Books: Leviathan

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Divisions Of Law
The difference and division of the Lawes, 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 mans
proper method. In the Institutions of Justinian, we find seven
sorts of Civill Lawes.

1. The Edicts, Constitutions, and Epistles Of The Prince, that is,
of the Emperour; because the whole power of the people was in him.
Like these, are the Proclamations of the Kings of England.

2. The Decrees Of The Whole People Of Rome (comprehending the Senate,)
when they were put to the Question by the Senate. These were Lawes,
at first, by the vertue of the Soveraign Power residing in the people;
and such of them as by the Emperours were not abrogated, remained Lawes
by the Authority Imperiall. For all Lawes that bind, are understood
to be Lawes by his authority that has power to repeale them.
Somewhat like to these Lawes, 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 Emperours,
remained Lawes by the Authority Imperiall. Like to these,
were the Orders of the House of Commons in England.

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 Emperour, that men should Consult
the Senate in stead of the people: And these have some resemblance
with the Acts of Counsell.

5. The Edicts Of Praetors, and (in some Cases) of the Aediles:
such as are the Chiefe Justices in the Courts of England.

6. Responsa Prudentum; which were the Sentences, and Opinions
of those Lawyers, to whom the Emperour 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 Judgement
were obliged by the Constitutions of the Emperour 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 Customes, (which in their own nature are
an imitation of Law,) by the tacite consent of the Emperour,
in case they be not contrary to the Law of Nature, are very Lawes.

Another division of Lawes, is into Naturall and Positive.
Naturall are those which have been Lawes from all Eternity;
and are called not onely Naturall, but also Morall Lawes;
consisting in the Morall Vertues, 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 for Eternity; but have been
made Lawes by the Will of those that have had the Soveraign Power
over others; and are either written, or made known to men,
by some other argument of the Will of their Legislator.

Another Division Of Law
Again, of Positive Lawes some are Humane, some Divine; And of Humane
positive lawes, 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; neverthelesse the Command is not addressed to the
Delinquent, (who cannot be supposed will faithfully punish himselfe,)
but to publique Ministers appointed to see the Penalty executed.
And these Penal Lawes are for the most part written together with
the Lawes Distributive; and are sometimes called Judgements.
For all Lawes are generall judgements, or Sentences of the Legislator;
as also every particular Judgement, is a Law to him, whose case is Judged.

Divine Positive Law How Made Known To Be Law
Divine Positive Lawes (for Naturall Lawes being Eternall,
and Universall, are all Divine,) are those, which being the
Commandements of God, (not from all Eternity, nor universally
addressed to all men, but onely to a certain people, or to
certain persons,) are declared for such, by those whom God
hath authorised to declare them. But this Authority of man
to declare what be these Positive Lawes of God, how can it be known?
God may command a man by a supernaturall way, to deliver Lawes
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 Supernaturall 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 himselfe, it is evidently impossible: for though a man may be
induced to believe such Revelation, from the Miracles they see him doe,
or from seeing the Extraordinary sanctity of his life, or from seeing
the Extraordinary wisedome, or Extraordinary felicity of his Actions,
all which are marks of Gods extraordinary favour; yet they are not
assured evidence of speciall Revelation. Miracles are Marvellous workes:
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 Naturall, and ordinary causes.
And therefore no man can infallibly know by naturall reason,
that another has had a supernaturall revelation of Gods will;
but only a beliefe; every one (as the signs thereof shall appear
greater, or lesser) a firmer, or a weaker belief.

