2.26. CHAP. XXVI
Of CIVIL LAWS
BY civil laws, I understand the laws that men are therefore bound to
observe, because they are members, not of this or that Commonwealth in
particular, but of a Commonwealth. For the knowledge of particular
laws belongeth to them that profess the study of the laws of their
several countries; but the knowledge of civil law in general, to any
man. The ancient law of Rome was called their civil law, from the word
civitas, which signifies a Commonwealth: and those
countries which, having been under the Roman Empire and governed by that
law, retain still such part thereof as they think fit, call that part the
civil law to distinguish it from the rest of their own civil laws. But
that is not it I intend to speak of here; my design being not to
show what is law here and there, but what is law; as Plato, Aristotle,
Cicero, and diverse others have done, without taking upon them the
profession of the study of the law.
And first it is manifest that law in general is not counsel, but
command; nor a command of any man to any man, but only of him whose
command is addressed to one formerly obliged to obey him. And as for
civil law, it addeth only the name of the person commanding, which
is persona civitatis, the person of the Commonwealth.
Which considered, I define civil law in this manner. Civil law is to
every subject those rules which the Commonwealth hath commanded him,
by word, writing, or other sufficient sign of the will, to make use of
for the distinction of right and wrong; that is to say, of that is
contrary and what is not contrary to the rule.
In which definition there is nothing that is that is not at first
sight evident. For every man seeth that some laws are addressed to all
the subjects in general; some to particular provinces; some to
particular vocations; and some to particular men; and are therefore
laws to every of those to whom the command is directed, and to none
else. As also, that laws are the rules of just and unjust, nothing
being reputed unjust that is not contrary to some law. Likewise,
that none can make laws but the Commonwealth, because our subjection
is to the Commonwealth only; and that commands are to be signified
by sufficient signs, because a man knows not otherwise how to obey
them. And therefore, whatsoever can from this definition by
necessary consequence be deduced, ought to be acknowledged for
truth. Now I deduce from it this that followeth.
1. The legislator in all Commonwealths is only the sovereign, be
he one man, as in a monarchy, or one assembly of men, as in a
democracy or aristocracy. For the legislator is he that maketh the
law. And the Commonwealth only prescribes and commandeth the
observation of those rules which we call law: therefore the
Commonwealth is the legislator. But the Commonwealth is no person, nor
has capacity to do anything but by the representative, that is, the
sovereign; and therefore the sovereign is the sole legislator. For the
same reason, none can abrogate a law made, but the sovereign,
because a law is not abrogated but by another law that forbiddeth it
to be put in execution.
2. The sovereign of a Commonwealth, be it an assembly or one man, is
not subject to the civil laws. For having power to make and repeal
laws, he may, when he pleaseth, free himself from that subjection by
repealing those laws that trouble him, and making of new; and
consequently he was free before. For he is free that can be free
when he will: nor is it possible for any person to be bound to
himself, because he that can bind can release; and therefore he that
is bound to himself only is not bound.
3. When long use obtaineth the authority of a law, it is not the
length of time that maketh the authority, but the will of the
sovereign signified by his silence (for silence is sometimes an
signified by his silence (for silence is sometimes an argument of
consent); and it is no longer law, than the sovereign shall be
silent therein. And therefore if the sovereign shall have a question
of right grounded, not upon his present will, but upon the laws
formerly made, the length of time shall bring no prejudice to his
right: but the question shall be judged by equity. For many unjust
actions and unjust sentences go uncontrolled a longer time than any
man can remember. And our lawyers account no customs law but such as
reasonable, and that evil customs are to be abolished: but the
judgement of what is reasonable, and of what is to be abolished,
belonged to him that maketh the law, which is the sovereign assembly
or monarch.
