Civil Laws

By CIVILL LAWES, I understand the Lawes, that men are therefore bound to observe, because they are Members, not of this, or that Common-wealth in particular, but of a Common-wealth. For the knowledge of particular Lawes belongeth to them, that professe the study of the Lawes of their severall Countries; but the knowledge of Civill Law in generall, to any man. The antient Law of Rome was called their Civil Law, from the word Civitas, which signifies a Common-wealth; And those Countries, which having been under the Roman Empire, and governed by that Law, retaine still such part thereof as they think fit, call that part the Civill Law, to distinguish it from the rest of their own Civill Lawes. But that is not it I intend to speak of here; my designe being not to shew 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.

By CIVIL LAWS, I mean the laws people must obey because they are members of a commonwealth. This obligation comes from belonging to a commonwealth, not to this or that particular commonwealth. Knowledge of particular laws belongs to those who study the laws of their own countries. But knowledge of civil law in general is open to anyone. The ancient law of Rome was called its civil law, from the word Civitas, meaning a commonwealth. Some countries once belonged to the Roman Empire and were governed by Roman law. These countries still retain whatever parts of Roman law they think fit. They call those retained parts civil law, to distinguish them from the rest of their own civil laws. But that is not the civil law I mean to discuss here. My purpose is not to explain what counts as law in one place or another, but what law itself is. Plato, Aristotle, Cicero, and various others have done the same, without making the study of law their profession.

And first it manifest, that Law in generall, is not Counsell, 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 Civill Law, it addeth only the name of the person Commanding, which is Persona Civitatis, the Person of the Common-wealth.

First, it is clear that law in general is not advice but a command. But not every command from one person to another is law. Only a command addressed to someone already obliged to obey the person giving it is law. Civil law adds only the identity of the person commanding: Persona Civitatis, the person of the Commonwealth.

Which considered, I define Civill Law in this Manner. “CIVILL LAW, Is to every Subject, those Rules, which the Common-wealth 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.”

With these points in mind, I define civil law as follows. “CIVIL LAW, for each subject, consists of the rules the commonwealth commands that subject to use to distinguish right from wrong. The commonwealth communicates these commands through speech, writing, or another clear sign of its will. Right and wrong mean what does not violate these rules and what does.”

In which definition, there is nothing that is not at first sight evident. For every man seeth, that some Lawes are addressed to all the Subjects in generall; some to particular Provinces; some to particular Vocations; and some to particular Men; and are therefore Lawes, to every of those to whom the Command is directed; and to none else. As also, that Lawes are the Rules of Just, and Unjust; nothing being reputed Unjust, that is not contrary to some Law. Likewise, that none can make Lawes but the Common-wealth; because our Subjection is to the Common-wealth 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.

Everything in this definition is obvious at first glance. For everyone sees that some laws apply to all subjects in general. Some apply to particular provinces, some to particular occupations, and some to particular people. These commands are therefore laws for everyone they address, and for no one else. It is also clear that laws are the rules of what is just and unjust. Nothing is considered unjust unless it goes against some law. Likewise, only the Commonwealth can make laws, because we are subject only to the Commonwealth. Commands must also be communicated through clear enough signs, because otherwise people cannot know how to obey them. Therefore, whatever follows necessarily from this definition must be accepted as true. I now draw the following conclusions from this definition.

1. The Legislator in all Common-wealths, is only the Soveraign, 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 Common-wealth only, praescribes, and commandeth the observation of those rules, which we call Law: Therefore the Common-wealth is the Legislator. But the Common-wealth is no Person, nor has capacity to doe any thing, but by the Representative, (that is, the Soveraign;) and therefore the Soveraign is the sole Legislator. For the same reason, none can abrogate a Law made, but the Soveraign; because a Law is not abrogated, but by another Law, that forbiddeth it to be put in execution.

1. In all commonwealths, the sovereign alone is the lawmaker. The sovereign may be one man, as in a monarchy, or an assembly of men, as in a democracy or aristocracy. For the lawmaker is whoever makes the law. And only the commonwealth sets the rules we call laws and commands obedience to those rules. Therefore, the commonwealth is the lawmaker. But the commonwealth is not a person and cannot act except through its representative (that is, the sovereign). Therefore, the sovereign is the sole lawmaker. For the same reason, only the sovereign can repeal an existing law. This is because a law can be repealed only by another law that forbids its enforcement.

2. The Soveraign of a Common-wealth, be it an Assembly, or one Man, is not subject to the Civill Lawes. For having power to make, and repeale Lawes, he may when he pleaseth, free himselfe from that subjection, by repealing those Lawes 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 himselfe; because he that can bind, can release; and therefore he that is bound to himselfe onely, is not bound.

2. The sovereign of a commonwealth, whether an assembly or one man, is not subject to civil laws. For the sovereign has the power to make and repeal laws. So he can free himself from those laws whenever he chooses, by repealing laws that trouble him and making new ones. Consequently, he was already free. For anyone who can be free whenever he chooses is free. Nor can anyone be bound by obligations to himself. Because anyone who can impose an obligation can also release it, anyone bound only to himself 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 Soveraign signified by his silence, (for Silence is sometimes an argument of Consent;) and it is no longer Law, then the Soveraign shall be silent therein. And therefore if the Soveraign shall have a question of Right grounded, not upon his present Will, but upon the Lawes formerly made; the Length of Time shal bring no prejudice to his Right; but the question shal 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 Customes Law, but such as are reasonable, and that evill Customes are to be abolished; But the Judgement of what is reasonable, and of what is to be abolished, belongeth to him that maketh the Law, which is the Soveraign Assembly, or Monarch.

3. When long-standing custom gains the authority of law, that authority does not come from the passage of time. Instead, it comes from the sovereign’s will, expressed through his silence (for silence sometimes indicates consent). The custom remains law only as long as the sovereign remains silent about it. So if the sovereign’s right is questioned under earlier laws, rather than under his present will, time cannot weaken his right. Instead, the question must be judged according to equity. For many unjust actions and unjust judgments go unchallenged for longer than anyone can remember. And our lawyers recognize only reasonable customs as law and hold that bad customs should be abolished. But deciding what is reasonable and what should be abolished belongs to the lawmaker, the sovereign assembly or monarch.

4. The Law of Nature, and the Civill Law, contain each other, and are of equall extent. For the Lawes of Nature, which consist in Equity, Justice, Gratitude, and other morall Vertues on these depending, in the condition of meer Nature (as I have said before in the end of the 15th Chapter,) are not properly Lawes, but qualities that dispose men to peace, and to obedience. When a Common-wealth is once settled, then are they actually Lawes, and not before; as being then the commands of the Common-wealth; and therefore also Civill Lawes: for it is the Soveraign 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 morall Vertue, and to make them binding, there is need of the Ordinances of Soveraign Power, and Punishments to be ordained for such as shall break them; which Ordinances are therefore part of the Civill Law. The Law of Nature therefore is a part of the Civill Law in all Common-wealths of the world. Reciprocally also, the Civill 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 Common-wealth, hath covenanted to obey the Civill Law, (either one with another, as when they assemble to make a common Representative, or with the Representative it selfe one by one, when subdued by the Sword they promise obedience, that they may receive life;) And therefore Obedience to the Civill Law is part also of the Law of Nature. Civill, and Naturall Law are not different kinds, but different parts of Law; whereof one part being written, is called Civill, the other unwritten, Naturall. But the Right of Nature, that is, the naturall Liberty of man, may by the Civill Law be abridged, and restrained: nay, the end of making Lawes, 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 naturall liberty of particular men, in such manner, as they might not hurt, but assist one another, and joyn together against a common Enemy.

