Leviathan/The Second Part
- 1 The Second Part: Of Commonwealth
- 1.1 Chapter XVII: Of the Causes, Generation, and Definition of a Commonwealth
- 1.2 Chapter XVIII: Of the Rights of Sovereigns by Institution
- 1.3 Chapter XIX: Of the Several Kinds of Commonwealth by Institution, and of Succession to the Sovereign Power
- 1.4 Chapter XX: Of Dominion Paternal and Despotical
- 1.5 Chapter XXI: Of the Liberty of Subjects
- 1.6 Chapter XXII: Of Systems Subject Political and Private
- 1.7 Chapter XXIII: Of the Public Ministers of Sovereign Power
- 1.8 Chapter XXIV: Of the Nutrition and Procreation of a Commonwealth
- 1.9 Chapter XXV: Of Counsel
- 1.10 Chapter XXVI: Of Civil Laws
- 1.11 Chapter XXVII: Of Crimes, Excuses, and Extenuations
- 1.12 Chapter XXVIII: Of Punishments and Rewards
- 1.13 Chapter XXIX: Of Those Things That Weaken or Tend to the Dissolution of a Commonwealth
- 1.14 Chapter XXX: Of the Office of the Sovereign Representative
- 1.15 Chapter XXXI: Of the Kingdom of God by Nature
The Second Part: Of Commonwealth
Chapter XVII: Of the Causes, Generation, and Definition of a Commonwealth
The final cause, end, or design of men (who naturally love liberty, and dominion over others) in the introduction of that restraint upon themselves, in which we see them live in Commonwealths, is the foresight of their own preservation, and of a more contented life thereby; that is to say, of getting themselves out from that miserable condition of war which is necessarily consequent, as hath been shown, to the natural passions of men when there is no visible power to keep them in awe, and tie them by fear of punishment to the performance of their covenants, and observation of those laws of nature set down in the fourteenth and fifteenth chapters.
For the laws of nature, as justice, equity, modesty, mercy, and, in sum, doing to others as we would be done to, of themselves, without the terror of some power to cause them to be observed, are contrary to our natural passions, that carry us to partiality, pride, revenge, and the like. And covenants, without the sword, are but words and of no strength to secure a man at all. Therefore, notwithstanding the laws of nature (which every one hath then kept, when he has the will to keep them, when he can do it safely), if there be no power erected, or not great enough for our security, every man will and may lawfully rely on his own strength and art for caution against all other men. And in all places, where men have lived by small families, to rob and spoil one another has been a trade, and so far from being reputed against the law of nature that the greater spoils they gained, the greater was their honour; and men observed no other laws therein but the laws of honour; that is, to abstain from cruelty, leaving to men their lives and instruments of husbandry. And as small families did then; so now do cities and kingdoms, which are but greater families (for their own security), enlarge their dominions upon all pretences of danger, and fear of invasion, or assistance that may be given to invaders; endeavour as much as they can to subdue or weaken their neighbours by open force, and secret arts, for want of other caution, justly; and are remembered for it in after ages with honour.
Nor is it the joining together of a small number of men that gives them this security; because in small numbers, small additions on the one side or the other make the advantage of strength so great as is sufficient to carry the victory, and therefore gives encouragement to an invasion. The multitude sufficient to confide in for our security is not determined by any certain number, but by comparison with the enemy we fear; and is then sufficient when the odds of the enemy is not of so visible and conspicuous moment to determine the event of war, as to move him to attempt.
And be there never so great a multitude; yet if their actions be directed according to their particular judgements, and particular appetites, they can expect thereby no defence, nor protection, neither against a common enemy, nor against the injuries of one another. For being distracted in opinions concerning the best use and application of their strength, they do not help, but hinder one another, and reduce their strength by mutual opposition to nothing: whereby they are easily, not only subdued by a very few that agree together, but also, when there is no common enemy, they make war upon each other for their particular interests. For if we could suppose a great multitude of men to consent in the observation of justice, and other laws of nature, without a common power to keep them all in awe, we might as well suppose all mankind to do the same; and then there neither would be, nor need to be, any civil government or Commonwealth at all, because there would be peace without subjection.