4. The law of nature and the civil law contain each other and are of
equal extent. For the laws of nature, which consist in equity,
justice, gratitude, and other moral virtues on these depending, in the
condition of mere nature (as I have said before in the end of the
fifteenth Chapter), are not properly laws, but qualities that
dispose men to peace and to obedience. When a Commonwealth is once
settled, then are they actually laws, and not before; as being then
the commands of the Commonwealth; and therefore also civil laws: for
it is the sovereign power that obliges men to obey them. For the
differences of private men, to declare what is equity, what is
justice, and is moral virtue, and to make them binding, there is
need of the ordinances of sovereign power, and punishments to be
ordained for such as shall break them; which ordinances are
therefore part of the civil law. The law of nature therefore is a part
of the civil law in all Commonwealths of the world. Reciprocally also,
the civil law is a part of the dictates of nature. For justice, that
is to say, performance of covenant, and giving to every man his own,
is a dictate of the law of nature. But every subject in a Commonwealth
hath covenanted to obey the civil law; either one with another, as
when they assemble to make a common representative, or with the
representative itself one by one when, subdued by the sword, they
promise obedience that they may receive life; and therefore
obedience to the civil law is part also of the law of nature. Civil
and natural law are not different kinds, but different parts of law;
whereof one part, being written, is called civil the other
unwritten, natural. But the right of nature, that is, the natural
liberty of man, may by the civil law be abridged and restrained:
nay, the end of making laws is no other but such restraint, without
which there cannot possibly be any peace. And law was brought into the
world for nothing else but to limit the natural liberty of
particular men in such manner as they might not hurt, but assist one
another, and join together against a common enemy.
5. If the sovereign of one Commonwealth subdue a people that have
lived under other written laws, and afterwards govern them by the same
laws by which they were governed before, yet those laws are the
civil laws of the victor, and not of the vanquished Commonwealth.
For the legislator is he, not by whose authority the laws were first
made, but by whose authority they now continue to be laws. And
therefore where there be diverse provinces within the dominion of a
Commonwealth, and in those provinces diversity of laws, which commonly
are called the customs of each several province, we are not to
understand that such customs have their force only from length of
time; but that they were anciently laws written, or otherwise made
known, for the constitutions and statutes of their sovereigns; and are
now laws, not by virtue of the prescription of time, but by the
constitutions of their present sovereigns. But if an unwritten law, in
all the provinces of a dominion, shall be generally observed, and no
iniquity appear in the use thereof, that law can be no other but a law
of nature, equally obliging all mankind.
6. Seeing then all laws, written and unwritten, have their authority
and force from the will of the Commonwealth; that is to say, from
the will of the representative, which in a monarchy is the monarch,
and in other Commonwealths the sovereign assembly; a man may wonder
from whence proceed such opinions as are found in the books of lawyers
of eminence in several Commonwealths, directly or by consequence
making the legislative power depend on private men or subordinate
judges. As for example, that the common law hath no controller but the
Parliament; which is true only where a parliament has the sovereign
power, and cannot be assembled nor dissolved, but by their own
discretion. For if there be a right in any else to dissolve them,
there is a right also to control them, and consequently to control
their controllings. And if there be no such right, then the controller
of laws is not parlamentum, but rex in parlamento. And where a
parliament is sovereign, if it should assemble never so many or so
wise men from the countries subject to them, for whatsoever cause, yet
there is no man will believe that such an assembly hath thereby
acquired to themselves a legislative power. Item, that the two arms of
a Commonwealth are force and justice; the first whereof is in the
king, the other deposited in the hands of the Parliament. As if a
Commonwealth could consist where the force were in any hand which
justice had not the authority to command and govern.
7. That law can never be against reason, our lawyers are agreed: and
that not the letter (that is, every construction of it), but that
which is according to the intention of the legislator, is the law. And
it is true: but the doubt is of whose reason it is that shall be
received for law. It is not meant of any private reason; for then
there would be as much contradiction in the laws as there is in the
Schools; nor yet, as Sir Edward Coke makes it, an "Artificial
perfection of reason, gotten by long study, observation, and
experience," as his was. For it is possible long study may increase
and confirm erroneous sentences: and where men build on false grounds,
the more they build, the greater is the ruin: and of those that
study and observe with equal time and diligence, the reasons and
resolutions are, and must remain, discordant: and therefore it is
not that juris prudentia, or wisdom of subordinate judges, but the
reason of this our artificial man the Commonwealth, and his command,
that maketh law: and the Commonwealth being in their representative
but one person, there cannot easily arise any contradiction in the
laws; and when there doth, the same reason is able, by
interpretation or alteration, to take it away. In all courts of
justice, the sovereign (which is the person of the Commonwealth) is he
that judgeth: the subordinate judge ought to have regard to the reason
which moved his sovereign to make such law, that his sentence may be
according thereunto, which then is his sovereigns sentence;
otherwise it is his own, and an unjust one.
