§ 1. At the beginning the Roman city possessed few laws, as did all states at their origin; afterward, as morals declined toward worse things, the laws increased together with the vices themselves. Certainly very few laws of Romulus and the other kings are enumerated, although it is probable that they were in great part abolished through disuse and hatred of the kings. The laws of the Twelve Tables followed; from them law was pronounced for a very long time and with great constancy, as Cicero in the Brutus and On the Laws, and others, demonstrate.
Afterward, when the city and likewise lawsuits had increased, there was added the praetorian volume of edicts. Servius Sulpicius, most learned in law and justice, wrote two books On the Praetorian Edict, for so they called that book, and left nearly one hundred and eighty books. Yet Aulus Ofilius appears to have composed the Edict most diligently. But even then they labored under laws and vices. For Julius Caesar intended to reduce the civil law to a definite form and from the immense and diffuse abundance of laws to bring together all the best and necessary provisions in very few books. Thus even then there were many books and laws, which wicked human beings abused for sowing discord and lawsuits.
Vespasian followed, who had some regard for justice. For from Augustus down to him a certain rage for accusing, calumniating, and overturning everything had grown strong. When the succession of lawsuits had everywhere increased so greatly that, as Suetonius says, the lifetimes of the litigants scarcely appeared likely to suffice for completing them, Vespasian chose by lot persons to decide extraordinarily and reduce to the shortest number those cases.
But justice was tossed violently until the time of Hadrian. For the praetors possessed great and almost excessive power: they published edicts and pronounced law according to them. Yet there was great care for justice, because soon afterward they could be accused of injuries and punished by law if they had issued an inequitable edict or judgment. But through civil wars and then the rule of monsters among human beings, the license of the praetors became more unpunished, because those who held power were companions of thieves. The chief occasion for wrongdoing was that law was pronounced variously. Hadrian therefore approved the labor of the jurist Salvius, who composed the Perpetual Edict, and commanded the praetors to pronounce law from it. Nevertheless, codes of laws were soon added in no smaller number. Indeed, the opportune subtlety of interpreters increased. Gaius, Domitianus, Ulpian, and Paul published commentaries upon the Perpetual Edict. Paul wrote eighty books and Ulpian eighty-three.
It was the labor of most learned and most judicious men, but by its own mass it oppressed justice and gave pettifoggers and subtle pleading an occasion for injuries. A substantial witness to this matter is Justinian himself, who declares that the Perpetual Edict had been confused by the commentaries of interpreters. Having been taught by this evil, he wished to provide that his own Pandects not be burdened by additions of commentaries.
§ 2. Justinian’s care was foremost in this kind, and the multitude of laws gave him the reason for establishing them anew. For he writes thus to Tribonian: “Since nothing in all affairs is found so worthy of study as the authority of laws, which disposes both divine and human matters well and expels all inequity, and since we have found the whole course of laws descending from the foundation of the city of Rome and the times of Romulus so confused that it extends to infinity and is comprehended by no capacity of human nature, our first concern was to begin from the most sacred former princes, to amend their constitutions, and to hand them down by a clear way, so that, gathered into one Code and freed from every superfluous similarity and most inequitable discord, they might offer to all human beings the ready protection of their integrity.”
How great an abundance of frauds must there credibly have been where no human being could comprehend the multitude of laws? Justinian therefore acted excellently—if his other deeds had followed that measure.
And in the confirmation of the Digest addressed to all peoples: “Something wonderful has emerged from these books: the ancient multitude is found smaller in comparison with the present brevity. For persons who formerly conducted lawsuits, although many laws had been established, nevertheless carried their lawsuits through from a few of them, either because of the scarcity of books, which it was impossible for them to obtain, or because of ignorance itself; and lawsuits were decided more by the will of judges than by legitimate authority. But in the present completion of our Digest, laws have been collected from so many volumes that persons of former times—not merely, we say, did not know their names, but had never even heard them. All these have been collected and the most ample substance assembled, so that the ancient multitude is indeed found poor, but our brevity is rendered most wealthy. The excellent man Tribonian supplied especially the abundance of books of ancient wisdom, among which many were unknown even to the most learned human beings. When all had been read, whatever was most excellent in them was separated and passed into our best compilation. But the makers of this work read not only the volumes from which laws were placed; they also read many others and, finding in them nothing useful or new which they might extract and apply to our Digest, rejected them with excellent judgment.”
