6. Again, the civil law (according to the two offices of the legislator, whereof one is to judge, the other to constrain men to acquiesce to his judgments) hath two parts; the one distributive, the other vindicative or penal. By the distributive it is, that every man hath his proper rights; that is to say, it sets forth rules for all things, whereby we may know what is properly our’s, what another man’s; 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 their’s; and what is lawful for every man to do or omit, and what is not lawful. Vindicative is that, whereby it is defined what punishment shall be inflicted on them who break the law.
Distributive and vindicative are not two species of the laws.
7. Now distributive and vindicative are not two several species of the laws, 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, it is 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 be yours, although in another man’s possession. Wherefore the law doth nothing, unless it be understood to be 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 do they also prohibit any men, who do not withal strike a fear of punishment into them. In vain therefore is the law, unless 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 penary, is mandatory, and only speaks to public ministers.
All law is supposed to have a penalty annexed to it.
8. From hence also we may understand, that every civil law hath a penalty annexed to it, either explicitly or implicitly. For where the penalty is not defined, neither by any writing, nor by example of any who hath suffered the punishment of the transgressed law, there the penalty is understood to be arbitrary; namely, to depend on the will of the legislator, that is to say, of the supreme commander. For in vain is that law, which may be broken without punishment.
The precepts of the Decalogue of honouring parents, of murder, adultery, theft, false witnesses, are the civil laws.
9. Now because it comes from the civil laws, both that every man have his proper right and distinguished from another’s, and also that he is forbidden to invade another’s rights; it follows that these precepts: Thou shalt not refuse to give the honour defined by the laws, unto thy parents: Thou shalt not kill the man, whom the laws forbid thee to kill: Thou shalt avoid all copulation forbidden by the laws: Thou shalt not take away another’s goods, against the lords will: Thou shalt not frustrate the laws and judgments by false testimony: are civil laws. The natural laws command the same things, but implicitly. For the law of nature (as hath been said in chap. III. [art. 2]) commands us to keep contracts; and therefore also to perform obedience, when we have covenanted obedience, and to abstain from another’s goods, when it is determined by the civil law what belongs to another. But all subjects (by chap. VI. [art. 13]) do covenant to obey his commands who hath the supreme power, that is to say, the civil laws, in the very constitution of government, even before it is possible to break them. For the law of nature did oblige in the state of nature; where first, because nature hath given all things to all men, nothing did properly belong to another, and therefore it was not possible to invade another’s right; next, where all things were common, and therefore all carnal copulations lawful; thirdly, where was the state of war, and therefore lawful to kill; fourthly, where all things were determined by every man’s own judgment, and therefore paternal respects also; lastly, where there were no public judgments, and therefore no use of bearing witness, either true or false.
It is not possible to command aught by the civil law, contrary to the laws of nature.
10. Seeing therefore our obligation to observe those laws is more ancient than the promulgation of the laws themselves, as being contained in the very constitution of the city; by the virtue of the natural law which forbids breach of covenant, the law of nature commands us to keep all the civil laws. For where we are tied to obedience before we know what will be commanded us, there we are universally tied to obey in all things. Whence it follows, that no civil law whatsoever, which tends not to a reproach of the Deity, (in respect of whom cities themselves have no right of their own, and cannot be said to make laws), can possibly be against the law of nature. For though the law of nature forbid theft, adultery, &c; yet if the civil law command us to invade anything, that invasion is not theft, adultery, &c. For when the Lacedæmonians of old permitted their youths, by a certain law, to take away other men’s goods, they commanded that these goods should not be accounted other men’s, but their own who took them; and therefore such surreptions were no thefts. In like manner, copulations of heathen sexes, according to their laws, were lawful marriages.
It is essential to a law, that both it and the legislator be known.