8. From this, that the law is a command, and a command consisteth in
declaration or manifestation of the will of him that commandeth, by
voice, writing, or some other sufficient argument of the same, we
may understand that the command of the Commonwealth is law only to
those that have means to take notice of it. Over natural fools,
children, or madmen there is no law, no more than over brute beasts;
nor are they capable of the title of just or unjust, because they
had never power to make any covenant or to understand the consequences
thereof, and consequently never took upon them to authorize the
actions of any sovereign, as they must do that make to themselves a
Commonwealth. And as those from whom nature or accident hath taken
away the notice of all laws in general; so also every man, from whom
any accident not proceeding from his own default, hath taken away
the means to take notice of any particular law, is excused if he
observe it not; and to speak properly, that law is no law to him. It
is therefore necessary to consider in this place what arguments and
signs be sufficient for the knowledge of what is the law; that is to
say, what is the will of the sovereign, as well in monarchies as in
other forms of government.
And first, if it be a law that obliges all the subjects without
exception, and is not written, nor otherwise published in such
places as they may take notice thereof, it is a law of nature. For
whatever men are to take knowledge of for law, not upon other men's
words, but every one from his own reason, must be such as is agreeable
to the reason of all men; which no law can be, but the law of
nature. The laws of nature therefore need not any publishing nor
proclamation; as being contained in this one sentence, approved by all
the world, Do not that to another which thou thinkest unreasonable
to be done by another to thyself.
Secondly, if it be a law that obliges only some condition of men, or
one particular man, and be not written, nor published by word, then
also it is a law of nature, and known by the same arguments and
signs that distinguish those in such a condition from other
subjects. For whatsoever law is not written, or some way published
by him that makes it law, can be known no way but by the reason of him
that is to obey it; and is therefore also a law not only civil, but
natural. For example, if the sovereign employ a public minister,
without written instructions what to do, he is obliged to take for
instructions the dictates of reason: as if he make a judge, the
judge is to take notice that his sentence ought to be according to the
reason of his sovereign, which being always understood to be equity,
he is bound to it by the law of nature: or if an ambassador, he is, in
all things not contained in his written instructions, to take for
instruction that which reason dictates to be most conducing to his
sovereign's interest; and so of all other ministers of the
sovereignty, public and private. All which instructions of natural
reason may be comprehended under one name of fidelity, which is a
branch of natural justice.
The law of nature excepted, it belonged to the essence of all
other laws to be made known to every man that shall be obliged to obey
them, either by word, or writing, or some other act known to proceed
from the sovereign authority. For the will of another cannot be
understood but by his own word, or act, or by conjecture taken from
his scope and purpose; which in the person of the Commonwealth is to
be supposed always consonant to equity and reason. And in ancient
time, before letters were in common use, the laws were many times
put into verse; that the rude people, taking pleasure in singing or
reciting them, might the more easily retain them in memory. And for
the same reason Solomon adviseth a man to bind the Ten Commandments
upon his ten fingers.(1) And for the Law
which Moses gave to the people of Israel at the renewing of the Covenant,
he biddeth them to teach it their children, by discoursing of it both
at home and upon the way, at going to bed and at rising from bed; and
to write it upon the posts and doors of their houses;(2)
and to assemble the people, man, woman, and child, to hear it
read.(3)
Nor is it enough the law be written and published, but also that
there be manifest signs that it proceedeth from the will of the
sovereign. For private men, when they have, or think they have,
force enough to secure their unjust designs, and convoy them safely to
their ambitious ends, may publish for laws what they please, without
or against the legislative authority. There is therefore requisite,
not only a declaration of the law, but also sufficient signs of the
author and authority. The author or legislator is supposed in every
Commonwealth to be evident, because he is the sovereign, who, having
been constituted by the consent of every one, is supposed by every one
to be sufficiently known. And though the ignorance and security of men
be such, for the most part, as that when the memory of the first
constitution of their Commonwealth is worn out, they do not consider
by whose power they use to be defended against their enemies, and to
have their industry protected, and to be righted when injury is done
them; yet because no man that considers can make question of it, no
excuse can be derived from the ignorance of where the sovereignty is
placed. And it is a dictate of natural reason, and consequently an
evident law of nature, that no man ought to weaken that power the
protection whereof he hath himself demanded or wittingly received
against others. Therefore of who is sovereign, no man, but by his
own fault (whatsoever evil men suggest), can make any doubt. The
difficulty cocsisteth in the evidence of the authority derived from
him; the removing whereof dependeth on the knowledge of the public
registers, public counsels, public ministers, and public seals; by
which all laws are sufficiently verified; verified, I say, not
authorized: for the verification is but the testimony and record;
not the authority of the law, which consisteth in the command of the
sovereign only.
