Divisions Of Law

The difference and division of the Lawes, has been made in divers manners, according to the different methods, of those men that have written of them. For it is a thing that dependeth not on Nature, but on the scope of the Writer; and is subservient to every mans proper method. In the Institutions of Justinian, we find seven sorts of Civill Lawes.

1. The Edicts, Constitutions, and Epistles Of The Prince, that is, of the Emperour; because the whole power of the people was in him. Like these, are the Proclamations of the Kings of England.

2. The Decrees Of The Whole People Of Rome (comprehending the Senate,) when they were put to the Question by the Senate. These were Lawes, at first, by the vertue of the Soveraign Power residing in the people; and such of them as by the Emperours were not abrogated, remained Lawes by the Authority Imperiall. For all Lawes that bind, are understood to be Lawes by his authority that has power to repeale them. Somewhat like to these Lawes, are the Acts of Parliament in England.

3. The Decrees Of The Common People (excluding the Senate,) when they were put to the question by the Tribune of the people. For such of them as were not abrogated by the Emperours, remained Lawes by the Authority Imperiall. Like to these, were the Orders of the House of Commons in England.

4. Senatus Consulta, the Orders Of The Senate; because when the people of Rome grew so numerous, as it was inconvenient to assemble them; it was thought fit by the Emperour, that men should Consult the Senate in stead of the people: And these have some resemblance with the Acts of Counsell.

5. The Edicts Of Praetors, and (in some Cases) of the Aediles: such as are the Chiefe Justices in the Courts of England.

6. Responsa Prudentum; which were the Sentences, and Opinions of those Lawyers, to whom the Emperour gave Authority to interpret the Law, and to give answer to such as in matter of Law demanded their advice; which Answers, the Judges in giving Judgement were obliged by the Constitutions of the Emperour to observe; And should be like the Reports of Cases Judged, if other Judges be by the Law of England bound to observe them. For the Judges of the Common Law of England, are not properly Judges, but Juris Consulti; of whom the Judges, who are either the Lords, or Twelve men of the Country, are in point of Law to ask advice.

7. Also, Unwritten Customes, (which in their own nature are an imitation of Law,) by the tacite consent of the Emperour, in case they be not contrary to the Law of Nature, are very Lawes.

Another division of Lawes, is into Naturall and Positive. Naturall are those which have been Lawes from all Eternity; and are called not onely Naturall, but also Morall Lawes; consisting in the Morall Vertues, as Justice, Equity, and all habits of the mind that conduce to Peace, and Charity; of which I have already spoken in the fourteenth and fifteenth Chapters.

Positive, are those which have not been for Eternity; but have been made Lawes by the Will of those that have had the Soveraign Power over others; and are either written, or made known to men, by some other argument of the Will of their Legislator.