4. The Law of Nature and civil law contain each other and cover the same ground. The laws of nature consist of fairness, justice, gratitude, and other moral virtues that depend on these. In the state of nature alone, these virtues are not properly laws. Instead, these virtues are qualities that incline people toward peace and obedience. As I said before, at the end of Chapter 15, only when a commonwealth is established do these become actual laws. Only then do these virtues become commands of the commonwealth, and therefore civil laws as well. For the sovereign power makes people bound to obey these laws. In disputes between individuals, the sovereign power must issue rules defining fairness, justice, and moral virtue and making them binding. The sovereign power must also establish punishments for those who break these rules. These rules are therefore part of civil law. The Law of Nature is therefore part of civil law in every commonwealth in the world. Conversely, civil law is also part of what nature commands. For justice is a command of the Law of Nature. Justice means keeping agreements and giving everyone what is rightfully theirs. But every subject in a commonwealth has agreed to obey civil law. Subjects make this agreement with one another when they assemble to establish a common representative. Or subjects make this agreement individually with the representative after being conquered by force, promising obedience to preserve their lives. Therefore, obedience to civil law is also part of the Law of Nature. Civil law and natural law are not different kinds of law, but different parts of law. The written part is called civil law, and the unwritten part is called natural law. But civil law may reduce and restrict the Right of Nature, meaning a person's natural liberty. Indeed, the sole purpose of making laws is to impose such restrictions. Without these restrictions, peace is impossible. Law was introduced for no other purpose than to limit the natural liberty of individuals. These limits were meant to ensure that people would help rather than harm one another, and unite against a common enemy.

5. If the Soveraign of one Common-wealth, subdue a people that have lived under other written Lawes, and afterwards govern them by the same Lawes, by which they were governed before; yet those Lawes are the Civill Lawes of the Victor, and not of the Vanquished Common-wealth, For the Legislator is he, not by whose authority the Lawes were first made, but by whose authority they now continue to be Lawes. And therefore where there be divers Provinces, within the Dominion of a Common-wealth, and in those Provinces diversity of Lawes, which commonly are called the Customes of each severall Province, we are not to understand that such Customes have their Force, onely from Length of Time; but that they were antiently Lawes written, or otherwise made known, for the Constitutions, and Statutes of their Soveraigns; and are now Lawes, not by vertue of the Praescription of time, but by the Constitutions of their present Soveraigns. 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 man-kind.

5. If the sovereign of one commonwealth conquers a people who have lived under other written laws, the sovereign may retain those laws. Yet those laws are the civil laws of the victor, not of the conquered commonwealth. For the lawmaker is not the person whose authority first established the laws. The lawmaker is the person whose authority keeps those laws in force. So a commonwealth may contain several provinces with different laws, commonly called the customs of each province. We must not assume that these customs have force only because they have existed for a long time. Rather, these customs were originally laws, written down or otherwise made known as rules and statutes established by their sovereigns. These customs remain laws now, not because time has given them legal authority, but because their present sovereigns establish them. But suppose an unwritten law is generally observed throughout all the provinces of a territory under one sovereign. If no injustice appears in its use, that law can only be a law of nature, equally binding on all humanity.

6. Seeing then all Lawes, written, and unwritten, have their Authority, and force, from the Will of the Common-wealth; that is to say, from the Will of the Representative; which in a Monarchy is the Monarch, and in other Common-wealths the Soveraign Assembly; a man may wonder from whence proceed such opinions, as are found in the Books of Lawyers of eminence in severall Common-wealths, directly, or by consequence making the Legislative Power depend on private men, or subordinate Judges. As for example, “That the Common Law, hath no Controuler but the Parlament;” which is true onely where a Parlament has the Soveraign 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 controule them, and consequently to controule their controulings. And if there be no such right, then the Controuler of Lawes is not Parlamentum, but Rex In Parlamento. And where a Parlament is Soveraign, 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 Common-wealth, are Force, and Justice; The First Whereof Is In The King; The Other Deposited In The Hands Of The Parlament. As if a Common-wealth could consist, where the Force were in any hand, which Justice had not the Authority to command and govern.

6. All laws, written and unwritten, get their authority and force from the will of the Commonwealth. That is, they come from the will of its representative. In a monarchy, the representative is the monarch. In other Commonwealths, the representative is the sovereign assembly. Given this, one may wonder where certain opinions in the books of eminent lawyers in several Commonwealths come from. These opinions make legislative power depend on private individuals or subordinate judges, either directly or by implication. For example: “The common law has no authority above it except Parliament.” This is true only where Parliament holds sovereign power and can be assembled or dissolved only by its own decision. For if anyone else has the right to dissolve Parliament, that person also has the right to overrule Parliament. Consequently, that person can also overrule Parliament’s rulings. And if there is no such right, then the authority over laws is not Parlamentum, but Rex In Parlamento. And where Parliament is sovereign, suppose it gathers people from the territories under its rule, for whatever purpose. However many or wise those people may be, no one will believe their assembly has thereby acquired legislative power. Another claim is that the two arms of a Commonwealth are force and justice: “The first is held by the king. The other is entrusted to Parliament.” As if a Commonwealth could exist where force was held by anyone whom justice had no 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 Lawes, as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall Perfection of Reason, Gotten By Long Study, Observation, And Experience, (as his was.) For it is possible long study may encrease, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine; and of those that study, and observe with equall time, and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that Juris Prudentia, or wisedome of subordinate Judges; but the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law: And the Common-wealth being in their Representative but one Person, there cannot easily arise any contradiction in the Lawes; and when there doth, the same Reason is able, by interpretation, or alteration, to take it away. In all Courts of Justice, the Soveraign (which is the Person of the Common-wealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto; which then is his Soveraigns Sentence; otherwise it is his own, and an unjust one.