If therefore a man have a question of injury, depending on the law
of nature; that is to say, on common equity; the sentence of the
judge, that by commission hath authority to take cognizance of such
causes, is a sufficient verification of the law of nature in that
individual case. For though the advice of one that professeth the
study of the law be useful for the avoiding of contention, yet it is
but advice: it is the judge must tell men what is law, upon the
hearing of the controversy.
But when the question is of injury, or crime, upon a written law,
every man by recourse to the registers by himself or others may, if he
will, be sufficiently informed, before he do such injury, or commit
the crime, whether it be an injury or not; nay, he ought to do so: for
when a man doubts whether the act he goeth about be just or unjust,
and may inform himself if he will, the doing is unlawful. In like
manner, he that supposeth himself injured, in a case determined by the
written law, which he may by himself or others see and consider; if he
complain before he consults with the law, he does unjustly, and
bewrayeth a disposition rather to vex other men than to demand his own
right.
If the question be of obedience to a public officer, to have seen
his commission with the public seal, and heard it read, or to have had
the means to be informed of it, if a man would, is a sufficient
verification of his authority. For every man is obliged to do his best
endeavour to inform himself of all written laws that may concern his
own future actions.
The legislator known, and the laws either by writing or by the light
of nature sufficiently published, there wanteth yet another very
material circumstance to make them obligatory. For it is not the
letter, but the intendment, or meaning; that is to say, the
authentic interpretation of the law (which is the sense of the
legislator), in which the nature of the law consisteth; and
therefore the interpretation of all laws dependeth on the authority
sovereign; and the interpreters can be none but those which the
sovereign, to whom only the subject oweth obedience, shall appoint.
For else, by the craft of an interpreter, the law may be made to
bear a sense contrary to that of the sovereign, by which means the
interpreter becomes the legislator.
All laws, written and unwritten, have need of interpretation. The
unwritten law of nature, though it be easy to such as without
partiality and passion make use of their natural reason, and therefore
leaves the violators thereof without excuse; yet considering there
be very few, perhaps none, that in some cases are not blinded by
self-love, or some other passion, it is now become of all laws the
most obscure, and has consequently the greatest need of able
interpreters. The written laws, if laws, if they be short, are
easily misinterpreted, for the diverse significations of a word or
two; if long, they be more obscure by the diverse significations of
many words: in so much as no written law, delivered in few or many
words, can be well understood without a perfect understanding of the
final causes for which the law was made; the knowledge of which
final causes is in the legislator. To him therefore there cannot be
any knot in the law insoluble, either by finding out the ends to
undo it by, or else by making what ends he will (as Alexander did with
his sword in the Gordian knot) by the legislative power; which no
other interpreter can do.
The interpretation of the laws of nature in a Commonwealth dependeth
not on the books of moral philosophy. The authority of writers,
without the authority of the Commonwealth, maketh not their opinions
law, be they never so true. That which I have written in this treatise
concerning the moral virtues, and of their necessity for the procuring
and maintaining peace, though it be evident truth, is not therefore
presently law, but because in all Commonwealths in the world it is
part of the civil law. For though it be naturally reasonable, yet it
is by the sovereign power that it is law: otherwise, it were a great
error to call the laws of nature unwritten law; whereof we see so many
volumes published, and in them so many contradictions of one another
and of themselves.