Nor is it enough for the security, which men desire should last all the time of their life, that they be governed and directed by one judgement for a limited time; as in one battle, or one war. For though they obtain a victory by their unanimous endeavour against a foreign enemy, yet afterwards, when either they have no common enemy, or he that by one part is held for an enemy is by another part held for a friend, they must needs by the difference of their interests dissolve, and fall again into a war amongst themselves.
It is true that certain living creatures, as bees and ants, live sociably one with another (which are therefore by Aristotle numbered amongst political creatures), and yet have no other direction than their particular judgements and appetites; nor speech, whereby one of them can signify to another what he thinks expedient for the common benefit: and therefore some man may perhaps desire to know why mankind cannot do the same. To which I answer,
First, that men are continually in competition for honour and dignity, which these creatures are not; and consequently amongst men there ariseth on that ground, envy, and hatred, and finally war; but amongst these not so.
Secondly, that amongst these creatures the common good differeth not from the private; and being by nature inclined to their private, they procure thereby the common benefit. But man, whose joy consisteth in comparing himself with other men, can relish nothing but what is eminent.
Thirdly, that these creatures, having not, as man, the use of reason, do not see, nor think they see, any fault in the administration of their common business: whereas amongst men there are very many that think themselves wiser and abler to govern the public better than the rest, and these strive to reform and innovate, one this way, another that way; and thereby bring it into distraction and civil war.
Fourthly, that these creatures, though they have some use of voice in making known to one another their desires and other affections, yet they want that art of words by which some men can represent to others that which is good in the likeness of evil; and evil, in the likeness of good; and augment or diminish the apparent greatness of good and evil, discontenting men and troubling their peace at their pleasure.
Fifthly, irrational creatures cannot distinguish between injury and damage; and therefore as long as they be at ease, they are not offended with their fellows: whereas man is then most troublesome when he is most at ease; for then it is that he loves to show his wisdom, and control the actions of them that govern the Commonwealth.
Lastly, the agreement of these creatures is natural; that of men is by covenant only, which is artificial: and therefore it is no wonder if there be somewhat else required, besides covenant, to make their agreement constant and lasting; which is a common power to keep them in awe and to direct their actions to the common benefit.
The only way to erect such a common power, as may be able to defend them from the invasion of foreigners, and the injuries of one another, and thereby to secure them in such sort as that by their own industry and by the fruits of the earth they may nourish themselves and live contentedly, is to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will: which is as much as to say, to appoint one man, or assembly of men, to bear their person; and every one to own and acknowledge himself to be author of whatsoever he that so beareth their person shall act, or cause to be acted, in those things which concern the common peace and safety; and therein to submit their wills, every one to his will, and their judgements to his judgement. This is more than consent, or concord; it is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner. This done, the multitude so united in one person is called a COMMONWEALTH; in Latin, CIVITAS. This is the generation of that great LEVIATHAN, or rather, to speak more reverently, of that mortal god to which we owe, under the immortal God, our peace and defence. For by this authority, given him by every particular man in the Commonwealth, he hath the use of so much power and strength conferred on him that, by terror thereof, he is enabled to form the wills of them all, to peace at home, and mutual aid against their enemies abroad. And in him consisteth the essence of the Commonwealth; which, to define it, is: one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author, to the end he may use the strength and means of them all as he shall think expedient for their peace and common defence.
And he that carryeth this person is called sovereign, and said to have sovereign power; and every one besides, his subject.
