§ 1. The matter of law is twofold: that in which law exists, which the schools call the subject of law, and that about which law exists. The subject of law is the intellect and the will. For we are not treating the law of sin about which the Apostle disputes in Romans 7. Every law, therefore, is in the mind and the will, as I taught above. Next, law exists in speech and in writings as in signs.
Nevertheless, it is not necessary that a law be written; consequently, parchments and tablets are not necessary subjects of laws. Thus, Digest, book 1, title 3, § 32: “In those cases in which we do not use written laws, that must be observed which has been introduced by customs and usage; and if this should be lacking in a particular matter, then that which is nearest and consequent upon it; but if not even that should appear, then the law which the city of Rome uses must be observed.”
“Custom grown old is deservedly observed as law—and this is the right which is said to have been established by customs. For since the laws themselves bind us for no other reason than that they have been received by the judgment of the people, those things also which the people have approved without any writing will deservedly bind all. For what difference does it make whether the people declare their will by vote or by the things and deeds themselves? Hence this too has most rightly been received: that laws are abrogated not only by a vote of the legislator, but also through disuse by the tacit consent of all.”
Lycurgus certainly did not write his laws, and formerly laws were also contained in songs, which individuals taught to their own people. The same rationale applies to canon laws, for which writing is in no way necessary. Suárez, de Salas, and Valencia teach this, and Aristotle before them in book 10 of the Ethics, chapter 9.
Nevertheless, it is most useful for a law to be written. First, God willed that his law, which he gave to a people now multiplied, be written; indeed, he himself inscribed it upon stone tablets with his own finger. He willed that the volume of the law should never depart from the hands of the Israelites. For writing is the principal aid to memory. Nations which are illiterate and afflicted by wars, floods, and epidemics easily change and forget all their institutions. Words easily escape; sentences are easily mutilated when trust is placed in memory alone. They must therefore be bound fast by durable characters suitable for eternity.
Basil speaks elegantly in Letter 178: “Words have a winged nature. Human beings therefore employ the characters of letters so that one who writes may catch the speed of flying speech. You, therefore, boy, must draw the characters of the letters perfectly and set their forms in the right order. For a slight error by the writer detracts very much from the discourse; but by the writer’s diligence, what has been said is completed and brought to perfection intact.”
The speech of one who is speaking cannot so easily be corrected, because it swiftly flies across after φύγεν ἕρκος ὀδόντων, it has escaped the fence of the teeth. Just as one cannot observe a bird flying beneath a cloud as readily as one which is confined in a cage.
Next, through the easiest repetition of written law,
all agreements, covenants, and contracts are directed. Nor can the memory of one human being, however prodigious, possibly be the repository of that multitude of all the laws. Thus Exodus 17:14 and Deuteronomy 31:22: “Moses therefore wrote the song and taught it to the children of Israel. And the Lord commanded Joshua the son of Nun and said: Take courage and be strong; for you shall bring the children of Israel into the land which I promised, and I shall be with you. Therefore, after Moses wrote the words of this law in a volume and completed it, he commanded the Levites who carried the ark of the covenant of the Lord, saying: Take this book and place it beside the ark of the covenant of the Lord your God, so that it may be there as a testimony against you.”
And Deuteronomy 17:18: “After he has taken his seat upon the throne of his kingdom, he shall write for himself a copy of this law in a volume, receiving an exemplar from the priests of the Levitical tribe; and he shall have it with him and read it all the days of his life, so that he may learn to fear the Lord his God and to keep his words and ceremonies which have been commanded in the law. Let not his heart be raised in pride above his brothers, nor let him turn aside to the right or the left, so that he and his son may reign for a long time over Israel.”