The interpretation of the law of nature is the sentence of the judge
constituted by the sovereign authority to hear and determine such
controversies as depend thereon, and consisteth in the application
of the law to the present case. For in the act of judicature the judge
doth no more but consider whether the demand of the party be consonant
to natural reason and equity; and the sentence he giveth is
therefore the interpretation of the law of nature; which
interpretation is authentic, not because it is his private sentence,
but because he giveth it by authority of the sovereign, whereby it
becomes the sovereign's sentence; which is law for that time to the
parties pleading.
But because there is no judge subordinate, nor sovereign, but may
err in a judgement equity; if afterward in another like case he find
it more consonant to equity to give a contrary sentence, he is obliged
to do it. No man's error becomes his own law, nor obliges him to
persist in it. Neither, for the same reason, becomes it a law to other
judges, though sworn to follow it. For though a wrong sentence given
by authority of the sovereign, if he know and allow it, in such laws
as are mutable, be a constitution of a new law in cases in which every
little circumstance is the same; yet in laws immutable, such as are
the laws of nature, they are no laws to the same or other judges in
the like cases for ever after. Princes succeed one another; and one
judge passeth, another cometh; nay, heaven and earth shall pass; but
not one tittle of the law of nature shall pass; for it is the
eternal law of God. Therefore all the sentences of precedent judges
that have ever been cannot all together make a law contrary to natural
equity. Nor any examples of former judges can warrant an
unreasonable sentence, or discharge the present judge of the trouble
of studying what is equity (in the case he is to judge) from the
principles of his own natural reason. For example sake, it is
against the law of nature to punish the innocent; and innocent is he
that acquitteth himself judicially and is acknowledged for innocent by
the judge. Put the case now that a man is accused of a capital
crime, and seeing the power and malice of some enemy, and the frequent
corruption and partiality of judges, runneth away for fear of the
event, and afterwards is taken and brought to a legal trial, and
maketh it sufficiently appear he was not guilty of the crime, and
being thereof acquitted is nevertheless condemned to lose his goods;
this is a manifest condemnation of the innocent. I say therefore
that there is no place in the world where this can be an
interpretation of a law of nature, or be made a law by the sentences
of precedent judges that had done the same. For he that judged it
first judged unjustly; and no injustice can be a pattern of
judgement to succeeding judges. A written law may forbid innocent
men to fly, and they may be punished for flying: but that flying for
fear of injury should be taken for presumption of guilt, after a man
is already absolved of the crime judicially, is contrary to the nature
of a presumption, which hath no place after judgement given. Yet
this is set down by a great lawyer for the common law of England:
"If a man," saith he, "that is innocent be accused of felony, and
for fear flyeth for the same; albeit he judicially acquitteth
himself of the felony; yet if it be found that he fled for the felony,
he shall, notwithstanding his innocency, forfeit all his goods,
chattels, debts, and duties. For as to the forfeiture of them, the law
will admit no proof against the presumption in law, grounded upon
his flight." Here you see an innocent man, judicially acquitted,
notwithstanding his innocency (when no written law forbade him to fly)
after his acquittal, upon a presumption in law, condemned to lose
all the goods he hath. If the law ground upon his flight a presumption
of the fact, which was capital, the sentence ought to have been
capital: the presumption were not of the fact, for what then ought
he to lose his goods? This therefore is no law of England; nor is
the condemnation grounded upon a presumption of law, but upon the
presumption of the judges. It is also against law to say that no proof
shall be admitted against a presumption of law. For all judges,
sovereign and subordinate, if they refuse to hear proof, refuse to
do justice: for though the sentence be just, yet the judges that
condemn, without hearing the proofs offered, are unjust judges; and
their presumption is but prejudice; which no man ought to bring with
him to the seat of justice whatsoever precedent judgements or examples
he shall pretend to follow. There be other things of this nature,
wherein men's judgements have been perverted by trusting to
precedents: but this is enough to show that though the sentence of the
judge be a law to the party pleading, yet it is no law any judge
that shall succeed him in that office.
In like manner, when question is of the meaning of written laws,
he is not the interpreter of them that writeth a commentary upon them.
