CHAPTER XIV.

OF LAWS AND TRESPASSES.

1. How law differs from counsel. 2. How from covenant. 3. How from right. 4. Division of laws into divine and human: the divine into natural and positive; and the natural into the laws of single men and of nations. 5. The division of human, that is to say, of civil laws into sacred and secular. 6. Into distributive and vindicative. 7. That distributive and vindicative are not species, but parts of the laws. 8. All law is supposed to have a penalty annexed to it. 9. The precepts of the decalogue of honouring parents, of murder, adultery, theft, false witness, are civil laws. 10. It is impossible to command aught by the civil law contrary to the law of nature. 11. It is essential to a law, both that itself and also the lawgiver be known. 12. Whence the lawgiver comes to be known. 13. Publishing and interpretation are necessary to the knowledge of a law. 14. The division of the civil law into written and unwritten. 15. The natural laws are not written laws; neither are the wise sentences of lawyers nor custom laws of themselves, but by the consent of the supreme power. 16. What the word sin, most largely taken, signifies. 17. The definition of sin. 18. The difference between a sin of infirmity and malice. 19. Under what kind of sin atheism is contained. 20. What treason is. 21. That by treason not the civil, but the natural laws are broken. 22. And that therefore it is to be punished not by the right of dominion, but by the right of war. 23. That obedience is not rightly distinguished into active and passive.

[Sidenote: How law differs from counsel.]

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.

[Sidenote: 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_.

Footnote 16:

_Contracts oblige us._] _To be obliged_, and _to be tied being obliged_, seems to some men to be one and the same thing; and that therefore here seems to be some distinction in words, but none indeed. More clearly therefore, I say thus: that a man is obliged by his contracts, that is, that he ought to perform for his promise sake; but that the law ties him being obliged, that is to say, it compels him to make good his promise for fear of the punishment appointed by the law.

[Sidenote: 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.

[Sidenote: 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_.

[Sidenote: 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.

[Sidenote: Into distributive and vindicative.]

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.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: It is essential to a law, that both it and the legislator be known.]

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.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: 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_.

[Sidenote: 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.

[Sidenote: What the word _sin_, taken in its largest sense, signifies.]

16. _Sin_, in its largest signification, comprehends every _deed_, _word_, and _thought_ against right reason. For every man, by reasoning, seeks out the means to the end which he propounds to himself. If therefore he reason right, that is to say, beginning from most evident principles he makes a discourse out of consequences continually necessary, he will proceed in a most direct way. Otherwise he will go astray, that is to say, he will either _do_, _say_, or _endeavour_ somewhat against his proper end; which when he hath done, he will indeed in reasoning be said to have _erred_, but in action and will to have _sinned_. For _sin_ follows _error_, just as the _will_ doth the _understanding_. And this is the most general acception of the word; under which is contained every _imprudent_ action, whether against the law, as to overthrow another man’s house, or not against the law, as to build his own upon the sand.

[Sidenote: The definition of sin.]

17. But when we speak of _the laws_, the word _sin_ is taken in a more strict sense, and signifies not every thing done against right reason, but that only which is _blameable_; and therefore it is called _malum culpæ_, the evil of fault. But yet if anything be culpable, it is not presently to be termed _a sin_ or _fault_; but only if it be blameable with reason. We must therefore enquire what it is to be _blameable with reason_, what _against reason_. Such is the nature of man, that every one calls that _good_ which he desires, and _evil_ which he eschews. And therefore through the diversity of our affections it happens, that one counts that _good_, which another counts _evil_; and the same man what now he esteemed for _good_, he immediately after looks on as _evil_: and the same thing which he calls _good_ in himself, he terms _evil_ in another. For we all measure _good_ and _evil_ by the pleasure or pain we either feel at present, or expect hereafter. Now seeing the prosperous actions of enemies, because they increase their honours, goods, and power; and of equals, by reason of that strife of honours which is among them; both seem and are _irksome_, and therefore _evil_ to all; and men use to repute those _evil_, that is to say, to _lay some fault_ to their charge, from whom they receive _evil_; it is impossible to be determined by the consent of single men, whom the same things do not please and displease, what actions are, and what not to be blamed. They may agree indeed in some certain general things, as that _theft_, _adultery_, and the like are _sins_; as if they should say that all men account those things _evil_, to which they have given names which are usually taken in an _evil_ sense. But we demand not whether theft be a sin, but what is to be termed theft; and so concerning others, in like manner. Forasmuch therefore as in so great a diversity of censurers, what is by reason blameable is not to be measured by the reason of one man more than another, because of the equality of human nature; and there are no other reasons in being, but only those of _particular men_, and that of the _city_: it follows, that the _city_ is to determine what _with reason is culpable_. So as a _fault_, that is to say, a _sin_, is that which a man does, omits, says, or wills, against the reason of _the city_, that is, contrary to the laws.

