The English works of Thomas Hobbes of Malmesbury, Volume 04 · Thomas Hobbes
CHAPTER X.
1. All expressions, &c. concerning future actions, are either covenant, counsel, or command. 2. The difference between a law and a covenant. 3. The command of him whose command is law in one thing, is law in every thing. 4. The difference between law and counsel. 5. The difference between _jus_ and _lex_. 6. The division of laws, &c. 7. That the divine moral law, and the law of nature, is the same. 8. That the civil laws are the common measure of right and wrong, &c. 9. Martial law is civil law. 10. Written laws, &c. Unwritten, &c. Customs and opinions, &c. [Sidenote: All expressions, &c. concerning future actions, are either covenant, counsel, or command.] 1. Thus far concerning the Nature of Man, and the constitution and properties of a Body Politic. There remaineth only for the last chapter, to speak of the nature and sorts of law. And first it is manifest, that all laws are declarations of the mind, concerning some action future to be done, or omitted. And all declarations and expressions of the mind concerning future actions and omissions, are either _promissive_, as _I will do, or not do_; or _provisive_, as for example, _If this be done or not done, this will follow_; or _imperative_, as _Do this, or do it not_. In the first sort of these expressions, consisteth the nature of a covenant; in the second, consisteth counsel; in the third, command.
7. As for the first division of law into _divine_, _natural_, and _civil_, the first two branches are one and the same law. For the law of nature, which is also the moral law, is the law of the author of nature, God Almighty; and the law of God taught by our Saviour Christ, is the moral law. For the sum of God’s law is, _Thou shalt love God above all, and thy neighbour as thyself_; and the same is the sum of the law of nature, as hath been showed, Part I. chap. V. And although the doctrine of our Saviour be of three parts, _moral_, _theological_, and _ecclesiastical_; the former part only, which is the moral, is of the nature of a law universal; the latter part is a branch of the law civil; and the theological, which containeth those articles concerning the divinity and kingdom of our Saviour, without which there is no salvation, is not delivered in the nature of laws, but of counsel and direction, how to avoid the punishment, which by the violation of the moral law, men are subject to. For it is not infidelity that condemneth, though it be faith that saveth, but the breach of the law and commandments of God, written first in man’s heart, and afterwards in tables, and delivered to the Jews by the hands of Moses.
10. When he or they in whom is the sovereign power of a commonwealth, are to ordain laws for the government and good order of the people, it is not possible they should comprehend all cases of controversy that may fall out, or perhaps any considerable diversity of them: but as time shall instruct them by the rising of new occasions, so are also laws from time to time to be ordained: and in such cases where no special law is made, the law of nature keepeth its place, and the magistrates ought to give sentence according thereunto, that is to say, according to natural reason. The constitutions therefore of the sovereign power, by which the liberty of nature is abridged, are written, because there is no other way to take notice of them; whereas the laws of nature are supposed to be written in men’s hearts. Written laws therefore are the constitutions of a commonwealth expressed; and unwritten, are the laws of natural reason. Custom of itself maketh no laws.
Nevertheless when a sentence hath been once given, by them that judge by their natural reason, whether the same be right or wrong, it may attain to the vigour of a law; not because the like sentence hath of custom been given in the like case, but because the sovereign power is supposed tacitly to have approved such sentence for right, and thereby it cometh to be a law, and numbered amongst the written laws of the commonwealth. For if custom were sufficient to introduce a law, then it would be in the power of every one that is deputed to hear a cause, to make his errors laws. In the like manner, those laws that go under the title of _responsa prudentum_, that is to say, the opinions of lawyers, are not therefore laws, because _responsa prudentum_, but because they are admitted by the sovereign. And from this may be collected, that when there is a case of private contract between the sovereign and the subject, a precedent against reason shall not prejudice the cause of the sovereign; no precedent being made a law, but upon supposition that the same was reasonable from the beginning. And thus much concerning the elements and general grounds of laws natural and politic. As for the law of nations, it is the same with the law of nature. For that which is the law of nature between man and man, before the constitution of commonwealth, is the law of nations between sovereign and sovereign, after. ------------------------------------------------------------------------ PREDESTINATION, ELECTION, FREE-WILL, GRACE, MERITS, REPROBATION, &c. IN ANSWER TO A TREATISE WRITTEN BY THE BISHOP OF LONDONDERRY, ON THE SAME SUBJECT.
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