is to say, that they hearken to the complaints of their Subjects; and as oft as need requires, make
choice of some extraordinary Judges, who may hear the matter debated concerning the ordinary ones.
Chapter XIV.
Of Lawes and Trespasses
I. They who lesse seriously consider the force of words, doe sometimes confound Law with Counsell, sometimes with Covenant, sometimes with Right. They confound Law with Counsell, who think, that it is the duty of Monarchs not onely to give ear to their Counsellours, but also to obey them, as though it were in vaine to take Counsell, unlesse it were also followed. We must fetch the distinction between
Counsell, and Law, from the difference between Counsell, and Command. Now COUNSELL is a precept in which the reason of my obeying it, is taken from the thing it self which is advised; but COMMAND is a precept in which the cause of my obedience depends on the will of the Commander.
For it is not properly said, Thus I will, and thus I Command, except the will stand for a Reason. Now
when obedience is yielded to the Lawes, not for the thing it self, but by reason of the advisers will, the
Law is not a Counsell, but a Command, and is defined thus, LAW is the command of that Person (whether Man, or Court) whose precept containes in it the reason of obedience; as the Precepts of God
in regard of Men, of Magistrates in respect of their Subjects, and universally of all the powerfull in
respect of them who cannot resist, may be termed their Lawes. Law and Counsell therefore differ many ways; Law belongs to him who hath power over them whom he adviseth, Counsell to them who have
no power. To follow what is prescribed by Law, is duty, what by Counsell, is free-will. Counsell is directed to his end that receives it; Law, to his that gives it. Counsell is given to none but the willing; Law even to the unwilling. To conclude, the right of the Counsellour is made void by the will of him to whom he gives Counsell, the right of the Law-giver is not abrogated at the pleasure of him who hath a
Law imposed.
II. They confound Law, and Covenant, who conceive the Lawes to be nothing else but certain
omologemata or forms of living, determined by the common consent of men: Amongst whom is
Aristotle, who defines Law on this manner, Nomos esti logos orismenos kath omologian koinen poleos,
minuon pos dei prattein ekasta, that is to say, Law is a speech, limited according to the common
consent of the City, declaring every thing that we ought to doe. Which definition is not simply of Law, but of the Civill Law; for it is manifest that the Divine Lawes sprang not from the consent of men, nor yet the Lawes of Nature; for if they had their originall from the consent of men, they might also by the same consent be abrogated; but they are unchangeable. But indeed that's no right definition of a Civill
Law; for in that place a City is taken either for one civill person, having one will, or for a multitude of men who have each of them the liberty of their private wills. If for one person, those words, common
consent, are ill placed here, for one person hath no common consent; neither ought he to have said, ( declaring what was needfull to be done) but commanding; for what the City declares, it commands its Subjects. He therefore by a City understood a multitude of men declaring by common consent (imagine
it a writing confirm'd by Votes) some certain formes of living; but these are nothing else but some
mutuall contracts which oblige not any man (and therefore are no Lawes) before that a Supreme Power
being constituted which can compell, have sufficient remedy against the rest, who otherwise are not
likely to keep them. Lawes therefore, according to this definition of Aristotle, are nothing else, but
naked, and weak contracts, which then at length, when there is one who by right doth exercise the
Supreme Power, shall either become Lawes, or no Lawes, at his will and pleasure: Wherefore he
confounds Contracts with Lawes, which he ought not to have done; for Contract is a promise, Law a command. In Contracts we say, I will do this; In Lawes, Doe this. Contracts oblige us, 1 Lawes tie us fast, being obliged. A Contract obligeth of it self, The Law holds the party obliged by vertue of the universall Contract of yeelding obedience; Therefore in Contract its first determined what is to be done, before we are obliged to doe it; But in Law we are first obliged to performe, and what is to be done, is determined afterwards. Aristotle therefore ought to have defined a civill law thus, A civill law is a speech limited by the will of the City, commanding every thing behoofefull to be done, which is the
same with that we have given above in the 6. Chap. art. 9. to wit, that the civill lawes are the command
of him (whether man, or Court of men) who is endued with supreme Power in the city, concerning the
future actions of his Subjects.
III. They confound Lawes with Right, who continue still to doe what is permitted by divine Right, notwithstanding it be forbidden by the civill Law: That which is prohibited by the divine Law, cannot bee permitted by the civill, neither can that which is commanded by the divine Law, be prohibited by the civill. Notwithstanding that which is permitted by the divine Right, that is to say, that which may be done by divine Right, doth no whit hinder why the same may not be forbidden by the civill Lawes; for inferiour Lawes may restrain the liberty allowed by the superiour, although they cannot enlarge them.