The attaining to this sovereign power is by two ways. One, by natural force: as when a man maketh his children to submit themselves, and their children, to his government, as being able to destroy them if they refuse; or by war subdueth his enemies to his will, giving them their lives on that condition. The other, is when men agree amongst themselves to submit to some man, or assembly of men, voluntarily, on confidence to be protected by him against all others. This latter may be called a political Commonwealth, or Commonwealth by Institution; and the former, a Commonwealth by acquisition. And first, I shall speak of a Commonwealth by institution.
Chapter XVIII: Of the Rights of Sovereigns by Institution
A commonwealth is said to be instituted when a multitude of men do agree, and covenant, every one with every one, that to whatsoever man, or assembly of men, shall be given by the major part the right to present the person of them all, that is to say, to be their representative; every one, as well he that voted for it as he that voted against it, shall authorize all the actions and judgements of that man, or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves, and be protected against other men.
From this institution of a Commonwealth are derived all the rights and faculties of him, or them, on whom the sovereign power is conferred by the consent of the people assembled.
First, because they covenant, it is to be understood they are not obliged by former covenant to anything repugnant hereunto. And consequently they that have already instituted a Commonwealth, being thereby bound by covenant to own the actions and judgements of one, cannot lawfully make a new covenant amongst themselves to be obedient to any other, in anything whatsoever, without his permission. And therefore, they that are subjects to a monarch cannot without his leave cast off monarchy and return to the confusion of a disunited multitude; nor transfer their person from him that beareth it to another man, other assembly of men: for they are bound, every man to every man, to own and be reputed author of all that already is their sovereign shall do and judge fit to be done; so that any one man dissenting, all the rest should break their covenant made to that man, which is injustice: and they have also every man given the sovereignty to him that beareth their person; and therefore if they depose him, they take from him that which is his own, and so again it is injustice. Besides, if he that attempteth to depose his sovereign be killed or punished by him for such attempt, he is author of his own punishment, as being, by the institution, author of all his sovereign shall do; and because it is injustice for a man to do anything for which he may be punished by his own authority, he is also upon that title unjust. And whereas some men have pretended for their disobedience to their sovereign a new covenant, made, not with men but with God, this also is unjust: for there is no covenant with God but by mediation of somebody that representeth God's person, which none doth but God's lieutenant who hath the sovereignty under God. But this pretence of covenant with God is so evident a lie, even in the pretenders' own consciences, that it is not only an act of an unjust, but also of a vile and unmanly disposition.
Secondly, because the right of bearing the person of them all is given to him they make sovereign, by covenant only of one to another, and not of him to any of them, there can happen no breach of covenant on the part of the sovereign; and consequently none of his subjects, by any pretence of forfeiture, can be freed from his subjection. That he which is made sovereign maketh no covenant with his subjects before hand is manifest; because either he must make it with the whole multitude, as one party to the covenant, or he must make a several covenant with every man. With the whole, as one party, it is impossible, because as they are not one person: and if he make so many several covenants as there be men, those covenants after he hath the sovereignty are void; because what act soever can be pretended by any one of them for breach thereof is the act both of himself, and of all the rest, because done in the person, and by the right of every one of them in particular. Besides, if any one or more of them pretend a breach of the covenant made by the sovereign at his institution, and others or one other of his subjects, or himself alone, pretend there was no such breach, there is in this case no judge to decide the controversy: it returns therefore to the sword again; and every man recovereth the right of protecting himself by his own strength, contrary to the design they had in the institution. It is therefore in vain to grant sovereignty by way of precedent covenant. The opinion that any monarch receiveth his power by covenant, that is to say, on condition, proceedeth from want of understanding this easy truth: that covenants being but words, and breath, have no force to oblige, contain, constrain, or protect any man, but what it has from the public sword; that is, from the untied hands of that man, or assembly of men, that hath the sovereignty, and whose actions are avouched by them all, and performed by the strength of them all, in him united. But when an assembly of men is made sovereign, then no man imagineth any such covenant to have passed in the institution: for no man is so dull as to say, for example, the people of Rome made a covenant with the Romans to hold the sovereignty on such or such conditions; which not performed, the Romans might lawfully depose the Roman people. That men see not the reason to be alike in a monarchy and in a popular government proceedeth from the ambition of some that are kinder to the government of an assembly, whereof they may hope to participate, than of monarchy, which they despair to enjoy.
