St. Augustine, Of the citie of God vvith the learned comments of Io. Lod. Viues. Englished by I.H.

Whether the Cit•…•…y of Rome had euer a true common-wealth, according to Scipio's definition of a common-wealth, in Tully. CHAP. 21.

NOw it is time to performe a promise which I passed in the second booke of this worke: and that was, to shew that Rome neuer had a true common-wealth, as Scipio defineth one in Tullyes booke De Repub. his Definition was, A common-wealth is the estate of the people. Respub. est res populi. If this be true, Rome neuer had any, for it neuer had an estate of the people, which hee defines the common-wealth by: For, he defineth the people to bee a multitude, vnited in one consent of lawe and profite: what hee meaneth by a consent of lawe, hee sheweth him-selfe: and sheweth there-by that a state cannot stand with-out iu∣stice: so that where true iustice wanteth, there can bee no law. For what lawe doth, iustice doth, and what is done vniustly, is done vnlawfully. For wee may not imagine mens vniust decrees to bee lawes: all men defining law to (a) arise out of the fountaine of iustice; and that that same vniust assertion of some, is vtterly false: (b) That is law which is profitable vnto the greatest. So then, where iustice is not, there can bee no societie vnited in one consent of lawe, therefore no people, according to Scipios definitions in Tully. If no people, then no estate of the people, but rather of a confused multitude, vnworthy of a peoples name. If then the common-wealth be an estate of the people, and that they bee no peo∣ple that are not vnited in one consent of lawe: nor that no law, which ground∣eth not vpon iustice: then followeth it needes, that where no iustice is, there no common-wealth is. Now then ad propositu•…•…: Iustice is a vertue distributing vnto euery one his due. What iustice is that then, that taketh man from the true God, and giueth him vnto the damned fiends? is this distribution of due? is hee that taketh away thy possessions, and giueth them to one that hath no claime to them guilty of in-iustice, and is not hee so likewise, that taketh him-selfe away from his Lord God, and giueth him-selfe to the seruice of the deuill? There are witty and powerfull disputations in those bookes De repub. for iustice against in-iu∣stice. Wherein, it hauing first beene argued for in-iustice, against iustice, and auerred that a state could not stand with-out in-iustice; and this brought as a principall confirmation hereof, that it is in-iustice for man to rule ouer-man, and yet if the Citty whose dominion is so large, should not obserue this forme of in-iustice, shee could neuer keepe the prouinces vnder. Vnto this it was answered on the behalfe of iustice, that this was a iust course, it being profitable

for such to serue, and for their good, to witte, when the power to do hurt is taken from the wicked, they wil carry themselues better being curbed, because they ca∣ried themselues so badly before they were curbed. To confirme this answer this notable example was alledged, as being fetched from nature it selfe: If it were vn∣•…•…t, to rule, why doth God rule ouer man, the soule ouer the body, reason ouer lust, and al the •…•…des other vicious affects? This example teacheth plaine that it is good for some to serue in perticular, and it is good for all to serue God in generall. And the mind seruing God, is lawfull Lord ouer the body: so is reason being subiect vn∣to God, ouer the lusts and other vices. Wherefore if man serue not God, what iustice can bee thought to bee in him? seeing that if hee serue not him the soule hath neither lawfull souerainty ouer the body, nor the reason ouer the af∣fects: now if this iustice cannot befound in owne man, no more can it then in a whole multitude of such like men. Therefore amongst such there is not that con∣sent of law which maketh a multitude a people, whose estate maketh a common∣wealth; What neede I speake of the profit, that is named in the definition of a people? for although that none liue profitably that liue wickedly, that serue not God, but the Diuells (who are so much the more wicked in that they being most filthy creatures, dare exact sacrifices as if they were gods:) yet I thinke that what I haue said of the consent of law may serue to shew that they were no people whose estate might make a weale-publike, hauing no iustice amongst them. If they say they did not serue Diuells, but holy gods, what neede wee rehearse that here which we said so often before? who is he that hath read ouer this worke vnto this chapter, and yet doubteth whether they were diuells that the Romaines worshipped or no? vnlesse he be either senslessly blockish, or shamelessely conten∣•…•…s? But to leaue the powers that they offered vnto, take this place of holy •…•…it for all: He that sacrificeth vnto gods, shalbe rooted out, but vnto one God alone. He that taught this in such threatning manner will haue no gods sacrificed vnto, be they good or be they bad.

L. VIVES.

LAw to (a) arise.] Cic, de leg. lib. 1. It was not the peoples command (saith he) nor Princes decrees, nor iudges sentences, but the very rule of nature that gaue originall vnto law. And againe. lib. 2. I see that the wisest men held that law came neither from mans inuentions nor •…•…ar decrees, but is an eternall thing, ruling all the world by the knowledge of commanding and forbidding: and so they auoutched the high law of all to be the intellect of that great God who sway∣•…•… all by compulsion and prohibition. Thus Tully, out of Plato, and thus the Stoikes held •…•…st Epicurus who held that nature accounted nothing iust, but feare did. Sene. Epist. 16. 〈◊〉〈◊〉 holy law that lyeth recorded in euery mans conscience, the ciuilians call right and reason 〈◊〉〈◊〉 & bonum.

So that Ulpian defineth law to be aers aequi & boni, an arte of right and reason, making him •…•…ly a Lawyer that can skill of this right and reason, and such that as Tully saydof Sulpitius, •…•…re, all vnto equity, and had rather end controuersies then procure them, that peace 〈◊〉〈◊〉 be generally kept amongst men, and each bee at peace with him-selfe, which is the 〈◊〉〈◊〉 ioy of nature.

•…•…ely the lawyers of ancient times were appointed for this end, to decide and finish con∣•…•…s, as when I was litle better then a child, I remember I hard mine vncle Henry 〈◊〉〈◊〉 read in his admired lectures vpon Iustinians Institutions. Francesco Craneueldio

and I had much talke hereof, of late, who is a famous and profound ciuilian, and in truth hee made a great complaint in my hearing of the quirkes, and cousonages that the lawyers of this age do hatch and bring forth. Truly he is a man of a rare conceipt, and of that harmelesse cariage withall, that conuerse with him seauen yeares, and yet you shall neuer heare offensiue tearme come out of his mouth. Marke Laurino, Deane of S. Donatians in Bruges was with vs now and then: if learning had many such friends as he, it would beare an higher sayle then it doth. Iohn Fennius also, of the same house, was with vs sometimes, a youth naturally or∣dayned to learning, and so he applieth him-selfe. (b) That is law.] So did Thrasibulus define law. Plato de Rep. lib. 1. where Socrates confuteth him, but truely the law that is in ordinary practise, is most of this nature.