7. Our lawyers agree that law can never go against reason. They also agree that the law is not its wording, understood in every possible way. Rather, the law is what agrees with the lawmaker’s intention. This is true. But the question is whose reason should be accepted as law. It cannot be any private person’s reason. Otherwise, laws would contain as many contradictions as the schools of philosophy do. Nor is it, as Sir Edward Coke claims, an artificially perfected reason gained through long study, observation, and experience. Coke considered his own reason to be of this kind (Sir Edward Coke, upon Littleton, Book 2, Chapter 6, fol. 97.b). For long study may strengthen and reinforce mistaken judgments. And when people build on false foundations, the more they build, the greater the collapse. People who study and observe with equal time and care disagree in their reasoning and conclusions, and must continue disagreeing. So law is not made by Juris Prudentia, or the wisdom of subordinate judges. Law is made by the reason and command of our Artificial Man, the Commonwealth. And because the Commonwealth is a single person in its representative, contradictions cannot easily arise in its laws. When contradictions do arise, that same reason can remove them through interpretation or amendment. In all courts of justice, the Sovereign, who is the person of the Commonwealth, is the one who judges. A subordinate judge must consider the reason that led the Sovereign to make the law. The judge’s ruling must follow that reason, so that the ruling is then the Sovereign’s own. Otherwise, the ruling is the judge’s own, and it is unjust.

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 voyce, writing, or some other sufficient argument of the same, we may understand, that the Command of the Common-wealth, is Law onely to those, that have means to take notice of it. Over naturall fooles, children, or mad-men 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 authorise the actions of any Soveraign, as they must do that make to themselves a Common-wealth. And as those from whom Nature, or Accident hath taken away the notice of all Lawes in generall; 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 signes be sufficient for the knowledge of what is the Law; that is to say, what is the will of the Soveraign, as well in Monarchies, as in other formes of government.

8. Law is a command. A command declares or reveals the will of whoever gives it, through speech, writing, or some other sufficient sign. From this, we can understand that a Commonwealth’s command is law only to those who can learn of it. People born without the capacity to reason, children, and people who are insane are no more subject to law than animals. Nor can their actions be called just or unjust. This is because they have never been able to make any covenant or understand its consequences. Consequently, they have never undertaken to authorize the actions of any Sovereign, as those who establish a Commonwealth must do. Nature or accident may deprive someone of the ability to know any laws at all. Similarly, an accident may prevent someone from learning of a particular law. If the accident is not that person’s own fault, the person is excused for failing to obey that law. Strictly speaking, that law is no law for that person. We must therefore consider here what evidence and signs are sufficient to make the law known. In other words, we must consider how the Sovereign’s will can be known, in Monarchies and 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 whatsoever men are to take knowledge of for Law, not upon other mens 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 Lawes 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 thy selfe.”

First, suppose a law binds all subjects without exception, but is neither written nor otherwise published where they can learn of it. Such a law is a Law of Nature. For people must recognize some laws through their own reason, not through the words of others. Such laws must agree with the reason of all people. Only the Law of Nature can do so. The Laws of Nature therefore need no publication or proclamation. For they are contained in this one sentence, accepted by the whole world: “Do not do to another what you think would be unreasonable for another to do to you.”

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 Civill, but Naturall. For example, if the Soveraign employ a Publique Minister, without written Instructions what to doe; 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 Soveraign, which being alwaies understood to be Equity, he is bound to it by the Law of Nature: Or if an Ambassador, he is (in al things not conteined in his written Instructions) to take for Instruction that which Reason dictates to be most conducing to his Soveraigns interest; and so of all other Ministers of the Soveraignty, publique and private. All which Instructions of naturall Reason may be comprehended under one name of Fidelity; which is a branch of naturall Justice.

Secondly, suppose a law binds only people in a certain position, or one particular person. If the law is neither written nor announced orally, then it too is a law of nature. It is known through the same reasoning and signs that distinguish those people from other subjects. For any law not written or otherwise made public by its maker can be known only through the subject’s reason. Such a law is therefore both a civil law and a natural law. For example, suppose the sovereign employs a public official without written instructions about what to do. The official must take reason’s guidance as instructions. If the sovereign appoints a judge, the judge must recognize that judgments should follow the sovereign’s reason. The sovereign’s reason is always understood to mean fairness, so the law of nature binds the judge to fairness. Or suppose the sovereign appoints an ambassador. In all matters not covered by written instructions, the ambassador must follow reason’s guidance about what best serves the sovereign’s interests. The same applies to all other officials serving the sovereign, both public and private. All these instructions from natural reason can be summed up as faithfulness, a branch of natural justice.

The Law of Nature excepted, it belongeth to the essence of all other Lawes, 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 Soveraign 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 Common-wealth, is to be supposed alwaies consonant to Equity and Reason. And in antient time, before letters were in common use, the Lawes were many times put into verse; that the rude people taking pleasure in singing, or reciting them, might the more easily reteine them in memory. And for the same reason Solomon adviseth a man, to bind the ten Commandements (Prov. 7. 3) upon his ten fingers. And for the Law which Moses gave to the people of Israel at the renewing of the Covenant, (Deut. 11. 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 dores of their houses; and (Deut. 31. 12) to assemble the people, man, woman, and child, to heare it read.

Except for the Law of Nature, all laws must be made known to everyone required to obey them. Making laws known is part of what makes them laws. They must be communicated through speech, writing, or another act known to come from the sovereign authority. For another person's will can be understood only through that person's words or actions, or inferred from their aims and purposes. In the case of the Commonwealth, those aims and purposes must always be assumed to agree with fairness and reason. In ancient times, before writing was widely used, laws were often put into verse. This allowed uneducated people, who enjoyed singing or reciting the laws, to remember them more easily. For the same reason, Solomon advises a man to bind the Ten Commandments (Prov. 7. 3) on his ten fingers. And Moses gave similar instructions about the law he gave the people of Israel when the Covenant was renewed. He tells them (Deut. 11. 19) to teach the law to their children by talking about it. They should discuss the law both at home and while traveling, when going to bed and when getting up. They should also write the law on the doorposts and doors of their houses. And he tells them (Deut. 31. 12) to gather the people, men, women, and children, to hear the law read.

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 Soveraign. For private men, when they have, or think they have force enough to secure their unjust designes, and convoy them safely to their ambitious ends, may publish for Lawes what they please, without, or against the Legislative Authority. There is therefore requisite, not only a Declaration of the Law, but also sufficient signes of the Author, and Authority. The Author, or Legislator is supposed in every Common-wealth to be evident, because he is the Soveraign, 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 Common-wealth is worn out, they doe 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 Soveraignty is placed. And it is a Dictate of Naturall 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 Soveraign, no man, but by his own fault, (whatsoever evill men suggest,) can make any doubt. The difficulty consisteth in the evidence of the Authority derived from him; The removing whereof, dependeth on the knowledge of the publique Registers, publique Counsels, publique Ministers, and publique Seales; by which all Lawes are sufficiently verified.