Thirdly, because the major part hath by consenting voices declared a sovereign, he that dissented must now consent with the rest; that is, be contented to avow all the actions he shall do, or else justly be destroyed by the rest. For if he voluntarily entered into the congregation of them that were assembled, he sufficiently declared thereby his will, and therefore tacitly covenanted, to stand to what the major part should ordain: and therefore if he refuse to stand thereto, or make protestation against any of their decrees, he does contrary to his covenant, and therefore unjustly. And whether he be of the congregation or not, and whether his consent be asked or not, he must either submit to their decrees or be left in the condition of war he was in before; wherein he might without injustice be destroyed by any man whatsoever.
Fourthly, because every subject is by this institution author of all the actions and judgements of the sovereign instituted, it follows that whatsoever he doth, can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice. For he that doth anything by authority from another doth therein no injury to him by whose authority he acteth: but by this institution of a Commonwealth every particular man is author of all the sovereign doth; and consequently he that complaineth of injury from his sovereign complaineth of that whereof he himself is author, and therefore ought not to accuse any man but himself; no, nor himself of injury, because to do injury to oneself is impossible. It is true that they that have sovereign power may commit iniquity, but not injustice or injury in the proper signification.
Fifthly, and consequently to that which was said last, no man that hath sovereign power can justly be put to death, or otherwise in any manner by his subjects punished. For seeing every subject is author of the actions of his sovereign, he punisheth another for the actions committed by himself.
And because the end of this institution is the peace and defence of them all, and whosoever has right to the end has right to the means, it belonged of right to whatsoever man or assembly that hath the sovereignty to be judge both of the means of peace and defence, and also of the hindrances and disturbances of the same; and to do whatsoever he shall think necessary to be done, both beforehand, for the preserving of peace and security, by prevention of discord at home, and hostility from abroad; and when peace and security are lost, for the recovery of the same. And therefore,
Sixthly, it is annexed to the sovereignty to be judge of what opinions and doctrines are averse, and what conducing to peace; and consequently, on what occasions, how far, and what men are to be trusted withal in speaking to multitudes of people; and who shall examine the doctrines of all books before they be published. For the actions of men proceed from their opinions, and in the well governing of opinions consisteth the well governing of men's actions in order to their peace and concord. And though in matter of doctrine nothing to be regarded but the truth, yet this is not repugnant to regulating of the same by peace. For doctrine repugnant to peace can no more be true, than peace and concord can be against the law of nature. It is true that in a Commonwealth, where by the negligence or unskillfulness of governors and teachers false doctrines are by time generally received, the contrary truths may be generally offensive: yet the most sudden and rough bustling in of a new truth that can be does never break the peace, but only sometimes awake the war. For those men that are so remissly governed that they dare take up arms to defend or introduce an opinion are still in war; and their condition, not peace, but only a cessation of arms for fear of one another; and they live, as it were, in the procincts of battle continually. It belonged therefore to him that hath the sovereign power to be judge, or constitute all judges of opinions and doctrines, as a thing necessary to peace; thereby to prevent discord and civil war.
Seventhly, is annexed to the sovereignty the whole power of prescribing the rules whereby every man may know what goods he may enjoy, and what actions he may do, without being molested by any of his fellow subjects: and this is it men call propriety. For before constitution of sovereign power, as hath already been shown, all men had right to all things, which necessarily causeth war: and therefore this propriety, being necessary to peace, and depending on sovereign power, is the act of that power, in order to the public peace. These rules of propriety (or meum and tuum) and of good, evil, lawful, and unlawful in the actions of subjects are the civil laws; that is to say, the laws of each Commonwealth in particular; though the name of civil law be now restrained to the ancient civil laws of the city of Rome; which being the head of a great part of the world, her laws at that time were in these parts the civil law.
