as a native; and a freedman, as he that was born free; and the privileges, granted to a city, are to be extended to the suburbs. But this rule is to be estimated as the former, there being the same reason of contraries, save only that there is, in the matters of favour, something of particular consideration. For although it is, by the former measures, set down who are the persons, and which are the causes to be favoured and eased; yet those persons are not in all cases to receive the advantage; that is, they are, in all cases, which the words of the law can bear, except that, by that favour, the whole process be evacuated, or the thing be lost. Therefore although the guilty person is favoured in all the methods and solemnities of law, where the law can proceed; yet where the favour would hinder the proceeding, the accuser and not the guilty person is to receive it. For the accuser hath the advantage of taking his oath in law, which the guilty person hath not; because the law supposes he will deny the fact, right or wrong. And thus we are also to proceed in our private intercourses of justice and charity, we are rather to believe the accuser swearing, than the accused. But if the accusation be not sworn, or if the guilty person be brought into judgment upon suspicion only, and a public fame,-we are rather to believe the accused swearing his innocence, than the voice of fame or uncertain accusers. Sect. 2. Judicial Interpretation. RULE II. When the Power that made the Law, does interpret the Law, the Interpretation is authentical, and obliges the Conscience as much as the Law; and can release the Bond of Conscience so far as the Interpretation extends, as much as if the Law were abrogated. 1. WHEN the law is interpreted by the emperor, " ratam et indubitatam habendam esse," say the lawyers. The reason is plain and easy. The law is nothing but the solemn and declared will of the lawgiver; and he that speaks, best knows his own mind; and he that can take away the law, can alter it; and he that can cut off the hands, may certainly pare the nails and since the legislative power never dies, and from this power the law hath its perpetual force, and can live no longer than he please,—by what method of law soever he signify his mind, whether it be by declaring the meaning of the law, or by abating the rigour of it, or dispensing in the case, or enlarging the favour, or restraining the severity; it is all one as to the event and obligation of conscience. The interpretation is to the law, as the echo to the voice; it comes from the same principle, and though it speaks less, yet it speaks oftener, and it speaks enough, so much as is then to be the measure of the conscience in good and evil. 2. For when the lawgiver does interpret his law, he does not take off the obligation of the law, but declares, that, in such a case, it was not intended to oblige. Tacitus tells of a Roman knight, who having sworn to his wife that he would never be divorced from her, was, by Tiberius, dispensed with, when he had taken her in the unchaste embraces of his sonin-law. The emperor then declared that the knight had only obliged himself not to be divorced, unless a great cause should intervene. Thus we find that Pope Lucius III. did absolve them from their oath, that sware they would not speak to their father or mother, brother or sister, or show them any kindness; but this absolution quitted them not from the sin of a rash and impious oath, but declared that they were not bound to keep it. "Absolvit, i. e. absolutum ostendit';" as Pope Nicolas did, in the case of the Archbishop of Triers, he declared him to be at liberty; and the gloss u derives a warranty for this use of the word, out of the prophet Isaiah. 66 3. It was ill said of Brutus, that a prince might not be more severe, nor yet more gentle than the law. For there are many things quæ natura videntur honesta esse, temporibus sunt inhonesta," saith Cicero," which, at first sanction of the law and in their own nature, are honest, but in the change of times and by new relations, become unjust and intolerable:" and therefore the civil law y allows to princes, a power "juvare, supplere, corrigere," " to help, to Cap. Cum quidam. sect Illi Vero de Jure. y Lib. Jus a sect. 1. de Just. et Jure. t Cap. Auctoritatem, 15. cap. 6. * Lib. 3. de Offic. supply, to correct," the laws. For those are but precarious princes, who, when they see a case that needs a remedy, cannot command it; but like the tribunes of Rome, who, when they offered to intercede and interpose between Fabius and the sentence of Papyrius the dictator, by which Fabius was condemned,-could effect nothing, till they went upon their knees in his behalf. But it is worse, that the laws of a nation should bind the prince, as Jupiter in Homer was bound by the laws of fate, so that he could not help his son Sarpedon, but sat weeping like a chidden girl. But of this I have already given sufficient accounts. The supreme power "dominus legum, canon animatus in terris, lex animata, fons justitiæ, supra jus dispensare potens," as Innocentius a said of himself; and therefore of this there can be no question. "Inter æquitatem jusque interpositam interpretationem nobis solis et oportet, et licet inspicere," saith the emperor"; "The prince alone hath power to intervene between equity and strict law by his interpretation." This is now to be reduced to practice. 