1. The student of Natural Law does not share the vulgar prejudice
against civil law and lawyers. He knows it for a precept of the
Natural Law, that there should be a State set up, and that this State
should proceed to positive legislation. This legislation partly
coincides with Natural Law in urging the practice of that limited
measure of morality, which is necessary for the State to do its office
and to be at all. (s. x., n. 2, p. 355.) This partial enforcement of
the Law of Nature is the main work of the criminal law of the State.
But State legislation goes beyond the Natural Law, and in the nature
of things must go beyond it. Natural Law leaves a thousand conflicting
rights undetermined, which in the interest of society, to save
quarrels, must be determined one way or another.
2. An illustration. It is an axiom of Natural Law, that _res perit
domino_; that is, the owner bears the loss. If an article under sale
perishes before delivery, the loss falls, apart from contracts to the
contrary, upon whichever of the two parties is the owner at the time.
So far nature rules. But who is the owner at any given time, and at
what stage of the transaction does the dominion pass? That can only be
settled by custom and the law of the land. "If I order a pipe of port
from a wine-merchant abroad; at what period the property passes from
the merchant to me; whether upon delivery of the wine at the
merchant's warehouse; upon its being put on shipboard at Oporto; upon
the arrival of the ship in England at its destined port; or not till
the wine be committed to my servants, or deposited in my cellar; all
are questions which admit of no decision but what custom points out."
(Paley, _Mor. Phil_., bk. iii., p. i, c. vii.)
This leads us to remark upon the much admired sentence of Tacitus, _in
corruptissima republica plurimae leges_, that not merely the multitude
of transgressions, but the very complexity of a highly developed
civilization, requires to be kept in order by a vast body of positive
law.
3. Incidentally we may also remark, that the law of the State does not
create the right of property; otherwise, abolishing its own creation,
the State could bring in Communism, (c. vii., s. i., p. 278). But
finding this right of property unprotected and undetermined, the State
by its criminal law protects property against robbers, and by its
_civil_ as distinguished from _criminal_ law, it defines numerous open
questions between possessors as to manner of acquirement and
conditions of tenure.
4. All civil laws bind the conscience: some by way of a categorical
imperative, _Do this_: others by way of a disjunctive, _Do this, or
being caught acting otherwise, submit to the penalty_. The latter are
called _purely penal laws_, an expression, by the way, which has no
reference to the days of religious persecution. Civil law binds the
conscience categorically whenever the civil ruler so intends. In the
absence of express declaration, it must be presumed that he so intends
whenever his law is an enforcement of the Natural Law, or a
determination of the same; as when the observance is necessary to the
preservation of the State, or when the ruler determines what lapse of
time shall be necessary for the acquisition of property by
prescription. Very frequently, the parties to a contract tacitly
accept the dispositions of the civil law as forming part of their
agreement; and in this indirect fashion the civil law becomes binding
on the conscience. In this way an Englishman who accepts a bill of
exchange tacitly binds himself to pay interest at five per cent., if
the bill is not met at maturity, for such is the disposition of the
English Law. It may be further observed that no prudent legislator
would attach a severe penalty to what was not already wrong.
5. In Roman times it was part of the flattery of the imperial jurists
to their master, to tell him that he was above the laws, _legibus
solutus_. In the trial of Louis XVI., the Sovereign People, or they
who called themselves such, dispensed with certain legal formalities
on that same plea. Against the law at Athens, the generals who had
fought at Arginusae were condemned by one collective sentence, the
anger of the Sovereign People being too impatient to vote on them
separately, as the law required. Hereupon we must observe in the first
place, that the Supreme Ruler, whether one man or a multitude, can
never be brought to trial in his own court for any legal offence. As
all justice requires two terms: no power can do justice on itself.
(_Ethics_, c. v., s. ix., n. 1, p. 102.) This truth is embodied in the
English maxim, that _the king can do no wrong_. Again, the Sovereign
is either expressly or virtually exempted from the compass of many
laws, _e.g_. those which concern the flying of certain flags or
ensigns, and other petty matters. Thirdly, we have the principle, that
no being can give a law to himself. (_Ethics_, c. vi. s. ii., n. 3, p.
117.) Lastly, we must observe that there is no law so fundamental but
what the Supreme Power, taken in its entirety, can alter it, and by
consequence dispense from it. From these considerations it follows
that the Sovereign--the complete and absolute Sovereign, be he one man
or many--lies under no legal obligation to obey any law of his own
making as such. It does not follow that he is perfectly free to ignore
the laws. He is bound in conscience and before God to make his
government effectual; and effectual it cannot be, if the laws are
despised; and despised they will be, if the Sovereign gives scandal by
ignoring them in his own practice. Therefore the Sovereign, be he
King, Council, or Assembly, is bound in conscience and before God,
though not legally of his own jurisdiction, so far himself to stand to
the observance of the law as not to render it nugatory in the eyes and
practice of others.
6. Law and liberty are like the strings and meshes of a net. In the
one limit of minimum of mesh, the net passes into sack-cloth, where
nothing could get through. In the other limit of maximum of mesh, the
net vanishes, and everything would get through. We cannot praise in
the abstract either a large mesh or a small one: the right size is
according to the purpose for which the net is to be used in each
particular case. So neither can law nor liberty be praised, as Burke
says, "on a simple view of the subject, as it stands stripped of every
relation, in all the nakedness and solitude of metaphysical
abstraction." We can only praise either as it is "clothed in
circumstances." Commonly we are led to praise the one by getting too
much of the other. Confounded in a tangle of fussy, vexatious, perhaps
malicious restrictions, men cry loudly for liberty. When people all
about us are doing things by their own sweet will, we are converted to
praise of regulation and discipline and the wholesome restraint of
law.
_Readings_.--St. Thos., 1a 2æ, q. 96, art. 5, ad 3; Suarez, _De
Legibus_, III., xxxv.; _ib_., V., iv.; Ruskin, _Seven Lamps of
Architecture_, c. vii., §§ I, 2.