1. They who less seriously consider the force of words, do sometimes confound law with counsel, sometimes with covenant, sometimes with right. They confound law with counsel, who think that it is the duty of monarchs not only to give ear to their counsellors, but also to obey them; as though it were in vain to take counsel, unless it were also followed. We must fetch the distinction between counsel and law, from the difference between counsel and command. Now counsel is a precept, in which the reason of my obeying it is taken from the thing itself which is advised; but command is a precept, in which the cause of my obedience depends on the will of the commander. For it is not properly said, thus I will and thus I command, except the will stand for a reason. Now when obedience is yielded to the laws, not for the thing itself, but by reason of the adviser’s will, the law is not a counsel, but a command, and is defined thus: law is the command of that person, whether man or court, whose precept contains in it the reason of obedience: as the precepts of God in regard of men, of magistrates in respect of their subjects, and universally of all the powerful in respect of them who cannot resist, may be termed their laws. Law and counsel therefore differ many ways. Law belongs to him who hath power over them whom he adviseth; counsel to them who have no power. To follow what is prescribed by law, is duty; what by counsel, is free-will. Counsel is directed to his end, that receives it; law, to his that gives it. Counsel is given to none but the willing; law even to the unwilling. To conclude, the right of the counsellor is made void by the will of him to whom he gives counsel; the right of the law-giver is not abrogated at the pleasure of him who hath a law imposed.

2. They confound law and covenant, who conceive the laws to be nothing else but certain ὁμολογήματα, or forms of living determined by the common consent of men. Among whom is Aristotle, who defines law on this manner; Νόμός ἐστι λόγος ὡρισμένος καθ’ ὁμολογίαν κοινὴν πόλεως, μγνύων πῶς δεῖ πράττειν ἕκαστα: that is to say, law is a speech, limited according to the common consent of the city, declaring every thing that we ought to do. Which definition is not simply of law, but of the civil law. For it is manifest that the divine laws sprang not from the consent of men, nor yet the laws of nature. For if they had their original from the consent of men, they might also by the same consent be abrogated; but they are unchangeable. But indeed, that is no right definition of a civil law. For in that place, a city is taken either for one civil person, having one will; or for a multitude of men, who have each of them the liberty of their private wills. If for one person, those words common consent are ill-placed here; for one person hath no common consent. Neither ought he to have said, declaring what was needful to be done, but commanding; for what the city declares, it commands its subjects. He therefore by a city understood a multitude of men, declaring by common consent (imagine it a writing confirmed by votes) some certain forms of living. But these are nothing else but some mutual contracts, which oblige not any man (and therefore are no laws) before that a supreme power being constituted, which can compel, have sufficient remedy against the rest, who otherwise are not likely to keep them. Laws therefore, according to this definition of Aristotle, are nothing else but naked and weak contracts; which then at length, when there is one who by right doth exercise the supreme power, shall either become laws or no laws at his will and pleasure. Wherefore he confounds contracts with laws, which he ought not to have done; for contract is a promise, law a command. In contracts we say, I will do this; in laws, do this. Contracts oblige us;^[16] laws tie us fast, being obliged. A contract obligeth of itself; the law holds the party obliged by virtue of the universal contract of yielding obedience. Therefore in contract, it is first determined what is to be done, before we are obliged to do it; but in law, we are first obliged to perform, and what is to be done is determined afterwards. Aristotle therefore ought to have defined a civil law thus: a civil law is a speech limited by the will of the city, commanding everything behoveful to be done. Which is the same with that we have given above, in chap. VI. art. 9: to wit, that the civil laws are the command of him, whether man or court of men, who is endued with supreme power in the city, concerning the future actions of his subjects.