It is not enough for the law to be written and published. There must also be clear signs that the law expresses the sovereign’s will. For private individuals may believe they have enough force to carry out their unjust plans and safely achieve their ambitions. If they have that force, or think they do, they may publish whatever laws they please. They may do so without the lawmaking authority’s approval, or against its wishes. So there must be not only a statement of the law, but also sufficient evidence of its author and authority. In every commonwealth, the author of the law, or lawmaker, is assumed to be clearly known, because he is the sovereign. Since everyone has consented to establish the sovereign, everyone is assumed to know sufficiently who he is. Yet people are generally ignorant and complacent. Once the memory of their commonwealth’s founding has faded, they fail to consider whose power defends them against their enemies. They also fail to consider whose power protects their work and gives them justice when they suffer harm. But no one who considers the matter can doubt whose power provides these protections. So ignorance of who holds sovereign power is no excuse. Natural reason tells us that no one should weaken the power whose protection against others he has requested or knowingly accepted. This is therefore an evident law of nature. So anyone who doubts who the sovereign is has only himself to blame, whatever wicked people may suggest. The difficulty lies in finding evidence that authority comes from the sovereign. Resolving this difficulty depends on knowing the public records, public councils, public officials, and public seals. These provide sufficient verification of all laws.

Verifyed, I say, not Authorised: for the Verification, is but the Testimony and Record; not the Authority of the law; which consisteth in the Command of the Soveraign only.

Verified, I say, not authorized. For verification is only testimony and a record, not the source of the law’s authority. The law’s authority comes only from the sovereign’s command.

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 cognisance of such causes, is a sufficient Verification of the Law of Nature in that individuall case. For though the advice of one that professeth the study of the Law, be usefull for the avoyding of contention; yet it is but advice; tis the Judge must tell men what is Law, upon the hearing of the Controversy.

Therefore, suppose a man has a dispute about a wrong under the Law of Nature, meaning common fairness. The ruling of a judge officially authorized to hear such cases sufficiently establishes the Law of Nature in that particular case. For although advice from someone who studies law is useful for avoiding disputes, such advice is only advice. The judge must tell people what the law is after hearing the dispute.

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 enformed, before he doe such injury, or commit the crime, whither it be an injury, or not: Nay he ought to doe so: for when a man doubts whether the act he goeth about, be just, or injust; and may informe himself, if he will; the doing is unlawfull. 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 complaine before he consults with the Law, he does unjustly, and bewrayeth a disposition rather to vex other men, than to demand his own right.

But when the question concerns a wrongful act or crime under written law, anyone can consult the official records. He can do so himself or through others, if he chooses. Before acting, he can learn enough to know whether the act would be wrongful. Indeed, he ought to do so. For if a man doubts whether his intended act is just or unjust, and can find out, acting is unlawful. Likewise, a man may believe he has been wronged in a case settled by written law. He may be able to read and consider the law himself or through others. If so, he acts unjustly if he complains before consulting the law. He also reveals a greater desire to trouble others than to claim his own rights.

If the question be of Obedience to a publique Officer; To have seen his Commission, with the Publique Seale, 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 doe his best endeavour, to informe himself of all written Lawes, that may concerne his own future actions.

If the question concerns obedience to a public officer, seeing his commission bearing the public seal and hearing it read sufficiently confirms his authority. Having the means to learn about his commission, if a person chooses to, is also sufficient. For everyone must make every effort to learn all written laws that may concern their own future actions.

The Legislator known; and the Lawes, either by writing, or by the light of Nature, sufficiently published; there wanteth yet another very materiall circumstance to make them obligatory. For it is not the Letter, but the Intendment, or Meaning; that is to say, the authentique 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 Lawes dependeth on the Authority Soveraign; and the Interpreters can be none but those, which the Soveraign, (to whom only the Subject oweth obedience) shall appoint. For else, by the craft of an Interpreter, the Law my be made to beare a sense, contrary to that of the Soveraign; by which means the Interpreter becomes the Legislator.

Even when the lawmaker is known and the laws are sufficiently publicized, one more essential condition makes them binding. The laws may be made known in writing or through the light of natural reason. For the essence of law lies not in its wording but in its intended meaning. That meaning is the authoritative interpretation of the law, expressing what the lawmaker means. Therefore, the interpretation of all laws depends on the sovereign’s authority. Only those appointed by the sovereign can interpret the laws. Subjects owe obedience to the sovereign alone. Otherwise, a clever interpreter may give the law a meaning contrary to the sovereign’s intention. By doing so, the interpreter becomes the lawmaker.

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 naturall 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 mis-interpreted, from the divers 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 finall causes, for which the Law was made; the knowledge of which finall causes is in the Legislator. To him therefore there can not be any knot in the Law, insoluble; either by finding out the ends, to undoe 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 doe.

All laws, written and unwritten, need interpretation. The unwritten law of nature is easy to understand for those who use their natural reason without bias or passion. Those who violate the law of nature therefore have no excuse. Yet very few people, perhaps none, escape being blinded in some cases by self-love or some other passion. As a result, the law of nature has become the most obscure of all laws. It therefore has the greatest need for capable interpreters. Written laws, if short, are easily misinterpreted because one or two words can have different meanings. If long, written laws are more obscure because many words can have different meanings. So no written law, however short or long, can be properly understood without fully understanding the purposes behind it. The lawmaker knows those purposes. For the lawmaker, therefore, no knot in the law can be impossible to untie. He can untie the knot by discovering the law’s purposes. Or he can use his lawmaking power to set whatever purposes he chooses, something no other interpreter can do. This is like Alexander cutting the Gordian knot with his sword.

The Interpretation of the Lawes of Nature, in a Common-wealth, dependeth not on the books of Morall Philosophy. The Authority of writers, without the Authority of the Common-wealth, maketh not their opinions Law, be they never so true. That which I have written in this Treatise, concerning the Morall Vertues, and of their necessity, for the procuring, and maintaining peace, though it bee evident Truth, is not therefore presently Law; but because in all Common-wealths in the world, it is part of the Civill Law: For though it be naturally reasonable; yet it is by the Soveraigne Power that it is Law: Otherwise, it were a great errour, to call the Lawes of Nature unwritten Law; whereof wee see so many volumes published, and in them so many contradictions of one another, and of themselves.

In a commonwealth, the interpretation of the laws of nature does not depend on books of moral philosophy. Without the commonwealth’s authority, writers’ authority does not make their opinions law, however true those opinions may be. In this treatise, I have written about moral virtues and their necessity for securing and maintaining peace. Although what I have written is plainly true, that truth alone does not make it law. Rather, these principles are law because they form part of the civil law in every commonwealth in the world. For although these principles are naturally reasonable, sovereign power makes them law. Otherwise, calling the laws of nature unwritten law would be a great mistake. For we see so many published volumes about these laws, full of contradictions both between books and within them.

The Interpretation of the Law of Nature, is the Sentence of the Judge constituted by the Soveraign Authority, to heare 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, whither the demand of the party, be consonant to naturall reason, and Equity; and the Sentence he giveth, is therefore the Interpretation of the Law of Nature; which Interpretation is Authentique; not because it is his private Sentence; but because he giveth it by Authority of the Soveraign, whereby it becomes the Soveraigns Sentence; which is Law for that time, to the parties pleading.

