be "murder," "homicide," "felony, "assault," and the like, which are determinations of law: but because they are not supposed to know the law of themselves, there is one that hath authority to inform them of it, in the particular case they are to judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unless it be made appear that they did it against their consciences, or had been corrupted by reward.

The things that make a good judge or good interpreter of the laws are, first, a right understanding' "of that principal law of Nature called 'equity," which depending not on the reading of other men's writings, but on the goodness of a man's own natural reason and meditation, is presumed to be in those most that have had most leisure, and had the most inclination to meditate thereon. Secondly, "contempt of unnecessary riches and preferments." Thirdly, "to be able in judgment to divest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, "patience to hear, diligent attention in hearing, and memory to retain, digest and apply what he hath heard."

The difference and division of the laws has been made in divers manners, according to the different methods of those men that have written of them. For it is a thing that dependeth not on nature, but on the scope of the writer, and is subservient to every man's proper method. In the Institu tions of Justinian, we find seven sorts of civil laws.

1. The "edicts," "constitutions," and "epistles of the prince," that is, of the emperor, because the whole power of the people was in him. Like these are the proclamations of the kings of England.

2.

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The decrees of the whole people of Rome," comprehending the senate, when they were put to the question by the senate. These were laws at first by the virtue of the sovereign power residing in the people; and such of them as by the emperors were not abrogated, remained laws by the authority imperial. For all laws that bind are understood to be laws by his authority that has power to repeal them. Somewhat like to these laws 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 emperors remained laws by the authority imperial. Like to these were the orders of the House of mons in England.

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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 emperor that men should consult the senate, instead of the people; and these have some resemblance with the acts of council.

5. "The edicts of prætors," and in some cases of "ædiles;" such as are the chief justices in the courts of England.

6. Responsa prudentum, which were the sentences and opinion of those lawyers to whom the emperor 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 judgment were obliged by the constitutions of the emperor 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 customs," which in their own nature are an imitation of law, by the tacit consent of the emperor, in case they be not contrary to the law of Nature, are very laws.

positive

Another division of laws is into "natural" and "positive." "Natural" are those which have been laws from all eternity; and are called not only "natural" but also "moral" laws; consisting in the moral virtues, 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 from eternity; but have been made laws by the will of those that have had the sovereign power over others; and are either written or made known to men by some other argument of the will of their legislator.

Again, of positive laws some are "human," some "divine;" and of human positive laws 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, nevertheless the command is not addressed to the delinquent, who cannot be supposed will faithfully punish himself, but to public ministers appointed to see the penalty executed. And these penal laws are for the most part written together with the laws distributive; and are sometimes called judgments. For all laws are general judgments, or sentences of the legislator; as also every particular judgment is a law to him whose case is judged.

"Divine positive laws" (for natural laws being eternal and universal are all divine) are those which being the commandments of God, not from all eternity, nor universally addressed to all men, but only to a certain people, or to certain persons, are declared for such by those whom God hath authorized to declare them. But this authority of man to declare what be these positive laws of God, how can it be known? God may command a man by a supernatural way to deliver laws 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 supernatural 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 himself, it is evidently impossible. For though a man may be induced to believe such revelation from the miracles they see him do, or from seeing the extraordinary sanctity of his life, or from seeing the extraordinary wisdom or extraordinary felicity of his actions, all which are marks of God's extraordinary favour; yet they are not assured evidences of special revelation. Miracles are marvellous works; 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 natural and ordinary causes. And therefore no man can infallibly know by natural reason that another has had a supernatural revelation of God's will, but only a belief; every one, as the signs thereof shall appear greater or lesser, a firmer or a weaker belief,

But for the second, how can he 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 God's 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 men's belief and interior cogitations are not subject to the commands, but only to the operation of God, ordinary or extraordinary. Faith of supernatural law

is not a fulfilling, but only an assenting to the same; and not a duty that we exhibit to God, but a gift which God freely giveth to whom He pleaseth ; as also unbelief is not a breach of any of His laws; but a rejection of them all, except the laws natural. But this that I say, will be made yet clearer by the examples and testimonies concerning this point in Holy Scripture. The covenant God made with Abraham, in a supernatural manner, was thus (Gen. xvii. 10): "This is the covenant which thou shalt observe between me and thee, and thy seed after thee." Abraham's 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 God's law; which they could not be, but in virtue 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 sovereign power over their children and servants. Again, 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 righteousness and judgment," it is manifest, the obedience of his family, who had no revelation, depended on their former obligation to obey their sovereign. At Mount Sinai Moses only went up to God; the people were forbidden to approach on pain of death; yet they were bound to obey all that Moses declared to them for God's law. Upon what ground, but on this submission of their own, "Speak thou to us and we will hear thee; but let not God speak to us, lest we die?" 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 God's commandments their own dreams and fancies, or the dreams and fancies of private men; scarce two men would agree upon what is God's commandment; and yet in respect of them, every man would despise the commandments of the commonwealth. I conclude therefore, that in all 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 "fundamental" 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 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 sovereign, whether a monarch or a sovereign 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 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 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 us. 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 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.

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CHAPTER XXVII.

Of Crimes, Excuses, and Extenuations.

A SIN, is not only a transgression of a law, but 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 covet: 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 think them too severe, both to themselves and others, that maintain that the first motions of the mind, though checked with the fear of God, be sins. But I confess it is safer to err on that hand than on the other.

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 ἁμάρτημα, and ἔγκλημα, or ἀιτία ; 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 to the civil law, may be inferred, first, that where law ceaseth, sin ceaseth. But because the law of Nature is eternal, violation of covenants, ingratitude, arrogance, and all facts contrary to any moral virtue, can never cease to be sin. Secondly, 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.

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The source of every crime is some defect of the understanding, or some error in reasoning, or some sudden force of the passions. Defect in the 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 them anything that tendeth to disobedience of the laws of this country, though he be never so well persuaded of the truth of what he teacheth, he commits a crime, and may be justly punished for the same, not only because his doctrine is false, but also because he does that which he would not approve in another, namely, that coming from hence, he should endeavour to alter the religion there. But ignorance of the civil law, shall excuse a man in a strange country till it be declared to him, because till then no civil law is binding.

In the like manner, if the civil law of a man's own country be not so sufficiently declared as he may know it if he will, nor the action against the law of Nature, the ignorance is a good excuse: in other cases ignorance of the civil law excuseth not.

Ignorance of the sovereign power in the place of a men's ordinary residence excuseth him not, because he ought to take notice of the power by which he hath been protected there.

Ignorance of the penalty, where the law is declared, excuseth no man; for in breaking the law, which, without a fear of penalty to follow, were not a law, but vain words, he undergoeth the penalty, though he know not what it is; because whosoever voluntarily doth any action, accepteth all