3. They confound laws with right, who continue still to do what is permitted by divine right, notwithstanding it be forbidden by the civil law. That which is prohibited by the divine law, cannot be permitted by the civil; neither can that which is commanded by the divine law, be prohibited by the civil. Notwithstanding, that which is permitted by the divine right, that is to say, that which may be done by divine right, doth no whit hinder why the same may not be forbidden by the civil laws; for inferior laws may restrain the liberty allowed by the superior, although they cannot enlarge them. Now natural liberty is a right not constituted, but allowed by the laws. For the laws being removed, our liberty is absolute. This is first restrained by the natural and divine laws; the residue is bounded by the civil law; and what remains, may again be restrained by the constitutions of particular towns and societies. There is great difference therefore between law and right. For law is a fetter, right is freedom; and they differ like contraries.

4. All law may be divided, first according to the diversity of its authors into divine and human. The divine, according to the two ways whereby God hath made known his will unto men, is twofold; natural or moral, and positive. Natural is that which God hath declared to all men by his eternal word born with them, to wit, their natural reason; and this is that law, which in this whole book I have endeavoured to unfold. Positive is that, which God hath revealed to us by the word of prophecy, wherein he hath spoken unto men as a man. Such are the laws which he gave to the Jews concerning their government and divine worship; and they may be termed the divine civil laws, because they were peculiar to the civil government of the Jews, his peculiar people. Again, the natural law may be divided into that of men, which alone hath obtained the title of the law of nature; and that of cities, which may be called that of nations, but vulgarly it is termed the right of nations. The precepts of both are alike. But because cities once instituted do put on the personal proprieties of men, that law, which speaking of the duty of single men we call natural, being applied to whole cities and nations, is called the right of nations. And the same elements of natural law and right, which have hitherto been spoken of, being transferred to whole cities and nations, may be taken for the elements of the laws and right of nations.

5. All human law is civil. For the state of men considered out of civil society, is hostile; in which, because one is not subject to another, there are no other laws beside the dictates of natural reason, which is the divine law. But in civil government the city only, that is to say, that man or court to whom the supreme power of the city is committed, is the legislator; and the laws of the city are civil. The civil laws may be divided, according to the diversity of their subject matter, into sacred or secular. Sacred are those which pertain to religion, that is to say, to the ceremonies and worship of God: to wit, what persons, things, places, are to be consecrated, and in what fashion; what opinions concerning the Deity are to be taught publicly; and with what words and in what order supplications are to be made; and the like; and are not determined by any divine positive law. For the civil sacred laws are the human laws (which are also called ecclesiastical) concerning things sacred; but the secular, under a general notion, are usually called the civil laws.

6. Again, the civil law (according to the two offices of the legislator, whereof one is to judge, the other to constrain men to acquiesce to his judgments) hath two parts; the one distributive, the other vindicative or penal. By the distributive it is, that every man hath his proper rights; that is to say, it sets forth rules for all things, whereby we may know what is properly our’s, what another man’s; so as others may not hinder us from the free use and enjoyment of our own, and we may not interrupt others in the quiet possession of their’s; and what is lawful for every man to do or omit, and what is not lawful. Vindicative is that, whereby it is defined what punishment shall be inflicted on them who break the law.

7. Now distributive and vindicative are not two several species of the laws, but two parts of the same law. For if the law should say no more, but (for example) whatsoever you take with your net in the sea, be it yours, it is in vain. For although another should take that away from you which you have caught, it hinders not but that it still remains yours. For in the state of nature where all things are common to all, yours and others are all one; insomuch as what the law defines to be yours, was yours even before the law, and after the law ceases not to be yours, although in another man’s possession. Wherefore the law doth nothing, unless it be understood to be so yours, as all other men be forbidden to interrupt your free use and secure enjoyment of it at all times, according to your own will and pleasure. For this is that which is required to a propriety of goods; not that a man may be able to use them, but to use them alone; which is done by prohibiting others to be an hinderance to him. But in vain do they also prohibit any men, who do not withal strike a fear of punishment into them. In vain therefore is the law, unless it contain both parts, that which forbids injuries to be done, and that which punisheth the doers of them. The first of them, which is called distributive, is prohibitory, and speaks to all; the second, which is styled vindicative or penary, is mandatory, and only speaks to public ministers.

