§ 1. That laws can be changed, and indeed ought to be, and have frequently been changed, I have already shown with Tertullian as witness. Julius Caesar wished this; it was attempted under Hadrian; Theodosius, Justinian, Charlemagne, Alfonso, Charles IV, and now princes daily have done it, because laws must be accommodated not only to places and customs but also to times. Indeed, the books of laws themselves teach that this can be done, as does Augustine, book 3 of the Confessions, chapter 7:
“And I did not know true inward justice, which judges not from custom but from the most righteous law of almighty God, by which the customs of regions and days were formed according to regions and days, while it itself was everywhere one and simple, not one thing elsewhere and another otherwise; according to which Abraham and Isaac and Jacob and Moses and David and all those praised by the mouth of God were just. Yet they are judged unjust by the unskilled, who judge according to the human day and measure all the customs of the human race by a part of their own custom—as though someone ignorant, in an armory, of what is fitted to each member should wish the head to be covered with a greave and the foot to be shod with a helmet, and should complain that it does not fit suitably; or, when a cessation of business has been proclaimed on one day from the afternoon hours, someone should be angry that he is not permitted to offer something for sale because it was permitted in the morning; or in one house he should see something handled by any servant which the one who serves the cups is not permitted to do, or something done behind the stables which is prohibited before the table, and should be indignant that, although there is one dwelling and one household, the same thing is not assigned everywhere and to everyone.
“Such are those who are indignant when they hear that in that age something was lawful for the just which in this age is not lawful for the just, and that God commanded one thing to them and another to these for temporal reasons, although both served the same justice; while in one human being and in one day and in one house they see one thing suit one member and another another, and one thing have been lawful a little while ago but not lawful an hour later,
and something permitted or commanded in that corner which in this is justly prohibited and punished. Is justice therefore various and mutable? Rather, the times over which it presides do not proceed equally, for they are times. But human beings, whose life upon earth is brief, because they are not strong enough in perception to connect the causes of former ages and of other nations which they have not experienced with those which they have experienced—although in one body or day or house they can easily see what suits each member, what suits particular moments, and what suits particular parts or persons—take offense in the former matters but submit in the latter.”
Aristotle also held the same opinion, book 2 of the Politics, chapter 8: “For some doubt whether it is harmful or useful to disturb and change the ancestral laws, if there is another law better than one of them. Therefore it is not easy to assent and concede to what has been said about decreeing a reward to such persons on the ground that it is something useful to the city, if it is not expedient that anything in the state be changed. For it can happen that some may recommend either the abrogation of laws or a change in the form of administering the state as though it were a common good. But since we have fallen into this discussion, it will be better to dispute a little further about this matter. For, as we have said, it involves doubt. And it certainly appears better to change. For in the other sciences this has been profitable: medicine changed from ancestral institutions, and the art of exercising bodies, which the Greeks call gymnastics; finally, all arts and faculties, when changed, have brought great advantages to states. Therefore, since political prudence is also to be numbered among these, plainly it is necessary to hold the same opinion concerning it as well. Someone might take an argument for what we say from deeds and events. For ancient laws are very simple and barbarous. The Greeks were accustomed both to carry swords and to buy wives from one another; and the remaining ancient institutions are altogether stupid and foolish. For example, at Cumae there is a law concerning matters which pertain to murder: if an accuser should produce a certain number of witnesses who are related to him, the accused is held liable to the penalty for murder.”
Bad laws, therefore, must be removed very quickly; those which merely appear useless, slowly. Agesilaus suspended the laws for one day because of the battle of Leuctra, by which action he showed that laws ought both to be stable and not altogether immutable. It is better, however, to allow them to slip away and perish gradually.
§ 2. The continuance of laws is either altogether immutable or immutable in a certain manner. The eternal and natural law is simply immutable, for it was carried by God to remain eternally, and the matter which is its object is honorable of itself; therefore its obligation cannot be abrogated. But the old ceremonial law of God has now been abrogated; the new will continue to the end of the world. Human laws can be changed, nor can any be carried in such a way that it is forever immutable, because it can be abrogated by the legislator or by his successor, who is furnished with equal power, or by the state itself.