The law of nature is interpreted through the ruling of a judge appointed by the sovereign authority. The judge is appointed to hear and settle disputes that depend on the law of nature. This interpretation consists of applying the law to the case at hand. For when deciding a case, the judge only considers whether a party’s claim agrees with natural reason and fairness. The judge’s ruling is therefore the interpretation of the law of nature. This interpretation is authoritative, not because it is the judge’s personal judgment, but because the judge acts with the sovereign’s authority. That authority makes the ruling the sovereign’s own. The ruling is therefore law for the parties in the case at that time.

But because there is no Judge Subordinate, nor Soveraign, but may erre in a Judgement of Equity; if afterward in another like case he find it more consonant to Equity to give a contrary Sentence, he is obliged to doe it. No mans 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 Soveraign, if he know and allow it, in such Lawes as are mutable, be a constitution of a new Law, in cases, in which every little circumstance is the same; yet in Lawes immutable, such as are the Lawes of Nature, they are no Lawes to the same, or other Judges, in the like cases for ever after. Princes succeed one another; and one Judge passeth, another commeth; nay, Heaven and Earth shall passe; but not one title of the Law of Nature shall passe; for it is the Eternall Law of God. Therefore all the Sentences of precedent Judges that have ever been, cannot all together make a Law contrary to naturall 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 naturall reason. For example sake, ’Tis against the Law of Nature, To Punish The Innocent; and Innocent is he that acquitteth himselfe Judicially, and is acknowledged for Innocent by the Judge. Put the case now, that a man is accused of a capitall crime, and seeing the powers and malice of some enemy, and the frequent corruption and partiality of Judges, runneth away for feare of the event, and afterwards is taken, and brought to a legall triall, and maketh it sufficiently appear, he was not guilty of the crime, and being thereof acquitted, is neverthelesse 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 feare 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 feare flyeth for the same; albeit he judicially acquitteth himselfe 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 proofe 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 acquitall, 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 Capitall,) the Sentence ought to have been Capitall: 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 Proofe shall be admitted against a Presumption of Law. For all Judges, Soveraign and subordinate, if they refuse to heare Proofe, refuse to do Justice: for though the Sentence be Just, yet the Judges that condemn without hearing the Proofes 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 mens Judgements have been perverted, by trusting to Precedents: but this is enough to shew, 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.

But every judge, whether subordinate or sovereign, can make a mistake when judging what is fair. If a judge later finds a contrary ruling fairer in a similar case, he must give that ruling. No one’s mistake becomes a law for him, or obliges him to repeat it. For the same reason, the mistake does not become a law for other judges, even those sworn to follow it. A wrong ruling authorized by the sovereign may establish a new law, if the sovereign knows and approves of it. But this applies only to laws that can change, and to cases identical in every detail. With unchanging laws, such as the Laws of Nature, wrong rulings do not bind the same judge or other judges in later, similar cases. Princes succeed one another. One judge leaves, and another takes his place. Indeed, Heaven and Earth shall pass away, but not the smallest part of the Law of Nature shall pass away. For the Law of Nature is the eternal Law of God. Therefore, all the rulings of all past judges together cannot make a law contrary to natural fairness. Nor can any examples set by earlier judges justify an unreasonable ruling. Such examples cannot spare the present judge the work of deciding what is fair in the case before him. He must decide by the principles of his own natural reason. For example, punishing the innocent is against the Law of Nature. An innocent person is someone who establishes his innocence in court and is recognized as innocent by the judge. Suppose a man is accused of a crime punishable by death. He sees the power and malice of an enemy, and knows how often judges are corrupt and biased. Fearing the outcome, he runs away. Later, he is caught, brought to a lawful trial, and sufficiently establishes that he did not commit the crime. He is acquitted, but is nevertheless sentenced to lose his property. This plainly condemns an innocent person. I therefore say that nowhere in the world can such a ruling be an interpretation of the Law of Nature. Nor can earlier judges’ rulings imposing the same punishment make it law. For the first judge who ruled this way judged unjustly. And no injustice can serve as a model for later judges. A written law may forbid innocent people to flee, and they may be punished for fleeing. But suppose a man has already been acquitted of the crime in court. Treating his flight from feared harm as a presumption of guilt contradicts the very nature of a presumption. A presumption has no place after judgment has been given. Yet a great lawyer states that this is the common law of England. “If an innocent man,” he says, “is accused of a felony and flees out of fear because of the accusation, he may establish his innocence in court. Yet if he is found to have fled because of the felony charge, he must forfeit his possessions despite his innocence. These include all his goods, chattels, debts owed to him, and other payments due to him. For the forfeiture of these possessions, the law admits no evidence against the legal presumption based on his flight.” Here you see an innocent man, acquitted in court, nevertheless sentenced after his acquittal to lose everything he owns. His innocence does not protect him. No written law forbade him to flee, yet he is condemned on a legal presumption. If his flight creates a presumption that he committed the crime, the sentence should have been death. For the crime was punishable by death. If the presumption was not that he committed the crime, why should he lose his property? This, therefore, is no law of England. Nor is the condemnation based on a presumption of law, but on the judges’ own presumption. It is also against the law to say that no evidence may be admitted against a legal presumption. For all judges, sovereign and subordinate, refuse to do justice if they refuse to hear evidence. Even if the sentence is just, judges who condemn without hearing the evidence offered are unjust judges. Their presumption is merely prejudice. No one should bring prejudice to the seat of justice, whatever earlier rulings or examples he claims to follow. There are other matters of this kind in which people’s judgment has been distorted by trusting precedents. But this example is enough to show the distinction. Although a judge’s ruling is law for the party whose case is heard, it is not law for any successor in that office.

In like manner, when question is of the Meaning of written Lawes, he is not the Interpreter of them, that writeth a Commentary upon them. For Commentaries are commonly more subject to cavill, than the Text; and therefore need other Commentaries; and so there will be no end of such Interpretation. And therefore unlesse there be an Interpreter authorised by the Soveraign, from which the subordinate Judges are not to recede, the Interpreter can be no other than the ordinary Judges, in the some manner, as they are in cases of the unwritten Law; and their Sentences are to be taken by them that plead, for Lawes in that particular case; but not to bind other Judges, in like cases to give like judgements. For a Judge may erre in the Interpretation even of written Lawes; but no errour of a subordinate Judge, can change the Law, which is the generall Sentence of the Soveraigne.

Similarly, when the meaning of written laws is in question, writing a commentary does not make someone their authoritative interpreter. Commentaries are usually more open to objections than the text itself, so they need further commentaries. Such interpretation would therefore have no end. So unless the sovereign authorizes an interpreter whose interpretations lower judges must follow, the ordinary judges must interpret the laws. They do so just as they do in cases involving unwritten law. The parties arguing a case must accept the judges’ decisions as law for that particular case. But those decisions do not bind other judges to give the same judgments in similar cases. For a judge may make mistakes even when interpreting written laws. But no mistake by a lower judge can change the law, which is the sovereign’s general ruling.