8. From hence also we may understand, that every civil law hath a penalty annexed to it, either explicitly or implicitly. For where the penalty is not defined, neither by any writing, nor by example of any who hath suffered the punishment of the transgressed law, there the penalty is understood to be arbitrary; namely, to depend on the will of the legislator, that is to say, of the supreme commander. For in vain is that law, which may be broken without punishment.

9. Now because it comes from the civil laws, both that every man have his proper right and distinguished from another’s, and also that he is forbidden to invade another’s rights; it follows that these precepts: Thou shalt not refuse to give the honour defined by the laws, unto thy parents: Thou shalt not kill the man, whom the laws forbid thee to kill: Thou shalt avoid all copulation forbidden by the laws: Thou shalt not take away another’s goods, against the lords will: Thou shalt not frustrate the laws and judgments by false testimony: are civil laws. The natural laws command the same things, but implicitly. For the law of nature (as hath been said in chap. III. art. 2) commands us to keep contracts; and therefore also to perform obedience, when we have covenanted obedience, and to abstain from another’s goods, when it is determined by the civil law what belongs to another. But all subjects (by chap. VI. art. 13) do covenant to obey his commands who hath the supreme power, that is to say, the civil laws, in the very constitution of government, even before it is possible to break them. For the law of nature did oblige in the state of nature; where first, because nature hath given all things to all men, nothing did properly belong to another, and therefore it was not possible to invade another’s right; next, where all things were common, and therefore all carnal copulations lawful; thirdly, where was the state of war, and therefore lawful to kill; fourthly, where all things were determined by every man’s own judgment, and therefore paternal respects also; lastly, where there were no public judgments, and therefore no use of bearing witness, either true or false.

10. Seeing therefore our obligation to observe those laws is more ancient than the promulgation of the laws themselves, as being contained in the very constitution of the city; by the virtue of the natural law which forbids breach of covenant, the law of nature commands us to keep all the civil laws. For where we are tied to obedience before we know what will be commanded us, there we are universally tied to obey in all things. Whence it follows, that no civil law whatsoever, which tends not to a reproach of the Deity, (in respect of whom cities themselves have no right of their own, and cannot be said to make laws), can possibly be against the law of nature. For though the law of nature forbid theft, adultery, &c; yet if the civil law command us to invade anything, that invasion is not theft, adultery, &c. For when the Lacedæmonians of old permitted their youths, by a certain law, to take away other men’s goods, they commanded that these goods should not be accounted other men’s, but their own who took them; and therefore such surreptions were no thefts. In like manner, copulations of heathen sexes, according to their laws, were lawful marriages.

11. It is necessary to the essence of a law, that the subjects be acquainted with two things: first, what man or court hath the supreme power, that is to say, the right of making laws; secondly, what the law itself says. For he that neither knew either to whom or what he is tied to, cannot obey; and by consequence is in such a condition as if he were not tied at all. I say not that it is necessary to the essence of a law, that either one or the other be perpetually known, but only that it be once known. And if the subject afterward forget either the right he hath who made the law, or the law itself, that makes him no less tied to obey; since he might have remembered it, had he a will to obey.

12. The knowledge of the legislator depends on the subject himself; for the right of making laws could not be conferred on any man without his own consent and covenant, either expressed or supposed; expressed, when from the beginning the citizens do themselves constitute a form of governing the city, or when by promise they submit themselves to the dominion of any one; or supposed at least, as when they make use of the benefit of the realm and laws for their protection and conservation against others. For to whose dominion we require our fellow subjects to yield obedience for our good, his dominion we acknowledge to be legitimate by that very request. And therefore ignorance of the power of making laws, can never be a sufficient excuse; for every man knows what he hath done himself.