Francisco Suárez recognizes a threefold perpetuity of a human law. First, because it does not die with the legislator. Second, because it obliges posterity. Third, because it always endures until it is either revoked or its matter is so changed that it ceases to be just. In the first manner the legislator generally imposes an obligation, and this is the custom of laws; for thus they now distinguish a law from a precept, which is temporary. But this usage is now customary, whereas in former times it was also called a temporary precept or command. I should therefore prefer to distinguish law into temporary and perpetual. It is this duration, then, which must be discussed.
§ 3. I therefore think it must be said that a law whose foundation remains and whose matter is not made unjust is not to be changed easily, although its abolition may appear advantageous, unless it is manifest that the new law will be more advantageous to the present condition of the times and it is established that new disadvantages will not arise from that change. Cleon certainly judged prudently that the condition of a state which uses worse but stable laws is better than that of one which frequently changes them.
The primary reason is that novelty always produces suspicion; from suspicion come complaints, and thence a commotion of the people or the nobles. For the abrogation of old laws brings harm to some, while a new law does not make those whom it benefits friends of the legislator, because they regard it with suspicion, doubt his constancy, and fear that amid so many changes it too will be changed. Therefore, those for whom the change is burdensome impute the damage wholly to the prince; those for whom it is a source of profit or honor, because they do not think that account was taken of them personally in a common law, do not consider themselves bound by any favor. For each person judges that things given in common are owed to him.
Nor is it expedient for the opinion to gain strength that in carrying a law account was taken not of public advantage but of private favor or hostility toward a definite class of human beings. For this opinion will supply fuel for hatreds and discord, and it offends even those whom it assists and makes them objects of envy and therefore of hatred. Thus, to carry a new law is a matter full of danger—not only among the Locrians, where men recommended a law with a noose placed around the neck so that, unless they persuaded the people, they would immediately be strangled with their throat bound, but in every state, because it is necessary that very many be offended and none reconciled except slightly.
§ 4. A second reason is added, from the weakness of the human intellect and its slender foresight. It notices the offenses of the law which it uses, but cannot foresee all the offenses of another law which it is contemplating. The Romans established pay for their citizens serving in the army at Veii. The measure was pleasing to the army but burdensome to many, for there was need of a treasury, assessments, and exactions; and from this, I believe, it happened that they were offended with Camillus. Those eager for new laws are accustomed to experience what happens to those who travel along a difficult and broken road: they proclaim those happy whom they see gliding along in a gentle course of waters upon a favorable river, and compare their own evils with the goods of others; but when they observe the winds rising, the skiff being tossed, driven upon the sands, or dashed against the rocks, they now console themselves concerning their own labor.
With great struggles the Roman plebs obtained equality with its patricians. Laws were established concerning this matter; auspices, the curule chair, priesthoods, and the dictatorship itself came into the possession of the ignoble. But from that time the city was always hostile to itself, until through civil wars it slid into servitude.
We also see in the Church not a few laws changed in the succession of times. At one time the people elected bishops and presented them for consecration; but since ambition in that crowd often snatched the place from virtue, nomination was granted to neighboring bishops or the metropolitan, and sometimes to the emperor. But when it was evident that favor and gifts intervened here also, at last that power was delegated to colleges of clerics. That legitimate law stood for a long time and gave many distinguished prelates. Afterwards, however, in some places a depraved custom gained strength, so that they not only put bishoprics and votes up for sale, but by private statutes so ensnared and constrained the bishop that he could not exercise the force and vigor of the sacred canons against those upon whom above all he ought to exercise it. Before the election they established certain
decrees concerning his freedom and the non-reformation of morals, to all of which they swore. If anyone refused, there was no doubt that he alienated from himself the minds of all the more frivolous persons. Thus new laws always draw new disadvantages after them.
§ 5. Nor indeed is it lawful to propose a new law in a matter of great importance unless the novelty is of great advantage to the state.
For there is scarcely any new law which does not privately harm many persons very greatly. It is therefore necessary that there be such a public utility or necessity as compensates for the losses of private persons. For since private persons are parts and members of the great body, they must suffer their own losses to be borne for the public good; but if the losses of individuals are balanced by no distinguished public advantage, the innovation is inequitable. Indeed, the state is injured when its members are harassed to no profit of its own.