For commentaries are commonly more subject to cavil than the text, and
therefore need other commentaries; and so there will be no end of such
interpretation. And therefore unless there be an interpreter
authorized by the sovereign, from which the subordinate judges are not
to recede, the interpreter can be no other than the ordinary judges,
in the same manner as they are in cases of the unwritten law; and
their sentences are to be taken by them that plead for laws in that
particular case, but not to bind other judges in like cases to give
like judgements. For a judge may err in the interpretation even of
written laws; but no error of a subordinate judge can change the
law, which is the general sentence of the sovereign.
In written laws men use to make a difference between the letter
and the sentence of the law: and when by the letter is meant
whatsoever can be gathered from the bare words, it is well
distinguished. For the significations of almost all are either in
themselves, or in the metaphorical use of them, ambiguous; and may
be drawn in argument to make many senses; but there is only one
sense of the law. But if by the letter be meant the literal sense,
then the letter and the sentence or intention of the law is all one.
For the literal sense is that which the legislator intended should
by the letter of the law be signified. Now the intention of the
legislator is always supposed to be equity: for it were a great
contumely for a judge to think otherwise of the sovereign. He ought
therefore, if the word of the law do not fully authorize a
reasonable sentence, to supply it with the law of nature; or if the
case be difficult, to respite judgement till he have received more
ample authority. For example, a written law ordaineth that he which is
thrust out of his house by force shall be restored by force. It
happens that a man by negligence leaves his house empty, and returning
is kept out by force, in which case there is no special law
ordained. It is evident that this case is contained in the same law;
for else there is no remedy for him at all, which is to be supposed
against the intention of the legislator. Again, the word of the law
commandeth to judge according to the evidence. A man is accused
falsely of a fact which the judge himself saw done by another, and not
by him that is accused. In this case neither shall the letter of the
law be followed to the condemnation of the innocent, nor shall the
judge give sentence against the evidence of the witnesses, because the
letter of the law is to the contrary; but procure of the sovereign
that another be made judge, and himself witness. So that the
incommodity that follows the bare words of a written law may lead
him to the intention of the law, whereby to interpret the same the
better; though no incommodity can warrant a sentence against the
law. For every judge of right and wrong is not judge of what is
commodious or incommodious to the Commonwealth.
The abilities required in a good interpreter of the law, that is
to say, in a good judge, are not the same with those of an advocate;
namely, the study of the laws. For a judge, as he ought to take notice
of the fact from none but the witnesses, so also he ought to take
notice of the law from nothing but the statutes and constitutions of
the sovereign, alleged in the pleading, or declared to him by some
that have authority from the sovereign power to declare them; and need
not take care beforehand what he shall judge; for it shall be given
him what he shall say concerning the fact, by witnesses; and what he
shall say in point of law, from those that shall in their pleadings
show it, and by authority interpret it upon the place. The Lords of
Parliament in England were judges, and most difficult causes have been
heard and determined by them; yet few of them were much versed in
the study of the laws, and fewer had made profession of them; and
though they consulted with lawyers that were appointed to be present
there for that purpose, yet they alone had the authority of giving
sentence. In like manner, in the ordinary trials of right, twelve
men of the common people are the judges and give sentence, not only of
the fact, but of the right; and pronounce simply for the complainant
or for the defendant; that is to say, are judges not only of the fact,
but also of the right; and in a question of crime, not only
determine whether done or not done, but also whether it be murder,
homicide, felony, assault, and the like, which are determinations of
law: but because they are not supposed to know the law of
themselves, there is one that hath authority to inform them of it in
the particular case they are to judge of. But yet if they judge not
according to that he tells them, they are not subject thereby to any
penalty; unless it be made appear they did it against their
consciences, or had been corrupted by reward.
The things that make a good judge or good interpreter of the laws
are, first, a right understanding of that principal law of nature
called equity; which, depending not on the reading of other men's
writings, but on the goodness of a man's own natural reason and
meditation, is presumed to be in those most that had most leisure, and
had the most inclination to meditate thereon. Secondly, contempt of
unnecessary riches and preferments. Thirdly, to be able in judgement
to divest himself of all fear, anger, hatred, love, and compassion.
Fourthly, and lastly, patience to hear, diligent attention in hearing,
and memory to retain, digest, and apply what he hath heard.
