An examination of the political part of Mr. Hobbs his Leviathan.: By George Lawson, rector of More in the county of Salop.

CAP. X. Of the Second Part. The 26. of the Book. Of civii Laws.

THE principal heads and parts of this Chapter are,

• 1. The definition of a Law civil, with certain conclusions thence deduced.
• 2. The interpretation of Laws.
• 3. The distribution of Laws in gene∣ral.

In the administration of a Common-wealth once constituted; the first thing is Legislation; the second is the Execution. In the execution,

• 1. Officers are made.
• 2. Jurisdiction exercised according to those Laws.

Therefore the proper place of treating con∣cerning Laws civil in general, is in the first part of administration, which requires first that Laws be made. For God himself did avouch himself to be Israels Lord and King, and they avouch themselves his subjects and people, and this was the constitution of that State. This being done, in the next place he proceedeth to make Laws. And this is the order of all such as will imitate God, and proceed orderly to govern a State, as appears, Exodus 19. and the 20. Chapters, and so forward. This also was Jethroes counsel unto Moses, and approved of God. Thou shalt teach them Ordinances and Laws, and shalt shew them the way wherein they must walk, and the

work that they must do. Moreover, thou shalt pro∣vide thee of all the people, able men, &c. and place such over them. This was making of Officers, after he had given them Laws, and let them Judge the people. This is jurisdiction, Exod. 18.20, 21, 22. From hence it appears how preposterously, this man and others are that treat,

• 1. Of Magistrates.
• 2. Of Laws.

The difference between Laws Civil in gene∣ral, and the Civil Law of the Roman Empire, is more easily known, and learned from the Civilians, who have clearly delivered it, then from him. For Poli∣ticks speaks of Civil or Political Laws (made for the Government of State) more generally; and if it mention any Laws of particular States, they are but examples to the general rules concerning Laws. But let us pass by this, and proceed to his definition, which is as followeth.

T H.

Civil Law is to every subject, those rules which the Common-wealth hath commanded him by word, writing, or other sufficient sign of the will to make use of it, for the distinction of right and wrong, that is, of what is contrary, and what is not contrary to the rule.

G. L.

In this definition, the Genus is, its a rule; the ef∣ficient cause is the Common-wealth; the party bound is the subject; the end is the distinction of wrong which is contrary, and right which is not

contrary to the rule. But

• 1. The Genus is not a rule, which is an act of the understanding; whereas Law is not only an act of the understanding, but the will, which is facultas imperans. Many may give rules by their wisdom, which can make no Laws by their wills.
• 2. The efficient cause is not the Common-wealth, but pars imperans, the Soveraign who is but one part of it.
• 3. The end is not only to declare a distinction between right and wrong, but to bind the subject to do that which is right, and to forbear that which is wrong. For lex est regula obligativa.
• 4. Not content to give the definition, he explains what is right, and that is that which is not contrary to the Law; and wrong, and its that which is con∣trary. But what he means by rule is hard to know.

If he mean by rule, Law it self, then its absurd; if he intends some antecedent rule of divine wisdom, manifesting what is just or unjust, before a civil pow∣er command it, he is obscure. Though he under∣value the Philosopher so much, as far below him, though he was far above him, he might with Mar∣sulis of Padua, in his Defensor Pacis, pars 1. cap. 10. have observed out of him a better definition of a Law given, Ethn. ad Nicho. lib. 10. cap. 9. Lex est sententia, doctrina seu judicium universale justorum & conferentium civilium & suorum oppositorum cum praecepto coactivo per poenam aut praemium de ejus obser∣vatione in hoc saeculo destribuenda. More briefly, its a coactive precept of the Soveraign binding the sub∣ject to obedience, and upon the same to be rewarded, or upon disobedience to be punished in this life; where many things are to be observed.

