« PreviousContinue »
fit and uufit counsellors.
PART II. wise, because many eyes see the same thing in
divers lines, and are apt to look asquint towards Differences of their private benefit ; they that desire not to miss
their mark, though they look about with two eyes,
OF CIVIL LAWS.
Civil law what. BY CIVIL LAWS, I understand the laws, that men are
therefore bound to observe, because they are members, not of this or that commonwealth in particular, but of a commonwealth. For the knowledge of particular laws belongeth to them, that profess the study of the laws of their several countries; but the knowledge of civil law in general, to any man. The ancient law of Rome was called their civil law, from the word civitas, which signifies a commonwealth : and those countries, which having been under the Roman empire, and governed by that law, retain still such part thereof as they think fit, call that part the civil law, to distinguish it from the rest of their own civil laws. But that is not it I
intend to speak of here ; my design being not to PART II. show what is law here, and there, but what is law; as Plato, Aristotle, Cicero, and divers others Civil law what. have done, without taking upon them the profession of the study of the law.
And first it is manifest, that law in general, is not counsel, but command; nor a command of any man to any man ; but only of him, whose command is addressed to one formerly obliged to obey him. And as for civil law, it addeth only the name of the person commanding, which is persona civitatis, the person of the commonwealth.
Which considered, I define civil law in this manner. CIVIL LAW, is to every subject, those rules, which the commonwealth hath commanded him, by word, writing, or other sufficient sign of the will, to make use of, for the distinction of right, and wrong; that is to say, of what is contrary, and what is not contrary to the rule.
In which definition, there is nothing that is not at first sight evident. For every man seeth, that some laws are addressed to all the subjects in general; some to particular provinces ; some to particular vocations; and some to particular men; and are therefore laws, to every of those to whom the command is directed, and to none else. As also, that laws are the rules of just, and unjust; nothing being reputed unjust, that is not contrary to some law. Likewise, that none can make laws but the commonwealth ; because our subjection is to the commonwealth only: and that commands, are to be signified by sufficient signs ; because a man knows not otherwise how to obey them. And therefore, whatsoever can from this definition by
PART II. necessary consequence be deduced, ought to be
acknowledged for truth. Now I deduce from it
this that followeth. The sovereign 1. The legislator in all commonwealths, is only is legislator.
the sovereign, be he one man, as in a monarchy, or one assembly of men, as in a democracy, or aristocracy. For the legislator is he that maketh the law. And the commonwealth only prescribes, and commandeth the observation of those rules, which we call law : therefore the commonwealth is the legislator. But the commonwealth is no person, nor has capacity to do anything, but by the representative, that is, the sovereign ; and therefore the sovereign is the sole legislator. For the same reason, none can abrogate a law made, but the sovereign; because a law is not abrogated, but by another law, that forbiddeth it to be put in execution.
2. The sovereign of a commonwealth, be it an subject to
assembly, or one man, is not subject to the civil laws. For having power to make, and repeal laws, he may when he pleaseth, free himself from that subjection, by repealing those laws that trouble him, and making of new; and consequently he was free before. For he is free, that can be free when he will: nor is it possible for any person to be bound to himself; because he that can bind, can release; and therefore he that is bound to himself only, is
not bound. Use, a law 3. When long use obtaineth the authority of a not by virtue of time, but of law, it is not the length of time that maketh the the sovereign's
authority, but the will of the sovereign signified by his silence, for silence is sometimes an argument of consent; and it is no longer law, than the sovereign
tain each other, power.
shall be silent therein. And therefore if the sove- PART II. reign shall have a question of right grounded, not upon his present will, but upon the laws formerly made; the length of time shall bring no prejudice to his right; but the question shall be judged by equity. For many unjust actions, and unjust sentences, go uncontrolled a longer time than any man can remember. And our lawyers account no customs law, but such as are reasonable, and that evil customs are to be abolished. But the judgment of what is reasonable, and of what is to be abolished, belongeth to him that maketh the law, which is the sovereign assembly, or monarch. 4. The law of nature, and the civil law, contain The law of na
ture, and the each other, and are of equal extent. For the laws civil law couof nature, which consist in equity, justice, gratitude, and other moral virtues on these depending, in the condition of mere nature, as I have said before in the end of the fifteenth chapter, are not properly laws, but qualities that dispose men to peace and obedience. When a commonwealth is once settled, then are they actually laws, and not before; as being then the commands of the commonwealth ; and therefore also civil laws: for it is the sovereign power that obliges men to obey them. For in the differences of private men, to declare, what is equity, what is justice, and what is moral virtue, and to make them binding, there is need of the ordinances of sovereign power, and punishments to be ordained for such as shall break them; which ordinances are therefore part of the civil law. The law of nature therefore is a part of the civil law in all commonwealths of the world. Reciprocally also, the civil law is a part of the dictates of nature.
PART 11. For justice, that is to say, performance of covenant,
and giving to every man his own, is a dictate of the law of nature. But every subject in a commonwealth, hath convenanted to obey the civil law; either one with another, as when they assemble to make a common representative, or with the representative itself one by one, when subdued by the sword they promise obedience, that they may receive life; and therefore obedience to the civil law is part also of the law of nature. Civil, and natural law are not different kinds, but different parts of law; whereof one part being written, is called civil, the other unwritten, natural. But the right of nature, that is, the natural liberty of man, may by the civil law be abridged, and restrained : nay, the end of making laws, is no other, but such restraint; without the which there cannot possibly be any peace. And law was brought into the world for nothing else, but to limit the natural liberty of particular men, in such manner, as they might not hurt, but assist one another, and join together
against a common enemy. Provincial 5. If the sovereign of one commonwealth, sublaws are not
due a people that have lived under other written tom, but by the laws, and afterwards govern them by the same laws, sovereign
by which they were governed before; yet those laws are the civil laws of the victor, and not of the vanquished commonwealth. For the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws. And therefore where there be divers provinces, within the dominion of a commonwealth, and in those provinces diversity of laws, which commonly are called the customs of each several
made by cus