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toms of Castile, and other provinces. In France, besides the civil, the customs of Burgundy, Bloys, Berry, Nivernois, and Lodunois, &c. a Tous lieux situés et assis en Lodunois, seront gouvernez selon les costumes du dit pays; "All places lying within the precincts of Lodunois shall be governed according to the customs of that place." There are also in France the customs of Normandy, and these of two kinds, general and local; and all purged and reformed by divers acts of the three estates. The charters of confirmation of these ancient customs, before and since their reformation, have these words: Nos autem registrum prædictum, usus laudabiles, et consuetudines, antiquas, &c. laudamus, approbamus, et authoritate regia confirmamus; "The register aforesaid, laudable use, and ancient cus❝toms, we praise, approve, and by our kingly authority "confirm." The common law of England is also compounded of the ancient customs of the same, and of certain maxims by those customs of the realm approved. Upon which customs also are grounded those courts of record, of the chancery, king's bench, common pleas, and exchequer, with other small courts.

These ancient customs of England have been approved by the kings thereof, from age to age; as that custom by which no man shall be taken, imprisoned, disseised, nor otherwise destroyed, but he must first be put to answer by the law of the land, was confirmed by the statute of Magna Charta. It is by the ancient custom of England, that the eldest son should inherit without partition; in Germany," France, and elsewhere otherwise, and by partition. In Ireland it is the custom for all lands, (that have not been resigned into the king's hands,) that the eldest of the house shall enjoy the inheritance during his own life; and so the second and third eldest (if there be so many brothers) before the heir in lineal descent; this is called the custom of tanistry. For example, If a lord of land have four sons, and the eldest of those four have also a son, the three brothers of the eldest son shall, after the death of their brother,

Art. 3. tit. 5. G. Cust.

enjoy their father's lands before the grandchild; the custom being grounded upon the reason of necessity. For the Irish in former times having always lived in a subdivided civil war, not only the greatest against the greatest, but every baron and gentleman one against another, were enforced to leave successors of age and ability to defend their own territories. Now as in Normandy, Burgundy, and other provinces of France, there are certain peculiar and petty customs, besides the great and general custom of the land; so are there in England, and in every part thereof. But the greatest bulk of our laws, as I take it, are the acts of parliament; laws propounded and approved by the three estates of the realm, and confirmed by the king, to the obedience of which all men are therefore bound, because they are acts of choice and self-desire: Leges nulla alia causa nos tenent quam quod judicio populi receptæ sunt; “The "laws do therefore bind the subject, because they are re"ceived by the judgment of the subject." Tum demum humanæ leges habent vim suam, cum fuerint non modo institutæ, sed etiam firmata approbatione communitatis; "It is then that human laws have their strength, when they shall not only be devised, but by the approbation of "the people confirmed."

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Isidore fasteneth these properties to every Christian law, that the same be honest, that it be possible, that it be according to nature, and according to the custom of the country; also for the time and place convenient, profitable, and manifest, and without respect of private profit, that it be written for the general good. He also gives four effects of the law, which Modestinus comprehends in two; to wit, obligation and instigation: the former binds us by fear, to avoid vice; the latter encourageth with hope, to follow virtue. For, according to Cicero, Legem oportet esse vitiorum emendatricem, commendatricemque virtutum ; " It behoveth "the law to be a mender of vices, and a commender of vir"tues." The part obligatory, or binding us to the observa

Ulp. ff. de Leg. Leg. 32.

e Aug. de vera relig. cap. 31. Gratian. in dec. dist. 4. cum in istis.

tion of things commanded or forbidden, is an effect common to all laws; and it is twofold, the one constraineth us by fear of our consciences, the other by fear of external punishment. These two effects the law performeth by the exercise of those two powers, to wit, coactive and directive.

The second of these two effects remembered by Modestinus, is instigation, or encouragement to virtue, as Aristotle makes it the end of the law, to make men virtuous. For laws being such as they ought to be, do, both by prescribing and forbidding, urge us to well-doing; laying before us the good and the evil, by the one and the other purchased. And this power affirmative commanding good, and power negative forbidding evil, are those into which the law is divided, as touching the matter, and in which David comprehendeth the whole body and substance thereof; saying, d Declina a malo et fac bonum; "Decline from evil, and "do good."

SECT. XVI.

That only the prince is exempt from human laws, and in what sort.

