Chapter V. The Legislator Is a Magistrate or the Whole State

§ 1. It has never entered anyone’s mind to doubt that the divine majesty, to whom belongs supreme right over all creatures, can establish laws according to his own judgment. For to him to whom belongs the power of creating belongs also the whole jurisdiction of governing. “Behold, God is exalted, and there is none like him among legislators,” Job 35:22. His goodness in enacting law is also supreme, concerning which the Prophet sang: “For the legislator will give a blessing; they will go from virtue to virtue; the God of gods will be seen in Zion.” All ought to venerate his law; no one ought to judge it. “But if you judge the law, you are not a doer of the law but a judge. There is one legislator and judge, who can destroy and deliver,” James 4:11.

§ 2. Most of the human beings who first founded states by laws either received laws from God or falsely claimed to have received them. Abraham and Moses, instructed by divine conversations and oracles, gave laws to their posterity. In emulation of them, the ancient νομοθέται, legislators, by a fraudulent fiction of religion referred the invention of new laws either to the true God or to fictitious deities.

Jeroboam attempted to found a new kingdom by superstition. Numa feigned nocturnal meetings with Egeria. Plutarch, Numa; Dionysius of Halicarnassus; Valerius Maximus, book 1, chapter 2. Lycurgus deceived the Spartans and Cretans by the same art: at Lacedaemon he pretended that Apollo was the author of the laws, but in Crete, Jupiter. Minos did no differently, for by withdrawing into a cave each new year he pretended that he was instructed by Jupiter’s admonition. Nor is it necessary to recount ancient examples. Superstition created Muhammad’s power, which he nourished with domestic blood and the destruction of nations. But in the book concerning religion I taught that those frauds always ended badly. Zoroaster, who put forward Oromasdes as the author of his laws, learned by experience that he had been an unsuccessful legislator. Trismegistus persuaded the Egyptians that Mercury gave them laws; and it is certainly credible that the demon who commanded such great and such ridiculous evils was most frivolous. Zamolxis likewise claimed that the laws which he gave to the Scythians had been received from Vesta. The Carthaginians claimed Saturn; the Athenians, the most cultivated of peoples, boasted rather than believed that Minerva was the author of their laws.

They therefore judged it a divine matter to enact law for human beings. For since human beings are free by nature, and no one—if you regard the first beginnings of birth and life—is subject to another, and since they are also tenacious of liberty and of their own right, it certainly seemed difficult and almost tyrannical for anyone to impose his own laws and for an equal to exercise power over equals. They therefore referred the authority of laws to some nature more sacred and divine. But they would have acted more rightly if they had taught that magistrates are necessary to the state and that, as a consequence, the power of establishing laws has been granted to magistrates. For since that superstition cannot be lasting and does not hold all persons equally, it also detracts esteem from the true authority of legislators. Every pretense, when it is exposed, does harm twice, for it detracts credibility both in the present and for the future.

§ 3. A private person cannot be the maker of laws; it is necessary that it be either the whole state or a magistrate. At present this belongs properly to the magistrate. For no one can bind anyone by his own laws except a subject. Political or civil dominion is required for commanding. The power of coercing and of sanctioning the observance of a law by penalties is also required, and this cannot exist in a private person. It can exist without jurisdiction strictly so called; for someone can enact a law although he lacks the power of judging, and one who lacks the power of establishing laws can judge.

§ 4. The power of establishing laws resides by nature in the state itself, or in the multitude of human beings, not in any one person. For the opinion of certain canonists who attributed this power by nature to the supreme prince and his successor has long since been rejected. The state itself, therefore, alone possesses by nature the right of its own government and laws. It can therefore establish laws and set a magistrate over itself, and it can also confer upon him the power of establishing laws. Thus St. Thomas, question 90, article 3, and question 97, article 3; Molina, volume 1, Institutes, treatise 2, distinction 22; Bellarmine, volume 1, book 3, On the Laity.