In written Lawes, 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, ’tis well distinguished. For the significations of almost all words, are either in themselves, or in the metaphoricall use of them, ambiguous; and may be drawn in argument, to make many senses; but there is onely one sense of the Law. But if by the Letter, be meant the Literall sense, then the Letter, and the Sentence or intention of the Law, is all one. For the literall sense is that, which the Legislator is alwayes supposed to be Equity: For it were a great contumely for a Judge to think otherwise of the Soveraigne. He ought therefore, if the Word of the Law doe not fully authorise a reasonable Sentence, to supply it with the Law of Nature; or if the case be difficult, to respit 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 speciall 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 falsly of a fact, which the Judge saw himself 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 Soveraign that another be made Judge, and himselfe Witnesse. 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 Common-wealth.

In written laws, people commonly distinguish between the letter of the law and its meaning. This distinction is sound if the letter means whatever can be drawn from the words alone. For almost all words are ambiguous, either in themselves or when used metaphorically. Arguments can give those words many meanings, but the law has only one meaning. But if the letter means the literal meaning, then the letter and the law’s meaning or intention are the same. For the literal meaning is what the lawmaker intended, and that intention is always assumed to be fair. A judge would gravely insult the sovereign by thinking otherwise. Therefore, if the law’s wording does not fully authorize a reasonable judgment, the judge should supplement it with natural law. Or, if the case is difficult, the judge should postpone judgment until given fuller authority. For example, a written law orders that anyone forcibly driven from his house must be restored to it by force. A man carelessly leaves his house empty and, on returning, is forcibly kept out. No specific law has been made for this case. Clearly, the same law covers this case. Otherwise, the man would have no remedy at all, which must be assumed contrary to the lawmaker’s intention. Again, the law’s wording commands judges to rule according to the evidence. A man is falsely accused of an act that the judge himself saw someone else commit, not the accused. In this case, the judge must not follow the letter of the law and condemn an innocent man. Nor must the judge rule against the witnesses’ evidence, because the letter of the law forbids doing so. Instead, the judge must ask the sovereign to appoint another judge and make himself a witness. Thus, the harm caused by following a written law’s bare words may guide the judge toward the law’s intention. Understanding that intention may help the judge interpret the law better. Yet no harm can justify a judgment against the law. For not every judge of right and wrong is also a judge of what benefits or harms 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 Lawes. 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 Soveraign, alledged in the pleading, or declared to him by some that have authority from the Soveraign Power to declare them; and need not take care before-hand, what hee shall Judge; for it shall bee given him what hee shall say concerning the Fact, by Witnesses; and what hee shall say in point of Law, from those that shall in their pleadings shew it, and by authority interpret it upon the place. The Lords of Parlament 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 Lawes, 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 trialls of Right, Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right: and in a question of crime, not onely 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 enforme 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; unlesse 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 Lawes, are, first A Right Understanding of that principall Law of Nature called Equity; which depending not on the reading of other mens Writings, but on the goodnesse of a mans own naturall 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 Judgement To Devest Himselfe Of All Feare, Anger, Hatred, Love, And Compassion. Fourthly, and lastly, Patience To Heare; Diligent Attention In Hearing; And Memory To Retain, Digest And Apply What He Hath Heard.

A good interpreter of the law, or a good judge, needs different abilities from an advocate, whose work requires studying laws. A judge should learn the facts only from witnesses. Likewise, a judge should learn the law only from the sovereign’s statutes and established rules cited during the arguments. Alternatively, those authorized by the sovereign power may explain the law to the judge. The judge need not decide beforehand what judgment to give. Witnesses will supply the basis for the judge’s findings about the facts. Those presenting arguments will show the relevant law and authoritatively interpret it in court. The Lords of Parliament in England were judges, and they heard and decided extremely difficult cases. Yet few had studied the laws extensively, and fewer had practiced law professionally. They consulted lawyers appointed to attend for that purpose. But the Lords alone had the authority to give judgment. Similarly, in ordinary trials over legal rights, twelve ordinary people act as judges. They give judgment not only on the facts but also on the legal rights involved. They rule simply for the complainant or for the defendant. That is, they judge both the facts and the legal rights. In criminal cases, they decide not only whether an act occurred. They also decide whether the act was murder, homicide, felony, assault, or something similar. These are decisions about the law. But because these jurors are not expected to know the law themselves, someone authorized explains the law for that particular case. Yet if the jurors do not follow that explanation in their judgment, they face no penalty for doing so. The exception is when they are shown to have acted against their consciences or to have been bribed. The qualities that make a good judge, or a good interpreter of laws, are these. First, a sound understanding of equity, the principal law of nature. This understanding depends not on reading other people’s writings, but on sound natural reasoning and reflection. It is therefore presumed strongest in those with the most leisure and the greatest inclination to reflect on equity. Second, disdain for unnecessary wealth and advancement. Third, the ability, when judging, to set aside all fear, anger, hatred, love, and compassion. Fourth and finally, patience in listening, close attention to what is heard, and memory to retain, digest, and apply it.

The difference and division of the Lawes, 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 mans proper method. In the Institutions of Justinian, we find seven sorts of Civill Lawes.

Laws have been classified and divided in various ways, according to the different methods of writers on the subject. These divisions depend not on nature but on each writer’s purpose, and serve each writer’s particular method. In the Institutions of Justinian, we find seven kinds of civil laws.

1. The Edicts, Constitutions, and Epistles Of The Prince, that is, of the Emperour; because the whole power of the people was in him. Like these, are the Proclamations of the Kings of England.

1. The edicts, laws, and letters of the Prince, meaning the Emperor, because he held all the people's power. The proclamations of the Kings of England are similar to these.

2. The Decrees Of The Whole People Of Rome (comprehending the Senate,) when they were put to the Question by the Senate. These were Lawes, at first, by the vertue of the Soveraign Power residing in the people; and such of them as by the Emperours were not abrogated, remained Lawes by the Authority Imperiall. For all Lawes that bind, are understood to be Lawes by his authority that has power to repeale them. Somewhat like to these Lawes, are the Acts of Parliament in England.

2. The decrees of the whole people of Rome (including the Senate), submitted to a vote by the Senate. At first, these decrees were laws because sovereign power rested with the people. Those decrees the Emperors did not repeal remained laws by imperial authority. For all binding laws are understood to rest on the authority of whoever has the power to repeal them. The Acts of Parliament in England are somewhat like these laws.

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 Emperours, remained Lawes by the Authority Imperiall. Like to these, were the Orders of the House of Commons in England.

3. The decrees of the common people (excluding the Senate), voted on when proposed by the Tribune of the people. For any decrees not repealed by the Emperors remained laws under imperial authority. The orders of the House of Commons in England were similar to these decrees.

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 Emperour, that men should Consult the Senate in stead of the people: And these have some resemblance with the Acts of Counsell.

4. Senatus Consulta, the Orders of the Senate: these arose because Rome’s population became too large to assemble conveniently. So the Emperor thought people should consult the Senate instead of the people. These orders bear some resemblance to the acts of a council.