Eighthly, is annexed to the sovereignty the right of judicature; that is to say, of hearing and deciding all controversies which may arise concerning law, either civil or natural, or concerning fact. For without the decision of controversies, there is no protection of one subject against the injuries of another; the laws concerning meum and tuum are in vain, and to every man remaineth, from the natural and necessary appetite of his own conservation, the right of protecting himself by his private strength, which is the condition of war, and contrary to the end for which every Commonwealth is instituted.
Ninthly, is annexed to the sovereignty the right of making war and peace with other nations and Commonwealths; that is to say, of judging when it is for the public good, and how great forces are to be assembled, armed, and paid for that end, and to levy money upon the subjects to defray the expenses thereof. For the power by which the people are to be defended consisteth in their armies, and the strength of an army in the union of their strength under one command; which command the sovereign instituted, therefore hath, because the command of the militia, without other institution, maketh him that hath it sovereign. And therefore, whosoever is made general of an army, he that hath the sovereign power is always generalissimo.
Tenthly, is annexed to the sovereignty the choosing of all counsellors, ministers, magistrates, and officers, both in peace and war. For seeing the sovereign is charged with the end, which is the common peace and defence, he is understood to have power to use such means as he shall think most fit for his discharge.
Eleventhly, to the sovereign is committed the power of rewarding with riches or honour; and of punishing with corporal or pecuniary punishment, or with ignominy, every subject according to the law he hath formerly made; or if there be no law made, according as he shall judge most to conduce to the encouraging of men to serve the Commonwealth, or deterring of them from doing disservice to the same.
Lastly, considering what values men are naturally apt to set upon themselves, what respect they look for from others, and how little they value other men; from whence continually arise amongst them, emulation, quarrels, factions, and at last war, to the destroying of one another, and diminution of their strength against a common enemy; it is necessary that there be laws of honour, and a public rate of the worth of such men as have deserved or are able to deserve well of the Commonwealth, and that there be force in the hands of some or other to put those laws in execution. But it hath already been shown that not only the whole militia, or forces of the Commonwealth, but also the judicature of all controversies, is annexed to the sovereignty. To the sovereign therefore it belonged also to give titles of honour, and to appoint what order of place and dignity each man shall hold, and what signs of respect in public or private meetings they shall give to one another.
These are the rights which make the essence of sovereignty, and which are the marks whereby a man may discern in what man, or assembly of men, the sovereign power is placed and resideth. For these are incommunicable and inseparable. The power to coin money, to dispose of the estate and persons of infant heirs, to have pre-emption in markets, and all other statute prerogatives may be transferred by the sovereign, and yet the power to protect his subjects be retained. But if he transfer the militia, he retains the judicature in vain, for want of execution of the laws; or if he grant away the power of raising money, the militia is in vain; or if he give away the government of doctrines, men will be frighted into rebellion with the fear of spirits. And so if we consider any one of the said rights, we shall presently see that the holding of all the rest will produce no effect in the conservation of peace and justice, the end for which all Commonwealths are instituted. And this division is it whereof it is said, a kingdom divided in itself cannot stand: for unless this division precede, division into opposite armies can never happen. If there had not first been an opinion received of the greatest part of England that these powers were divided between the King and the Lords and the House of Commons, the people had never been divided and fallen into this Civil War; first between those that disagreed in politics, and after between the dissenters about the liberty of religion, which have so instructed men in this point of sovereign right that there be few now in England that do not see that these rights are inseparable, and will be so generally acknowledged at the next return of peace; and so continue, till their miseries are forgotten, and no longer, except the vulgar be better taught than they have hitherto been.