And to the great Senate: “Freed, namely, from the former disturbance and confused and endless establishment of law, they will hereafter employ laws which are upright, concise, ready to everyone’s hand, bring an abbreviation of lawsuits, and are prepared and exposed for easy acquisition by all who wish it. Nor will they any longer need great sums of money to collect a multitude of those useless books; rather, at the lowest price, the laws offer the means of obtaining themselves both to the richer and to those setting out from a more slender patrimony.”
The emperor taught how great the multitude was in the preface to the Pandects: “Formerly, as your prudence knows, from so great a multitude of laws—which extended to two thousand books and three million lines—students received from the voice of their teacher nothing other than merely six books, themselves confused and very rarely containing useful laws, while the rest were already obsolete and inaccessible to all.”
§ 3. There were therefore always persons who increased the laws, as can be seen in the history of law concerning professors and jurists. When their study and industry increased beyond measure, others reduced the confused prolixity to the brevity of the ancients.
That multitude nearly fell silent when Asia had been occupied by barbarians, Africa alienated from the empire, and kingdoms established in Europe. Lothair restored it to use. And now Germany is nearly submerged in the great multitude of laws and lawsuits.
That multitude is therefore harmful, since the work of those who cut it back is especially approved. I esteem highly the makers of laws, priests of sacred Themis; but if the emperor, employing the most learned jurists and the authority of the princes, restored this great chaos to order and transparent brevity, I would call him the savior of the state and father of the fatherland. To follow the examples of so many princes is glorious and necessary for the fatherland, which now spends more upon lawsuits than upon wars—lawsuits not to be ended, but to be continued, made harsher, quieted to the loss of the parties, or perpetuated.
§ 4. A multitude of laws is a witness to corrupted morals. For just as it is agreed that diseases existed before remedies were sought, so crimes and injuries harassed a city before laws were sanctioned by which wickedness might be opposed. Thus Demosthenes speaks in oration 2 On Laws: “The diseases which befall bodies are healed by the industry and aid of physicians; but the judgments of legislators repel and cast out the savagery of minds.” Where there are innumerable laws, therefore, innumerable crimes must have preceded them.
Seneca prudently explained this in Letter 95: “That ancient wisdom was without doubt, as you say, crude when it was first arising, no less than the other arts whose subtlety increased in their progress. But there was not yet any need for carefully devised remedies. Wickedness had not yet risen so high or spread so widely. Simple remedies could oppose simple vices. Now the defenses must be more elaborate in proportion as the things by which we are attacked are stronger.
“Medicine was once the knowledge of a few herbs by which flowing blood might be stopped and wounds gradually close. Afterward it arrived at such manifold variety. Nor is it surprising that then it had less business, when bodies were still strong and solid and their food simple, not corrupted by art and pleasure. After food began to be sought not to remove hunger but to irritate it, and a thousand seasonings were invented by which appetite might be aroused, things which were nourishment to the hungry became burdens to the full.
“Hence pallor and the trembling of sinews soaked with wine, and a wasting more pitiable from indigestion than from hunger; hence the uncertain feet of those who stumble, and a constant reeling like that of intoxication itself; hence fluid admitted beneath the whole skin and the distended belly, while it becomes badly accustomed to receive more than it could hold; hence the suffusion of livid bile, a discolored countenance, the wasting of those rotting within themselves, twisted fingers with stiffening joints, the numbness of unfeeling sinews, or palpitation without interruption. Why should I mention dizziness of the head? Why the torments of the eyes and ears, the crawling sensations of a fevered brain, and all the parts through which we discharge waste afflicted with internal ulcers? Besides these, there are innumerable kinds of fevers, some raging with violence, others creeping with a subtle pestilence, others coming with shivering and a great shaking of the limbs. Why should I recount the other innumerable
diseases, the punishments of luxury? Those who had not yet dissolved themselves in delights, who commanded and ministered to themselves, were free from these evils.”
Against those monsters of diseases medicine arms itself; against crimes laws are established. And just as symptoms are aggravated by the multitude of physicians, so injuries are renewed by the variety of laws. Health is certainly restored by few medicines or none. Variety disorders all the viscera.