NOW whether the power of the human law be without exception of any person, it is doubtfully disputed among those that have written of this subject, as well divines as lawyers; and namely, whether sovereign princes be compellable; yea, or no? But whereas there are two powers of the law, as aforesaid, the one directive, the other coactive: to the power directive they ought to be subject, but not to that which constraineth. For as touching violence or punishments, no man is bound to give a prejudicial judgment against himself: and if equals have not any power over each other, much less have inferiors over their superiors, from whom they receive their authority and strength.

And speaking of the supreme power of laws, simply then is the prince so much above the laws, as the soul and body united is above a dead and senseless carcass. For the king is truly called jus vivum et lex animata; "an animate and "living law." But this is true, that by giving authority

d Psalm xxxvii.

to laws, princes both add greatness to themselves, and conserve it, and therefore was it said of Bracton, out of Justinian: Merito debet rex tribuere legi, quod lex attribuit ei: nam lex facit ut ipse sit rex; "Rightfully ought the king "to attribute that to the law, which the law first attribut"eth to the king; for it is the law that doth make kings.”

But whereas Bracton ascribeth this power to the human law, he is therein mistaken. For kings are made by God, and laws divine; and by human laws only declared to be kings. As for the places remembered by the divines and lawyers, which infer a kind of obligation of princes, they teach no other thing therein than the bond of conscience, and profit arising from the examples of virtuous princes, who are to give an account of their actions to God only.

f Tibi soli peccavi, saith David; "Against thee only “have I sinned;" therefore the prince cannot be said to be subject to the law; Princeps non subjicitur legi: for seeing, according to the schoolmen, the law human is but quoddam organum et instrumentum potestatis gubernativa: non videtur posse ejus obligatio ad eum se extendere, ad quem ipsa vis potestatis humanæ non pertinet: sed vis potestatis humanæ non se extendit ad gubernatorem, in quo illa residet. Ergo neque lex condita per talem potestatem obligare potest ipsum conditorem. Omnis enim potentia activa est principium transmutandi aliud: "Seeing human law," say they, "is but a kind of organ or instrument of the power that 66 governeth, it seems that it cannot extend itself to bind

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one whom no human power can control or lay hold of; "but the governor himself, in whom the governing power "doth reside, is a person that cannot by himself, or by his "own power, be controlled. And therefore the law which is "made by such a power cannot bind the lawmaker himself: "for every active ability is a cause or principle of alteration "in another body," not in the body in which itself resides. And seeing princes have power to deliver others from the obligation of the law, Ergo etiam potest ipsemet princeps sive legislator sua se voluntate pro libito ab obligatione legis • Bract. 1. 2. f Psal. 1. ff. de leg. Greg. de Valentia de leg.

liberare; “ Therefore also may a prince or lawmaker at his 66 own will and pleasure deliver himself from the bond of the "law." Therefore in the rules of the law it is thus concluded: Subditi tenentur leges observare necessitate coactionis, princeps vero sola voluntate sua, et intuitu boni communis; "The subjects are bound to fulfil the law by necessity of compulsion, but the prince only by his own will, and regard of the common good."

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Now concerning the politic laws, given by Moses to the nation of the Israelites, whether they ought to be a precedent, from which no civil institutions of other people should presume to digress, I will not presume to determine, but leave it as a question for such men to decide, whose professions give them greater ability. Thus much I may be bold to affirm, that we ought not to seem wiser than God himself, who hath told us, that there are no laws so righteous as those which it pleased him to give to his elect people to be governed by. True it is, that all nations have their several qualities, wherein they differ, even from their next borderers, no less than in their peculiar languages; which disagreeable conditions to govern aptly one and the same law very hardly were able. The Roman civil laws did indeed contain in order a great part of the then known world, without any notable inconvenience, after such time as once it was received and become familiar; yet was not the administration of it alike in all parts, but yielded much unto the natural customs of the sundry people which it governed. For whether it be through a long continued persuasion, or (as astrologers more willingly grant) some influence of the heavens, or peradventure some temper of the soil and climate, affording matter of provocation to vice, (as plenty made the Sybarites luxurious; want, and opportunity to steal, makes the Arabians to be thieves,) very hard it were to forbid by law an offence so common with any people, as it wanted a name whereby to be distinguished from just and honest. By such rigour was the kingdom of Congo unhappily diverted from the Christian religion, which it willingly at the first embraced, but after with great fury reRALEGH, HIST. WORLD. VOL. II.

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