But for the second, how he can 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 Gods 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 mens beliefe, and interiour cogitations, are not subject to the
commands, but only to the operation of God, ordinary, or extraordinary.
Faith of Supernaturall Law, is not a fulfilling, but only an assenting
to the same; and not a duty that we exhibite to God, but a gift
which God freely giveth to whom he pleaseth; as also Unbelief is not
a breach of any of his Lawes; but a rejection of them all,
except the Lawes Naturall. But this that I say, will be made yet cleerer,
by the Examples, and Testimonies concerning this point in holy Scripture.
The Covenant God made with Abraham (in a Supernaturall Manner) was thus,
(Gen. 17. 10) "This is the Covenant which thou shalt observe between
Me and Thee and thy Seed after thee." Abrahams 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 Gods Law;
which they could not be, but in vertue 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 Soveraign power over their children,
and servants. Againe, 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 Righteousnesse and Judgement," it is manifest,
the obedience of his Family, who had no Revelation, depended on
their former obligation to obey their Soveraign. At Mount Sinai
Moses only went up to God; the people were forbidden to approach
on paine of death; yet were they bound to obey all that Moses declared
to them for Gods Law. Upon what ground, but on this submission
of their own, "Speak thou to us, and we will heare thee; but let not God
speak to us, lest we dye?" By which two places it sufficiently appeareth,
that in a Common-wealth, 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 Common-wealth: for if men
were at liberty, to take for Gods Commandements, their own dreams,
and fancies, or the dreams and fancies of private men; scarce two men
would agree upon what is Gods Commandement; and yet in respect of them,
every man would despise the Commandements of the Common-wealth.
I conclude therefore, that in all things not contrary to the Morall 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 Lawes
of the Common-wealth. Which also is evident to any mans reason;
for whatsoever is not against the Law of Nature, may be made Law
in the name of them that have the Soveraign power; and there is
no reason men should be the lesse obliged by it, when tis propounded
in the name of God. Besides, there is no place in the world where men
are permitted to pretend other Commandements of God, than are declared
for such by the Common-wealth. Christian States punish those that
revolt from Christian Religion, and all other States, those that set up
any Religion by them forbidden. For in whatsoever is not regulated
by the Common-wealth, tis Equity (which is the Law of Nature,
and therefore an eternall Law of God) that every man equally
enjoy his liberty.

Another Division Of Lawes
There is also another distinction of Laws, into Fundamentall,
and Not Fundamentall: but I could never see in any Author,
what a Fundamentall Law signifieth. Neverthelesse one may very
reasonably distinguish Laws in that manner.

A Fundamentall Law What
For a Fundamentall Law in every Common-wealth is that, which being
taken away, the Common-wealth faileth, and is utterly dissolved;
as a building whose Foundation is destroyed. And therefore a
Fundamentall Law is that, by which Subjects are bound to uphold
whatsoever power is given to the Soveraign, whether a Monarch,
or a Soveraign Assembly, without which the Common-wealth 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 Publique good. Not Fundamentall is that the abrogating whereof,
draweth not with it the dissolution of the Common-Wealth; such as are
the Lawes Concerning Controversies between subject and subject.
Thus much of the Division of Lawes.

Difference Between Law And Right
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 neverthelesse ought not to be so.
For Right is Liberty, namely that Liberty which the Civil Law leaves us:
But Civill 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
himselfe by his own strength, and to invade a suspected neighbour,
by way of prevention; but the Civill Law takes away that Liberty,
in all cases where the protection of the Lawe may be safely stayd for.
Insomuch as Lex and Jus, are as different as Obligation and Liberty.

And Between A Law And A Charter
Likewise Lawes and Charters are taken promiscuously for the same thing.
Yet Charters are Donations of the Soveraign; and not Lawes, but
exemptions from Law. The phrase of a Law is Jubeo, Injungo, I Command,
and Enjoyn: 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 Common-wealth: a Liberty, or Charter is only to One man,
or some One part of the people. For to say all the people of
a Common-wealth, 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.

CHAPTER XXVII

OF CRIMES, EXCUSES, AND EXTENUATIONS

Sinne What
A Sinne, is not onely a Transgression of a Law, but also any Contempt of
the Legislator. For such Contempt, is a breach of all his Lawes at once.
And therefore may consist, not onely in the Commission of a Fact,
or in the Speaking of Words by the Lawes forbidden, or in the
Omission of what the Law commandeth, but also in the Intention,
or purpose to transgresse. For the purpose to breake the Law,
is some degree of Contempt of him, to whom it belongeth to
see it executed. To be delighted in the Imagination onely,
of being possessed of another mans goods, servants, or wife,
without any intention to take them from him by force, or fraud,
is no breach of the Law, that sayth, "Thou shalt not covet:"
nor is the pleasure a man my have in imagining, or dreaming of
the death of him, from whose life he expecteth nothing but dammage,
and displeasure, a Sinne; 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 reall, is a Passion so adhaerent
to the Nature both of a man, and every other living creature,
as to make it a Sinne, were to make Sinne 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 Sinnes.
But I confesse it is safer to erre on that hand, than on the other.