Most nations followed God in this matter and committed civil laws to writing. For although Sallust defines right as civil equity either sanctioned by written laws or received in institutions and customs, and most distinguish custom from law in such a way that law is written while custom is ἄγραφος, unwritten, nevertheless this has not been deduced from the nature of laws, but from the practice of states, which have published all laws in writing and maintain customs without writing. Hence Isidore admonishes in book 2 of the Etymologies, chapter 10: “The difference between law and custom is that law is written, whereas custom is a usage approved by antiquity, or an unwritten law.” And in book 5, chapter 3: “Law is a written constitution; custom is an unwritten usage approved by antiquity.” For most laws not only are written but also ought to be written, although without writing they too contain the nature of law.
§ 2. In the Roman state writing was required for a law. For a magistrate who was to propose a law first weighed it himself at home in written form and summoned into consultation those skilled in law and customs. Next, he referred the question of its enactment to the senate or people. Third, he posted it in public—or published it beforehand, as Festus says—so that it could be inspected, assessed, and judged by anyone. The interval during which the examination of the law continued was a trinundinum, that is, twenty-seven days. Fourth, they recommended or opposed it and commanded that it be law, and this in writing with the letters V. R., that is, uti rogas, “as you propose”; or that it not be law, with the letter A., that is, antiquo, “I reject it in favor of the old.” After the law had been accepted, all confirmed it by oath. Finally, it was cut into bronze, and the tablets were either displayed in public or deposited in the treasury. Roman laws, therefore, were not without writing. Hence some deny that a measure is law in the Roman Empire if it has not been written—a view which the emperor also seems to hold in the Code, On Laws, law Humanum. This practice is certainly so customary that a prince must deservedly be said to act imprudently if he promulgates a law without writing.
§ 3. The matter about which law treats consists in the actions of those who use reason and free choice. For whatever can be governed by some norm is capable of law. Various matters concerning this will occur throughout the whole book; for now I wish these few observations to be noted.
In general, therefore, laws command or forbid human acts, and civil laws are occupied with no other matter. But the actions of human beings are manifold—praiseworthy, depraved, or indifferent—and they are as many and varied as the chorus of virtues is great and the chaos of vices. Next, some actions are conceived in the mind and will alone; the work of others appears in words and deeds. Third, the performance of some works is ordinary and easy, but that of others rare, difficult, dangerous, horrifying, and full of torment. Concerning these I judge as follows.
§ 4. No civil law can command or defend any evils, even if pseudo-statesmen proclaim that this is necessary for the state. Thus civil law either forbids an evil or commands nothing concerning it, but wholly disregards it. Machiavelli therefore destroys the state when, for its protection, he admits crimes into the fellowship of the virtues as though they were useful. Sylvester asserts, under the word Law, § 10, that there are many unjust laws.
First, those laws which permit the son of one full brother to contract marriage with the daughter of another full brother, as in the Institutes, On Abduction, § Inter eas, and in the Code, On Nuptials, law Nemini; because according to the law of God such persons must be separated entirely: On Consanguinity and Affinity, Non debet, and 35, question 3, Progeniem.
Second, those laws which say that an abducted girl cannot contract marriage with her abductor, Code, On the Abduction of Virgins, sole law; because today she can do so according to the canons, On Abduction, final chapter, although according to the ancient canons she could not.
Third, those laws which permit an unmarried man to keep an unmarried woman as a concubine, as in the Authenticum, By What Modes Natural Children Are Made Legitimate, § Si quis; because according to the law of God even simple fornication is a sin and excludes one from the kingdom of God, 1 Corinthians 6.
Fourth, those laws which permit a husband to kill the adulterer of his wife when caught in adultery, if he is a lowly person and one to whom reverence is not owed: Digest, On Adulteries, law Marito, law 1, and law Si adulterium; whereas today, under the new law, he can kill him not only when caught in adultery, but anywhere after three denunciations, as in the Authenticum, That It Be Permitted to the Mother and Grandmother, penultimate and final sections. And those laws which permit a father who has his daughter under his power to kill the daughter’s adulterer when he is committing fornication in his own house or that of the son-in-law, and to kill the daughter herself: Digest, On Adulteries, laws Pater and Non in ea; and even one found engaged in sexual preliminaries, by law Quod ait, Digest, On Adulteries, which according to the Gloss are things antecedent to the crime—namely preparations, conversations, an appointed place, banquets, kisses, and touches; and Bartolus holds the same. Likewise concerning a brigand and a plunderer of fields. For according to the law of God none of these killings is permitted, according to Exodus 20, “You shall not kill”; concerning which see also Homicide 1, § 2, part 5.