The difference and division of the laws has been made in diverse
manners, according to the different methods of those men that have
written of them. For it is a thing that dependeth on nature, but on
the scope of the writer, and is subservient to every man's proper
method. In the Institutions of Justinian, we find seven sorts of civil
laws: 1. The edicts, constitutions, and epistles of prince; that is, of
the emperor, 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
laws, at first, by the virtue of the sovereign power residing in the
people; and such of them as by the emperors were not abrogated
remained laws by the authority imperial. For all laws that bind are
understood to be laws by his authority that has power to repeal
them. Somewhat like to these laws 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 emperors, remained laws by the
authority imperial. Like to these were the orders of the House of Commons
in England.
4. Saentus 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 emperor that
men should consult the Senate instead of the people: and these have some
resemblance with the Acts of Council.
5. The edicts of praetors, and in some cases of the aediles: such as
are the chief justices in the courts of England.
6. Responsa prudentum, which were the sentences
and opinions of those lawyers to whom the emperor gave authority to interpret
the law, 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 emperor 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 customs, which in their own nature are an
imitation of law, by the tacit consent of the emperor, in case they be
not contrary to the law of nature, are very laws.
Another division of laws is into natural and positive. Natural are
those which have been laws from all eternity, and are called not
only natural, but also moral laws, consisting in the moral virtues; 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 from eternity, but have
been made laws by the will of those that have had the sovereign
power over others, and are either written or made known to men by some
other argument of the will of their legislator.
Again, of positive laws some are human, some divine: and of human
positive laws, some are distributive, some penal. Distributive are
those that determine the rights of the subjects, declaring to every
man what it is by which he acquireth and holdeth a propriety in
lands or goods, and a right or liberty of action: and these speak to
all the subjects. Penal are those which declare what penalty shall
be inflicted on those that violate the law; and speak to the ministers
and officers ordained for execution. For though every one ought to
be informed of the punishments ordained beforehand for their
transgression; nevertheless the command is not addressed to the
delinquent (who cannot be supposed will faithfully punish himself),
but to public ministers appointed to see the penalty executed. And
these penal laws are for the most part written together with the
laws distributive, and are sometimes called judgements. For all laws
are general judgements, or sentences of the legislator; as also
every particular judgement is a law to him whose case is judged.
Divine positive laws (for natural laws, being eternal and universal,
are all divine) are those which, being the commandments of God, not
from all eternity, nor universally addressed to all men, but only to a
certain people or to certain persons, are declared for such by those
whom God hath authorized to declare them. But this authority of man to
declare what be these positive of God, how can it be known? God may
command a man, by a supernatural way, to deliver laws to other men.
But because it is of the essence of law that he who is to be obliged
be assured of the authority of him that declareth it, which we
cannot naturally take notice to be from God, how can a man without
supernatural revelations be assured of the revelation received by
the declarer? And how can he be bound to obey bound to obey them?
For the first question, how a man can be assured of the revelation
of another without a revelation particularly to himself, it is
evidently impossible: for though a man may be induced to believe
such revelation, from the miracles they see him do, or from seeing the
extraordinary sanctity of his life, or from seeing the extraordinary
wisdom, or extraordinary felicity of his actions, all which are
marks of God's extraordinary favour; yet they are not assured
evidences of special revelation. Miracles are marvellous works; but
that which is marvellous to one may not be so to another. Sanctity may
be feigned; and the visible felicities of this world are most often
the work of God by natural and ordinary causes. And therefore no man
can infallibly know by natural reason that another has had a
supernatural revelation of God's will but only a belief; every one, as
the signs thereof shall appear greater or lesser, a firmer or a weaker
belief.
But for the second, how he can be bound to obey them, it is not so
hard. For if the law declared be not against the law of nature,
which is undoubtedly God's law, and he undertake to obey it, he is
bound by his own act; bound I say to obey it, but not bound to believe
it: for men's belief, and interior cogitations, are not subject to the
commands, but only to the operation of God, ordinary or extraordinary.
Faith of supernatural law is not a fulfilling, but only an assenting
to the same; and not a duty that we exhibit to God, but a gift which
God freely giveth to whom He pleaseth; as also unbelief is not a
breach of any of His laws, but a rejection of them all, except the
laws natural. But this that I say will be made yet clearer by, the
examples and testimonies concerning this point in Holy Scripture.