5. The Edicts Of Praetors, and (in some Cases) of the Aediles: such as are the Chiefe Justices in the Courts of England.

5. The edicts of Praetors and (in some cases) Aediles. These officials are like the chief justices in England’s courts.

6. Responsa Prudentum; which were the Sentences, and Opinions of those Lawyers, to whom the Emperour 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 Judgement were obliged by the Constitutions of the Emperour 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.

6. Responsa Prudentum: the rulings and opinions of lawyers whom the Emperor authorized to interpret the law. These lawyers also answered those who sought their legal advice. The Emperor’s decrees required judges to follow these answers when giving judgment. These answers would resemble reports of decided cases, if English law requires other judges to follow those reports. For the judges of the Common Law of England are not strictly judges, but Juris Consulti, or legal advisers. The actual judges, either the Lords or twelve men of the country, must consult these advisers on points of law.

7. Also, Unwritten Customes, (which in their own nature are an imitation of Law,) by the tacite consent of the Emperour, in case they be not contrary to the Law of Nature, are very Lawes.

7. Also, unwritten customs are, by their nature, an imitation of law. With the Emperor’s unspoken consent, these customs are actual laws, provided they do not contradict the law of nature.

Another division of Lawes, is into Naturall and Positive. Naturall are those which have been Lawes from all Eternity; and are called not onely Naturall, but also Morall Lawes; consisting in the Morall Vertues, 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.

Another way to divide laws is into natural and positive laws. Natural laws are those that have been laws for all eternity. They are called not only natural laws but also moral laws. They consist of moral virtues, such as justice, fairness, and all habits of mind that promote peace and charity. I have already discussed these virtues in Chapters Fourteen and Fifteen.

Positive, are those which have not been for Eternity; but have been made Lawes by the Will of those that have had the Soveraign Power over others; and are either written, or made known to men, by some other argument of the Will of their Legislator.

Positive laws are laws that have not existed forever. Instead, they were made law by the will of those who held sovereign power over others. These laws are either written or made known through some other sign of the lawmaker’s will.

Again, of Positive Lawes some are Humane, some Divine; And of Humane positive lawes, 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; neverthelesse the Command is not addressed to the Delinquent, (who cannot be supposed will faithfully punish himselfe,) but to publique Ministers appointed to see the Penalty executed. And these Penal Lawes are for the most part written together with the Lawes Distributive; and are sometimes called Judgements. For all Lawes are generall judgements, or Sentences of the Legislator; as also every particular Judgement, is a Law to him, whose case is Judged.

Again, some positive laws are human, and some are divine. Some human positive laws are distributive, and some are penal. Distributive laws define the rights of subjects. They tell each person how to acquire and hold ownership of land or goods, and rights or freedom to act. These laws address all subjects. Penal laws state what punishment must be imposed on those who break the law. They address the public officials appointed to enforce the law. Although everyone should be told beforehand what punishments are set for their offenses, the command does not address the offender. No offender can be expected to punish himself faithfully. Instead, the command addresses public officials appointed to ensure that the punishment is carried out. These penal laws are usually written together with distributive laws and are sometimes called judgments. For all laws are general judgments, or rulings, made by the lawmaker. Likewise, every judgment in an individual case is a law for the person whose case is judged.

Divine Positive Lawes (for Naturall Lawes being Eternall, and Universall, are all Divine,) are those, which being the Commandements of God, (not from all Eternity, nor universally addressed to all men, but onely to a certain people, or to certain persons,) are declared for such, by those whom God hath authorised to declare them. But this Authority of man to declare what be these Positive Lawes of God, how can it be known? God may command a man by a supernaturall way, to deliver Lawes 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 Supernaturall 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 himselfe, it is evidently impossible: for though a man may be induced to believe such Revelation, from the Miracles they see him doe, or from seeing the Extraordinary sanctity of his life, or from seeing the Extraordinary wisedome, or Extraordinary felicity of his Actions, all which are marks of Gods extraordinary favour; yet they are not assured evidence of speciall Revelation. Miracles are Marvellous workes: 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 Naturall, and ordinary causes. And therefore no man can infallibly know by naturall reason, that another has had a supernaturall revelation of Gods will; but only a beliefe; every one (as the signs thereof shall appear greater, or lesser) a firmer, or a weaker belief.

Divine positive laws are commands from God, declared as such by people whom God has authorized to announce them. (Natural laws are all divine because they are eternal and universal.) Divine positive laws, however, are not commands given from all eternity or addressed to everyone. They are addressed only to a particular people or particular individuals. But how can we know someone's authority to declare these positive laws of God? God may command someone, by supernatural means, to deliver laws to others. But an essential feature of law is that those bound by it must be certain of the lawgiver's authority. We cannot know by natural means that someone's authority comes from God. So how can someone without supernatural revelation be certain that the person declaring these laws has received a revelation? And how can that person be bound to obey those laws? The first question is whether someone can be certain of another's revelation without receiving a revelation personally. This is plainly impossible. Someone may be led to believe in another's revelation by seeing that person perform miracles. The same belief may arise from seeing that person's extraordinary holiness, extraordinary wisdom, or extraordinary success in action. All these are signs of God's extraordinary favor. Yet none provides certain evidence of a special revelation. Miracles are marvelous works. But what seems marvelous to one person may not seem marvelous to another. Holiness may be faked. And the visible successes of this world are most often God's work through natural and ordinary causes. Therefore, no one can know with certainty, through natural reason, that someone else has received a supernatural revelation of God's will. People can only believe that such a revelation occurred. Each person's belief is stronger or weaker according to how great or small the signs of revelation appear.

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 Gods 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 mens beliefe, and interiour cogitations, are not subject to the commands, but only to the operation of God, ordinary, or extraordinary. Faith of Supernaturall Law, is not a fulfilling, but only an assenting to the same; and not a duty that we exhibite to God, but a gift which God freely giveth to whom he pleaseth; as also Unbelief is not a breach of any of his Lawes; but a rejection of them all, except the Lawes Naturall. But this that I say, will be made yet cleerer, by the Examples, and Testimonies concerning this point in holy Scripture. The Covenant God made with Abraham (in a Supernaturall Manner) was thus, (Gen. 17. 10) “This is the Covenant which thou shalt observe between Me and Thee and thy Seed after thee.” Abrahams 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 Gods Law; which they could not be, but in vertue 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 Soveraign power over their children, and servants. Againe, 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 Righteousnesse and Judgement,” it is manifest, the obedience of his Family, who had no Revelation, depended on their former obligation to obey their Soveraign. At Mount Sinai Moses only went up to God; the people were forbidden to approach on paine of death; yet were they bound to obey all that Moses declared to them for Gods Law. Upon what ground, but on this submission of their own, “Speak thou to us, and we will heare thee; but let not God speak to us, lest we dye?” By which two places it sufficiently appeareth, that in a Common-wealth, 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 Common-wealth: for if men were at liberty, to take for Gods Commandements, their own dreams, and fancies, or the dreams and fancies of private men; scarce two men would agree upon what is Gods Commandement; and yet in respect of them, every man would despise the Commandements of the Common-wealth. I conclude therefore, that in all things not contrary to the Morall 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 Lawes of the Common-wealth. Which also is evident to any mans reason; for whatsoever is not against the Law of Nature, may be made Law in the name of them that have the Soveraign power; and there is no reason men should be the lesse obliged by it, when tis propounded in the name of God. Besides, there is no place in the world where men are permitted to pretend other Commandements of God, than are declared for such by the Common-wealth. 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 Common-wealth, tis Equity (which is the Law of Nature, and therefore an eternall Law of God) that every man equally enjoy his liberty.

