Human [laws] Must Give Way to Divine Laws

ChristianPatriotResistance

Human [laws] give way to divine laws.

Summa Ratio Est Quae Pro Religione Facit
That rule of conduct is to be deemed binding which religion dictates.

The maxim above cited from the commentaries of Sir E. Cake is, in truth, derived from the Digest; where Papinian [Roman Jurist born 142 AD], after remarking that certain religious observances were favoured by the Roman law, gives as a reason summum esse rationem quae pro religione facit. [The highest rule is that which advances religion.]

The doctrine, thus expressed, and recognized by our own law, must be understood in a somewhat qualified sense, and should be cautiously applied, for, whilst on the one hand “There are many social duties which are not enforced, and many wicked deeds which are not punished by human laws”. So, on the other, an act springing from very laudable motives may expose to punishment.

It may, however, safely be affirmed that, if ever the laws of God and man are at variance, the former are to be obeyed in derogation of the latter as; that the law of God is, under all circumstances, superior in obligation to that of man and that, consequently, if any general custom were opposed to the Divine law, or if any statute were passed directly contrary thereto,—as if it were enacted generally that no one should give alms to any object in ever so necessitous a condition,—such a custom, or such an Act, would be void.

It may further be observed, that, upon these two foundations, the law of Nature and the law of Revelation, depend all human laws; that is to say, no human laws can be suffered to contradict these. For instance, in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law, and if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. “Neither are positive laws, even in matters seemingly indifferent, any further binding than they are agreeable with the laws of God and nature ”

It cannot, however, be doubted that obedience to the laws of our country, provided such laws are not opposed to the law of God, is a moral duty; and, therefore, although disobedience is justifiable in the one case supposed of a contradiction between divine and human laws, yet this is not so, either where the human law affirms the divine in a matter not indifferent in itself,—as where it forbids theft,—or where the human law commands or prohibits in a matter purely indifferent; and in both these cases it becomes a moral duty on the part of the subject to obey. In order to form a correct judgment on this subject, it is necessary to take into consideration, that the true principle both of moral and positive law is, in effect, the same—viz. utility, or the general welfare ; and that the disobedience of either sort of precept must be presumed to involve some kind of mischievous consequence, if for no other reason, yet for this, that such example of disobedience may encourage others to violate laws of a beneficial character, and tend to lessen that general reverence which ought to be entertained by the community for the institutions of the country.

Not only would the general maxim, which we have been considering, apply, if a conflict should arise between the law of the land and the law of God, but it likewise holds true with reference to foreign laws, wheresoever such laws are deemed by our courts inconsistent with the divine; for although it is well known that courts of justice in this country will recognize foreign laws and institutions, and will administer the lex loci [local law] in determining as to the validity of contracts, and in adjudicating upon the rights and liabilities of litigating parties, yet, inasmuch as the proceedings in our courts are founded upon the law of England, and since that law is founded upon the law of nature and the revealed law of God, it follows, that, if the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it; and it may, therefore, be laid down generally, that what is called international comity, or the comitas inter communitates [courtesy between nations], cannot prevail here in any case, where its observance would tend to violate the law of this country, the law of nature, or the law of God

Source: A Selection of Legal Maxims, classified and illustrated; By Herbert Broom

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