By a most salutary law, upon the opinion of the council and the princes, the Most Christian Louis XIII, king of France, recently ordained that dignities and offices should not be bought with money, nor could they be sold by those who had bought them. That measure affected countless persons with great disadvantages; but because the safety of the fatherland required this most sacred law, consideration for or the loss of a few ought not to have intervened to impede it—especially since by it they might more honorably conduct a contest of virtue than promises concerning morals. That law, therefore, was most just and most sacred.
But if public benefit is absent and private burdens grow heavier, the proposal of a new law will be a crime. Indeed, so will the restoration of a law which has been abolished.
When the fatal names and factions of the Guelfs and Ghibellines divided Italy, the Guelfs held the principate at Florence and, as is accustomed to happen in the zeal of factions, by public law excluded the Ghibellines from holding magistracies. But in time the law became obsolete, and now persons who drew their origin from the Ghibellines as well as from the Guelfs occupied great dignities without distinction. Then Hunguerius, prince of the Guelfs, renewed the old law and, with the law, the hatreds, hostilities, and former calamities—to the great harm of the Ghibellines, then to the destruction of his own people, and to no advantage of the common cause. For nothing is more pernicious than to administer the state according to one’s own passion, and to fasten and unfasten laws in bronze.
§ 6. In change there is also this danger: those who are pressed by private evils are made eager for innovations. While they see many laws being abolished, they conceive wicked hopes that even the best can be abolished. For after an attack has once been made upon the laws, those whose destruction appears likely to carry the greatest rewards with it are especially attacked. Just as, when a city has been taken by force, men run not to plunder the fortunes of the most guilty but those of the rich, so also the best laws are attacked most fiercely by the vilest persons.
But since many are nauseated by present things and live suspended in expectation of future things, an ingenious poet spoke truly:
The novelty of all things is also most pleasing.
For:
Whatever we saw in former years is cheap to us, and whatever we beheld long ago is sordid.
This propensity toward the pursuit of innovations ought not to be assisted and provoked by public leniency, for nothing will be so firm that it is not torn down. For in truth what Homer says happens in songs will occur:
τὴν γὰρ ἀοιδὴν μᾶλλον ἐπικλείουσ’ ἄνθρωποι
ἥτις ἀκουόντεσσι νεωτάτη ἀμφιπέληται.
Human beings celebrate most highly that song which has come most newly to its hearers. Thus, just as they demanded νεαρὰ ἄνθεα ὕμνων, new flowers of songs, so also by an inborn curiosity they demanded new laws, νόμους ἀπ’ ἀκροσφυρίων, fresh from the anvil and the bellows. Plato indeed stood so hostile to this curiosity that he forbade young men not only to dispute about the justice and integrity of laws but even to inquire into them.
For new things, although better, sometimes offend, as we perceive in a change of food, drink, or climate. Things to which we are accustomed please us as though natural and similar; new things strike us as though contrary. I shall close this place with the maxim of Augustine, letter 118 to Januarius: “For the very change of a custom—or law—even when it helps by its utility, disturbs by its novelty. Therefore, a change which is not useful is consequently harmful through fruitless disturbance.”
§ 7. Laws in which there is some error, which are carried suddenly, or which appear to favor some vice are also abrogated with the greatest difficulty. By the most ancient laws the power of life and death was permitted to masters over slaves; with great effort and by many laws it could scarcely be revoked. I present an example in small matters which nevertheless cause grave harm. There is an old law, law 11, code, title 25, Concerning Able-Bodied Beggars:
“After all whom uncertain beggary has called to public gain have been inspected, let soundness of body and the strength of years be examined in each; and let necessity be imposed upon idle persons who are to be pitied without any debility, so that, in the case of those whom servile condition holds, the zealous and diligent informer may obtain them as master; but in the case of those whom freedom of birth alone attends, whoever has disclosed and proved indulgence of this kind may be supported by their perpetual colonate—saving to masters an action against those who perhaps furnished a hiding place to fugitives or counsel for undertaking beggary.”
Who does not see what evils the abrogation or neglect of that law brings? Everything is filled with idle persons, thieves, and the most worthless gluttons, although the state could be assisted by putting them to work.
Public spectacles were granted by the worst custom and most cruel laws; scarcely could the clemency of Christian times and the power of the emperors remove them. Therefore laws must be carried and examined with great care, lest they be proposed through vice.