Fifth, those laws which condemn a man who retains a wife caught in adultery: Code, On Adulteries, laws Crimen and Castitati; because according to the law of God and canon law he can retain her without penalty, provided that she is willing to withdraw from adultery, 31, question 1, § Obauditur.
Sixth, those laws which permit repudiation of a wife and dissolution of a marriage duly contracted in many cases, especially in the case noted in chapter Lege, distinction 10, and 27, question 2. There are those who say that these laws are unjust because this is prohibited in those same chapters.
Seventh, those laws which condemn a wife who marries within the period of mourning for her husband—that is, within one year—to infamy and many penalties: Code, On Second Marriages, laws 1 and 2; because the Apostle says that a woman may marry whom she wishes, On Second Marriages, chapter 1, at the end, where Innocent notes that all penalties which are only for her punishment are remitted to her. It is otherwise if something thereby accrues to others, as Lord Antonius de Butrio declares more fully
in the same place, saying that penalties founded upon hatred of second marriages or upon the haste of the transition have been corrected, as in the cited final chapter, because contracting marriage is neither hateful nor forbidden but permitted by the Apostle. Those penalties, however, which are founded upon favor toward the first marriage still endure. Thus, if a mother obtains anything intestate or by testament from any of the children of the former marriage, she has only the usufruct of it while she lives, while ownership remains with the children of the same marriage if any survive; if none survive, she obtains the full right, as in law Feminae, final section, On Second Marriages. Add that the penalties established in favor of children and on account of the mother’s fault remain. Thus the law imposes a penalty upon a mother who has acknowledged the guardianship of her son and passes to second vows without requesting a guardian for her son, as in law Omnem matri, Code, To the Tertullian Decree of the Senate.
Eighth, those laws which say that a spurious son is not to be maintained, as above, Son, § 4.
Ninth, those laws which say that an heir, if he has not made an inventory, is liable for all the debts of the deceased; the contrary of this was stated above, Inheritance 3, § 5.
Tenth, those laws which say in certain cases that an heir is not liable for the wrongdoing of the deceased; because, as is evident above in the same place, he is liable for all his debts, even those arising from wrongdoing, insofar as the inheritance suffices.
Eleventh, those laws which will that a bequest in a last will is not valid unless it has seven or five witnesses: Code, On Testaments, law Si unus and the final law; because according to the law of God, three or even two witnesses suffice in bequests for pious causes, On Testaments, chapters Cum esses and Relatum.
Twelfth, those laws which say that a human being is not bound by a promise in a bare pact without another solemnity of law, since no action arises from it: Digest, On Pacts, law Iuris gentium; because according to the law of God and the canons one who withdraws from a pact sins mortally, Extra, On Pacts, chapter 1; 22, question 5, Iuramenti, together with the notes there. The same applies if I make a promise to one person receiving it on behalf of another, because according to the law of God I am bound, but not according to the civil laws—unless the promise has been made to a person existing under another’s power, such as a slave or a son under paternal power, or to a procurator or manager of affairs; because through these persons an acquisition is validly made for the father and master: Institutes, Through What Persons Obligations Are Acquired for Us, throughout, and the Digest and Code, On Procurators and On the Management of Affairs.
Thirteenth, those laws which allow or permit deception between buyers and sellers, according to what was stated above under Purchase 7.