Now naturall liberty is a Right not constituted, but allowed by the Lawes. For the Lawes being removed, our liberty is absolute; This is first restrained by the naturall, and divine Lawes, the residue is bounded by the civill Law, and what remains may again be restrained by the constitutions of particular Towns, and Societies. There is great difference therefore between Law, and Right; For Law is a fetter, Right is freedome, and they differ like contraries.
IV. All Law may be divided, first according to the diversity of its Authors into Divine and humane. The Divine, according to the two wayes whereby God hath made known his will unto men, is twofold,
naturall (or morall) and positive; naturall is that which God hath declared to all men by his eternall word borne with them, to wit, their naturall Reason; and this is that Law which in this whole book I have
endeavoured to unfold. Positive is that, which God hath revealed to us by the word of Prophesie, wherein he hath spoken unto men as a man: Such are the Lawes which he gave to the Jewes
concerning their government, and divine worship, and they may be termed the Divine civill Lawes,
because they were peculiar to the civill government of the Jewes, his peculiar people. Again, the
naturall Law may be divided into that of Men, which alone hath obtained the title of the Law of nature, and that of Cities, which may be called that of Nations, but vulgarly it is termed the Right of Nations.
The precepts of both are alike, but because Cities once instituted doe put on the personall proprieties
of men, that Law, which speaking of the duty of single men, we call naturall, being applyed to whole Cities, and Nations, is called the Right of Nations. And the same Elements of naturall law, and Right, which have hitherto been spoken of, being transferred to whole Cities and Nations, may be taken for the Elements of the lawes, and Right of Nations.
V. All humane law is civill. For the state of men considered out of civill society, is hostile, in which, because one is not subject to another, there are no other Lawes, beside the dictates of naturall reason,
which is the divine Law. But in civill government the City onely, that is to say, that man, or Court, to
whom the supreme power of the City is committed, is the Legislator, and the Lawes of the City are
civill. The civill Lawes may be divided according to the diversity of their subject matter, into sacred, or secular; sacred are those which pertain to Religion, that is to say, to the ceremonies, and worship of God (to wit what Persons, things, places, are to be consecrated, and in what fashion, what opinions
concerning the Deity are to be taught publiquely, and with what words, and in what order supplications
are to be made, and the like) and are not determined by any divine positive Law. For the civill sacred
Lawes are the humane Lawes (which are also called Ecclesiasticall) concerning things sacred; but the secular under a generall notion, are usually called the civill Lawes.
VI. Again, the civill Law (according to the two offices of the Legislator, whereof one is to judge; the other to constrain men to acquiesce to his judgements) hath two parts; the one distributive, the other
vindicative, or penall. By the distributive it is, that every man hath his proper Right, that is to say, it sets forth Rules for all things, whereby we may know what is properly ours, what another mans; so as others
may not hinder us from the free use and enjoyment of our own; and we may not interrupt others in the
quiet possession of theirs; and what is lawfull for every man to doe or omit, and what is not lawfull.
Vindicative is that whereby it is defined what punishment shall be inflicted on them who break the Law.
VII. Now distributive, and vindicative, are not two severall Species of the Lawes, but two parts of the same Law. For if the Law should say no more, but (for example) whatsoever you take with your net in
the Sea, be it yours, its in vain; For although another should take that away from you which you have
caught, it hinders not, but that it still remains yours; for in the state of nature where all things are
common to all, yours, and others, are all one, insomuch as what the Law defines to be yours, was yours even before the Law, and after the Law ceases not to bee yours, although in another mans
possession. Wherefore the Law doth nothing, unlesse it bee understood to bee so yours, as all other
men be forbidden to interrupt your free use, and secure enjoyment of it at all times, according to your
own will, and pleasure. For this is that which is required to a propriety of goods, not that a man may be
able to use them, but to use them alone, which is done by prohibiting others to be an hinderance to
him. But in vain doe they also prohibit any men, who doe not withall strike a fear of punishment into
them; in vain therefore is the Law, unlesse it contain both parts, that which forbids injuries to be done, and that which punisheth the doers of them. The first of them which is called distributive, is Prohibitory, and speaks to all; the second which is styled vindicative, or paenary, is mandatory, and onely speaks to publique Ministers.
VIII. From hence also we may understand, that every civill Law hath a penalty annexed to it, either
explicitly, or implicitly; For where the penalty is not defined, neither by any writing, nor by example of
any one who hath suffered the punishment of the transgressed Law there the penalty is understood to
be arbitrary, namely, to depend on the will of the Legislator, that is to say, of the supreme Commander.
For in vain is that Law which may be broken without punishment.