• 1. The mat∣ter of this Law is something in it self just, and con∣ducing

• to the publik good, yet so that it reacheth to the contrary.
• 2. This must be known, and judged to be so, by the wisdom and understanding of the Sove∣raign; for all Laws arr made by wisdom Political.
• 3. This judgement of the Law-giver must be made known unto the subject; therefore the Philosopher saith its 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a word. And he means not only 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, but 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a word not only inwardly conceived in the mind of the Law-giver, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, as Aristotle saith, but it must be uttered and made known, as the ten Commandements are called the ten words; therefore its said, Exodus 20. God spake all these words.
• 4. It must be praeceptum, which in∣cludes the will of the Soveraign intending to bind the subject, and so declaring himself.
• 5. It must be an universal precept binding the whole community of the subject.
• 6. It must be a coactive precept, and backt with the sword for to make the Obligation effectual. In this respect the Philosopher saith, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; the Law must have a coactive force. And the Apostle saith, he beareth not the sword in vain: which words imply, the Law-giver must have a sword.
• 7. This sword pro∣tects and rewards the obedient who observe this Law according to their obligation, and it punisheth the disobedient; and for these two ends, the Law must be co-active and armed with a sword.
• 8. These rewards and punishments are to be conferrd and in∣flicted in this life; for it cannot reach the soul and the life to come; and this doth difference the civil Laws of men from the Laws of God, which bind men to obedience upon the promise of spiritual and eternal rewards, and for defect of obedience, unto

• eternal and spiritual penalties.

This hath far more of the definition of a Law then his, and more fully declares the nature of a Law civil. Yet if either he, or any other will improve it, I shall like it well, for I know mine own imperfections. From his definiti∣on he infers several conclusions, the first whereof is.

T. H.

The Legislator in all Common-wealths is the Sove∣raign: Again, the Common-wealth is the Legislator by the Representative.

G. L.

That pars imperans, is the Legislator in every State, must needs be granted: but that the Common-wealth should be the Legislator, either by or with∣out (pars imperans) the Soveraign, I do not under∣stand. For it consists of two parts, the Soveraign and the subject; and if the whole Common-wealth make Laws, then the subject as well as the Soveraign is Legislator. In a Republick or free-State, there is a difference between the Soveraign and the subject, much more in other models and forms. Therefore he must needs speak either improperly or untruly, when he saith the State is Legislator.

T. H.

Conclusion 2. The Soveraign is not subject to the civil Laws, because he hath power to make and repeal them at pleasure.

G. L.

That the Soveraign in divers respects, and especial∣ly as a Soveraign, is not subject unto, but above the Laws, is a certain truth. For Laws do bind the sub∣ject, not the Soveraign, to obey or be punished; but the Soveraign doth command as Superiour, not obey as inferiour; doth punish, is not punished. The power to make a Law, when there is none, and to repeal after that its made, is sufficient evidence of his superiority, as also dispensations in judgement and pardons be. Yet this supreme will Legislative over men, is subject to the superiour will of God, and must neither make, nor repeal Laws, but accord∣ing to wisdom and justice.

T. H.

Conclusion 3. Custom is not Law by long continu∣ance of time, but by consent of the Soveraign.

G. L.

This follows from the first Conclusion. For if the Soveraign only be the Legislator, then continuance of time and practise of the people, though universal, cannot make a Law. The Soveraign must give either an express, or tacit consent; and this consent is then most evident, when he makes the custom a rule in judgement, and observes it. And the Civilians well observe, that besides con∣tinuance of time, and the Soveraigns consent, A third thing is required, and that is, that the beginning of it be reasonable, as the Author here doth note.

T. H.

Conclusion 4. The Law of Nature, and the Civil Law, contain each other, and are of equal extent. For the Laws of Nature, which consist in equity, justice, gratitude and other moral vertues on these depending, in the condition of meer nature, are not properly laws, but qualities, that dispose men to peace and obedience; when a Common-wealth is once actually settled, then are they Laws, &c.

G. L.

• 1. This is no Conclusion from the definition, ex∣cept he mean that the rule of right and wrong be the Law of Nature.
• 2. The Laws of Nature are the Laws of God, and not of man; and not only subjects,

• but Soveraigns are bound by them.
• 3. Therefore they bind not as commanded by the civil Soveraign, but as written by the hand of heaven in the heart of man. Neither is that which afterwards he makes the difference between the Law of Nature, and the Law of civil Governors, any difference at all, that the one is written, the other not. For both are written, one by the hand of man, though every Civil Law be not written, and the other by the hand of God: the one in the heart, the other upon some other material substance; and that which is written in the heart, may be written out of it.
• 4. Equity, justice grati∣tude, and other moral vertues, are not Laws of na∣ture, but either habitual or actual conformities unto the Laws of Nature.
• 5. How the Laws of Nature, and Laws Civil should be of equal extent, and yet contain one another, and be parts one of another, I do not understand.
• 6. A Law of Nature is only then a civil Law, when its declared to be so by the civil Soveraign, yet its a Law before.
• 7. For the most part learned men do understand by the Laws of Na∣ture, certain divine principles imprinted upon the heart of man; by the Laws of Nations, more imme∣diate; by the Laws civil, more remote Conclusions of constitutive Laws civil.

