Paris; and Domingo de Soto, books 1 and 2. Among the theologians of the Society was Gregory of Valencia, who also illuminated Germany by published works covering the whole of theology and by refuting heretics. His hearer Clement VIII bore testimony to him and called him “the doctor of doctors.”
Gregory of Valencia was followed by John de Salas, the Castilian, in whom, besides a profound knowledge of theology and philosophy, skill in every kind of law and equity is also apparent.
Gabriel Vásquez treated the matter in I–II, disputation 150 and those following, and did so with great and independent judgment. Martin Becanus, my teacher, treated it briefly, lucidly, and acutely, so that he could both instruct the learned and assist the busy. Francisco Suárez pursued the same material at length in ten books—yet briefly, if we consider the fertility of so vast an intellect and his other monuments. There is no need of a new encomium for me to commend those books to students of theology. I assert only that what his censors, Father Friar Luís dos Anjos, provincial of the Order of Friars Minor, and Father Friar Vicente Pereira of the Order of Preachers, pronounced is true. Luís’s judgment is this:
By command of the supreme senate of the Holy Inquisition, I have examined this treatise concerning laws, composed by the very reverend and most learned Father Francisco Suárez. In it, with the highest learning customary to him, he discusses and resolves the difficulties of this subject matter. Nothing repugnant to the faith is contained in this treatise; nothing contrary to the decrees of our nurturing Mother Church and the holy Fathers, or to good morals. Rather, I found in it so great a splendor of learning in the explanation of everything which can concern this discussion that nothing further seems capable of being desired, either for theological discussion or for the interpretation of pontifical law. I therefore judge it worthy to be offered to all in print, as necessary for those most learned in theology and canon law and most useful to the Christian state. Given at Lisbon, on 5 May, in the year of the Lord 1611.
Vicente’s judgment is this:
By command of the supreme senate of the Holy Inquisition, I have carefully read this treatise concerning laws, divided into ten books, whose author is the Reverend Father Doctor Francisco Suárez, primary professor in the Academy of Coimbra, and I judge it worthy of its author. For there is more in it that is approved by sight than can be praised by the mouth, as St. Ambrose says concerning light in book 1 of the Hexaemeron, chapter 9. It may therefore be committed to type for the common utility of all. Given in the convent of St. Dominic at Lisbon, on 5 August, in the year 1611.
§ 5. Theologians indeed discuss laws in order to lead the minds of human beings toward obedience and a desire for what is true and honorable. My purpose, however, is to show from the rationale and nature of right and laws by what means a city may be governed best. I therefore see that many of their disputations must be left aside, that I must take up those matters which they have discussed copiously, and that many matters more commonly employed in schools than in courts and tribunals must also be passed over; but everything must be accommodated to the use and utility of men engaged in the state.
There is one matter about which I wish all who either enact laws, defend them by reason of their office, or interpret them to be admonished: that they show regard for the laws which they themselves approve. Lactantius speaks excellently in book 4 of the Divine Institutes: “Whoever gives precepts to human beings fashions them for life and morals. The good things which he has prescribed belong, indeed, to others; but he himself must live in the same manner in which he teaches that one must live, lest, if he lives otherwise, he detract from the credibility of his precepts and render his doctrine less weighty—if in deed he loosens what in words he strives to bind. Therefore, when someone does not do what he has prescribed, what arrogance it is that he wishes to impose upon a free human being laws which he himself does not obey! For human beings prefer examples to words, because speaking is easy, but performing is difficult.”