IX. Now because it comes from the civill Lawes, both that every man have his proper Right, and
distinguisht from anothers, and also that he is forbidden to invade anothers Rights, it followes, that
these Precepts ( Thou shalt not refuse to give the honour defin'd by the Lawes unto thy Parents: Thou
shalt not kill the man whom the Lawes forbid thee to kill: Thou shalt avoid all copulation forbidden by
the Laws: Thou shalt not take away anothers goods against the Lords will: Thou shalt not frustrate the
Laws and Judgements by false testimony) are Civill Lawes. The naturall Lawes command the same
things but implicitly. For the law of nature (as hath been said in the 3. Chap. Art. 2.) commands us to
keep contracts, and therefore also to performe obedience when we have covenanted obedience, and
to abstaine from anothers goods when it is determin'd by the civill Law what belongs to another. But al
Subjects (by the 13. Art. of the 6. Chap.) do covenant to obey his commands who hath the supreme
power, that is to say the civill Lawes, in the very constitution of government, even before it is possible to
break them. For the Law of nature did oblige in the state of nature, where first (because nature hath
given all things to all men) nothing did properly belong to another, and therefore it was not possible to
invade anothers right; next, where all things were common, and therefore all carnall copulations lawfull;
Thirdly, where was the state of Warre, and therefore lawfull to kill; Fourthly, where all things were
determined by every mans own judgement, and therefore paternall respects also: Lastly, where there
were no publique judgements, and therefore no use of bearing witnesse, either true, or false.
X. Seeing therefore our obligation to observe those Laws is more ancient than the promulgation of the
Laws themselves, as being contained in the very constitution of the City, by the vertue of the naturall
Law which forbids breach of Covenant, the Law of nature commands us to keep all the civill Laws; for
where we are tyed to obedience, before we know what will be commanded us, there we are universally
tyed to obey in all things. Whence it followes, that no civil Law whatsoever, which tends not to a
reproach of the Deity (in respect of whom, Cities themselves have no right of their own, and cannot be
said to make Lawes) can possibly be against the Law of nature; for though the Law of nature forbid
theft, adultery, &c. yet if the civill Law command us to invade any thing, that invasion is not theft,
adultery, &c. For when the Lacedemonians of old permitted their youths by a certaine Law, to take
away other mens goods, they commanded that these goods should not bee accounted other mens, but
their own who took them; and therefore such surreptions were no thefts. In like manner, copulations of
heathen Sexes, according to their Lawes, were lawfull marriages.
XI. Its necessary to the essence of a Law, that the Subjects be acquainted with two things, First, what
man or Court hath the supreme power, that is to say, the Right of making Lawes. Secondly, what the
Law it self sayes; for he that neither knew either to whom or what he is tyed to, cannot obey, and by
consequence is in such a condition, as if he were not tyed at all. I say not that it is necessary to the
essence of a Law, that either one, or the other be perpetually known, but onely that it be once knowne;
and if the Subject afterward forget either the Right he hath who made the Law, or the Law it self, that
makes him no lesse tyed to obey, since he might have remembred it, had he had a will to obey.
XII. The knowledge of the Legislator depends on the Subject himselfe; for the right of making Lawes
could not be conferr'd on any man without his owne consent, and covenant, either exprest, or suppos'd;
exprest, when from the beginning the Citizens doe themselves constitute a forme of governing the City,
or when by promise they submit themselves to the Dominion of any one; or suppos'd at least, as when
they make use of the benefit of the Realme, and Lawes, for their protection and conservation against
others. For to whose Dominion we require our fellow Subjects to yeeld obedience for our good, his
Dominion we acknowledge to be legitimate by that very request. And therefore ignorance of the power
of making Lawes, can never be a sufficient excuse; for every man knowes what he hath done himselfe.
