ably of it. For why? They presume that the law doth speak with all indifferency; that the law hath no side-respect to their persons; that the law is as it were an oracle proceeded from wisdom and understanding.

[8] Howbeit laws do not take their constraining force from the quality of such as devise them, but from that power which doth give them the strength of laws. That which we spake before concerning the power of government must here be applied unto the power of making laws whereby to govern; which power God hath over all and by the natural law, whereunto he hath made all subject, the lawful power of making laws to command whole politic societies of men belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority derived at the first from their consent upon whose persons they impose laws, it is no better than mere tyranny.

Laws they are not therefore which public approbation hath not made so. But approbation not only they give who personally declare their assent by voice, sign, or act, but also when others do it in their names by right originally at the least derived from them. As in parliaments, councils, and the like assemblies, although we be not personally ourselves present, notwithstanding our assent is, by reason of others, agents there in our behalf. And what we do by others, no reason 13 but that it should stand as our deed, no less effectually to bind us than if ourselves had done it in person. In many things assent is given, they that give it not imagining they do so, because the manner of their assenting is not apparent. As for example, when an absolute monarch commandeth his subjects that which seemeth good in his own discretion, hath not his edict the force of a law whether they approve or dislike it? Again, that which hath been received long sithence

14

and is by custom now established, we keep as a law which we may not transgress; yet what consent was ever thereunto sought or required at our hands?

Of this point therefore we are to note, that sith men naturally have no full and perfect power to command whole politic multitudes of men, therefore utterly without our consent we could in such sort be at no man's commandment living. And to be commanded we do consent, when that society whereof we are part hath at any time before consented, without revoking the same after by the like universal agreement. Wherefore as any man's deed past is good as long as himself continueth; so the act of a public society of men done five hundred years sithence standeth as theirs who presently are of the same societies, because corporations are immortal; we were then alive in our predecessors, and they in their successors do live still. Laws therefore human, of what kind soever, are available by consent.

[9] If here it be demanded how it cometh to pass that this being common unto all laws which are made, there should be found even in good laws so great a variety as there is; we must note the reason hereof to be the sundry particular ends, whereunto the different disposition of that subject or matter, for which laws are provided, causeth them to have especial respect in making laws. A law there is mentioned amongst the Grecians whereof Pittacus is reported to have been the author; and by that law it was agreed, that he which being overcome with drink did then strike any man, should suffer punishment double as much as if he had done the same being sober. No man could ever have thought this reasonable, that had intended thereby only to punish the injury committed according to the gravity of the fact: for who knoweth not that harm advisedly done is naturally less pardonable, and therefore worthy of the sharper punishment? But forasmuch as none did so usually this way offend as men in that case, which they wittingly fell into, even because they would be so much the more freely outrageous; it was for their public good, where such disorder was grown, to frame a positive law for remedy thereof

accordingly. To this appertain those known laws of making laws; as that law-makers must have an eye to the place where, and to the men amongst whom that one kind of laws cannot serve for all kinds of regiment: that where the multitude beareth sway, laws that shall tend unto preservation of that state must make common smaller offices to go by lot, for fear of strife and division likely to arise, by reason that ordinary qualities sufficing for discharge of such offices, they could not but by many be desired, and so with danger contended for, and not missed without grudge and discontentment, whereas at an uncertain lot none can find themselves grieved, on whomsoever it lighteth; contrariwise the greatest, whereof but few are capable, to pass by popular election, that neither the people may envy such as have those honours, inasmuch as themselves bestow them, and that the chiefest may be kindled with desire to exercise all parts of rare and beneficial virtue, knowing they shall not lose their labour by growing in fame and estimation amongst the people: if the helm of chief government be in the hands of a few of the wealthiest, that then laws providing for continuance thereof must make the punishment of contumely and wrong offered unto any of the common sort sharp and grievous, that so the evil may be prevented whereby the rich are most likely to bring themselves into hatred with the people, who are not wont to take so great an offence when they are excluded from honours and offices, as when their persons are contumeliously trodden upon. In other kinds of regiment the like is observed concerning the difference of positive laws, which to be every where the same is impossible and against their nature.

[10] Now as the learned in the laws of this land observe, that our statutes sometimes are only the affirmation or ratification of that which by common law was held before; so here it is not to be omitted that generally all laws human, which are made for the ordering of politic societies, be either such as establish some duty whereunto all men by the law of reason did before stand bound; or else such as make that a duty now which before was none. The one sort we may for distinction's sake call mixedly, and the

other merely human. That which plain or necessary reason bindeth men unto may be in sundry considerations expedient to be ratified by human law. For example, if confusion of blood in marriage, the liberty of having many wives at once, or any other the like corrupt and unreasonable custom doth happen to have prevailed far, and to have gotten the upper hand of right reason with the greatest part, so that no way is left to rectify such foul disorder without prescribing by law the same things which reason necessarily doth enforce but is not perceived that so it doth; or if many be grown unto that which the Apostle did lament in some, concerning whom he writeth, saying, that Even what things they naturally know, in those very things as beasts void of reason they corrupted themselves; 15 or if there be no such special accident, yet forasmuch as the common sort are led by the sway of their sensual desires, and therefore do more shun sin for the sensible evils which follow it amongst men, than for any kind of sentence which reason doth pronounce against it; this very thing is cause sufficient why duties belonging unto such kind of virtue, albeit the law of reason teach them, should notwithstanding be prescribed even by human law. Which law in this case we term mixed, because the matter whereunto it bindeth is the same which reason necessarily doth require at our hands, and from the law of reason it differeth in the manner of binding only. For whereas men before stood bound in conscience to do as the law of reason teacheth, they are now by virtue of human law become constrainable, and if they outwardly transgress, punishable. As for laws which are merely human, the matter of them is any thing which reason doth but probably teach to be fit and convenient; so that till such time as law hath passed amongst men about it, of itself it bindeth no man. One example whereof may be this. Lands are by human law in some places after the owner's decease divided unto all his children, in some all descendeth to the eldest son. If the law of reason did necessarily require but the one of these

15 Jude 10.

two to be done, they which by law have received the other should be subject to that heavy sentence, which denounceth against all that decree wicked, unjust, and unreasonable things, woe. Whereas now whichsoever be received there is no law of reason transgressed; because there is probable reason why either of them may be expedient, and for either of them more than probable reason there is not to be found.

[11] Laws whether mixedly or merely human are made by politic societies: some, only as those societies are civilly united; some, as they are spiritually joined and make such a body as we call the Church. Of laws human in this later kind we are to speak in the third book following. Let it therefore suffice thus far to have touched the force wherewith almighty God hath graciously endued our nature, and thereby enabled the same to find out both those laws which all men generally are for ever bound to observe, and also such as are most fit for their behoof, who lead their lives in any ordered state of government.

[12] Now besides that law which simply concerneth men as men, and that which belongeth unto them as they are men linked with others in some form of politic society, there is a third kind of law which toucheth all such several bodies politic, so far forth as one of them hath public commerce with another. And this third is the law of nations. Between men and beasts there is no possibility of sociable communion; because the well-spring of that communion is a natural delight which man hath to transfuse from himself unto others, and to receive from others into himself, especially those things wherein the excellency of his kind doth most consist. The chiefest instrument of human communion therefore is speech, because thereby we impart mutually one to another the conceits of our reasonable understanding. And for that cause seeing beasts are not hereof capable, forasmuch as with them we can use no such conference, they being in degree, although above other creatures on earth to whom nature hath denied sense, yet lower than to be sociable companions of man to whom nature hath given reason; it is of Adam said that amongst the beasts He found