OF CIVIL LAWS.
[Sidenote: Civil law what.]
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
divers 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 what is
contrary, and what is not contrary to the rule_.
In which definition, there is nothing 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.
[Sidenote: The sovereign is legislator.]
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.
[Sidenote: And not subject to civil law.]
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.
[Sidenote: Use, a law not by virtue of time, but of the sovereign’s
consent.]
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 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 are reasonable, and that
evil customs are to be abolished. But the judgment of what is
reasonable, and of what is to be abolished, belongeth to him that maketh
the law, which is the sovereign assembly, or monarch.
[Sidenote: The law of nature, and the civil law contain each other.]
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 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 in the differences of private
men, to declare, what is equity, what is justice, and what 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 convenanted 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 the
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.
[Sidenote: Provincial laws are not made by custom, but by the sovereign
power.]
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
divers 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.
[Sidenote: Some foolish opinions of lawyers concerning the making of
laws.]
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
_parliamentum_, but _rex in parliamento_. 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.
[Sidenote: Sir Edw. Coke upon Littleton, lib. 2, ch. 6, fol. 97, b.]
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 sovereign’s sentence; otherwise it is his
own, and an unjust one.
[Sidenote: Law made, if not also made known, is no law.]
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.
[Sidenote: Unwritten laws are all of them laws of nature.]
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 whatsoever 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 belongeth 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
(_Prov._ vii. 3) adviseth a man, to bind the ten commandments upon his
ten fingers. And for the law which Moses gave to the people of Israel at
the renewing of the covenant (_Deut._ xi. 19), 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; and (_Deut._ xxxi. 12) to assemble the
people, man, woman, and child, to hear it read.
[Sidenote: Nothing is law where the legislator cannot be known.]
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 used
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. [Sidenote: Difference between verifying &
authorizing.] The difficulty consisteth 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.
[Sidenote: The law verified by the subordinate judge.]
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.
[Sidenote: By the public registers.]
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.
[Sidenote: By letters patent and public seal.]
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.
[Sidenote: The interpretation of the law dependeth on the sovereign
power.]
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.
[Sidenote: All laws need interpretation.]
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 they be short, are easily misinterpreted, from the divers
significations of a word, or two: if long, they be more obscure by the
divers significations of many words: insomuch 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.
[Sidenote: The authentical interpretation of law is not that of
writers.]
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.
[Sidenote: The interpreter of the law is the judge giving sentence viva
voce in every particular case.]
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.
[Sidenote: The sentence of a judge does not bind him, or another judge
to give like sentence in like cases ever after.]
But because there is no judge subordinate, nor sovereign, but may err in
a judgment of 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 altogether 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 judgment 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 judgment 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 forbad 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: if 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 judgments, or examples he
shall pretend to follow. There be other things of this nature, wherein
men’s judgments 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 to 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 judgments. 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.
[Sidenote: The difference between the letter and sentence of the law.]
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 words, 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 judgment 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.
[Sidenote: The abilities required in a judge.]
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, that 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 have had most leisure, and had the
most inclination to meditate thereon. Secondly, _contempt of unnecessary
riches, and preferments_. Thirdly, _to be able in judgment 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_.
[Sidenote: Divisions of law.]
The difference and division of the laws, has been made in divers
manners, according to the different methods, of those men that have
written of them. For it is a thing that dependeth not 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 the 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. _Senatus 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 prætors_, and in some cases of _ædiles_: such as are
the chief justices in the courts of England.
6. _Responsa prudentum_; which were the sentences, and opinion of those
lawyers, to whom the emperor gave authority to interpret the law, and to
give answer to such as in matter of law demanded their advice; which
answers, the judges in giving judgment 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.
[Sidenote: Another division of law.]
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 judgments. For all laws are general judgments, or sentences of
the legislator; as also every particular judgment, is a law to him,
whose case is judged.
[Sidenote: Divine positive law how made known to be law.]
_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 laws 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 revelation be assured of the revelation received by the
declarer?_ and _how can he be 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 can he 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, (_Gen._ xvii. 10) _This is
the covenant which thou shalt observe between me and thee and thy seed
after thee_. 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 judgment_, 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 they were 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; and 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 the 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.
[Sidenote: Another division of laws.]
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.
[Sidenote: A fundamental law, what.]
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.
[Sidenote: Difference between law and right.]
I find the words _lex civilis_, and _jus civile_, that is to say _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_.
[Sidenote: And between a law and a charter.]
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.
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