And because they are essential and inseparable rights, it follows necessarily that in whatsoever words any of them seem to be granted away, yet if the sovereign power itself be not in direct terms renounced and the name of sovereign no more given by the grantees to him that grants them, the grant is void: for when he has granted all he can, if we grant back the sovereignty, all is restored, as inseparably annexed thereunto.
This great authority being indivisible, and inseparably annexed to the sovereignty, there is little ground for the opinion of them that say of sovereign kings, though they be singulis majores, of greater power than every one of their subjects, yet they be universis minores, of less power than them all together. For if by all together, they mean not the collective body as one person, then all together and every one signify the same; and the speech is absurd. But if by all together, they understand them as one person (which person the sovereign bears), then the power of all together is the same with the sovereign's power; and so again the speech is absurd: which absurdity they see well enough when the sovereignty is in an assembly of the people; but in a monarch they see it not; and yet the power of sovereignty is the same in whomsoever it be placed.
And as the power, so also the honour of the sovereign, ought to be greater than that of any or all the subjects. For in the sovereignty is the fountain of honour. The dignities of lord, earl, duke, and prince are his creatures. As in the presence of the master, the servants are equal, and without any honour at all; so are the subjects, in the presence of the sovereign. And though they shine some more, some less, when they are out of his sight; yet in his presence, they shine no more than the stars in presence of the sun.
But a man may here object that the condition of subjects is very miserable, as being obnoxious to the lusts and other irregular passions of him or them that have so unlimited a power in their hands. And commonly they that live under a monarch think it the fault of monarchy; and they that live under the government of democracy, or other sovereign assembly, attribute all the inconvenience to that form of Commonwealth; whereas the power in all forms, if they be perfect enough to protect them, is the same: not considering that the estate of man can never be without some incommodity or other; and that the greatest that in any form of government can possibly happen to the people in general is scarce sensible, in respect of the miseries and horrible calamities that accompany a civil war, or that dissolute condition of masterless men without subjection to laws and a coercive power to tie their hands from rapine and revenge: nor considering that the greatest pressure of sovereign governors proceedeth, not from any delight or profit they can expect in the damage weakening of their subjects, in whose vigour consisteth their own strength and glory, but in the restiveness of themselves that, unwillingly contributing to their own defence, make it necessary for their governors to draw from them what they can in time of peace that they may have means on any emergent occasion, or sudden need, to resist or take advantage on their enemies. For all men are by nature provided of notable multiplying glasses (that is their passions and self-love) through which every little payment appeareth a great grievance, but are destitute of those prospective glasses (namely moral and civil science) to see afar off the miseries that hang over them and cannot without such payments be avoided.
Chapter XIX: Of the Several Kinds of Commonwealth by Institution, and of Succession to the Sovereign Power
The difference of Commonwealths consisteth in the difference of the sovereign, or the person representative of all and every one of the multitude. And because the sovereignty is either in one man, or in an assembly of more than one; and into that assembly either every man hath right to enter, or not every one, but certain men distinguished from the rest; it is manifest there can be but three kinds of Commonwealth. For the representative must needs be one man, or more; and if more, then it is the assembly of all, or but of a part. When the representative is one man, then is the Commonwealth a monarchy; when an assembly of all that will come together, then it is a democracy, or popular Commonwealth; when an assembly of a part only, then it is called an aristocracy. Other kind of Commonwealth there can be none: for either one, or more, or all, must have the sovereign power (which I have shown to be indivisible) entire.
There be other names of government in the histories and books of policy; as tyranny and oligarchy; but they are not the names of other forms of government, but of the same forms misliked. For they that are discontented under monarchy call it tyranny; and they that are displeased with aristocracy call it oligarchy: so also, they which find themselves grieved under a democracy call it anarchy, which signifies want of government; and yet I think no man believes that want of government is any new kind of government: nor by the same reason ought they to believe that the government is of one kind when they like it, and another when they mislike it or are oppressed by the governors.