Clear reason demonstrates this, for it cannot belong to any one person to undertake care of the multitude. No one has power over another except by the other’s will or offense. Nor is that power owed to old age, primogeniture, or paternal right. Nevertheless, it resides in the state itself because the state cannot be governed without laws and an order of right. Nothing is more certain if you read title 2 of book 1 of the Digest, for the laws were first made by the people; then that power was transferred to the senate; finally, to Caesar. It therefore seems necessary to us to demonstrate the origin and development of right itself.

1. At the beginning of our city, the people first began to conduct affairs without fixed law and without fixed right, and all things were governed by the hand of the kings.

2. Later, after the city had increased to some degree, Romulus himself is said to have divided the people into thirty parts, which he called curiae, because at that time he administered the care of the state through the judgments of those parts. Thus he himself proposed certain curiate laws to the people. The succeeding kings also proposed laws, all of which remain compiled in the book of Sextus Papirius, who lived in those times in which Superbus, the son of Demaratus the Corinthian, was among the foremost men. That book, as we have said, is called the Papirian civil law—not because Papirius added anything of his own to it, but because he brought together into one collection laws enacted without order.

3. Next, after the kings had been expelled, all these laws fell out of use through the Tribunician Law. The Roman people again began to be sustained more by uncertain right and custom than by enacted law, and endured this for nearly twenty years.

4. Afterward, lest this continue any longer, it was resolved by public authority that ten men should be appointed, through whom laws might be sought from the Greek cities and the city founded upon laws. They set these laws, written upon ivory tablets, before the Rostra so that the laws might be perceived more openly. Supreme right in the city was given to them for that year, so that they might both correct the laws, if necessary, and interpret them; and no appeal from them was permitted, as it was from the other magistrates. They themselves observed that something was lacking from those first laws, and therefore in the following year they added two others to the same tablets. Thus, from this circumstance, they were called the laws of the Twelve Tables. Some have reported that a certain Hermodorus of Ephesus, an exile in Italy, was the adviser to the decemvirs in enacting them.

5. After these laws had been enacted, it began to happen, as naturally occurs, that interpretation and the disputation of the forum, necessary through the authority of prudent men, were desired. This disputation,

and this right, which came without writing and was composed by prudent men, is not called by any proper designation, as the other parts of right are designated by their own names; rather, it is called by the common name civil law.

6. Next, at nearly the same time, actions by which human beings might litigate with one another were composed from these laws. Lest the people institute these actions as they wished, it was willed that they be fixed and solemn. This part of right is called actions of the law, that is, lawful actions. Thus at nearly the same time these three forms of right arose: the laws of the Twelve Tables; the civil law which began to flow from them; and the actions of the law composed from the same. Nevertheless, both the knowledge of interpreting all these laws and the actions were in the possession of the college of pontiffs. From among them one was appointed each year to preside over the affairs of private persons, and the people employed this custom for nearly one hundred years.

7. Later, when Appius Claudius had published these actions and reduced them to form, Gnaeus Flavius—his scribe and the son of a freedman—stole the book and delivered it to the people. That gift was so pleasing to the people that he became tribune of the plebs, senator, and curule aedile. This book, which contains the actions, is called the Flavian civil law, just as the former book is called the Papirian civil law; for Gnaeus Flavius added nothing of his own to the book. As the city increased, because certain kinds of proceeding were lacking, not long afterward Sextus Aelius composed other actions and gave the people a book which is called the Aelian law.

8. Next, when the city possessed the law of the Twelve Tables and civil law, and also possessed the actions of the law, it happened that the plebs came into discord with the Fathers, seceded, and established rights for itself, which are called plebiscites. Soon, when the plebs had been recalled, because many dissensions arose concerning these plebiscites, it was resolved by the Hortensian Law that they too should be observed as laws. Thus it came about that a plebiscite and a law differed in the form of their establishment, but their power was the same.

9. Next, because it began to be difficult for the plebs to assemble—and certainly much more difficult for the people amid so great a crowd of human beings—necessity itself transferred the care of the state to the senate. Thus the senate began to interpose itself, and whatever it established was observed. This right was called a decree of the senate.