4. First, this power must be administered with nobleness and ingenuity; not fraudulently, or to oppress any one, which Cicero calls "calumniam, et nimis callidam, sed malitiosam juris interpretationem," a crafty and malicious commentary." Such as was that act of Solyman, who after he had sworn never to take from Ibrahim Bassa his life, killed him when he was asleep,-because Talisman, the priest, declared that sleep is death. Thus the triumviri, in Rome, having a mind to kill a boy, which, by the force of law, they could not do, they gave him the toga virilis,' and forced him to be a man in the estimation of law, that, by law, they might oppress him. And Mithridates, king of Armenia, thought himself secure, when Rhadamistus, the son of Pharasmanes the Iberian king, had promised he would neither stab nor poison him; but the young tyrant interpreted his promise maliciously, when he oppressed him with pillows and feather-beds. And all Europe hates the memory of the Archbishop of Mentz, who, having promised to Atto Adel, a Palatine of Franconia, that he should safely return out of his castle, did indeed perform the letter of his word; but pretending kindness as well as justice, when he had brought him forth out of the castle, passionately invited him to breakfast, and then killed him when he re-entered. The power of princes to give senses to their laws, must be to do justice and to give ease to the pitiable and oppressed. 5. Secondly, This power is not to be administered but upon grave and just causes: for to be easy and forward in bending the laws by unnecessary interpretations, is but a diminution of justice, and a looseness in government; as was well observed by Livy, speaking of those brave ages, in which the Roman honesty and justice were the beginning of the greatest empire in the world: "Sed nondum hæc, quæ nunc tenet seculum, negligentia divum venerat ; nec interpretando sibi quisque jusjurandum et leges aptas faciebat, sed suos potius mores ad ea accommodabat;""The neglect of the gods and the laws, was not gone so far as to bend the laws to the manners of men, but men measured their manners by the laws:"-and then no man can deny to a prince leave to derogate from his laws, by such interpretations. "Licet enim regi in civitate cui regnat, jubere aliquid quod neque ante illum quisquam, neque ipse unquam jusserat," saith St. Austin," "A king, in his own dominions, may command that, which neither any man before him, or himself before that time, commanded;" meaning, that although he must govern by his laws, yet, when there is a favourable case, he may give a new sense to them, that he may do his old duty by new measures. Thus Solomon absolved Abiathar from the sentence of death, which, by law, he had incurred,—because he had formerly done worthily to the interests of his father David. Thus when Cato, censor, had turned Lucius Quinctius Flaminius out of the senate, the majesty of the Roman people restored him; and though they had no cause to do it, yet they had power. Now this power, though it may be done by interpretation, yet when it is administered by the prince, it is most commonly by way of pardon, absolute power, and prerogative. Thus princes can restore a man in blood. Fas est cuivis principi maculosas notas vitiatæ opinionis abstergeref." So Antony, the emperor, restored Julianus Licinianus, whom Ulpian the president had bae Lib. 3. Confess. cap. 8. f Cassiodor. li. 3. var. ep. 46. lib. Cum Salutatus, cap. de Sent. Pass. Lib. 3. cap. 20. Ruperti, vol. 1. pag. 199. nished. When a law determines, that, under such an age, a person shall be incapable of being the general of an army, the supreme power can declare the meaning of the law to be, unless a great excellency of courage and maturity of judgment, supply the want of years; in which very case Scipio Africanus said wisely, when he desired to be employed in the Punic war, "se sat annorum habiturum, si populus Romanus voluerit," "he should quickly be old enough, if the Roman people pleased." Thus Tiberius put Nero into the senate at fifteen years of age, and so did Augustus the like to Tiberius and his brother; and the people declared or dispensed the law in Pompey's case, and allowed him a triumph before he had been consul or prætor. 6. But to this there is not much to be said; for he that can make a new law, may, by interpretation, change the old into a new; that is, any interpretation of his is valid, if it be just, naturally just, though it be not according to the grammar or first intention of the civil or municipal law: “quia si leges condere soli imperatori concessum est, etiam leges interpretari solo dignum imperio esse oportets." He that can do the greater, can do the less; and he that hath power of cutting off the head, can dispose of the tongue as he please; so that if it will not speak what he would have it, he can take a course, it shall speak nothing against him. But the case is otherwise in judges. 7. For the interpretation of laws, made by judges, is matter of fidelity and wise dispensation, but nothing of empire and power; and it is a good probable warranty of conscience, but no final determination in case any cause of doubt happens to oppose it. And this was well observed by Cicero": "Nemo apud judices ita solet causam agere; ignoscite, judices; erravit; lapsus est; non putavit; si unquam posthac.' In senatu vero, et apud populum, et apud principem, et ubicunque juris clementia est, habet locum deprecatio." No man is to ask any favour of the judges, but what the law allows him; but of the prince, he may: A quo sæpe rei, nullo licet ære redempti, For what is wanting in the provisions of law, he can make Lib. ult. cap. de Legib. VOL. XIV. Pro Ligar. cap. 10. §. 5. Wetzel, p. 301. R |