T. H.

Seeing all Laws have their authority and force from the will of the Soveraign, a man may wonder whence proceed such opinions as are found in the Books of Law∣yers of eminence in several Common-wealths, directly or by consequence, making the Legislative power depend on

private men, or subordinate Judges: as for example, That the Common-Law hath no Controuler but the Parliament. Item, That the Common-Law hath two arms, Force and Justice, the one whereof is in the King, the other deposited in the hands of the Parlia∣ment.

G. L.

The former Conclusion, which is the fifth in or∣der, That the Laws of Princes and Countries sub∣dued, depend upon the Soveraign conquering is true. And it is wisdom in the Conquerors to grant them the Laws and Customs of God, and no waies prejudicial to their power. For many are willing to change their Governors, yet unwilling to change their Government. But as concerning the two ma∣ximes of Law, I might refer him to the Learned in that profession, who no doubt can make them good against any thing he hath said. They seem to him to be unreasonable, partly because he is ignorant of the Constitution, both of this, and also of other States; partly because they are inconsistent with his Utopian principles. For he presupposeth,

• 1. That the King of England is an absolute Monarch.
• 2. That the Parliament, as a Parliament, is meerly a subject.
• 3. That the King hath power at will and pleasure to call Parliaments, and dissolve them; yet these hath he not made good, neither can he. 1. That our Kings are not absolute Monarchs is well known, the Laws and practice have made it manifest. And what∣soever ignorant persons and parasites may say, yet wise men, both English and Forreign States-men, who

• have dealt with England, have been assured of the contrary; especially when in certain leagues they have required the consent of the Parliament.

Again, the Kings of England never made or repealed a Law, nor levied a subsidie alone themselves, without a Par∣liament. And they are sworn [corroborare leges, quas vulgus elegerit] For let [Elegerit] be what tense it will, vulgus, which is populus, non rex, eligit leges; and the late King in his answer to the 19. Pro∣positions, did confess that the Lords and Commons had a share in the Legislative power. And it were very much to be wondered at, if that King, who himself alone could never make or repeal a Law, nor levy or impose a subsidie, nor revoke the judgement of any Court, nor alter a word or clause in any Law agreed upon in Parliament, should be an absolute Monarch. Its far more probable he was only trusted with the force for the execution of justice, according to Law and Judgement, according to the second maxime. And if he was no absolute Soveraign, then his second supposition, that the Parliament, as such, is only an Assembly of private men and subjects, and to be considered in no other capacity, is false: As likewise his third, That the King can call and dissolve Parliaments at will and pleasure. For by the Consti∣tution, the Laws and practise, he was bound to call them once a year, and oftner as the necessity and exigency of affairs either of peace or war should re∣quire. And in such cases to dissolve them before the [ardua Regni] were dispatched, was both dangerous and destructive; and did argue either a bad constitu∣tion, or a corruption of the same.

T. H.

Law cannot be against reason, neither is it the letter, but the intention of the Law-giver that is the Law. And this reason is not private of subordinate Judges, but of the supreme Lawgiver.

G. L.

All this is willingly granted, if he understand by Rea∣son, not the meer conceit or will of the Soveraign, but that reason which is a ray of divine wisdom shin∣ing in the mind of the Law-giver, regulating his judgement, and expressed in the words of the Law. And the sense of a Law given by a learned Judge subordinate, may be very true, yet not authentick: because he that makes the Law, can interpret Law in that manner, and none else. I pass by his discourse concerning promulgation and interpretation of Law, as also the qualification of Judges, which belongs to that Chapter of Officers formerly mentioned. He might have done well to have improved these excel∣lent. Treatises of other learned Authors, who have informed us both more accurately, and also more particularly of these things, then he himself hath done. But he conceits himself as far above them, as they surpass ordinary men. Neither is his distribu∣tion of Laws worth the examination, as being very crude and indigested, as also heterogeneous. I proceed therefore to his two questions, concerning what assu∣rance may be had of, and obedience ought to be given unto divine positive Laws. The questions are,

T. H.

1. How can a man without supernatural revelati∣on, be assured of the revelation received by the declarer of those Laws?

2. How can he be bound to obey them?

The answer to the first, By sanctity, miracles, wis∣dom, success, without particular revelation, its impos∣sible for a man to have assurance of a revelation made to another. Therefore no man can infallibly know by na∣tural reason, that another hath had a supernatural re∣velation of Gods will, but only a belief.