§ 5. A multitude of laws produces innumerable lawsuits. Plato speaks most truly: ὅτι παρ’ οἷς πλεῖστοι νόμοι, καὶ δικαστήρια τέτοια, καὶ βίοι μοχθηροί. Among those who possess the greatest number of laws, there are also lawsuits and likewise depraved morals. But why do laws—good laws, laws invented by the most skilled persons for ending lawsuits—generate new lawsuits? The laws are good and holy, but they are employed by depraved persons for injury. Where there are many laws, this cannot humanly happen otherwise.
First, human weakness is unequal to learning, remembering, or even understanding them all. For which advocate or judge, much less procurator, could not only embrace in memory two thousand books and three million lines, but compare them with one another, prefer one law to another, and adapt the efficacy of each to recollection and action?
Hence many, even the most skilled, must be ignorant of their own right; when that right occurs to the mind of another, it wins the case. Hence the slow progress of jurists; and when they are summoned from the schools to practice, they are regarded as though untrained in the laws. Third, the multitude is loved by those who are nourished and enriched by lawsuits. Just as wasting disease sets prices for physicians, so the forum does for them. Their sole concern is to bring forward laws of every kind—even obsolete and inequitable laws and those twisted into a depraved meaning—as did that advocate before Galeazzo, duke of Milan, concerning whom the most learned Lipsius relates in chapter 10 of the Political Admonitions.
What did Galeazzo, duke of Milan, do? When he had several times heard that there was an advocate of so cunning a disposition that he could sow lawsuits and prolong and nourish those already sown even when the law was clear, he summoned the man and addressed him: “I owe my baker one hundred gold pieces. I do not wish to pay. Can you defend me at law and draw out the matter?” He assented freely and readily placed himself at the prince’s disposal. But the prince brought evil upon him: when he had thus confessed his fraud, Galeazzo first rebuked him with words and then commanded him to be killed publicly by the noose.
Milder is what Lipsius relates about James, king of Aragon, who always showed himself hostile to lawsuits and litigants. Among these was Ximén Rada, a distinguished and foremost jurist in that age. Because many complained that they had been afflicted by his subtlety or malice, the king prosecuted him under the law against prevaricators and expelled him from the boundaries of the kingdom.
Everyone sees that persons of this kind must be restrained seriously. Having followed an honored art of plundering, they provide everyone assistance and courage for thefts which are safe and near to justice. They are far more harmful than open enemies, for without danger to themselves they make an assault upon the fortunes of others. More persons in the Roman Empire are stripped of property under the appearance of law than formerly by war. The old complaint is:
The rage of arms and power of the sword press near;
It will confound every right by force, and a wicked crime
Will bear the name of virtue and endure through many years.
Our complaint is:
The dark rage of the forum and the power of laws press near;
It confounds every right by the pen, and a wicked crime
Will bear the name of virtue.
There is another cause why laws are causes and nurses of lawsuits. Amid so great a multitude and so great a diversity of customs, those who enact new laws cannot remember the old. They must therefore be contrary, or at least ἀσυντάκτους, inconsistent with one another. Or if they do not conflict with one another, nevertheless very many are ἐναντιοφανεῖς, apparently contradictory, and appear to conflict. Justinian testifies that in his time there were many contrary laws. In the letter concerning the making of the new Code addressed to the senate of the city of Constantinople, he says that he specially entrusted John, Leontius, Phocas, Basilides, Thomas, and Tribonian to compose from the same three codes and the new constitutions laws which were certain and written in concise speech, and to place them under suitable titles. They were to cut away prefaces as superfluous as far as the solidity of the laws was concerned, together with similar and contrary provisions, except where they might be aided by another division of law, and also provisions which had passed into disuse. They were to add some things and remove others, and even change their words where convenience required it; to collect into one sanction provisions dispersed throughout various constitutions; and to render their meaning clearer, yet so that the temporal order of the constitutions might become clear not only from the added dates and consuls but also from their very composition.
Yet he does not dare to assert that his own laws are altogether free from defects. For in the letter to the senate and all peoples he says: “No contrary provision placed in this Code will claim a place for itself, nor will one be found, if someone with a subtle mind examines the reasons for the diversity. Rather, something new has been discovered or placed there secretly which dissolves the complaint of dissonance and introduces another nature escaping the bounds of discord.”