10. At the same time the magistrates too administered justice. In order that citizens might know what right each magistrate would pronounce concerning every matter and might prepare themselves, the magistrates published edicts. These edicts of the praetors constituted honorary law. It is called honorary because it came from the praetor’s honor, or office.

11. Finally, as the course of establishing right seemed, under the compulsion of circumstances themselves, to have passed to fewer persons, it gradually happened that it became necessary for the state to be provided for by one man; for the senate could not administer all the provinces equally well. Therefore, when a prince had been established, the right was given to him that whatever he established should be valid.

12. Thus in our city a rule is established either by right—that is, by statute—or it is civil law properly so called, which, without writing, consists solely in the interpretation of prudent men; or there are actions of the law, which contain the form of proceeding; or a plebiscite, which was established without the authority of the Fathers; or an edict of the magistrates, from which honorary law arises; or a decree of the senate, which is introduced solely by the senate’s establishment, without a statute; or a constitution of the prince, that is, a provision that what the prince himself establishes is to be observed as law.

§ 5. The custom of all kingdoms is that the supreme prince can establish new laws and abrogate old ones. Nevertheless, this is not necessary to supreme jurisdiction, for precept, government, and coercion are one thing, and law another. Thus, although this is customary and it could scarcely be done rightly in another way, supreme power and the faculty of establishing laws are not perpetually joined. For a magistrate will be able to govern the state and coerce the wicked according to laws enacted long ago. When the state chooses a king, it can, if it pleases, retain this greatest right for itself, so that he may neither establish new laws nor abrogate old ones. Indeed, many kings swear to the laws when they receive the diadem; thus they cannot abrogate those laws which they bind themselves by oath to preserve. If, therefore, a prince can be bound not to violate or abrogate old laws, who would doubt that the same prince can be bound not to impose new ones? For there is no less danger in the establishment of new laws than in the abolition of old ones, both because everything new is burdensome to many and because, by a new law in a state which possesses many laws, some old law is ordinarily derogated from. This practice became so customary that a clause was placed in every sanction of laws and was, as Cicero calls it, a customary clause transferred from old laws into new ones.

Cicero, book 3, Letter 23 to Atticus: “The second section is the customary one, concerning immunity if anything has been done contrary to other laws for the sake of this law. My Pomponius, consider by whose counsel and by whom the third section was pressed in; for you know that Clodius sanctioned his law in such a way that it could scarcely, or not at all, be invalidated either by the senate or by the people. But you see that the sanctions of laws which were abrogated have never been observed. For if this were so, scarcely any law could be abrogated, since there is none which does not surround itself with the difficulty of abrogation. But when a law is abrogated, that very provision prescribing the manner in which it must be abrogated is abrogated. Since this is in fact so, our eight tribunes of the plebs inserted this section: ‘If anything is written in this proposal which by the laws and plebiscites—that is, by the Clodian Law—it is not or has not been lawful to promulgate, abrogate, or derogate from without personal liability; and if on this account a penalty or fine lies against him who has promulgated, abrogated, or derogated from it, concerning this nothing is proposed by this law.’”

Thus it will have been placed within the power of the state establishing a prince either to grant the prince the power of establishing laws or not to establish them, or to moderate that faculty so that he is permitted to establish some laws and forbidden to establish others. And that power ought altogether to be tempered and not exercised without the consent of others or mature deliberation. For there are never lacking persons who desire to increase private advantages through new laws.

§ 6. Nevertheless, because new controversies arise every day, and because through continual changes it frequently happens that laws which were salutary at the beginning are rendered harmful by some circumstance and must be removed, it has come about that nearly all states have granted this right to princes or senators. Thus monarchical power—whether it is called imperial, royal, or by any other name—provided that it is absolute, will possess in a well-constituted state the right and authority to establish, explain, and abrogate laws. For the state subjects the laws themselves to the emperor and king when it receives him as, in a manner, an animate law. Hence the power of granting privileges has also been conceded to the prince, by which the common law is always derogated from. Certainly all princes, even those who are not supreme, employ this right. For who among the nobles of Germany does not sometimes remit a penalty owed under imperial laws? Who does not mitigate it? Indeed, he sometimes aggravates it when the atrocity of an offense in a crime so demands. But he could not do this unless he possessed the power of tempering the law itself. Thus, when the state gave him the principate to be administered according to the laws,