G. L.

This presupposeth,

• 1. That there is a positive Law of God.
• 2. This positive Law is declared and witnessed to be the Law of God.
• 3. That this testi∣mony concerning this Law is divine and infallible.
• 4. That it is such, because its grounded on, and agree∣able to an immediate revelation from God of that Law to him that doth declare it, as to Moses, the Prophets or Apostles.

For God formerly spake un∣to the Fathers by the Prophets, in the latter times to their children by his Son first, and after by his Apo∣stles. The question here is not how we shall attain a demonstrative, clear, or intuitive knowledge of the matter of the Law, nor of the manner of the reve∣lation; but how we may be assured that the decla∣ration or testimony of him to whom the revelation was made, is divine, that we may believe it as divine and from God. The means whereby the divinity of

the testimony was made evident at the first, were ex∣traordinary, as signs, wonders, and divers miracles and gifts of the Holy Ghost, according to his own will, Heb. 2.4. But after that upon these divine at∣testations the Gospel was generally received in all Nations, and the prophesies of the Old Testament in this particular fulfilled, these ceased; yet one thing alwaies did, and ever will manifest the testimony and doctrine of the Gospel to be divine, and that is the Holy-Ghost, who (by his powerful working upon the hearts of men, seriously attending to this truth, whereby a great change both inwardly in their hearts, and outwardly in their lives is wrought) doth mightily confirm it. And those who find, and feel in themselves the effects of sanctification and heavenly comfort, can no waies doubt, but are assu∣red that God was in the Prophets and Apostles, and did speak by them. Besides when we consider,

• 1. That the more we understand them, the more excellency of wisdom we find in them.
• 2. That these positives are agreeable and no waies contrary to pure morals.
• 3. That they conduce effectually to holiness and eternal life.
• 4. That they were appro∣ved, received by the best men in the world, and sealed with the blood of many Martyrs, we must needs be fully satisfied that they are not false, feigned, fan∣tastick conceits of deluded men, and not only so, but all these things may perswade any rational man to try upon practise, whether they be divine or no.

And this never any did, but found the Apostles Do∣ctrine to be of God. If we had nothing but the universal and perpetual agreement and tradition of the Church of all places and times, affirming the

Scripture to be the Word of God, it were sufficient to produce in a rational man a greater measure of be∣lief, then any Book or History in the world can pos∣sibly require or deserve. For this universal testimo∣ny of the best in several parts of the world, at such a distance as that they in their time neither heard of, nor knew one another, makes it more credible then any humane History can be. But to return unto Mr. Hobbs, I say its possible, and not impossible to know the divinity of the testimony or declaration immediately, but not of the revelation or matter re∣vealed. Yet that such a revelation, and such a thing revealed there was, is known in some measure by consequence. And the divine Authority of this te∣stimony may be infallibly known, and that by natu∣ral reason, yet by it as elevated and more perfected by outward representation and inward sanctification. And the matter of the revelation to another, toge∣ther with the manner, may be believed, though not known. For when we once know that God hath re∣vealed it, we believe the thing revealed to be true, though by artificial and intrinsecal arguments we cannot prove it to be so. For the testimony of God may be evident, though the thing testified be hidden and above our reason. The Conclusion is, That we may have an infallible knowledge of the positive Laws of God, so far as to know that they are from him, and are his Laws, and that without particular revelation, that they were revealed to another.

T. H.

If the divine positive Law be not against the Law of nature, and he undertake to obey it, he is bound by his own act to obey it, but not bound to believe it. For mans belief, and interiour cogitations, are not subject to the commands, but only to the operations of God, ordinary or extraordinary. Faith of supernatural Law, is not a fulfilling, but only an assenting to the same: its not a duty but a gift, &c.

G. L.

His second question was, how a man can be bound to obey supernatural positive Laws, whereof he hath no particular revelation, that they were revealed to others declaring them. To this he answers,

• 1. It must not be against the Law of nature, which is the Law of God. And its true, that the Law of nature is the Law of God, and this is a good rule. For the positive Laws of God are not contrary to his pure moral Laws, which have an intrinsecal rectitude in them.
• 2. He further adds, that if he undertake to obey a supernatural positive Law of God, he is bound to obey it, but not believe it. This is very ob∣scure, and very absurd.

For,

• 1. To undertake to obey it, seems to be a promise to obey it: and this is a voluntary Obligation, whereby a man may bind himself to obey it as a divine Law, or as no Law, or if as a Law, yet not as a Law of God; and then he doth not obey as he ought to do.
• 3. It is absurd, To obey it as a positive Law of God, and not be∣lieve

• it to be a Law of God. For if he neither know nor believe it to be a Law of God, he cannot obey it as a Law of God. His obedience is no obedience unto God.
• 4. Whereas its said, That faith is not subject to Gods command, its not a duty, its a gift, this must needs be a gross errour.

