Legal Dissertation on the Abstinence of Natural Law from the Fallacious Rules of the Putative Summary Process

immediately, when the body of the crime was not found, Moses replied: Would that all the people were prophesying! Where other cases were to be determined, they were dispatched with little effort according to the custom of the process then currently in practice and communicated through the voice of Moses and Aaron, as is evident from the earlier books of the Old Testament. This was often done by the introduction and presentation of evidence before the face of the people or the Gods, that is, the judges, sometimes also by employing certain signs, an example of which is Exodus 21 and Numbers 15, verse 34 to the end.

§. 2. However, to return rather to the subject of our Process and the argument of what is to be said, and so that it may be clear, above all, by what reason the Process of Law agitated in the forum has changed over the passage of time and by what mutation it has come down to us, we have said in the title that we shall have a discussion on the abstinence of natural law from the fallacious rules of the putative summary process. But so that this undertaking may be clearer and better established from the beginning, it seems it can be taught most conveniently by first showing whence the rules of our Process draw their origin, who is considered to be in a summary process, why it is not such in the truth of the matter but only a putative one, and thus why its rules are rather fallacious. Once these things are explained, it will be easier to judge by what reason natural law abstains from those rules, and why no process can be truly and effectively treated summarily today, since it is impossible for that to be obtained in any figure of a process so named.

§. 3. Although our law which we use is either civil or canon (according to the common opinion), and thus each law is restricted to two sayings, yet since canon law is comprised under human law, and thus is rather called by the name of both laws, divine and human, we believe that one does not stray much from the truth of experience if, regarding human laws, it is added that our fatherland has been reduced in some way to the state of ancient Germany, where customs held more weight than written laws. For neither civil law nor canon law reached us except through common opinion and the approval of custom, so much so that it is almost better to have for oneself the opinion of a native Jurisconsult than the express law. And custom itself abolishes the law. What is this, in truth, but living by customs? Therefore, the same judgment must be held regarding the process, which is also commonly said to draw its origin either from civil or canon law; and in a collation of these laws, it is the constant judgment of all that the process owes its origin rather to canon law than to civil.