A Crime What
A Crime, is a sinne, 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 sinne; but not every sinne a Crime.
To intend to steale, or kill, is a sinne, though it never appeare
in Word, or Fact: for God that seeth the thoughts of man, can lay it
to his charge: but till it appear by some thing done, or said,
by which the intention may be Crime; which distinction the Greeks
observed in the word amartema, and egklema, or aitia; wherof
the former, (which is translated Sinne,) signifieth any swarving
from the Law whatsoever; but the two later, (which are translated Crime,)
signifie that sinne onely, whereof one man may accuse another.
But of Intentions, which never appear by any outward act, there is
no place for humane accusation. In like manner the Latines by
Peccatum, which is Sinne, signifie all manner of deviation from
the Law; but by crimen, (which word they derive from Cerno,
which signifies to perceive,) they mean onely such sinnes,
as my be made appear before a Judge; and therfore are not meer Intentions.

Where No Civill Law Is, There Is No Crime
From this relation of Sinne to the Law, and of Crime to the Civill Law,
may be inferred, First, that where Law ceaseth, Sinne ceaseth.
But because the Law of Nature is eternall, Violation of Covenants,
Ingratitude, Arrogance, and all Facts contrary to any Morall vertue,
can never cease to be Sinne. Secondly, that the Civill 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 onely by his own Conscience, and cleared by the
Uprightnesse of his own Intention. When therefore his Intention
is Right, his fact is no Sinne: if otherwise, his fact is Sinne;
but not Crime. Thirdly, That when the Soveraign 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 Soveraign
Power can be supposed to give away the Right of preserving his
own body; for the safety whereof all Soveraignty was ordained.
But this is to be understood onely 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.

Ignorance Of The Law Of Nature Excuseth No Man
The source of every Crime, is some defect of the Understanding;
or some errour in Reasoning, or some sudden force of the Passions.
Defect in the Understanding, is Ignorance; in Reasoning,
Erroneous Opinion. Again, ignorance is of three sort; of the Law,
and of the Soveraign, 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 himselfe. Therefore into what place
soever a man shall come, if he do any thing contrary to that Law,
it is a Crime. If a man come from the Indies hither, and perswade
men here to receive a new Religion, or teach them any thing that
tendeth to disobedience of the Lawes of this Country, though he be
never so well perswaded of the truth of what he teacheth,
he commits a Crime, and may be justly punished for the same,
not onely because his doctrine is false, but also because he does
that which he would not approve in another, namely, that comming
from hence, he should endeavour to alter the Religion there.
But ignorance of the Civill Law, shall Excuse a man in a strange Country,
till it be declared to him; because, till then no Civill Law is binding.

Ignorance Of The Civill Law Excuseth Sometimes
In the like manner, if the Civill Law of a mans 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 Civill Law, Excuseth not.

Ignorance Of The Soveraign Excuseth Not
Ignorance of the Soveraign Power, in the place of a mans 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 Excuseth Not
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 the known consequences of it;
but Punishment is a known consequence of the violation of the Lawes,
in every Common-wealth; which punishment, if it be determined
already by the Law, he is subject to that; if not, then is he
subject to Arbitrary punishment. For it is reason, that he which
does Injury, without other limitation than that of his own Will,
should suffer punishment without other limitation, than that of
his Will whose Law is thereby violated.

Punishments Declared Before The Fact,
Excuse From Greater Punishments After It
But when a penalty, is either annexed to the Crime in the Law it selfe,
or hath been usually inflicted in the like cases; there the Delinquent
is Excused from a greater penalty. For the punishment foreknown, if not
great enough to deterre men from the action, is an invitement to it:
because when men compare the benefit of their Injustice,
with the harm of their punishment, by necessity of Nature
they choose that which appeareth best for themselves; and therefore
when they are punished more than the Law had formerly determined,
or more than others were punished for the same Crime; it the Law
that tempted, and deceiveth them.

Nothing Can Be Made A Crime By
A Law Made After The Fact
No Law, made after a Fact done, can make it a Crime: because if
the Fact be against the Law of Nature, the Law was before the Fact;
and a Positive Law cannot be taken notice of, before it be made;
and therefore cannot be Obligatory. But when the Law that forbiddeth
a Fact, is made before the Fact be done; yet he that doth the Fact,
is lyable to the Penalty ordained after, in case no lesser Penalty
were made known before, neither by Writing, nor by Example,
for the reason immediatly before alledged.

