第39章

III. They confound Lawes with Right, who continue still to doe what is permitted by divine Right, notwithstanding it be forbidden by the civill Law: That which is prohibited by the divine Law, cannot bee permitted by the civill, neither can that which is commanded by the divine Law, be prohibited by the civill. 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 civill Lawes; for inferiour Lawes may restrain the liberty allowed by the superiour, although they cannot enlarge them. Now naturall liberty is a Right not constituted, but allowed by the Lawes. For the Lawes being removed, our liberty is absolute; This is first restrained by the naturall, and divine Lawes, the residue is bounded by the civill 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 freedome, and they differ like contraries.

IV. All Law may be divided, first according to the diversity of its Authors into Divine and humane. The Divine, according to the two wayes whereby God hath made known his will unto men, is twofold, naturall (or morall) and positive; naturall is that which God hath declared to all men by his eternall word borne with them, to wit, their naturall 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 Prophesie, wherein he hath spoken unto men as a man: Such are the Lawes which he gave to the Jewes concerning their government, and divine worship, and they may be termed the Divine civill Lawes, because they were peculiar to the civill government of the Jewes, his peculiar people. Again, the naturall 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 doe put on the personall proprieties of men, that Law, which speaking of the duty of single men, we call naturall, being applyed to whole Cities, and Nations, is called the Right of Nations. And the same Elements of naturall law, and Right, which have hitherto been spoken of, being transferred to whole Cities and Nations, may be taken for the Elements of the lawes, and Right of Nations.

V. All humane law is civill. For the state of men considered out of civill society, is hostile, in which, because one is not subject to another, there are no other Lawes, beside the dictates of naturall reason, which is the divine Law. But in civill government the City onely, that is to say, that man, or Court, to whom the supreme power of the City is committed, is the Legislator, and the Lawes of the City are civill. The civill Lawes 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 publiquely, 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 civill sacred Lawes are the humane Lawes (which are also called Ecclesiasticall) concerning things sacred; but the secular under a generall notion, are usually called the civill Lawes.

VI. Again, the civill Law (according to the two offices of the. Legislator, whereof one is to judge; the other to constrain men to acquiesce to his judgements) hath two parts; the one distributive, the other vindicative, or penall. By the distributive it is, that every man hath his proper Right, that is to say, it sets forth Rules for all things, whereby we may know what is properly ours, what another mans; 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 theirs; and what is lawfull for every man to doe or omit, and what is not lawfull.

Vindicative is that whereby it is defined what punishment shall be inflicted on them who break the Law.

VII. Now distributive, and vindicative, are not two severall Species of the Lawes, 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, its 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 bee yours, although in another mans possession. Wherefore the Law doth nothing, unlesse it bee understood to bee 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 doe they also prohibit any men, who doe not withall strike a fear of punishment into them; in vain therefore is the Law, unlesse 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 paenary, is mandatory, and onely speaks to publique Ministers.