The covenant God made with Abraham in a supernatural manner was
thus, "This is the covenant which thou shalt observe between me and
thee and thy seed after thee."(4) Abraham's
seed had not this revelation, nor were yet in being; yet they are a party
to the covenant, and bound to obey what Abraham should declare to them for
God's law; which they could not be but in virtue of the obedience they
owed to their parents, who (if they be subject to no other earthly
power, as here in the case of Abraham) have sovereign power over their
children and servants. Again, where God saith to Abraham, "In thee
shall all nations of the earth be blessed: for I know thou wilt
command thy children and thy house after thee to keep the way of the
Lord, and to observe righteousness and judgement," it is manifest
the obedience of his family, who had no revelation, depended on
their former obligation to obey their sovereign. At Mount Sinai
Moses only went up to God; the people were forbidden to approach on
pain of death; yet were they bound to obey all that Moses declared
to them for God's law. Upon what ground, but on this submission of
their own, "Speak thou to us, and we will hear thee; but let not God
speak to us, lest we die"? By which two places it sufficiently
appeareth that in a Commonwealth a subject that has no certain and
assured revelation particularly to himself concerning the will of
God is to obey for such the command of the Commonwealth: for if men
were at liberty to take for God's commandments their own dreams and
fancies, or the dreams and fancies of private men, scarce two men
would agree upon what is God's commandment; and yet in respect of them
every man would despise the commandments of the Commonwealth. I
conclude, therefore, that in all things not contrary to the moral
law (that is to say, to the law of nature), all subjects are bound
to obey that for divine law which is declared to be so by the laws
of the Commonwealth. Which also is evident to any man's reason; for
whatsoever is not against the law of nature may be made law in the
name of them that have the sovereign power; there is no reason men
should be the less obliged by it when it is propounded in the name
of God. Besides, there is no place in the world where men are
permitted to pretend other commandments of God than are declared for
such by the Commonwealth. Christian states punish those that revolt
from Christian religion; and all other states, those that set up any
religion by them forbidden. For in whatsoever is not regulated by
the Commonwealth, it is equity (which is the law of nature, and
therefore an eternal law of God) that every man equally enjoy his
liberty.
There is also another distinction of laws into fundamental and not
fundamental: but I could never see in any author what a fundamental
law signifieth. Nevertheless one may very reasonably distinguish
laws in that manner.
For a fundamental law in every Commonwealth is that which, being
taken away, the Commonwealth faileth and is utterly dissolved, as a
building whose foundation is destroyed. And therefore a fundamental
law is that by which subjects are bound to uphold whatsoever power
is given to the sovereign, whether a monarch or a sovereign
assembly, without which the Commonwealth cannot stand; such as is
the power of war and peace, of judicature, of election of officers,
and of doing whatsoever he shall think necessary for the public
good. Not fundamental is that, the abrogating whereof draweth not with
it the dissolution of the Commonwealth; such as are the laws
concerning controversies between subject and subject. Thus much of the
division of laws.
I find the words lex civilis and
jus civile, that is to say, and law
and right civil, promiscuously used for the same thing, even in the
most learned authors; which nevertheless ought not to be so. For right
is liberty, namely that liberty which the civil law leaves us: but
civil law is an obligation, and takes from us the liberty which the
law of nature gave us. Nature gave a right to every man to secure
himself by his own strength, and to invade a suspected neighbour by
way of prevention: but the civil law takes away that liberty, in all
cases where the protection of the law may be safely stayed for.
Insomuch as lex and jus
are as different as obligation and liberty.
Likewise laws and charters are taken promiscuously for the same
thing. Yet charters are donations of the sovereign; and not laws,
but exemptions from law. The phrase of a law is jubeo, injungo; I
command and enjoin: the phrase of a charter is dedi, concessi; I
have given, I have granted: but what is given or granted to a man is
not forced upon him by a law. A law may be made to bind all the
subjects of a Commonwealth: a liberty or charter is only to one man or
some one part of the people. For to say all the people of a
Commonwealth have liberty in any case whatsoever is to say that, in
such case, there hath been no law made; or else, having been made,
is now abrogated.
[(2)]
Deuteronomy, 11. 19