It is manifest that men who are in absolute liberty may, if they please, give authority to one man to represent them every one, as well as give such authority to any assembly of men whatsoever; and consequently may subject themselves, if they think good, to a monarch as absolutely as to other representative. Therefore, where there is already erected a sovereign power, there can be no other representative of the same people, but only to certain particular ends, by the sovereign limited. For that were to erect two sovereigns; and every man to have his person represented by two actors that, by opposing one another, must needs divide that power, which (if men will live in peace) is indivisible; and thereby reduce the multitude into the condition of war, contrary to the end for which all sovereignty is instituted. And therefore as it is absurd to think that a sovereign assembly, inviting the people of their dominion to send up their deputies with power to make known their advice or desires should therefore hold such deputies, rather than themselves, for the absolute representative of the people; so it is absurd also to think the same in a monarchy. And I know not how this so manifest a truth should of late be so little observed: that in a monarchy he that had the sovereignty from a descent of six hundred years was alone called sovereign, had the title of Majesty from every one of his subjects, and was unquestionably taken by them for their king, was notwithstanding never considered as their representative; that name without contradiction passing for the title of those men which at his command were sent up by the people to carry their petitions and give him, if he permitted it, their advice. Which may serve as an admonition for those that are the true and absolute representative of a people, to instruct men in the nature of that office, and to take heed how they admit of any other general representation upon any occasion whatsoever, if they mean to discharge the trust committed to them.
The difference between these three kinds of Commonwealth consisteth, not in the difference of power, but in the difference of convenience or aptitude to produce the peace and security of the people; for which end they were instituted. And to compare monarchy with the other two, we may observe: first, that whosoever beareth the person of the people, or is one of that assembly that bears it, beareth also his own natural person. And though he be careful in his politic person to procure the common interest, yet he is more, or no less, careful to procure the private good of himself, his family, kindred and friends; and for the most part, if the public interest chance to cross the private, he prefers the private: for the passions of men are commonly more potent than their reason. From whence it follows that where the public and private interest are most closely united, there is the public most advanced. Now in monarchy the private interest is the same with the public. The riches, power, and honour of a monarch arise only from the riches, strength, and reputation of his subjects. For no king can be rich, nor glorious, nor secure, whose subjects are either poor, or contemptible, or too weak through want, or dissension, to maintain a war against their enemies; whereas in a democracy, or aristocracy, the public prosperity confers not so much to the private fortune of one that is corrupt, or ambitious, as doth many times a perfidious advice, a treacherous action, or a civil war.
Secondly, that a monarch receiveth counsel of whom, when, and where he pleaseth; and consequently may hear the opinion of men versed in the matter about which he deliberates, of what rank or quality soever, and as long before the time of action and with as much secrecy as he will. But when a sovereign assembly has need of counsel, none are admitted but such as have a right thereto from the beginning; which for the most part are of those who have been versed more in the acquisition of wealth than of knowledge, and are to give their advice in long discourses which may, and do commonly, excite men to action, but not govern them in it. For the understanding is by the flame of the passions never enlightened, but dazzled: nor is there any place or time wherein an assembly can receive counsel secrecy, because of their own multitude.
Thirdly, that the resolutions of a monarch are subject to no other inconstancy than that of human nature; but in assemblies, besides that of nature, there ariseth an inconstancy from the number. For the absence of a few that would have the resolution, once taken, continue firm (which may happen by security, negligence, or private impediments), or the diligent appearance of a few of the contrary opinion, undoes today all that was concluded yesterday.
Fourthly, that a monarch cannot disagree with himself, out of envy or interest; but an assembly may; and that to such a height as may produce a civil war.