Fourteenth, those laws according to which it is not permitted to buy or sell, for a price less than the principal debt, rights and actions which someone has against another; otherwise the purchase is not valid, nor can more be sought than the amount which was paid. Nor can such rights be sold in part and donated in part: Code, Mandati, law Per diversas and law Ab Anastasio. But according to the law of God such a purchase is permitted, provided that it is not made as a fraudulent cover for usury, but on account of the interest or labor which may perhaps be involved in recovering the debt, or because it is feared that the debtor may flee or fall into poverty. But concerning this see below, Usury 2, § 1.
Fifteenth, those laws according to which a possessor in bad faith acquires by prescription over the longest period, that is, thirty or forty years; because this is false according to canon law, Extra, On Rules of Law, chapter Possessor, book 6. See below, Prescription.
Sixteenth, those laws which as a rule do not punish the crimes of thoughts: Digest, On Penalties, law Cogitationis; because every evil thought must be punished either by God or through penance, 33, question 2, Omnis.
Seventeenth, those laws which, although they punish magicians and poisoners, nevertheless reward according to their provisions those who have done these things against rains, winds, and hail: Code, On Evildoers, law Eorum; because according to the law of God, to do such things even in this manner is a most serious sin, as St. Thomas proves in II–II, question 96.
Eighteenth, those laws according to which it is lawful in a capital case to corrupt the accuser: Digest, On Collusion, final law; because according to the law of God this is not lawful, II–II, question 69.
Nineteenth, those laws which permit usury; but today they too have all been abrogated by the laws, as below, Usury, § 1, question 1, just as those laws which punished a woman in a brothel, as St. Thomas says. It would be easy to show that there are very many more inequitable laws in every kind of matter, although some of these seem capable of being excused.
§ 5. Civil laws are indeed chiefly occupied with justice, but nevertheless they also embrace the matter of all the other virtues. For they regard chiefly the public good and human concord and happiness in the city, for which justice is especially necessary. Augustine, book 2 of The City of God, chapter 27: “At the end of the second book Scipio had said that, just as a certain harmony composed of distinct sounds must be maintained in stringed instruments and pipes, and in song itself and voices—a harmony which trained ears cannot bear when it has been changed and become discordant—and yet that harmony is rendered concordant and congruous by the modulation of the most dissimilar voices, so a city, by a regulated proportion among the highest, middle, and lowest orders interposed like sounds, harmonizes through the consent of the most dissimilar persons; and what is called harmony by musicians in song is concord in the city, the closest and best bond of preservation in every state, which can in no way exist without justice.” Law also strengthens and fortifies the other virtues and excludes vices. Aristotle, book 5 of the Ethics, chapter 1: “Law commands the performance of the offices of a brave man, such as holding one’s position and rank in the battle line, and neither fleeing nor casting away one’s arms; and those of a temperate man, such as not committing adultery or violating anyone; and those of a gentle and mild man, such as striking no one and reviling no one. Likewise in the other virtues and vices, partly by commanding and partly by forbidding: rightly, indeed, in the case of a law enacted rightly and salutarily, but wrongly in the case of one enacted negligently and inconsiderately.” The strongest rationale is taken from the end, for the purpose of law is to make its citizens happy, which cannot be brought about in any other way than through the observance of all the virtues, as was demonstrated in the second and third books. Next, so many military and sumptuary laws and others which regard the public utility demonstrate this. Thus there is no act of any virtue which cannot sometimes be commanded by an enacted law. Civil law can also forbid all sins; but because it accommodates itself to a community in which not all things can be punished—and therefore it is not fitting that all things be forbidden—it disregards certain things, not by approving them, but because human power is unequal to human vices. Nevertheless, all are forbidden by natural and divine law, because God can both know and punish all things.
§ 6. Not every determination of good works is the matter of civil law, for civil law cannot command arduous fasts or perpetual chastity. Nevertheless, such a work can accidentally be the object of law, as when those things are commanded which demand works of this kind or cannot be accomplished without them.