第38章

Of Lawes and Trespasses I. Hey who lesse seriously consider the force of words, doe sometimes confound Law with Counsell, sometimes with Covenant, sometimes with Right. They confound Law with Counsell, who think, that it is the duty of Monarchs not onely to give ear to their Counsellours, but also to obey them, as though it were in vaine to take Counsell, unlesse it were also followed. We must fetch the distinction between Counsell, and Law, from the difference between Counsell, and Command. Now COUNSELL is a precept in which the reason of my obeying it, is taken from the thing it self 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 Lawes, not for the thing it self, but by reason of the advisers will, the Law is not a Counsell, but a Command, and is defined thus, LAW is the command of that Person (whether Man, or Court) whose precept containes 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 powerfull in respect of them who cannot resist, may be termed their Lawes. Law and Counsell therefore differ many ways; Law belongs to him who hath power over them whom he adviseth, Counsell to them who have no power.

To follow what is prescribed by Law, is duty, what by Counsell, is free-will. Counsell is directed to his end that receives it, Law, to his that gives it. Counsell is given to none but the willing, Law even to the unwilling. To conclude, the right of the Counsellour is made void by the will of him to whom he gives Counsell, the right of the Law-giver is not abrogated at the pleasure of him who hath a Law imposed.

II. They confound Law, and Covenant, who conceive the Lawes to be nothing else but certain omologemata or forms of living, determined by the common consent of men: Amongst whom is Aristotle, who defines Law on this manner, Nomos esti logos orismenos kath omologian koinen poleos, minuon pos dei prattein ekasta, that is to say, Law is a speech limited according to the common consent of the City, declaring every thing that we ought to doe. Which definition is not simply of Law, but of the Civill Law; for it is manifest that the Divine Lawes sprang not from the consent of men, nor yet the Lawes of Nature; for if they had their originall from the consent of men, they might also by the same consent be abrogated; but they are unchangeable. But indeed that's no right definition of a Civill Law; for in that place a City is taken either for one civill 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 needfull 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 confirm'd by Votes) some certain formes of living; but these are nothing else but some mutuall contracts which oblige not any man (and therefore are no Lawes) before that a Supreme Power being constituted which can compell, have sufficient remedy against the rest, who otherwise are not likely to keep them. Lawes 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 Lawes, or no Lawes, at his will and pleasure: Wherefore he confounds Contracts with Lawes, which he ought not to have done; for Contract is a promise, Law a command. In Contracts we say, I will do this; In Lawes, Doe this. Contracts oblige us, Lawes tie us fast, being obliged. A Contract obligeth of it self, The Law holds the party obliged by vertue of the universall Contract of yeelding obedience; Therefore in Contract its first determined what is to be done, before we are obliged to doe it; But in Law we are first obliged to performe, and what is to be done, is determined afterwards. Aristotle therefore ought to have defined a civill law thus, A civill law is a speech limited by the will of the City, commanding every thing behoofefull to be done, which is the same with that we have given above in the 6. Chap. art. 9. to wit, that the civill lawes 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.

Contracts oblige us. To be obliged, and to be tyed being obliged, seems to some men to be one, and the same thing, and that therefore here seems to be some distinction in words, but none indeed. More cleerly therefore, I say thus, That a man is obliged by his contracts, that is, that he ought to performe for his promise sake; but that the Law tyes him being obliged, that is to say, it compells him to make good his promise, for fear of the punishment appointed by the Law.