it is judged also to have given him the faculty of showing mercy. John de Salas judged this matter excellently in disputation 7 On Laws, section 3: “I say fifth that some were without doubt established specially by God as kings and princes with legislative power. Unless an exception is expressed, legislative power is always understood to be granted to kings and princes. This is evident concerning Saul and David, whom God established as kings, although Samuel anointed them and the people accepted them. But although God granted Moses, Joshua, and certain other judges and leaders judicial and military power, I do not know whether God gave some of them—such as Moses and Joshua—legislative power. I am certain that the other judges did not possess it, because they were not leaders and could command nothing except in relation to rendering judgments and sentences.”

We must not therefore think that, when an association of human beings comes together as one and chooses a prince for itself, legislative power is also conferred upon him by God as though by a natural direction and consequence. Rather, that power is given only to the community itself as a property consequent upon nature. For when that body has been constituted, the necessity of right and laws, and therefore power, naturally arises; and it is communicated to the prince according to the will and usage of the state.

§ 7. This power cannot be taken away from any association without injury, unless the association itself has given cause. For just as a human being who uses reason is free by nature and cannot be dragged into servitude without the crime of kidnapping, so neither can this political body be deprived of its own right. Therefore a tyrant is more detestable than a kidnapper in proportion as he wickedly oppresses more persons. Nevertheless, a state can be stripped of its right on account of an offense if it abuses that right, attacks its neighbors, or refuses to render justice to those who seek it—just as in any private person the abuse of liberty is punished by servitude. For the public abuse of liberty is more harmful than a private abuse.

§ 8. The power of establishing law, all civil jurisdiction, and the government which either a part of the multitude or one person possesses over the multitude flow from the community itself; nor can they be just in any other way, except over those captured in war. For since that power is from God, and therefore from nature, in the association—not in individuals and not in a particular class of human beings—it cannot pass either to one person or to certain persons without the will of the others. For I am not treating kings established by God through revelation.

Not only does the first of a line of kings receive the diadem from the people, but all his successors do as well, since the people granted the right of succession.

§ 9. No civil law can bind the whole world, because no one is lord of the universe. Bartolus is mistaken at law Hostes, π., On Captives, when he condemns as guilty of heresy one who denies that the emperor is lord of the world—unless someone should perhaps wish to interpret this as referring to the Roman world. Yet even so I would not wish it to be called a heresy. Nevertheless, Panormitanus, part 2, counsel 6, number 2, Paulus Castrensis, and others hold the same opinion. But very many writers, together with history and geography themselves, teach that it is false; for the Roman never possessed even a tenth part of the world, even when he crossed the Euphrates and recovered the standards from the Parthians. Nor can a Christian emperor establish civil laws for all Christians; for although he is the supreme head of the state in temporal government and is held in the greatest honor among kings, he is nevertheless not the lord of kings.

§ 10. Just as no greater power of establishing laws has been given to supreme governors than was given by the Royal Law—that is, by the consent of the state—so no power belongs to princes and others established under a king except by permission of the supreme prince. This power is extensive for electors and others in Germany but restricted in Spain, for no one except the king can enact laws unless it has been conceded to him by a special privilege. The cause of the difference in law is the less dependent jurisdiction of the princes.

§ 11. The power of establishing and abrogating laws is deservedly judged the foremost among the heads of majesty. For he to whom that faculty has been conceded possesses the right of majesty; one who lacks it is not judged to possess the right of majesty. Deservedly so, for the power of establishing laws is such that it can easily change the whole state and transform it into another form. Augustus accomplished this most artfully by retaining the names and ceremonies of the magistrates while drawing right and power to himself. Thus, in a short time, governors and free magistrates were made slaves clad in purple.