But the second question, how someone can be bound to obey these laws, is less difficult. Suppose the declared law does not conflict with the Law of Nature, which is undoubtedly God’s law. If someone undertakes to obey that law, his own action binds him. He is bound, I say, to obey the law, but not to believe it. For human beliefs and inward thoughts are not subject to commands. They are subject only to God’s action, whether ordinary or extraordinary. Faith in supernatural law does not mean fulfilling that law, but only accepting it as true. Faith is not a duty we perform for God, but a gift God freely gives to whomever he pleases. Likewise, unbelief does not break any of his laws. Instead, unbelief rejects all his laws except the Laws of Nature. But examples and testimony from Holy Scripture will make my meaning still clearer. God made a covenant with Abraham in a supernatural manner, saying (Gen. 17. 10): “This is the covenant you must observe between me and you and your descendants after you.” Abraham’s descendants had not received this revelation and did not yet exist. Yet they were parties to the covenant. They were bound to obey whatever Abraham declared to them as God’s law. Their obligation could arise only from the obedience they owed their parents. Parents have sovereign power over their children and servants if they are subject to no other earthly power. This was Abraham’s situation. Again, God says to Abraham: “In you all nations of the earth will be blessed. For I know you will command your children and your household after you to follow the Lord’s way. You will command them to practice righteousness and justice.” Clearly, Abraham’s family, who had received no revelation, owed their obedience to their existing obligation to obey their sovereign. At Mount Sinai, Moses alone went up to God. The people were forbidden to approach, on pain of death. Yet they were bound to obey everything Moses declared to them as God’s law. What was the basis for their obligation, except their own submission? They said, “Speak to us yourself, and we will listen. But do not let God speak to us, or we will die.” These two passages make the point sufficiently clear. In a commonwealth, a subject may have no certain and assured revelation of God’s will addressed specifically to him. In that case, he must accept and obey the commonwealth’s command as God’s will. For suppose people were free to treat their own dreams and imaginings as God’s commandments. Suppose they could do the same with the dreams and imaginings of private individuals. Hardly any two people would agree about what God commanded. Yet everyone would despise the commonwealth’s commands in comparison with those supposed divine commands. I therefore conclude that all subjects must obey as divine law whatever the commonwealth’s laws declare to be divine law. This obligation applies in all matters not contrary to moral law, that is, the Law of Nature. Anyone can also see the reason for this. Anything not contrary to the Law of Nature may be made law in the name of those holding sovereign power. There is no reason people should be any less bound by that law when it is presented in God’s name. Besides, nowhere in the world may people claim that God has given commandments beyond those the commonwealth declares divine. Christian states punish those who abandon Christianity. All other states punish those who establish any religion those states forbid. For in anything the commonwealth does not regulate, equity requires everyone to enjoy equal freedom. Equity is the Law of Nature and therefore an eternal law of God.

There is also another distinction of Laws, into Fundamentall, and Not Fundamentall: but I could never see in any Author, what a Fundamentall Law signifieth. Neverthelesse one may very reasonably distinguish Laws in that manner.

Laws can also be divided into fundamental and non-fundamental laws. But I have never found any author who explains what a fundamental law means. Nevertheless, one may very reasonably distinguish laws in this way.

For a Fundamentall Law in every Common-wealth is that, which being taken away, the Common-wealth faileth, and is utterly dissolved; as a building whose Foundation is destroyed. And therefore a Fundamentall Law is that, by which Subjects are bound to uphold whatsoever power is given to the Soveraign, whether a Monarch, or a Soveraign Assembly, without which the Common-wealth 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 Publique good. Not Fundamentall is that the abrogating whereof, draweth not with it the dissolution of the Common-Wealth; such as are the Lawes Concerning Controversies between subject and subject. Thus much of the Division of Lawes.

A fundamental law in any commonwealth is one whose removal causes the commonwealth to collapse and dissolve completely. The commonwealth is like a building whose foundation has been destroyed. Therefore, a fundamental law binds subjects to uphold all powers granted to the sovereign without which the commonwealth cannot survive. The sovereign may be a monarch or a sovereign assembly. These essential powers include making war and peace, administering justice, choosing officials, and doing whatever the sovereign considers necessary for the public good. A law is not fundamental if repealing the law does not cause the commonwealth to dissolve. Laws concerning disputes between subjects are examples of laws that are not fundamental. So much for the classification of laws.

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 neverthelesse ought not to be so. For Right is Liberty, namely that Liberty which the Civil Law leaves us: But Civill 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 himselfe by his own strength, and to invade a suspected neighbour, by way of prevention; but the Civill Law takes away that Liberty, in all cases where the protection of the Lawe may be safely stayd for. Insomuch as Lex and Jus, are as different as Obligation and Liberty.

I find that even the most learned authors use Lex Civilis and Jus Civile interchangeably, meaning civil law and civil right. Yet these terms should not be used as if they meant the same thing. For right is freedom, specifically the freedom that civil law leaves us. But civil law imposes an obligation and takes away the freedom that the law of nature gave us. Nature gave every man the right to protect himself by his own strength. Nature also gave him the right to attack a suspected neighbor as a preventive measure. But civil law takes away that freedom in all cases where a man can safely wait for the law’s protection. Thus, Lex and Jus differ as much as obligation and freedom.

Likewise Lawes and Charters are taken promiscuously for the same thing. Yet Charters are Donations of the Soveraign; and not Lawes, but exemptions from Law. The phrase of a Law is Jubeo, Injungo, I Command, and Enjoyn: 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 Common-wealth: a Liberty, or Charter is only to One man, or some One part of the people. For to say all the people of a Common-wealth, 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.

Likewise, laws and charters are treated as the same thing. Yet charters are gifts from the sovereign, not laws, but exemptions from the law. A law says, in Latin, Jubeo, Injungo: I command, I order. A charter says Dedi, Concessi: I have given, I have granted. But what is given or granted to someone is not forced upon that person by law. A law may be made to bind all the subjects of a commonwealth. A freedom or charter applies only to one person or one part of the people. For saying that all the people of a commonwealth have freedom in any matter means no law governs that matter. Either no law has been made, or a law was made but has now been repealed.