He certainly totters and is anxious about antinomy, and scarcely any jurist has solved this knot. Cujas attempts it. He says that many laws can be brought into agreement if some are referred to the benign right of constitutions and others to the old laws and severe right. I hear and approve the judgment of this most learned man, but I require that when the lives and fortunes of human beings are at issue there be something certain and established. While they litigate, while one presses severe right and another benign right, meanwhile a stranger holds my estate, or in an evil lodging I lament their long-lived disputations.
Why, therefore, do we not remove many lawsuits with one word and establish that among ἐναντιοφανεῖς, apparently contradictory laws, one is valid and the other abrogated? Volumes have already been written concerning laws which appear contrary either in words and meaning or by consequence. Lest lawsuits therefore be perpetual, let the worse of those laws which cannot exist together fall—or even the better, because in war even an indifferent peace is more desirable. The obscurity of many laws also produces immortal lawsuits; there is no reason why it should not be removed.
This certainly can and ought to be corrected. Peter Gregory speaks excellently in book 10: “Finally, in establishing laws there ought to be a manifest decision, not enveloped in obscurity of meaning or doubtful, lest it be capable of containing any snare; for laws ought to be a norm of living for everyone, the ignorant as well as women and children. Right is certain and defined, for over a doubtful matter the law, as rule, ought to remove doubt.”
All therefore rightly require this: that they be able to understand what must be done.
§ 6. This is altogether necessary for peace; otherwise laws hand down not justice but ways of litigating. Hence the subtlety of the schools obstructs not only the wisdom but also the peace and quiet
of the state. The oracles of sacred Scripture are obscure because the knowledge and wisdom of God are unfathomably profound, and the intellects and labors of so many excellent, holy, and learned theologians are the surest proof of this fact. We experience the same in laws: so many thousands of jurists dispute concerning the meaning of laws in universities; so many hundreds fight in the forum, grow hoarse at tribunals, and grow pale in the chancelleries of princes; and yet the mind and true opinion of the law has not yet been discovered.
Hence interpretations of laws have arisen—that is, new law. For it is not the law alone that is debated; rather, the decision of the law is sought from the multitude, dignity, and learning of interpreters. I desire that these ambiguities and labyrinths be dissolved by one utterance of the prince, cutting away the shadows of their winding paths, yet in accordance with the opinion of jurists. Everyone will know not only the law but also its meaning. In this matter I demand mature deliberation together with a clear decision. Emperor Alexander enacted many useful laws by which he removed many useless ones, but he sanctioned none except according to the opinion of twenty jurists. Let the emperor therefore establish what the law says. From this we plainly see that the whole of Europe is embroiled in lawsuits and, what is worse, cannot be released from them. They are perpetuated and are conducted among children’s children as though hereditary.
§ 7. Finally, what cause is so openly inequitable that it does not appear capable of being defended by some law? Laws abolished by custom should therefore be removed; laws which are, or appear to be, contrary should be reconciled either by abrogation or harmonization. The counsel of the most prudent Lipsius is salutary, if it had an executor. I summon Plato again:
εἶεν δὲ οὐκ ἄν ποτε πολῖται φίλοι, ὅπου πολλαὶ μὲν δίκαι ἐν ἀλλήλοις εἶεν, πολλαὶ δὲ ἀδικίαι, ἀλλ’ ὅπου ὡς ὅτι σμικρόταται καὶ ὀλίγισται.
Citizens will never be harmonious or loving toward one another where there are many mutual lawsuits, but where these are shortest and fewest. Note the final words: he wishes lawsuits to be not only few but brief. I agree with you. Where are we now? A lawsuit of some size occupies a Metonic year. This happens through the wrappings of laws and the sordid practices of advocates; those adjournments are for gain and petty profit. One sails through the Symplegades to Colchis and the golden fleece.
Neither Plato nor I blame true counsellors learned in law and justice. We detest plunderers, pirates, and robbers who plunder securely in the forum before the eyes of the city, and we judge that the instruments of fraud and imposture must be removed.