13. The knowledge of the laws depends on the legislator; who must publish them; for otherwise they are not laws. For law is the command of the law-maker, and his command is the declaration of his will; it is not therefore a law, except the will of the law-maker be declared, which is done by promulgation. Now in promulgation two things must be manifest; whereof one is, that he or they who publish a law, either have a right themselves to make laws, or that they do it by authority derived from him or them who have it; the other is the sense of the law itself. Now, that the first, namely, published laws, proceed from him who hath the supreme command, cannot be manifest (speaking exactly and philosophically) to any, but them who have received them from the mouth of the commander. The rest believe; but the reasons of their belief are so many, that it is scarce possible they should not believe. And truly in a democratical city, where every one may be present at the making of laws if he will, he that shall be absent, must believe those that were present. But in monarchies and aristocracies, because it is granted but to few to be present, and openly to hear the commands of the monarch or the nobles, it was necessary to bestow a power on those few of publishing them to the rest. And thus we believe those to be the edicts and decrees of princes, which are propounded to us for such, either by the writings or voices of them whose office it is to publish them. But yet, when we have these causes of belief; that we have seen the prince or supreme counsel constantly use such counsellors, secretaries, publishers, and seals, and the like arguments for the declaring of his will; that he never took any authority from them; that they have been punished, who not giving credit to such like promulgations have transgressed the law; not only he who thus believing shall obey the edicts and decrees set forth by them, is everywhere excused, but he that not believing shall not yield obedience, is punished. For the constant permission of these things is a manifest sign enough and evident declaration of the commander’s will; provided there be nothing contained in the law, edict, or decree, derogatory from his supreme power. For it is not to be imagined that he would have aught taken from his power by any of his officers, as long as he retains a will to govern. Now the sense of the law, when there is any doubt made of it, is to be taken from them to whom the supreme authority hath committed the knowledge of causes or judgments; for to judge, is nothing else than by interpretation to apply the laws to particular cases. Now we may know who they are that have this office granted them, in the same manner as we know who they be that have authority given them to publish laws.

14. Again the civil law, according to its two-fold manner of publishing, is of two sorts, written and unwritten. By written, I understand that which wants a voice, or some other sign of the will of the legislator, that it may become a law. For all kind of laws are of the same age with mankind, both in nature and time; and therefore of more antiquity than the invention of letters, and the art of writing. Wherefore not a writing, but a voice is necessary for a written law; this alone is requisite to the being, that to the remembrance of a law. For we read, that before letters were found out for the help of memory, that laws, contracted into metre, were wont to be sung. The unwritten, is that which wants no other publishing than the voice of nature or natural reason; such are the laws of nature. For the natural law, although it be distinguished from the civil, forasmuch as it commands the will; yet so far forth as it relates to our actions, it is civil. For example, this same, thou shalt not covet, which only appertains to the mind, is a natural law only; but this, thou shalt not invade, is both natural and civil. For seeing it is impossible to prescribe such universal rules, whereby all future contentions, which perhaps are infinite, may be determined; it is to be understood that in all cases not mentioned by the written laws, the law of natural equity is to be followed, which commands us to distribute equally to equals; and this by the virtue of the civil law, which also punisheth those who knowingly and willingly do actually transgress the laws of nature.

15. These things being understood, it appears, first, that the laws of nature, although they were described in the books of some philosophers, are not for that reason to be termed written laws: and that the writings of the interpreters of the laws, were no laws, for want of the supreme authority; nor yet those orations of the wise, that is to say, judges, but so far forth as by the consent of the supreme power they part into custom; and that then they are to be received among the written laws, not for the custom’s sake, (which by its own force doth not constitute a law), but for the will of the supreme commander; which appears in this, that he hath suffered his sentence, whether equal or unequal, to pass into custom.

16. Sin, in its largest signification, comprehends every deed, word, and thought against right reason. For every man, by reasoning, seeks out the means to the end which he propounds to himself. If therefore he reason right, that is to say, beginning from most evident principles he makes a discourse out of consequences continually necessary, he will proceed in a most direct way. Otherwise he will go astray, that is to say, he will either do, say, or endeavour somewhat against his proper end; which when he hath done, he will indeed in reasoning be said to have erred, but in action and will to have sinned. For sin follows error, just as the will doth the understanding. And this is the most general acception of the word; under which is contained every imprudent action, whether against the law, as to overthrow another man’s house, or not against the law, as to build his own upon the sand.