For though the active power whereby a man is enabled to believe a divine positive truth, be the gift of God, yet the ex∣ercise of this power, and the acts thereof, are sub∣ject to the Law of God. Other wise positive unbe∣lief of a supernatural divine positive Law, sufficient∣ly declared and proposed could be no sin. Its true, that some affirm that the first and natural acts of the soul are not subject to any Law: yet these do grant that all practical operations (and such assent unto divine truths is) be subject unto Law. That faith is a duty, is apparent, because God commands it, ap∣proves it, rewards it, and reproves and punisheth unbelief. That we may the better understand the drift of this Author in this discourse, he produceth the examples of Abraham and Moses, declaring po∣sitive Laws of God upon revelation made of them, which the posterity of Abraham were to obey upon their declaration, and thence concludes,

T. H.

That it is manifest, and sufficiently appeareth, that in a Common-wealth, a subject who hath no certain and assured revelation particularly unto himself, concerning the will of God, is to obey for such, the command of the Common-wealth.

G. L.

But,

• 1. It was formerly made manifest, that nei∣ther Abraham nor Moses were Soveraigns, much less Common-wealths.
• 2. A Soveraign civil may de∣clare something to be a Law of God, and yet it may be no such thing; and declare against a Law, and yet it may be (and many times it so falls out to be) a Law of God; and in neither of these cases is the subject bound to obey his Soveraign.
• 3. If that which is declared for a positive Law divine be suffici∣ently attested, especially by Miracles and Gifts of the Holy Ghost, by undoubted history and universal tradition, the matter be agreeable to the Law of na∣ture, tends to practise of piety, being practised, is conducing to an higher degree of holiness and ju∣stice; and by experience constantly found to be ac∣companied with rare and excellent effects tending to mans inward and real happiness, it is to be believed and obeyed as a divine Law, though all the Sove∣raigns in the world declare against it.

If a subject do accept the Religion established by the civil Laws of his Countrey, he is free from civil penalties of man, yet not from the judgement of God, if that Religion be against the Laws of God. No Laws of man can bind above, much less against the Laws of God; and this all rational men will confess. Austine denies the perfection, and according to Tullies defini∣tion, the very being of a Common-wealth to the Roman State, because it commanded subjection un∣to, and worship of Devils. By what this Author hath delivered, Christ and the Apostles are made guilty, be∣cause

they required obedience to the positive Laws of the Gospel, seeing they were contrary to all civil Laws of the world: Upon this account the Rulers of the Jews, heathen Princes, and the Roman Em∣perours, who persecuted the Christians, are justifi∣able; as all such who received the Christian Religion contrary to their own Laws, are condemnable; but of this you will hear more hereafter. For he makes it indifferent what Religion any man professeth, if it be agreeable to the Laws of the State where he lives.

T. H.

There is also another distinction of Laws, into fun∣damental and not fundamental; but I could never see in any Author, what a fundamental Law signifieth, &c. A fundamental Law is that by which the subjects are bound to uphold whatsoever power is given unto the So∣veraign, &c.

G. L.

This doth argue his ignorance in Politicks. For fundamental Laws in every State are those which concern the constitution; not fundamental, such as are made immediately to regulate the administrati∣on. The former are such as cannot be altered with∣out taking asunder and disjoynting the very frame and form of Government; the latter may be alter∣ed, and yet the essential frame may stand. The for∣mer are the foundation of a State; the latter are but superstructions. The former determine the Sove∣raign who he is, and what his power, and also define

the bounds of the liberty and subjection of the sub∣ject. The golden Bull is said to contain the funda∣mental Laws of the German Empire; as the Salick or as some call it. [the Gallick] of excluding fe∣males from succession to the Crown, is said to be one of the fundamentals of France.

T. H.

I find lex civilis, & jus civile, promiscuously used for the same thing, even in the most learned Authors, which nevertheless ought not to be. For Jus is Liberty, Lex is Obligation.

G. L.

That they are often taken for the same, and in learned Authors, is certain, and that without any er∣rour. But yet Jus doth not properly signifie the li∣berty left unto us by the Law; but id quod Justum est, and ought to be the matter of the Law. And when the Civilians take Jura and Leges to be the same, they understand by Jus, not Jus vagum, but Jus à lege determinatum. For the Laws determine what is right, and what is wrong: and in this sense, Jus cannot be liberty, as he doth fondly imagine; but must either be, or at least imply an Obligation.