The Doctor and Student (1518)
Christopher St. Germain
Of the law of man
The law of man (the which sometime is called the law positive) is derived by reason, as a thing which is necessary, and probably following of the law of reason and of the law of God. And that is called Probable, in that it appeareth to many, and especially to wise men to be true. And therefore in every law positive well made, is somewhat of the law of reason, and of the law of God; and to discern the law of God and the law of reason from the law positive is very hard. And though it be hard, yet it is much necessary in every moral doctrine, and in all laws made for the commonwealth. And that the law of man be just and rightwise, two things be necessary, and that is to say, wisdom and authority. Wisdom that he may judge after reason what is to be done for the commonalty, and what is expedient for a peaceable conservation and necessary sustentation of them; authority, that he have authority to make laws. For the law is derived of ligare, that is to say, to bind. But the sentence of a wise man doth not bind the commonalty; if he have no rule over them. Also to every good law be required these properties: that is to say, that it be honest, rightwise, possible in itself, and after the custom of the country, convenient for the place and time, necessary, profitable, and also manifest, that it be not captious by any dark sentences, ne mixt with any private wealth, but all made for the commonwealth. And after St. Bridget, in the fourth book, in the hundred and twenty-ninth chapter, every good law is ordained to the health of the Soul, and to the fulfilling of the laws of God, and to induce the people to fly evil desires, and to do good works. Also the cardinal of Camerer writeth, Whatsoever is righteous in the law of man, is righteous in the law of God. For every man’s law must be consonant to the law of God. And therefore the laws of princes, the commandments of prelates, the statutes of commonalties, ne yet the ordinance of the church, is not righteous nor obligatory, but it be consonant to the law of God.
And of such a law of man that is consonant to the law of God, it appeareth who hath right to lands and goods and who not: for whatsoever a man hath by such laws of man, he hath righteously; and whatsoever he hath against such laws, is unrighteously had.
For laws of man not contrary to the law of God, nor to the law of reason, must be observed in the law of the soul and he that despises them, despises God, and resisteth God. And furthermore, as Gratian saith, because evil men fear to offend, for fear of pain; therefore it was necessary that divers pains should be ordained for divers offences, as physicians ordained divers remedies for several diseases. And such pains be ordained by the makers of laws, after the necessity of the time, and after the disposition of the people. And though that law that ordained such pains. hath thereby a conformity to the law of God, (for the law of God commandeth that the people shall take away evil from among themselves;) yet they belong not so much to the law of God, but that other pains (standing the first principles) might be ordained and appointed therefore. That is the law that is called most properly the law Positive, and the law of man.
And the philosopher said in the third book of his ethicks, that the intent of a maker of a law is to make the people good, and to bring them to virtue. And although I have somewhat in general shewed thee whereupon the law of England is grounded (for of necessity it must be grounded of the said laws, that is to say, of the law eternal, of the law of reason, and of the law of God:) nevertheless I pray thee shew me more specially whereupon it is grounded, as thou thinkest, as thou before hast promised to do.
Stud. I will with good-will do therein that lieth in me, for thou hast shewed me a right, plain, and straight way thereto. Therefore thou shalt understand that the law of England is grounded upon six principal grounds. First, It is grounded on the law of reason. Secondly, On the law of God. Thirdly, On divers general customs of the realm. Fourthly, On divers principles that be called maxims, Fifthly, On divers particular customs. Sixthly, On divers statutes made in parliaments by the king, and by the common council of the realm. On which grounds I shall speak in order as they be rehearsed before. And first of the law of reason.