But seeing it hath been said, that all laws are either natural or civil; it may be demanded, to which of these shall be referred that law, which is called martial law, and by the Romans disciplina militaris? And it may seem to be the same with the law of nature; because the laws by which a multitude of soldiers are governed in an army, are not consent, but continually changing with the occasion; and that is still a law, which is reason for the present, and reason is the law of nature. It is nevertheless true that martial law is, civil law. because an army is a body politic, the whole power whereof is in the General, and the laws thereof made by him; and though they still follow and change as reason requireth, yet it is not, as the reason of every private man (as in the law of nature), but as the reason of the General requireth.
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, nor 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 law. 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 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.
De Cive (On the Citizen)
Contents
The Authors Preface to the Reader
Chapter I: Of the state of men without Civill Society
Chapter II: Of the Law of Nature concerning Contracts
Chapter III: Of the other Lawes of Nature
Chapter IV: That the Law of Nature is a Divine Law
Chapter V: Of the causes, and first begining of civill Government
Chapter VII: Of the three kindes of Government, Democracy, Aristocracy, Monarchie
Chapter VIII: Of the Rights of Lords over their Servant
Chapter IX: Of the right of Parents over their children and of hereditary Government
Chapter X: A comparison between 3. kinds of government, according to their severall inconveniences
Chapter XII: Of the internal causes, tending to the dissolution of any Government
Chapter XIII: Concerning the duties of them who bear Rule
Chapter XIV: Of Lawes and Trespasses
Chapter XV: Of the Kingdome of God, by Nature
Chapter XVI: Of the Kingdome of God under the Old Covenant
Chapter XVII: Of the Kingdome of God by the new Covenant
To the Right Honourable, William, Earle of Devonshire, My most honoured Lord
May it please your Lordship,
It was the speech of the Roman people (to whom the name of King had been render'd odious, as well by the tyrannie of the Tarquins, as by the Genius and Decretals of that City) 'Twas the speech I say of the publick, however pronounced from a private mouth, (if yet Cato the Censor were no more then such) That all Kings are to be reckon'd amongst ravenous Beasts. But what a Beast of prey was the Roman people, whilst with its conquering Eagles it erected its proud Trophees so far and wide over the world, bringing the Africans, the Asiaticks, the Macedonians, and the Achaeans, with many other despoyled Nations, into a specious bondage, with the pretence of preferring them to be Denizons of Rome? So that if Cato's saying were a wise one, 'twas every whit as wise that of pontius Telesinus; who flying about with open mouth through all the Companies of his Army, (in that famous encounter which he had with Sylla) cryed out, That Rome her selfe, as well as Sylla, was to be raz'd; for that there would alwayes be Wolves and Depraedatours of their Liberty, unlesse the Forrest that lodg'd them were grubb'd up by the roots. To speak impartially, both sayings are very true; That Man to Man is a kind of God; and that Man to Man is an arrant. Wolfe. The first is true, if we compare Citizens amongst themselves; and the second,
