11. It is necessary to the essence of a law, that the subjects be acquainted with two things: first, what man or court hath the supreme power, that is to say, the right of making laws; secondly, what the law itself says. For he that neither knew either to whom or what he is tied to, cannot obey; and by consequence is in such a condition as if he were not tied at all. I say not that it is necessary to the essence of a law, that either one or the other be perpetually known, but only that it be once known. And if the subject afterward forget either the right he hath who made the law, or the law itself, that makes him no less tied to obey; since he might have remembered it, had he a will to obey.
Whence the legislator is known.
12. The knowledge of the legislator depends on the subject himself; for the right of making laws could not be conferred on any man without his own consent and covenant, either expressed or supposed; expressed, when from the beginning the citizens do themselves constitute a form of governing the city, or when by promise they submit themselves to the dominion of any one; or supposed at least, as when they make use of the benefit of the realm and laws for their protection and conservation against others. For to whose dominion we require our fellow subjects to yield obedience for our good, his dominion we acknowledge to be legitimate by that very request. And therefore ignorance of the power of making laws, can never be a sufficient excuse; for every man knows what he hath done himself.
Promulgation and interpretation are necessary to the knowledge of a law.
13. The knowledge of the laws depends on the legislator; who must publish them; for otherwise they are not laws. For law is the command of the law-maker, and his command is the declaration of his will; it is not therefore a law, except the will of the law-maker be declared, which is done by promulgation. Now in promulgation two things must be manifest; whereof one is, that he or they who publish a law, either have a right themselves to make laws, or that they do it by authority derived from him or them who have it; the other is the sense of the law itself. Now, that the first, namely, published laws, proceed from him who hath the supreme command, cannot be manifest (speaking exactly and philosophically) to any, but them who have received them from the mouth of the commander. The rest believe; but the reasons of their belief are so many, that it is scarce possible they should not believe. And truly in a democratical city, where every one may be present at the making of laws if he will, he that shall be absent, must believe those that were present. But in monarchies and aristocracies, because it is granted but to few to be present, and openly to hear the commands of the monarch or the nobles, it was necessary to bestow a power on those few of publishing them to the rest. And thus we believe those to be the edicts and decrees of princes, which are propounded to us for such, either by the writings or voices of them whose office it is to publish them. But yet, when we have these causes of belief; that we have seen the prince or supreme counsel constantly use such counsellors, secretaries, publishers, and seals, and the like arguments for the declaring of his will; that he never took any authority from them; that they have been punished, who not giving credit to such like promulgations have transgressed the law; not only he who thus believing shall obey the edicts and decrees set forth by them, is everywhere excused, but he that not believing shall not yield obedience, is punished. For the constant permission of these things is a manifest sign enough and evident declaration of the commander’s will; provided there be nothing contained in the law, edict, or decree, derogatory from his supreme power. For it is not to be imagined that he would have aught taken from his power by any of his officers, as long as he retains a will to govern. Now the sense of the law, when there is any doubt made of it, is to be taken from them to whom the supreme authority hath committed the knowledge of causes or judgments; for to judge, is nothing else than by interpretation to apply the laws to particular cases. Now we may know who they are that have this office granted them, in the same manner as we know who they be that have authority given them to publish laws.
The civil law divided into written and unwritten.
14. Again the civil law, according to its two-fold manner of publishing, is of two sorts, written and unwritten. By written, I understand that which wants a voice, or some other sign of the will of the legislator, that it may become a law. For all kind of laws are of the same age with mankind, both in nature and time; and therefore of more antiquity than the invention of letters, and the art of writing. Wherefore not a writing, but a voice is necessary for a written law; this alone is requisite to the being, that to the remembrance of a law. For we read, that before letters were found out for the help of memory, that laws, contracted into metre, were wont to be sung. The unwritten, is that which wants no other publishing than the voice of nature or natural reason; such are the laws of nature. For the natural law, although it be distinguished from the civil, forasmuch as it commands the will; yet so far forth as it relates to our actions, it is civil. For example, this same, thou shalt not covet, which only appertains to the mind, is a natural law only; but this, thou shalt not invade, is both natural and civil. For seeing it is impossible to prescribe such universal rules, whereby all future contentions, which perhaps are infinite, may be determined; it is to be understood that in all cases not mentioned by the written laws, the law of natural equity is to be followed, which commands us to distribute equally to equals; and this by the virtue of the civil law, which also punisheth those who knowingly and willingly do actually transgress the laws of nature.
That the natural laws are not written laws, neither are the sentences of lawyers or customs laws of themselves, but by the consent of the supreme power.
15. These things being understood, it appears, first, that the laws of nature, although they were described in the books of some philosophers, are not for that reason to be termed written laws: and that the writings of the interpreters of the laws, were no laws, for want of the supreme authority; nor yet those orations of the wise, that is to say, judges, but so far forth as by the consent of the supreme power they part into custom; and that then they are to be received among the written laws, not for the custom’s sake, (which by its own force doth not constitute a law), but for the will of the supreme commander; which appears in this, that he hath suffered his sentence, whether equal or unequal, to pass into custom.
What the word sin, taken in its largest sense, signifies.