The Elements of Law Natural and Politic [84]
law divine. So that of things done lege, that is to say, by command of the law, there is some place for a distinction between lege divina and lege civili. As when a man giveth an alms, or helpeth him that is in need, he doth it not lege civili, but lege divina, by the divine law, the precept whereof is charity. But of things that are done jure, nothing can be said done jure divino, that is not also jure civili, unless it be done by them that having sovereign power, are not subject to the civil law. 6. The differences of laws are according to the differences, either of the authors and lawmakers, or of the promulgation, or of those that are subject to them. From the difference of the authors, or lawmakers, cometh the division of law into divine, natural, and civil. From the difference of promulgation, proceedeth the division of laws into written and unwritten. And from the difference of the persons to whom the law appertaineth, it proceedeth, that some laws are called simply laws, and some penal. As for example: thou shalt not steal, is simply a law; but this: he that stealeth an ox, shall restore four-fold, is a penal, or as others call it, a judicial law. Now in those laws, which are simply laws, the commandment is addressed to every man; but in penal laws the commandment is addressed to the magistrate, who is only guilty of the breach of it, when the penalties ordained are not inflicted; to the rest appertaineth nothing, but to take notice of their danger. 7. As for the first division of law into divine, natural, and civil, the first two branches are one and the same law. For the law of nature, which is also the moral law, is the law of the author of nature, God Almighty; and the law of God, taught by our Saviour Christ, is the moral law. For the sum of God's law is: Thou shalt love God above all, and thy neighbour as thyself; and the same is the sum of the law of nature, as hath been showed, Part I chap. XVIII. And although the doctrine of our Saviour be of three parts moral, theological, and ecclesiastical; the former part only, which is the moral, is of the nature of a law universal; the latter part is a branch of the law civil; and the theological which containeth those articles concerning the divinity and kingdom of our Saviour, without which there is no salvation, is not delivered in the nature of laws, but of counsel and direction, how to avoid the punishment, which by the violation of the moral law, men are subject to. For it is not infidelity that condemneth (though it be faith that saveth), but the breach of the law and commandments of God, written first in man's heart, and afterwards in tables, and delivered to the Jews by the hands of Moses. 8. In the state of nature, where every man is his own judge, and differeth from other concerning the names and appellations of things, and from those differences arise quarrels, and breach of peace; it was necessary there should be a common measure of all things that might fall in controversy; as for example: of what is to be called right, what good, what virtue, what much, what little, what meum and tuum, what a pound, what a quart, &c. For in these things private judgments may differ, and beget controversy. This common measure, some say, is right reason: with whom I should consent, if there were any such thing to be found or known in rerum natura. But commonly they that call for right reason to decide any controversy, do mean their own. But this is certain, seeing right reason is not existent, the reason of some man, or men, must supply the place thereof; and that man, or men, is he or they, that have the sovereign power, as hath been already proved; and consequently the civil laws are to all subjects the measures of their actions, whereby to determine, whether they be right or wrong, profitable or unprofitable, virtuous or vicious; and by them the use and definition of all names not agreed upon, and tending to controversy, shall be established. As for example, upon the occasion of some strange and deformed birth, it shall not be decided by Aristotle, or the