§ 1. Jurisprudence is knowledge of divine and human affairs, the science of the just and the unjust. Thus the emperor defines it in book 1 of the Institutes, title 1, law 1. And not undeservedly, for law is twofold, divine and human, and both must be known by one skilled in law. Therefore the definition has not been taken too broadly; for that science is in truth most broad and truly public. Moreover, in the affairs in which prudence is engaged, jurisprudence consists much more fully.
§ 2. It befits princes, chief men, and nobles to devote effort to jurisprudence; indeed, it is necessary.
The primary reason is valid. Just as there can be no state without laws, so there can be none without the soul of the laws—that is, their true meaning and true use, which is rather the indicator and guardian of justice and equity than the words of the legislator are. But princes and chief men themselves ought to possess the meaning. Πᾶσα πόλις ἄπολις ἂν γένοιτο, says Plato in book 6 of the Laws, ἐν ᾗ δικαστήρια μὴ καθεστῶτα εἴη κατὰ τρόπον. “Every state ceases to be a state in which tribunals have not been constituted in right order.” But they cannot be constituted rightly if princes are ignorant of their manner. The primary office of a prince is to pronounce law. How will one ignorant of law pronounce law justly, consistently, and certainly?
Jurisprudence is therefore rightly called ἐπιστήμη βασιλικὴ καὶ τῶν βασιλέων, “royal science and the science of kings,” for it is both worthy of kings and necessary for kings. For this reason, in certain universities, as in the most celebrated University of Würzburg, we see that in solemn acts the professors and doctors use purple insignia, which is the royal color.
It is established that kings formerly pronounced law. Romulus and the other kings sanctioned laws and ended controversies. The consuls followed the kings and devoted effort to conducting trials. In Varro an attendant cries thus: “All Quirites involved in lawsuits, come here to the judges.” Augustus was wholly occupied in pronouncing law. Severus was intent upon civil business above other affairs. Vespasian heard cases to the point of wonder; reclining, he heard embassies, which were generally those of the oppressed, and when his bowels were loosened, while he strained and rose, he died amid the hands of those supporting him. Trajan approached a dangerous popularity; Pliny describes it, unless perhaps he granted something to his ears: “Freedom
is available, when the prince goes through public places, to stop, meet him, accompany him, and pass him. You walk among us as though you could be touched, and you make access to yourself available, not so that you may charge it against us. Whoever approaches remains at your side, and each person’s own modesty, not your pride, makes an end of his conversation.”
Lampridius writes thus concerning Alexander: “He commanded that business and cases first be treated and put in order by the chiefs of the bureaus and by the most learned jurists faithful to himself, of whom Ulpian was then the first, and thus be reported to him. He sanctioned moderate and innumerable laws concerning the right of the people and of the fisc; and he consecrated no constitution without twenty jurists and most learned and wise men, and finally no fewer than fifty most eloquent men, so that there might be no fewer opinions in his council than would constitute a decree of the senate. And this was done in such a way that the opinions of individuals were taken and what each had said was written down, yet with time given for investigating and thinking before they spoke, lest they be compelled to speak without thought concerning immense matters. Moreover, it was his custom that, if he treated of law or business, he summoned only learned and eloquent men; but if of a military matter, veteran soldiers who were sound, deserving, and skilled in places, wars, and camps, and all men of letters, especially those who knew history. He inquired what, in recorded cases like those under deliberation, the ancient emperors, either Roman or of foreign nations, had done.”
Since, therefore, it is necessary for them to judge, necessity compels them to be skilled in justice. The greatest care of judging lies even upon the most just and equitable judge, because frequently, although he has done all things according to the laws, he nevertheless condemns and kills an innocent person. How much more is this so if he himself is ignorant of laws and rights? The conduct of trials is wretched medicine, but nevertheless necessary for a state. Augustine, book 19, chapter 6 of The City of God: “What of the judgments of human beings concerning human beings, which cannot be absent even from cities remaining in however great a peace? What do we judge them to be—how wretched, how lamentable—since those judge who cannot discern the consciences of those concerning whom they judge? Hence they are often compelled to seek the truth by torturing innocent witnesses in a matter pertaining to another person’s case.
“What when someone is tortured in his own case, and when it is sought whether he is guilty, he is tormented, and the innocent man suffers most certain punishments for an uncertain crime—not because he is discovered to have committed it, but because he is not known not to have committed it? And thus the ignorance of the judge is very often the calamity of the innocent. And what is more intolerable and more to be lamented, and, if it could be done, watered with fountains of tears: when the judge tortures the accused for this reason, lest he unknowingly kill an innocent person, it happens through the wretchedness of ignorance that he kills a tortured and innocent person whom he had tortured lest he kill him innocent.
