Martial law is civil law.
9. 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 constant, 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, but as the reason of the General requireth.
Written laws, Unwritten, &c. Customs, and Opinions, &c.
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, or 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 laws. 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 the 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.
OF
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