1. They who less seriously consider the force of words, do sometimes confound law with counsel, sometimes with covenant, sometimes with right. They confound law with counsel, who think that it is the duty of monarchs not only to give ear to their counsellors, but also to obey them; as though it were in vain to take counsel, unless it were also followed. We must fetch the distinction between counsel and law, from the difference between counsel and command. Now counsel is a precept, in which the reason of my obeying it is taken from the thing itself 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 laws, not for the thing itself, but by reason of the adviser’s will, the law is not a counsel, but a command, and is defined thus: law is the command of that person, whether man or court, whose precept contains 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 powerful in respect of them who cannot resist, may be termed their laws. Law and counsel therefore differ many ways. Law belongs to him who hath power over them whom he adviseth; counsel to them who have no power. To follow what is prescribed by law, is duty; what by counsel, is free-will. Counsel is directed to his end, that receives it; law, to his that gives it. Counsel is given to none but the willing; law even to the unwilling. To conclude, the right of the counsellor is made void by the will of him to whom he gives counsel; the right of the law-giver is not abrogated at the pleasure of him who hath a law imposed.
How it differs from a covenant.
2. They confound law and covenant, who conceive the laws to be nothing else but certain ὁμολογήματα, or forms of living determined by the common consent of men. Among whom is Aristotle, who defines law on this manner; Νόμός ἐστι λόγος ὡρισμένος καθ’ ὁμολογίαν κοινὴν πόλεως, μγνύων πῶς δεῖ πράττειν ἕκαστα: that is to say, law is a speech, limited according to the common consent of the city, declaring every thing that we ought to do. Which definition is not simply of law, but of the civil law. For it is manifest that the divine laws sprang not from the consent of men, nor yet the laws of nature. For if they had their original from the consent of men, they might also by the same consent be abrogated; but they are unchangeable. But indeed, that is no right definition of a civil law. For in that place, a city is taken either for one civil 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 needful 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 confirmed by votes) some certain forms of living. But these are nothing else but some mutual contracts, which oblige not any man (and therefore are no laws) before that a supreme power being constituted, which can compel, have sufficient remedy against the rest, who otherwise are not likely to keep them. Laws 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 laws or no laws at his will and pleasure. Wherefore he confounds contracts with laws, which he ought not to have done; for contract is a promise, law a command. In contracts we say, I will do this; in laws, do this. Contracts oblige us;[[16]] laws tie us fast, being obliged. A contract obligeth of itself; the law holds the party obliged by virtue of the universal contract of yielding obedience. Therefore in contract, it is first determined what is to be done, before we are obliged to do it; but in law, we are first obliged to perform, and what is to be done is determined afterwards. Aristotle therefore ought to have defined a civil law thus: a civil law is a speech limited by the will of the city, commanding everything behoveful to be done. Which is the same with that we have given above, in chap. VI. [art. 9]: to wit, that the civil laws 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.
How it differs from right.
3. They confound laws with right, who continue still to do what is permitted by divine right, notwithstanding it be forbidden by the civil law. That which is prohibited by the divine law, cannot be permitted by the civil; neither can that which is commanded by the divine law, be prohibited by the civil. 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 civil laws; for inferior laws may restrain the liberty allowed by the superior, although they cannot enlarge them. Now natural liberty is a right not constituted, but allowed by the laws. For the laws being removed, our liberty is absolute. This is first restrained by the natural and divine laws; the residue is bounded by the civil 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 freedom; and they differ like contraries.
The division of laws into divine and human; and of the divine into natural and positive; and of the natural into those laws of single men, and those of nations.
4. All law may be divided, first according to the diversity of its authors into divine and human. The divine, according to the two ways whereby God hath made known his will unto men, is twofold; natural or moral, and positive. Natural is that which God hath declared to all men by his eternal word born with them, to wit, their natural 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 prophecy, wherein he hath spoken unto men as a man. Such are the laws which he gave to the Jews concerning their government and divine worship; and they may be termed the divine civil laws, because they were peculiar to the civil government of the Jews, his peculiar people. Again, the natural 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 do put on the personal proprieties of men, that law, which speaking of the duty of single men we call natural, being applied to whole cities and nations, is called the right of nations. And the same elements of natural law and right, which have hitherto been spoken of, being transferred to whole cities and nations, may be taken for the elements of the laws and right of nations.
The division of human, that is to say, civil laws into secular and sacred.
5. All human law is civil. For the state of men considered out of civil society, is hostile; in which, because one is not subject to another, there are no other laws beside the dictates of natural reason, which is the divine law. But in civil government the city only, that is to say, that man or court to whom the supreme power of the city is committed, is the legislator; and the laws of the city are civil. The civil laws 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 publicly; 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 civil sacred laws are the human laws (which are also called ecclesiastical) concerning things sacred; but the secular, under a general notion, are usually called the civil laws.
Into distributive and vindicative.