“For if, according to the wisdom of these men, he chooses to flee from this life rather than endure those torments longer, he says that he committed what he did not commit. After he has been condemned and killed, the judge still does not know whether he killed a guilty or an innocent person—the one whom he tortured lest he unknowingly kill him innocent. And thus he tortured an innocent person in order that he might know, and while he did not know, killed him. Amid this darkness of social life, will that wise judge sit, or will he not sit? He will certainly sit. For human society binds him and draws him to this office, which he judges it wicked to desert.
“For he does not judge this wicked: that innocent witnesses are tortured in the cases of others; that those who are accused, generally overcome by the force of pain and falsely confessing concerning themselves, are punished while innocent, when they had already been tortured while innocent; that even if they are not punished with death, they very often die in the tortures themselves or from them. What of the fact that sometimes even the accusers themselves, desiring perhaps to benefit human society lest crimes remain unpunished, are condemned by an ignorant judge when the witnesses lie and the accused himself withstands the tortures savagely and does not confess, and they are unable to prove the things which they charge, although they charged true things? He does not reckon these so many and so great evils to be sins, for the wise judge does not do these things by a will to harm but by the necessity of not knowing; and yet, because human society compels him, also by the necessity of judging.
“This, therefore, is what we call certainly the wretchedness of a human being, even if it is not the malice of the wise man. Or does he torture the innocent and punish the innocent from the necessity of not knowing and judging, and is it too little for him that he is not guilty unless he is also blessed? How much more considerately and worthily of a human being does he acknowledge wretchedness in that necessity, accept it in himself, and, if he is wise, cry to God: ‘Deliver me from my necessities.’”
§ 3. These matters are entrusted unsafely and dangerously to the counsellors of princes and others unless the prince attends diligently and zealously. For very many things are transacted through favor, money, and hatred, and the prince’s ignorance falls to the profit of rapacious human beings. The agentes in rebus know how to seize, not to receive, says Julius Capitolinus. And Cyprian, Letter 2: “Although laws have been engraved upon the Twelve Tables and prescribed rights have been affixed upon public bronze, transgression is committed amid the very laws and sin amid the rights; innocence is not preserved even there where it is defended. The fury of those at discord rages mutually, and, peace having been broken among the togas, the forum roars with mad lawsuits. For them the spear, sword, and executioner are ready, the claw which digs out, the rack which stretches, the fire which burns; for the body of a human being, more punishments live than there are limbs. Who among these things will bring aid to truth? An advocate? But he prevaricates and deceives. A judge? But he sells his sentence. He who sits to avenge crimes commits them, and so that an innocent defendant may perish, the judge becomes guilty.”
These things are committed especially if the prince is farther away or casts all care of justice upon those whom he trusts. Since afterward they are generally dismissed either with ill favor or even punished capitally, it is sufficiently apparent to what purpose they turned the excessively simple credulity of their prince. Nor can the prince be secure when others sin through his negligence. But a prudent and learned prince is the greatest bridle upon unjust judges. The prince’s inexperience makes the judges themselves negligent through security; learning and study make them cautious and diligent.
Ignorance of law and laws—that is, of the state over which he presides—also greatly diminishes authority. Many will deceive one whom they can deceive, but they contemn him. Next, although at times such rulers can judge truly, they cannot judge consistently; wherefore it is necessary that judgments frequently destroy judgments. This is not only ignominious but also dangerous for the prince, when in a similar case some prevail and others are defeated. Crafty and cunning architects of lawsuits will raise their horns and toss justice about. And the name “virtue” will be given to abominable crime.
§ 4. Finally, the laws assist those who are awake, not those who sleep. Therefore let the guardian of law keep watch, for on both sides the matter is conducted with the greatest industry—indeed, with fraud, falsehood, and perjury—so that each may make the judge his own. Those skilled in law also approach, who always leave an occasion for litigation, as inept craftsmen do for correction. Nevertheless, the prince must not yield, but must venture against it. The evil is continuous, always arising anew, and continuous medicine must be applied to it. Seneca speaks excellently in a similar case, book 2 of On Anger, chapter 11: “Surely the man whose ship takes in much water because its joints have loosened on every side is not angry with the sailors and the ship itself. Rather, he meets the danger, excludes one wave and bails out another, closes the manifest holes,
and by continual labor resists those which lie hidden and draw bilge-water secretly. Nor does he therefore desist because as much arises as has been exhausted. A slow remedy is needed against continuous and fertile evils—not so that they cease, but so that they do not conquer.”
