Essays on Church, State, and Politics

Chapter XI

u chapter xi u On the Application of Divine Laws§1. We said at the beginning that there are two parts of judicial jurisprudence , the interpretation of laws and their application. We have so far dealt with the skill of interpretation. It remains for us to say something about the skill of applying laws, but only very briefly.§2. The interpretation of divine laws differs from the interpretation of human laws in many ways, but their application is the same in both cases.§3. Application, however, is understood to be either a faculty of the intellect or a faculty of the will.§4. If we understand it as a faculty of the intellect, it is the ability to apply the divine laws skillfully and fairly.§5. Both are required in the advocate and the judge.§6. For laws to be applied appropriately, we must examine all circumstances of the deed that is to be either defended or judged, even the smallest, because the smallest circumstance changes the applicability of the law.§7. Even those circumstances that precede the deed and that follow it must be taken into account, to the extent that these are often of some importance to the deed itself. 566 book iii 567§8. The means to finding these out is to read historians in the case of ancient deeds and to consult witnesses and documents for recent events.§9. And by these means the advocate is not only able to understand the deed but can also point out the relevant circumstances to the judge or arbiter . He [the judge or arbiter] then decides whether these circumstances have been properly taken into account.§10. That does not require some subtle prudence because it is very common to use a demonstration that is evident to the senses.§11. Unless perhaps the proof has been conducted with contrived arguments , or the witnesses and the documents contradict each other.§12. For then the judge must be furnished with the skill of sound reasoning, and experience in the discipline from which the argument is sought.§13. But here a certain natural intellectual vivacity is required to extract what is true from what is false. Reading the histories of prudent judges is very conducive to that, as are the contemplation of human minds and also the instruction that those people who have written about the inquisitorial process give to judges on formulating the articles of the inquiry.§14. If the proofs are extremely confused, then the decision in doubtful cases should be made in favor of the accused or the possessor.§15. Others who have published texts on the duty and conscience of the judge or advocate have already explained in greater detail how these circumstances are applied fairly.§16. Experience is requisite for the application of the laws to become a faculty of the will; a person must apply the divine laws frequently in an appropriate and fair fashion to the facts that occur. 568 institutes of divine jurisprudence§17. Yet one should not expect a legal defense or a sentence before the relevant parties have asked for it. There are many instances in ancient history, both sacred and profane, with which to exercise the mind. We have given an example in our dissertation on the Caudinian promise of the Romans.137 end of the third book 137. Christian Thomasius (praeses) and Carl von und zu Montzel (respondens), De sponsione Romanorum Caudina (Leipzig, 1684). The story of the sponsio Caudina is told in Livy’s history of Rome, book IX, chaps. 2–9 (Livy, Livy, pp. 167–99). The Samnites had trapped a Roman army in a valley (the “Caudine forks”) and forced the consuls leading the Roman army to accept a humiliating agreement to make peace. On their return to Rome the consuls argued that the Roman people were not bound by the terms of the peace, since this peace was not a treaty but merely a promise or guarantee (sponsio) that was binding only on the consuls. The consuls declared themselves willing to be handed over to the Samnites; however, the Roman people were free to renew the war against the Samnites without fear of divine sanctions that would follow from the violation of a treaty. ...