17. But when we speak of the laws, the word sin is taken in a more strict sense, and signifies not every thing done against right reason, but that only which is blameable; and therefore it is called malum culpæ, the evil of fault. But yet if anything be culpable, it is not presently to be termed a sin or fault; but only if it be blameable with reason. We must therefore enquire what it is to be blameable with reason, what against reason. Such is the nature of man, that every one calls that good which he desires, and evil which he eschews. And therefore through the diversity of our affections it happens, that one counts that good, which another counts evil; and the same man what now he esteemed for good, he immediately after looks on as evil: and the same thing which he calls good in himself, he terms evil in another. For we all measure good and evil by the pleasure or pain we either feel at present, or expect hereafter. Now seeing the prosperous actions of enemies, because they increase their honours, goods, and power; and of equals, by reason of that strife of honours which is among them; both seem and are irksome, and therefore evil to all; and men use to repute those evil, that is to say, to lay some fault to their charge, from whom they receive evil; it is impossible to be determined by the consent of single men, whom the same things do not please and displease, what actions are, and what not to be blamed. They may agree indeed in some certain general things, as that theft, adultery, and the like are sins; as if they should say that all men account those things evil, to which theythey have given names which are usually taken in an evil sense. But we demand not whether theft be a sin, but what is to be termed theft; and so concerning others, in like manner. Forasmuch therefore as in so great a diversity of censurers, what is by reason blameable is not to be measured by the reason of one man more than another, because of the equality of human nature; and there are no other reasons in being, but only those of particular men, and that of the city: it follows, that the city is to determine what with reason is culpable. So as a fault, that is to say, a sin, is that which a man does, omits, says, or wills, against the reason of the city, that is, contrary to the laws.

18. But a man may do somewhat against the laws through human infirmity, although he desire to fulfil them; and yet his action, as being against the laws, is rightly blamed, and called a sin. But there are some who neglect the laws; and as oft as any hope of gain and impunity doth appear to them, no conscience of contracts and betrothed faith can withhold them from their violation. Not only the deeds, but even the minds of these men are against the laws. They who sin only through infirmity, are good men even when they sin; but these, even when they do not sin, are wicked. For though both the action and the mind be repugnant to the laws, yet those repugnances are distinguished by different appellations. For the irregularity of the action is called ἀδίκημαἀδίκημα, unjust deed; that of the mind ἀδικὶα and κακὶα, injustice and malice; that is the infirmity of a disturbed soul, this the pravity of a sober mind.

19. But seeing there is no sin which is not against some law, and that there is no law which is not the command of him who hath the supreme power, and that no man hath a supreme power which is not bestowed on him by our own consent; in what manner will he be said to sin, who either denies that there is a God, or that he governs the world, or casts any other reproach upon him? For he will say: that he never submitted his will to God’s will, not conceiving him so much as to have any being: and granting that his opinion were erroneous, and therefore also a sin, yet were it to be numbered among those of imprudence or ignorance, which by right cannot be punished. This speech seems so far forth to be admitted, that though this kind of sin be the greatest and most hurtful, yet is it to be referred to sins of imprudence;^[17] but that it should be excused by imprudence or ignorance, is absurd. For the atheist is punished either immediately by God himself, or by kings constituted under God; not as a subject is punished by a king, because he keeps not the laws; but as one enemy by another, because he would not accept of the laws; that is to say, by the right of war, as the giants warring against God. For whosoever are not subject either to some common lord, or one to another, are enemies among themselves.

