SECTION XI.--_Of Law and Liberty_.

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.

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