[Sidenote: The difference between a sin of infirmity and malice.]

18. But a man may do somewhat against the laws through human infirmity, although he desire to fulfil them; and yet his action, as being against the laws, is rightly blamed, and called a _sin_. But there are some who _neglect_ the laws; and as oft as any hope of gain and impunity doth appear to them, no conscience of contracts and betrothed faith can withhold them from their violation. Not only the deeds, but even the minds of these men are against the laws. They who sin only through infirmity, are _good men_ even when they sin; but these, even when they do not sin, are wicked. For though both the action and the mind be repugnant to the laws, yet those repugnances are distinguished by different appellations. For the irregularity of the action is called ἀδίκημα, _unjust deed_; that of the mind ἀδικὶα and κακὶα, _injustice_ and _malice_; that is the infirmity of a disturbed soul, this the _pravity_ of a sober mind.

[Sidenote: Under what kind of sin atheism is contained.]

19. But seeing there is no sin which is not against some law, and that there is no law which is not the command of him who hath the supreme power, and that no man hath a supreme power which is not bestowed on him by our own consent; in what manner will he be said to sin, who either denies that there is a God, or that he governs the world, or casts any other reproach upon him? For he will say: _that he never submitted his will to God’s will, not conceiving him so much as to have any being: and granting that his opinion were erroneous, and therefore also a sin, yet were it to be numbered among those of imprudence or ignorance, which by right cannot be punished_. This speech seems so far forth to be admitted, that though this kind of sin be the greatest and most hurtful, yet is it to be referred to sins of imprudence;[17] but that it should be excused by imprudence or ignorance, is absurd. For the atheist is punished either immediately by God himself, or by kings constituted under God; not as a subject is punished by a king, because he keeps not the laws; but as one enemy by another, because he would not accept of the laws; that is to say, by the right of war, as the giants warring against God. For whosoever are not subject either to some common lord, or one to another, are enemies among themselves.

Footnote 17:

_Yet is it to be referred to sins of imprudence._] Many find fault that I have referred atheism to imprudence, and not to injustice; yea by some it is taken so, as if I had not declared myself an enemy bitter enough against atheists. They object further, that since I had elsewhere said that it might be known _there is a God_ by natural reason, I ought to have acknowledged that they sin at least against the law of nature, and therefore are not only guilty of imprudence, but injustice too. But I am so much an enemy to atheists, that I have both diligently sought for, and vehemently desired to find some law whereby I might condemn them of injustice. But when I found none, I inquired next what name God himself did give to men so detested by him. Now God speaks thus of the atheist: _The fool hath said in his heart, there is no God_. Wherefore I placed their sin in that rank which God himself refers to. Next I show them to be enemies of God. But I conceive the name of an enemy to be sometimes somewhat sharper, than that of an unjust man. Lastly, I affirm that they may under that notion be justly punished both by God, and supreme magistrates; and therefore by no means excuse or extenuate this sin. Now that I have said, that it might be known by natural reason _that there is a God_, is so to be understood, not as if I had meant that all men might know this; except they think, that because Archimedes by natural reason found out what proportion the circle hath to the square, it follows thence, that every one of the vulgar could have found out as much. I say therefore, that although it may be known to some by the light of reason that there is a God; yet men that are continually engaged in pleasures or seeking of riches and honour; also men that are not wont to reason aright, or cannot do it, or care not to do it; lastly, fools, in which number are atheists, cannot know this.

[Sidenote: What the sin of treason is.]