Nor do the princes of Germany now think otherwise, for the complaint concerning reform of justice and tribunals is perpetual. Let all the imperial recesses be examined. Yet amid so great an army of those whom lawsuits nourish, they will not be able to attain this except by equalizing the laws. Weapons against right and equity will always be supplied from the very sanctuaries of justice and the laws.
§ 8. But learned men defend the variety and multitude of their laws by a great and difficult argument. First, the authority of Aristotle is brought forward for this opinion, book 1 of the Rhetoric, chapter α.: “It is therefore most fitting that rightly enacted laws themselves determine whatever they can and leave as little as possible to those who judge.” But if laws must be established concerning very many matters and very few things left to those who will judge, very many laws are necessary.
Thus they turn their consideration to debating whether it is better that a city be governed without laws by the equity and prudence of magistrates and judges, or that everything be distinctly embraced by laws. In this matter I agree with them: laws must indeed be used. Thus Aristotle in the same place. First, because it is easier to find one or a few persons than many who judge rightly and are able to enact a law and establish right. Next, enactments of laws arise from considerations extending over a long time, but judgments are rendered suddenly, so that those who judge find it difficult to possess a right account of justice and utility. And what is greatest of all, the judgment of the legislator concerns neither singular nor present things, but future and universal things; an assembly and a judge judge present and definite things, with which love, hatred, and personal utility are very often joined, so that they can no longer perceive adequately what is true, but personal pleasure or distress obscures judgment. As we were saying, concerning other matters the arbitrator must be made master of as few things as possible. But judgment concerning whether a thing was done or not done, will or will not occur, exists or does not exist, must altogether be left to the arbitrators, for the legislator cannot foresee these things.
These arguments in no way move me to approve the present multitude of laws. For judges decide very many things from similarity of causes, conjectures, and the abilities of commentators. Many events and cases are not now embraced in that infinite multitude of laws and interpretations; in this respect, therefore, we are oppressed by a scarcity of laws. Next, abundance here is worse than scarcity. The multitude said to be accommodated to more events provides occasion for various calumnies, for by those laws through which justice could be protected in one case, many cases are oppressed. Third, this has no bearing upon so many similar, contrary, doubtful, and obscure laws. Let those be removed and the others enacted universally; where shameful subtlety inserts a lawsuit, let it be met by adding or changing a word. Fourth, if laws are clear and provision has been made for the integrity of judges, many extremely grave cases will easily be decided, and much free discretion will not be left to the judge; whereas now, amid our multitude of laws, nearly everything is left free. For what opinion will a judge pronounce today which cannot be fortified by the approval or distortion of some law?
Moreover, many things can restrain the license of a judge, such as visitation, examination of the sentence, appeal, the counsels of assessors, and the determinations of universities. Finally, what prevents laws from being much shorter? Do you desire an example? Law 2, π., title 7: “It is forbidden that anyone remove by force a person summoned to court.” A clear matter is treated by these laws.
The praetor proposed this edict so that by fear of punishment he might restrain those who forcibly rescue persons summoned to court.
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Pomponius writes that a noxal action must also be granted in the name of a slave, unless he did it with his master’s knowledge; for then the master must accept the action without surrendering the offender. Ofilius thinks that this edict has no application if a person who could not be summoned to court was removed—for example, a parent, patron, and other such persons. This opinion appears to me more true. Certainly, if the person who summoned him offended, the person who removed him did not offend.
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For when each acts against the edict—both the freedman who summons his patron and the person who forcibly removes the patron—the freedman who sustains the role of plaintiff is nevertheless in the worse position in an equal offense. The same equity applies to one who
was summoned to court at a place other than where he ought to have been. But it must be said still more strongly that a person is not regarded as forcibly removed when the law grants him the right not to be sued there.
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But if someone removed a slave summoned to court, Pedius thinks that the edict does not apply, because he was not a person who could be summoned to court. What then? An action for production will lie. If someone removes a person summoned before a delegated judge, the punishment of this edict will not apply. What the praetor commands is, “removes by force.” Does this require force, or also evil fraud? Force suffices even if evil fraud is absent.