False Principles Of Right And Wrong Causes Of Crime
From defect in Reasoning, (that is to say, from Errour,) men are
prone to violate the Lawes, three wayes. First, by Presumption
of false Principles; as when men from having observed how in all places,
and in all ages, unjust Actions have been authorised, by the force,
and victories of those who have committed them; and that potent men,
breaking through the Cob-web Lawes of their Country, the weaker sort,
and those that have failed in their Enterprises, have been esteemed
the onely Criminals; have thereupon taken for Principles, and grounds
of their Reasoning, "That Justice is but a vain word: That whatsoever
a man can get by his own Industry, and hazard, is his own:
That the Practice of all Nations cannot be unjust: That examples
of former times are good Arguments of doing the like again;"
and many more of that kind: Which being granted, no Act in it selfe
can be a Crime, but must be made so (not by the Law, but) by the
successe of them that commit it; and the same Fact be vertuous,
or vicious, as Fortune pleaseth; so that what Marius makes a Crime,
Sylla shall make meritorious, and Caesar (the same Lawes standing)
turn again into a Crime, to the perpetuall disturbance of the
Peace of the Common-wealth.

False Teachers Mis-interpreting The Law Of Nature
Secondly, by false Teachers, that either mis-interpret the Law of Nature,
making it thereby repugnant to the Law Civill; or by teaching for Lawes,
such Doctrines of their own, or Traditions of former times,
as are inconsistent with the duty of a Subject.

And False Inferences From True Principles, By Teachers
Thirdly, by Erroneous Inferences from True Principles; which happens
commonly to men that are hasty, and praecipitate in concluding,
and resolving what to do; such as are they, that have both a great
opinion of their own understanding, and believe that things
of this nature require not time and study, but onely common experience,
and a good naturall wit; whereof no man thinks himselfe unprovided:
whereas the knowledge, of Right and Wrong, which is no lesse difficult,
there is no man will pretend to, without great and long study.
And of those defects in Reasoning, there is none that can Excuse
(though some of them may Extenuate) a Crime, in any man, that
pretendeth to the administration of his own private businesse;
much lesse in them that undertake a publique charge; because
they pretend to the Reason, upon the want whereof they would
ground their Excuse.

By Their Passions;
Of the Passions that most frequently are the causes of Crime,
one, is Vain-glory, or a foolish over-rating of their own worth;
as if difference of worth, were an effect of their wit, or riches,
or bloud, or some other naturall quality, not depending on the Will
of those that have the Soveraign Authority. From whence proceedeth
a Presumption that the punishments ordained by the Lawes, and extended
generally to all Subjects, ought not to be inflicted on them,
with the same rigour they are inflicted on poore, obscure,
and simple men, comprehended under the name of the Vulgar.

Presumption Of Riches,
Therefore it happeneth commonly, that such as value themselves by
the greatnesse of their wealth, adventure on Crimes, upon hope
of escaping punishment, by corrupting publique Justice, or obtaining
Pardon by Mony, or other rewards.

And Friends;
And that such as have multitude of Potent Kindred; and popular men,
that have gained reputation amongst the Multitude, take courage
to violate the Lawes, from a hope of oppressing the Power,
to whom it belongeth to put them in execution.

Wisedome
And that such as have a great, and false opinion of their own Wisedome,
take upon them to reprehend the actions, and call in question
the Authority of them that govern, and so to unsettle the Lawes
with their publique discourse, as that nothing shall be a Crime,
but what their own designes require should be so. It happeneth also
to the same men, to be prone to all such Crimes, as consist in Craft,
and in deceiving of their Neighbours; because they think their designes
are too subtile to be perceived. These I say are effects of a false
presumption of their own Wisdome. For of them that are the first movers
in the disturbance of Common-wealth, (which can never happen without
a Civill Warre,) very few are left alive long enough, to see their
new Designes established: so that the benefit of their Crimes,
redoundeth to Posterity, and such as would least have wished it:
which argues they were not as wise, as they thought they were.
And those that deceive upon hope of not being observed, do commonly
deceive themselves, (the darknesse in which they believe they lye hidden,
being nothing else but their own blindnesse;) and are no wiser than
Children, that think all hid, by hiding their own eyes.

And generally all vain-glorious men, (unlesse they be withall timorous,)
are subject to Anger; as being more prone than others to interpret
for contempt, the ordinary liberty of conversation: And there are
few Crimes that may not be produced by Anger.