20. Seeing that from the virtue of the covenant, whereby each subject is tied to the other to perform absolute and universal obedience (such as is defined above, chap. VI. art. 13) to the city, that is to say, to the sovereign power, whether that be one man or council, there is an obligation derived to observe each one of the civil laws; so that that covenant contains in itself all the laws at once; it is manifest that the subject who shall renounce the general covenant of obedience, doth at once renounce all the laws. Which trespass is so much worse than any other one sin, by how much to sin _always_, is worse than to sin _once_. And this is that sin which is called _treason_; and it is a word or deed whereby the citizen or subject declares, that he will no longer obey that man or court to whom the supreme power of the city is entrusted. And the subject declares this same will of his by deed, when he either doth or endeavours to do violence to the sovereign’s person, or to them who execute his commands. Of which sort are traitors, regicides, and such as take up arms against the city, or during a war fly to the enemy’s side. And they show the same will in word, who flatly deny that themselves or other subjects are tied to any such kind of obedience, either in the whole, as he who should say that we must not obey him (keeping the obedience which we owe to God entire) simply, absolutely, and universally; or in part, as he who should say, that he had no right to wage war at his own will, to make peace, enlist soldiers, levy monies, elect magistrates and public ministers, enact laws, decide controversies, set penalties, or do aught else without which the state cannot stand. And these and the like words and deeds are treason by the natural, not the civil law. But it may so happen, that some action, which before the civil law was made, was not treason, yet will become such if it be done afterwards. As if it be declared by the law, that it shall be accounted for a sign of renouncing public obedience, that is to say, for treason, if any man shall coin monies, or forge the privy-seal; he that after that declaration shall do this, will be no less guilty of treason than the other. Yet he sins less, because he breaks not all the laws at once, but one law only. For the law by calling that treason which by nature is not so, doth indeed by right set a more odious name, and perhaps a more grievous punishment on the guilty persons; but it makes not the sin itself more grievous.

[Sidenote: Treason breaks not the civil, but the natural law.]

21. But that sin, which by the law of nature is treason, is a transgression of the natural, not the civil law. For since our obligation to civil obedience, by virtue whereof the civil laws are valid, is before all civil law, and the sin of treason is naturally nothing else but the breach of that obligation; it follows, that by the sin of treason that law is broken which preceded the civil law, to wit, the natural, which forbids us to violate covenants and betrothed faith. But if some sovereign prince should set forth a law on this manner, _thou shalt not rebel_, he would effect just nothing. For except subjects were before obliged to obedience, that is to say, not to rebel, all law is of no force. Now the obligation which obligeth to what we were before obliged to, is superfluous.

[Sidenote: And therefore is punished not by the right of sovereignty, but by the right of war.]

22. Hence it follows, that _rebels_, _traitors_, and all others _convicted of treason_, are punished not by _civil_, but _natural_ right; that is to say, not as _civil subjects_, but as _enemies to the government_; not by the _right of sovereignty_ and _dominion_, but by the _right of war_.

[Sidenote: Obedience not rightly distinguished into active and passive.]

23. There are some who think that those acts which are done against the law, when the punishment is determined by the law itself, are expiated, if the punished willingly undergo the punishment; and that they are not guilty before God of breaking the natural law, (although by breaking the civil laws, we break the natural too, which command us to keep the civil), who have suffered the punishment which the law required; as if by the law the fact were not prohibited, but a punishment were set instead of a price, whereby a license might be bought of doing what the law forbids. By the same reason they might infer too, that no transgression of the law were a sin; but that every man might enjoy the liberty which he hath bought by his own peril. But we must know, that the words of the law may be understood in a two-fold sense. The one as containing two parts, (as hath been declared above in art. 7), namely, that of absolutely prohibiting, as, _thou shalt not do this_; and revenging, as, _he that doth this, shall be punished_. The other, as containing a condition, for example, _thou shalt not do this thing, unless thou wilt suffer punishment_; and thus the law forbids not simply, but conditionally. If it be understood in the first sense, he that doth it sins, because he doth what the law forbids to be done; if in the second, he sins not, because he cannot be said to do what is forbidden him, that performs the condition. For in the first sense, all men are forbidden to do it; in the second, they only who keep themselves from the punishment. In the first sense, the vindicative part of the law obligeth not the guilty, but the magistrate to require punishment; in the second, he himself that owes the punishment, is obliged to exact it; to the payment whereof, if it be capital or otherwise grievous, he cannot be obliged. But in what sense the law is to be taken, depends on the will of him who hath the sovereignty. When therefore there is any doubt of the meaning of the law, since we are sure they sin not who do it not, it will be sin if we do it, howsoever the law may afterward be explained. For to do that which a man doubts whether it be a sin or not, when he hath freedom to forbear it, is a contempt of the laws; and therefore by chap. III. art. 28, a sin against the law of nature. Vain therefore is that same distinction of _obedience_ into _active_ and _passive_; as if that could be expiated by penalties constituted by human decrees, which is a sin against the law of nature, which is the law of God; or as though they sinned not, who sin at their own peril.

RELIGION

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