XIII. The knowledge of the lawes depends on the Legislator, who must publish them, for otherwise they
are not Lawes; for Law is the command of the Law-maker, and his command is the Declaration of his
Will; it is not therefore a Law, except the will of the Law-maker be declar'd, which is done by
promulgation. Now in promulgation two things must be manifest, whereof one is, that he or they who publish a Law, either have a right themselves to make Lawes, or that they doe it by authority deriv'd
from him or them who have it; the other is the sense of the Law it selfe. Now, that the first, namely
publisht Lawes proceed from him who hath the supreme command, cannot be manifest (speaking
exactly and philosophically) to any, but them who have received them from the mouth of the
Commander; the rest beleeve, but the reasons of their beliefe are so many, that it is scarce possible
they should not believe. And truly in a Democratical City where every one may be present at the
making of Laws if he will, he that shall be absent, must beleeve those that were present; but in
monarchies and Aristocraties, because its granted but to few to be present, and openly to heare the commands of the monarch or the Nobles, it was necessary to bestow a power on those few of
publishing them to the rest. And thus we beleeve those to be the Edicts and Decrees of Princes, which are propounded to us for such, either by the writings, or voices of them, whose office it is to publish
them. But yet when we have these causes of beliefe, that we have seen the Prince, or supreme
Councell constantly use such Counsellors, Secretaries, Publishers, and Seales, and the like arguments for the declaring of his will; that he never took any authority from them; that they have bin punisht who
not giving credit to such like promulgations have transgrest the Law; not onely he who thus believing
shall not obey the Edicts and Decrees set forth by them is every where accus'd, but he that not believing, shall not yield obedience, is punisht. For the constant permission of these things is a
manifest signe enough, and evident declaration of the Commanders will; provided there be nothing
contain'd in the Law, Edict or Decree, derogatory from his supreme power: For it is not to be imagin'd that he would have ought taken from his power by any of his Officers as long as he retaines a will to
governe. Now the sense of the law, when there is any doubt made of it, is to be taken from them to whom the supreme authority hath committed the knowledge of causes, or Judgements; for to judge is nothing else than by interpretation to apply the lawes to particular cases. Now we may know who they
are that have this Office granted them, in the same manner, as we know who they be that have
authority given them to publish Laws.
XIV. Againe the civill law according to its two fold manner of publishing, is of two sorts, written & unwritten; By written, I understand that which wants a voice, or some other signe of the will of the Legislator that it may become a Law. For all kind of Laws are of the same age with mankinde, both in
nature, and time, and therefore of more antiquity than the invention of letters, and the Art of writing.
Wherefore not a writing, but a voice is necessary for a written law; this alone is requisite to the being, that to the Remembrance of a Law; for we reade, that before letters were found out for the help of
memory, that Lawes contracted into Meetre, were wont to be sung. The unwritten is that which wants no other publishing than the voice of nature, or naturall reason; such are the lawes of nature. For the naturall Law although it be distinguisht from the civill, for as much as it commands the Will, yet so farre
forth as it relates to our actions it is civill; for example, this same, Thou shalt not covet, which onely appertaines to the minde, is a naturall Law, onely; but this, Thou shalt not invade, is both naturall and civill. For seeing it is impossible to prescribe such universall Rules, whereby all future contentions
which perhaps are infinite, may be determined, its to be understood that in all cases not mentioned by
the written lawes, the law of naturall equity is to be followed, which commands us to distribute equally to equals; and this by the vertue of the civill law, which also punisheth those who knowingly and
willingly doe actually transgresse the lawes of nature.
XV. These things being understood, it appeares first, That the Lawes of Nature, although they were
describ'd in the Books of some Philosophers, are not for that reason to be termed Written lawes: and
that the Writings of the Interpreters of the Lawes, were no Lawes, for want of the Supreme Authority;
nor yet those orations of the Wise, (that is to say) Judges, but so farre forth as by the consent of the Supreme power they part into custome; and that then they are to be received among the Written lawes,
not for the Customes sake (which by its own force doth not constitute a Law) but for the Will of the
Supreme Commander, which appeares in this, that he hath suffer'd his Sentence, whether equall, or
unequall, to passe into custome.
XVI. Sinne, in its largest signification, comprehends every deed, word and thought, against right reason. For every man by reasoning seeks out the meanes to the end which he propounds to himselfe.
If therefore he reason right (that is to say, beginning from most evident principles, he makes a
discourse out of consequences continually necessary,) he will proceede in a most direct way; otherwise
hee'l goe astray, that is to say, he will either doe, say, or endeavour, somewhat against his proper end: which when he hath done, he will indeed in reasoning be said to have erred, but in action and will to
have sinned; for sin followes errour, just as the Will doth the understanding: And this is the most generall acception of the word, under which is contain'd every imprudent action, whether against the
Law, as to overthrow another mans house, or not against the Law, as to build his owne upon the Sand.
XVII. But when we speak of the Lawes, the word Sinne is taken in a more strict sense, and signifies not every thing done against right reason, but that onely which is blameable, and therefore is call'd malum culpae, the evill of fault; but yet if any thing be culpable it is not presently to be term'd a sinne, or fault, but onely if it be blameable with reason. We must therefore enquire what is to be blameable with
reason, what against reason. Such is the nature of man, that every one calls that good which he desires, and evill which he eschewes; and therefore through the diversity of our affections, it happens that one counts that good, which another counts evill; and the same man what now he esteem'd for good, he immediately looks on as evill; and the same thing which he calls good in himselfe, he tearmes evill in another. For we all measure good and evill by the pleasure or paine we either feele at present, or expect hereafter