Leviathan by Thomas Hobbes (general ebook reader txt) 📖

Somewhat like to these Lawes, 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 Emperours, remained Lawes by the Authority Imperiall. 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 Emperour, that men should Consult the Senate in stead of the people: And these have some resemblance with the Acts of Counsell.

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

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.

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.

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.

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.

Another Division Of Law

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.

Divine Positive Law How Made Known To Be Law 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.

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 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 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 Commonwealth.

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 Commonwealth. 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 Commonwealth. Christian States punish those that revolt from Christian Religion, and all other States, those that set up any Religion by them forbidden. For in whatsoever is not regulated by the Commonwealth, tis Equity (which is the Law of Nature, and therefore an eternall Law of God) that every man equally enjoy his liberty.

Another Division Of Lawes

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.

A Fundamentall Law What

For a Fundamentall 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 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 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 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.

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 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.

And Between A Law And A Charter

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 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