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But the word “removing” is general, as Pomponius says. To rescue is to take from someone’s hands; to remove is to carry away in any manner by seizure. Thus, if someone does not take the person away but causes a delay so that he cannot come to court—so that the day for the action expires or the thing is lost through time—he will be regarded as having removed him although he did not remove his body. If he detained him in that place but did not lead him away, he is held by these words. Likewise, it is agreed that if someone removes a person who is summoned through calumny, he is held by this edict. The praetor says, “or does anything with evil fraud whereby he might more readily be removed,” for this can occur without evil fraud, as when there is a just cause for the removal.
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If someone removes him through another person, he is held by this clause whether he was present or absent. Against one who removed him by force, an action on the facts is granted. It contains not what the thing is worth in truth, but the amount at which the plaintiff valued the matter in controversy. This was added to make clear that even if someone is a calumniator, he nevertheless pursues this punishment. He must show, however, that through this removal it occurred that the person was not brought to court. But if he was nevertheless brought forward, the punishment does not apply, because the words must be understood as requiring an effect. This is an action on the facts, and if several persons offended, it will be granted against each; nevertheless, the person who was removed remains obligated. It will be granted to heirs if they have an interest. It will not be granted against an heir or after a year. One who forcibly removed a debtor does not free the defendant if he pays, because he pays his own punishment.
So many disputes were generated by so few words. Why, therefore, is the law not proposed clearly and briefly? “Let no one, whether slave or free, remove or delay, by force or evil fraud, personally or through another, a person legitimately summoned to court before a competent judge, so that he cannot appear.” These matters are indeed usefully explained at greater length, but they can be stated much more briefly and, amid so great a weakness of intellects, ought to be. In many things natural reason truly teaches justice. For what need is there to add that assistance can be given to one who is dragged before a tribunal contrary to right and equity, and that he can be freed from those who drag him away? For we rightly rescue a person surrounded by beasts or robbers from danger; why should we abandon one harassed and afflicted by calumniators? The bite of a calumniator is more poisonous than that of beasts. What remains, therefore, except that decemvirs be established for reducing the laws and that the laws be confirmed by the supreme magistrate?
§ 9. In the laws of the Roman Empire I also require something else which use and necessity have approved: namely, that there are too many general laws which had to be abrogated by municipal laws and provincial statutes. For since there is such diversity of persons, places, and affairs that what is most just elsewhere is inequitable in another place, it was necessary to establish laws accommodated to provinces, towns, and villages. We plainly see that natural equity requires different laws in cities and villages. In some places it is observed that the children of a first marriage are heirs in full to the immovable goods both of the father and of the mother, but the offspring of another marriage enters upon all movables, livestock, household goods, and money as its part of the inheritance. This does not appear unjust in places where the principal wealth is judged to consist in vineyards, fields, pastures, and houses; but in a city where there is a great abundance of merchandise and money and very few possess fields, another law must be established.
Hence it readily appears why all nations neither ought nor can use one law, and indeed why regions which once used Roman law have retained few of its laws. Even within Germany itself diverse laws are found. The territories of Belgium, Saxony, and Austria employ their own particular laws.
From these confusions another difficulty also arises, a fruitful mother of lawsuits: private agreements. The natural equity of the edict concerning agreements is π., law 2, title 14: “For what is so congruent with human good faith as to preserve those things which persons have agreed among themselves?” Hence come the dotal agreements of marriages, and hence the thousand conditions and securities of sales and contracts which mutually entangle one another. For very many exceptions are granted against agreements. Next, they can never be composed so cautiously that calumny cannot search out some fold or hiding place through which it may insinuate itself into the agreements; for it will say either that the agreement is contrary to common law or that there are other agreements. Hence the instruments concerning one little field are so manifold that to have lost or insufficiently understood them is as dangerous as for the field to have been submerged by waters. Thus, while brothers, kinsmen, and relations by marriage strive especially to flee lawsuits and foster concord, by their very diligence they cast themselves and their posterity into lawsuits and conflicts.
We therefore experience what Tacitus admonished: “In the most corrupt state, laws are most numerous”; and what follows from it, pettifoggers are most numerous—just as in houses where many extremely grave diseases rage, we see everything full of medicines. What formerly afflicted the state of the Thurians has occurred. Strabo, book 4, relates that Zaleucus formerly gave the Thurians few and simple laws, but others followed who added other laws through subtlety and superfluous care, from which it happened that they became more celebrated than good.