Page:The English Reports v77 1907.pdf/402
the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable.
The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex æterna, the moral law, called also the law of nature. And by this law, written with the finger of God in the heart of man, were the people of God a long time governed, before the law was written by Moses, who was the first reporter or writer of law in the world. The Apostle in the second chapter to the Romans saith, Cum enim gentes quæ legem non habent naturaliter ea quæ legissunt faciunt. And this is within the command of that moral law, honora patrem, which doubtless doth extend to him that is pater patriæ. And that Apostle saith Omnis anima potestatibus sublimioribus subdita sit. And these be the words of the Great Divine, Hoc Deus in Sacris Scripturis jubet, hoc les naturæ dictari, ut quilibet subditus obediat superio, and Aristotle, nature's secretary, lib. 5. Æthic. saith, that jus naturale est, quod apud omnes homines eandem habet potentiam. And herewith doth agree Bracton, lib. 1. cap. 5. and Fortescue, cap. 8. 12. 13. and 16. Doctor and Student, cap. 2. and 4. And the reason hereof is, for that God and nature is one [13 a] to all, and therefore the law of God and nature is one to all. By this law of nature is the faith, ligeance, and obedience of the subject due to his Sovereign or superior. And Aristotle l. Politicorum proveth, that to command and to obey is of nature, and that magistracy is of nature: for whatsoever is necessary and profitable for the preservation of the society of man is due by the law of nature: but magistracy and government are necessary and profitable for the preservation of the society of man; therefore magistracy and government are of nature. And herewith accordeth Tully, lib. 3. De legibus, sine imperio nec domus ulla, nec civitas, nec gens, nec hominum universum genus stare, nec ipse denique mundus potest. This law of nature, which indeed is the eternal law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any laws written, and before any judicial or municipal laws. And certain it is, that before judicial or municipal laws were made, Kings did decide causes according to natural equity, and were not tied to any rule or formality of law, but did dare jura. And this appeareth by Fortescue, cap. 12 and 13. and by Virgil that philosophical poet, 7th Æneid.
Hoc Priami gestamen erat, cum jura vocatis
More daret populis.
And 5th Æneid.
————Gaudet regno Trojanus Acestes,
Indicitque forum et partibus dat jura vocatis.
And Pomponius, lib. 2. cap. De Origine Juris, affirmeth that, in Tarquinius Superbus's time there was no civil law written, and that Papirius reduced certain observations into writing, which was called Jus Civile Papirianum. Now the reason wherefore laws were made and published, appeareth in Fortescue, cap. 13. and in Tully, lib. 2. Officiorum: at cum jus æquabile ab uno viro homines non consequerentur, incenti sunt leges. Now it appeareth by demonstrative reason, that ligeance, faith, and obedience of the subject to the Sovereign, was before any municipal or judicial laws. 1. For that government and subjection were long before any municipal or judicial laws. 2. For that it had been in vain to have prescribed laws to any but to such as owed obedience, faith, and ligeance before, in respect whereof they were bound to obey and observe them: Frustra enim [13 b] feruntur leges nisi subditis et obedientibus. Seeing then that faith, obedience, and ligeance are due by the law of nature, it followeth that the same cannot be changed or taken away; for albeit judicial or municipal laws have inflicted and imposed in several places, or at several times, divers and several punishments and penalties, for breach or not observance of the law of nature, (for that law only consisted in commanding or prohibiting, without any certain punishment or penalty), yet the very law of nature itself never was nor could be altered or changed.[1] And therefore it is certainly true, that jura naturalia[2]