20. Seeing that from the virtue of the covenant, whereby each subject is tied to the other to perform absolute and universal obedience (such as is defined above, chap. VI. art. 13) to the city, that is to say, to the sovereign power, whether that be one man or council, there is an obligation derived to observe each one of the civil laws; so that that covenant contains in itself all the laws at once; it is manifest that the subject who shall renounce the general covenant of obedience, doth at once renounce all the laws. Which trespass is so much worse than any other one sin, by how much to sin always, is worse than to sin once. And this is that sin which is called treason; and it is a word or deed whereby the citizen or subject declares, that he will no longer obey that man or court to whom the supreme power of the city is entrusted. And the subject declares this same will of his by deed, when he either doth or endeavours to do violence to the sovereign’s person, or to them who execute his commands. Of which sort are traitors, regicides, and such as take up arms against the city, or during a war fly to the enemy’s side. And they show the same will in word, who flatly deny that themselves or other subjects are tied to any such kind of obedience, either in the whole, as he who should say that we must not obey him (keeping the obedience which we owe to God entire) simply, absolutely, and universally; or in part, as he who should say, that he had no right to wage war at his own will, to make peace, enlist soldiers, levy monies, elect magistrates and public ministers, enact laws, decide controversies, set penalties, or do aught else without which the state cannot stand. And these and the like words and deeds are treason by the natural, not the civil law. But it may so happen, that some action, which before the civil law was made, was not treason, yet will become such if it be done afterwards. As if it be declared by the law, that it shall be accounted for a sign of renouncing public obedience, that is to say, for treason, if any man shall coin monies, or forge the privy-seal; he that after that declaration shall do this, will be no less guilty of treason than the other. Yet he sins less, because he breaks not all the laws at once, but one law only. For the law by calling that treason which by nature is not so, doth indeed by right set a more odious name, and perhaps a more grievous punishment on the guilty persons; but it makes not the sin itself more grievous.

21. But that sin, which by the law of nature is treason, is a transgression of the natural, not the civil law. For since our obligation to civil obedience, by virtue whereof the civil laws are valid, is before all civil law, and the sin of treason is naturally nothing else but the breach of that obligation; it follows, that by the sin of treason that law is broken which preceded the civil law, to wit, the natural, which forbids us to violate covenants and betrothed faith. But if some sovereign prince should set forth a law on this manner, thou shalt not rebel, he would effect just nothing. For except subjects were before obliged to obedience, that is to say, not to rebel, all law is of no force. Now the obligation which obligeth to what we were before obliged to, is superfluous.

22. Hence it follows, that rebels, traitors, and all others convicted of treason, are punished not by civil, but natural right; that is to say, not as civil subjects, but as enemies to the government; not by the right of sovereignty and dominion, but by the right of war.

23. There are some who think that those acts which are done against the law, when the punishment is determined by the law itself, are expiated, if the punished willingly undergo the punishment; and that they are not guilty before God of breaking the natural law, (although by breaking the civil laws, we break the natural too, which command us to keep the civil), who have suffered the punishment which the law required; as if by the law the fact were not prohibited, but a punishment were set instead of a price, whereby a license might be bought of doing what the law forbids. By the same reason they might infer too, that no transgression of the law were a sin; but that every man might enjoy the liberty which he hath bought by his own peril. But we must know, that the words of the law may be understood in a two-fold sense. The one as containing two parts, (as hath been declared above in art. 7), namely, that of absolutely prohibiting, as, thou shalt not do this; and revenging, as, he that doth this, shall be punished. The other, as containing a condition, for example, thou shalt not do this thing, unless thou wilt suffer punishment; and thus the law forbids not simply, but conditionally. If it be understood in the first sense, he that doth it sins, because he doth what the law forbids to be done; if in the second, he sins not, because he cannot be said to do what is forbidden him, that performs the condition. For in the first sense, all men are forbidden to do it; in the second, they only who keep themselves from the punishment. In the first sense, the vindicative part of the law obligeth not the guilty, but the magistrate to require punishment; in the second, he himself that owes the punishment, is obliged to exact it; to the payment whereof, if it be capital or otherwise grievous, he cannot be obliged. But in what sense the law is to be taken, depends on the will of him who hath the sovereignty. When therefore there is any doubt of the meaning of the law, since we are sure they sin not who do it not, it will be sin if we do it, howsoever the law may afterward be explained. For to do that which a man doubts whether it be a sin or not, when he hath freedom to forbear it, is a contempt of the laws; and therefore by chap. III. art. 28, a sin against the law of nature. Vain therefore is that same distinction of obedience into active and passive; as if that could be expiated by penalties constituted by human decrees, which is a sin against the law of nature, which is the law of God; or as though they sinned not, who sin at their own peril.