Perseverance is needed here. I affirm boldly that there is need of a hundred eyes, or, if it could be done, that the prince be an Argus—that is, wholly made of eyes—with which he may discern frauds and punish those discerned.
Therefore let the prince be skilled in law and equity, and after the prince the counts, barons, and nobles. He will easily attain this if he appoints no judge or governor unless he is well skilled. This was certainly the intention of Justinian in the proem of the Institutes, §7: “Therefore receive these laws of ours with the greatest effort and eager study, and show yourselves so instructed that the most beautiful hope may foster us that, when the whole work of law has been completed, our state can also be governed by you in the parts to be entrusted to you.”
But because he himself was ignorant of letters and law, it came about that, by altering the laws so often, great but avaricious jurists fixed and refixed them according to their own advantages. Poor men, forgive me: I speak in a public cause and speak concerning what is accustomed to happen frequently; I would not wish poor men to devote effort to law and plead cases. For amid an excessive occasion of sin, poverty and squalor are the worst counsellor and impeller. One whose condition is cheap sells justice cheaply; one who, by studying in want, sought through long patience an occasion of profit sells judgments dearly. I am not ignorant that among the poor there are good, just, and holy persons and that God chose the poor. But I now speak of those poor persons who studied law for the sake of riches and honors, and bring a long hunger and dry throats to suck out the marrow of the litigating parties. They wish to become rich, and to become rich quickly.
Meanwhile they magnify the dignity of their station and dress splendidly, lest they appear to have been poor; and when law does not supply enough, riches are sought through injustice. When the crowd of these has prevailed, they turn all things upside down and hold their own prince for sale. Base avarice can indeed rage in high birth; but generally, when such persons take account of their family and dignity and are opulent, with a loftier spirit they do not pursue such abject spoils. Nevertheless, let the prince apply care to these also.
The condition of our law has never been so happy that its very sanctuaries did not beget injustices. Consider Justinian the legislator himself: how the forensic harpies surrounded him with their arts. Evagrius writes thus: “But in Justinian there was so insatiable a desire for money, and so shameful and indeed absurd an appetite for the property of others, that for love of gold he sold all the goods of his subjects to those who administered magistracies, those who collected tribute, and those who wished to lay snares for human beings without any cause. But very many—indeed, innumerable—persons who possessed many good things he deprived of all their fortunes after a false and fictitious charge had been fashioned. And if any prostitute, casting the eyes of cupidity upon someone’s goods, feigned that she had possessed some familiarity or union with him, immediately all rights and laws lay turned away for her sake, provided that she made Justinian a partner in shameful profit; and the possessions of the man who was falsely charged were transferred into her house.”
§ 5. Law cannot stand unless there is one skilled in it through whom it can be preserved; otherwise it will waste away like a corpse. There must be an interpreter of the laws even when the words appear clear, for at times one must depart from them. Charondas, while holding to the words too impiously, killed himself.
True jurisprudence can never be praised sufficiently; the jurisprudence which sows lawsuits can never be punished sufficiently. Jurisconsults hear evil things on account of petty lawyers and, as Besold says in book 2 of the Politics, chapter 2, because most are now occupied with lawsuits and procedures and neither wish nor know how to benefit the state by any other matter, their art, or their knowledge. Hence it is said among the Italians: “A mere legist is a pure and utter ass.” He adds: “Procedures are generally nothing other than the refuge and hiding place of guilty and criminal human beings, but the weariness and affliction of the innocent.” Thus he affirms that methods of shortening lawsuits must be sought diligently.
I set his following words before the prince to be weighed: “The form of judgments and the judicial order which we use in certain places appears to be neither order nor procedure, but rather confusion and a labyrinth. We do not proceed; we wander. The altercation over ceremonies and writings, outside every cognition of the case, is calumnious. Hence formulists, who handle the secrets of procedure, and masters of cautions are held in greater value than artificers of equity. Indeed, the peremptory terms of instances have now been abolished by a most evil custom. Certainly there is now everywhere so great a multitude of laws and rights, and such confusion born from it, that there has been no age from the beginning of the world, nor is there even today any other kingdom or state, in which under the appearance of law error is committed more dangerously, justice is more oppressed, and execution of adjudged matters is more impeded than is now accustomed to happen after we imagine that law has been reborn and, as it were, fallen down to us from heaven—than is accustomed to happen in those places where the rationale and science of law are proclaimed to be more flourishing and more vigorous.”
The same Besold also complains concerning Roman law in book 1, dissertation 14: that it abounds in subtleties and fictions which, after so many years, emperors—or rather the ill-employed interpreters of law—invented.