« PreviousContinue »
law how made
men ; scarce two men would agree upon what is PART II. God's commandment; and yet in respect of them, every man would despise the commandments of the Divine positive commonwealth. I conclude therefore, that in all known to be things not contrary to the moral law, that is to say, to the law of nature, all subjects are bound to obey that for divine law, which is declared to be so, by the laws of the commonwealth. Which also is evident to any man's reason ; for whatsoever is not against the law of nature, may be made law in the name of them that have the sovereign power ; and there is no reason men should be the less obliged by it, when it is propounded in the name of God. Besides, there is no place in the world where men are permitted to pretend other commandments of God, than are declared for such by the commonwealth. Christian states punish those that revolt from the Christian religion, and all other states, those that set up any religion by them forbidden. For in whatsoever is not regulated by the commonwealth, it is equity, which is the law of nature, and therefore an eternal law of God, that every man equally enjoy his liberty.
There is also another distinction of laws, into Another divifundamental and not fundamental ; but I could never see in any author, what a fundamental law signifieth. Nevertheless one may very reasonably distinguish laws in that manner.
For a fundamental law in every commonwealth A fundamental is that, which being taken away, the commonwealth faileth, and is utterly dissolved ; as a building whose foundation is destroyed. And therefore a fundamental law is that, by which subjects are bound to uphold whatsoever power is given to the
sion of laws.
PART 11. sovereign, whether a monarch, or a sovereign as
sembly, without which the commonwealth cannot stand ; such as is the power of war and peace, of judicature, of election of officers, and of doing whatsoever he shall think necessary for the public good. Not fundamental is that, the abrogating whereof, draweth not with it the dissolution of the commonwealth ; such as are the laws concerning controversies between subject and subject. Thus much of the division of laws.
I find the words lex civilis, and jus civile, that between law and right. is to say law and right civil, promiscuously used for
the same thing, even in the most learned authors ; which nevertheless ought not to be so.
For right is liberty, namely that liberty which the civil law leaves us : but civil law is an obligation, and takes from us the liberty which the law of nature gave
Nature gave a right to every man to secure himself by his own strength, and to invade a suspected neighbour, by way of prevention : but the civil law takes away that liberty, in all cases where the protection of the law may be safely stayed for. Insomuch as lex and jus, are as different as obligation and liberty.
Likewise laws and charters are taken promiscuously for the same thing. Yet charters are donations of the sovereign; and not laws, but exemptions from law. The phrase of a law is, jubeo, injungo, I command and enjoin: the phrase of a charter is, dedi, concessi, I have given, I have granted: but what is given or granted, to a man, is not forced upon him, by a law. A law may be made to bind all the subjects of a commonwealth : a liberty, or charter is only to one man, or some
one part of the people. For to say all the people PART II. of a commonwealth, have liberty in any case whatsoever, is to say, that in such case, there hath been no law made ; or else having been made, is now abrogated.
OF CRIMES, EXCUSES, AND EXTENUATIONS.
A sin, is not only a transgression of a law, but Sin, what. also any contempt of the legislator. For such contempt, is a breach of all his laws at once. And therefore may consist, not only in the commission of a fact, or in speaking of words by the laws forbidden, or in the omission of what the law commandeth, but also in the intention, or purpose to transgress. For the purpose to break the law, is some degree of contempt of him, to whom it belongeth to see it executed. To be delighted in the imagination only, of being possessed of another man's goods, servants, or wife, without any intention to take them from him by force or fraud, is no breach of the law, that saith, Thou shalt not cocet : nor is the pleasure a man may have in imagining or dreaming of the death of him, from whose life he expecteth nothing but damage, and displeasure, a sin; but the resolving to put some act in execution, that tendeth thereto. For to be pleased in the fiction of that, which would please a man if it were real, is a passion so adherent to the nature both of man, and every other living creature, as to make it a sin, were to make sin of being a man. The consideration of this, has made me
PART 11. think them too severe, both to themselves, and
others, that maintain, that the first motions of the
than on the other. A crime, what.
A CRIME, is a sin, consisting in the committing, by deed or word, of that which the law forbiddeth, or the omission of what it hath commanded. So that every crime is a sin; but not every sin a crime. To intend to steal, or kill, is a sin, though it never appear in word, or fact : for God that seeth the thoughts of man, can lay it to his charge: but till it appear by something done, or said, by which the intention may be argued by a human judge, it hath not the name of crime: which distinction the Greeks observed, in the word áuáprnua, and éykinua, or áiria; whereof the former, which is translated sin, signifieth any swerving from the law whatsoever ; but the two latter, which are translated crime, signify that sin only, whereof one man may accuse another. But of intentions, which never appear by any outward act, there is no place for human accusation. In like manner the Latins by peccatum, which is sin, signify all manner of deviation from the law; but by crimen, which word they derive from cerno, which signifies to perceive, they mean only such sins, as may be made appear before a judge; and therefore are not mere intentions.
From this relation of sin to the law, and of crime
law ceaseth, sin ceaseth. But because the law of
Where no civil
moral virtue, can never cease to be sin. Secondly, PART 11, that the civil law ceasing, crimes cease: for there being no other law remaining, but that of nature, there is no place for accusation ; every man being his own judge, and accused only by his own conscience, and cleared by the uprightness of his own intention. When therefore his intention is right, his fact is no sin : if otherwise, his fact is sin; but not crime. Thirdly, that when the sovereign power ceaseth, crime also ceaseth ; for where there is no such power, there is no protection to be had from the law; and therefore every one may protect himself by his own power: for no man in the institution of sovereign power can be supposed to give away the right of preserving his own body; for the safety whereof all sovereignty was ordained. But this is to be understood only of those, that have not themselves contributed to the taking away of the power that protected them; for that was a crime from the beginning.
The source of every crime, is some defect of the Ignorance of understanding; or some error in reasoning; or ture excuseth some sudden force of the passions. Defect in the no man. understanding, is ignorance ; in reasoning, erroneous opinion. Again, ignorance is of three sorts; of the law, and of the sovereign, and of the penalty. Ignorance of the law of nature excuseth no man; because every man that hath attained to the use of reason, is supposed to know, he ought not to do to another, what he would not have done to himself. Therefore into what place soever a man shall come, if he do anything contrary to that law, it is a crime. If a man come from the Indies hither, and persuade men here to receive a new religion, or teach