The Elements of Law Natural and Politic [39]
to whom they are made. And this is it men mean by distributive justice, and is properly termed EQUITY. The breach of this law is that which the Greeks call Pleovezia, which is commonly rendered covetousness, but seemeth to be more precisely expressed by the word ENCROACHING. 3. If there pass no other covenant, the law of nature is, That such things as cannot be divided, be used in common, proportionably to the numbers of them that are to use the same, or without limitation when the quantity thereof sufficeth. For first supposing the thing to be used in common not sufficient for them that are to use it without limitation, if a few shall make more use thereof than the rest, that equality is not observed, which is required in the second section. And this is to be understood, as all the rest of the laws of nature, without any other covenant antecedent; for a man may have given away his right of common, and so the case be altered. 4. In those things which neither can be divided, nor used in common, the rule of nature must needs be one of these: lot, or alternate use; for besides these two ways, there can no other equality be imagined. And for alternate use, he that beginneth hath the advantage; and to reduce that advantage to equality, there is no other way but lot: in things, therefore, indivisible and incommunicable, it is the law of nature, That the use be alternate, or the advantage given away by lot; because there is no other way of equality'. and equality is the law of nature. 5. There be two sorts of lots: one arbitrary, made by men, and commonly known by the names of lot, chance, hazard, and the like; and there is natural lot, such as is primogeniture, which is no more but the chance, or lot of being first born; which, it seemeth, they considered, that call inheritance by the name of cleronomia, which signifieth distribution by lot. Secondly, prima occupatio, first seizing or finding of a thing, whereof no man made use before, which for the most part also is merely chance. 6. Although men agree upon these laws of nature, and endeavour to observe the same; yet considering the passions of men, that make it difficult to understand by what actions, and circumstances of actions, those laws are broken; there must needs arise many great controversies about the interpretation thereof, by which the peace must needs be dissolved, and men return again to their former estate of hostility. For the taking away of which controversies, it is necessary that there be some common arbitrator and judge, to whose sentence both the parties to the controversy ought to stand. And therefore it is a law of nature, That in every controversy, the parties thereto ought mutually to agree upon an arbitrator, whom they both trust; and mutually to covenant to stand to the sentence he shall give therein. For where every man is his own judge, there properly is no judge at all; as where every man carveth out his own right, it hath the same effect, as if there were no right at all; and where is no judge, there is no end of controversy, and therefore the right of hostility remaineth. 7. AN ARBITRATOR therefore or judge is he that is trusted by the parties to any controversy, to determine the same by the declaration of his own judgment therein. Out of which followeth: first, that the judge ought not to be concerned in the controversy he endeth; for in that case he is party, and ought by the same reason to be judged by another; secondly, that he maketh no covenant with either of the parties, to pronounce sentence for the one, more than for the other. Nor doth he covenant so much, as that his sentence shall be just; for that were to make the parties judges of the sentence, whereby the controversy would remain still undecided. Nevertheless for the trust reposed in him, and for the equality which the law of nature requireth him to consider in the parties, he violateth that law, if for favour, or hatred to either party, he give other sentence than he thinketh right. And thirdly, that no man ought to make himself judge in any controversy between