Fifthly, that in monarchy there is this inconvenience; that any subject, by the power of one man, for the enriching of a favourite or flatterer, may be deprived of all he possesseth; which I confess is a great and inevitable inconvenience. But the same may as well happen where the sovereign power is in an assembly: for their power is the same; and they are as subject to evil counsel, and to be seduced by orators, as a monarch by flatterers; and becoming one another's flatterers, serve one another's covetousness and ambition by turns. And whereas the favourites of monarchs are few, and they have none else to advance but their own kindred; the favourites of an assembly are many, and the kindred much more numerous than of any monarch. Besides, there is no favourite of a monarch which cannot as well succour his friends as hurt his enemies: but orators, that is to say, favourites of sovereign assemblies, though they have great power to hurt, have little to save. For to accuse requires less eloquence (such is man's nature) than to excuse; and condemnation, than absolution, more resembles justice.
Sixthly, that it is an inconvenience in monarchy that the sovereignty may descend upon an infant, or one that cannot discern between good and evil: and consisteth in this, that the use of his power must be in the hand of another man, or of some assembly of men, which are to govern by his right and in his name as curators and protectors of his person and authority. But to say there is inconvenience in putting the use of the sovereign power into the hand of a man, or an assembly of men, is to say that all government is more inconvenient than confusion and civil war. And therefore all the danger that can be pretended must arise from the contention of those that, for an office of so great honour and profit, may become competitors. To make it appear that this inconvenience proceedeth not from that form of government we call monarchy, we are to consider that the precedent monarch hath appointed who shall have the tuition of his infant successor, either expressly by testament, or tacitly by not controlling the custom in that case received: and then such inconvenience, if it happen, is to be attributed, not to the monarchy, but to the ambition and injustice of the subjects, which in all kinds of government, where the people are not well instructed in their duty and the rights of sovereignty, is the same. Or else the precedent monarch hath not at all taken order for such tuition; and then the law of nature hath provided this sufficient rule, that the tuition shall be in him that hath by nature most interest in the preservation of the authority of the infant, and to whom least benefit can accrue by his death or diminution. For seeing every man by nature seeketh his own benefit and promotion, to put an infant into the power of those that can promote themselves by his destruction or damage is not tuition, but treachery. So that sufficient provision being taken against all just quarrel about the government under a child, if any contention arise to the disturbance of the public peace, it is not to be attributed to the form of monarchy, but to the ambition of subjects and ignorance of their duty. On the other side, there is no great Commonwealth, the sovereignty whereof is in a great assembly, which is not, as to consultations of peace, and war, and making of laws, in the same condition as if the government were in a child. For as a child wants the judgement to dissent from counsel given him, and is thereby necessitated to take the advice of them, or him, to whom he is committed; so an assembly wanteth the liberty to dissent from the counsel of the major part, be it good or bad. And as a child has need of a tutor, or protector, to preserve his person and authority; so also in great Commonwealths the sovereign assembly, in all great dangers and troubles, have need of custodes libertatis; that is, of dictators, or protectors of their authority; which are as much as temporary monarchs to whom for a time they may commit the entire exercise of their power; and have, at the end of that time, been oftener deprived thereof than infant kings by their protectors, regents, or any other tutors.
Though the kinds of sovereignty be, as I have now shown, but three; that is to say, monarchy, where one man has it; or democracy, where the general assembly of subjects hath it; or aristocracy, where it is in an assembly of certain persons nominated, or otherwise distinguished from the rest: yet he that shall consider the particular Commonwealths that have been and are in the world will not perhaps easily reduce them to three, and may thereby be inclined to think there be other forms arising from these mingled together. As for example, elective kingdoms; where kings have the sovereign power put into their hands for a time; or kingdoms wherein the king hath a power limited: which governments are nevertheless by most writers called monarchy. Likewise if a popular or aristocratical Commonwealth subdue an enemy's country, and govern the same by a president, procurator, or other magistrate, this may seem perhaps, at first sight, to be a democratical or aristocratical government. But it is not so. For elective kings are not sovereigns, but ministers of the sovereign; nor limited kings sovereigns, but ministers of them that have the sovereign power; nor are those provinces which are in subjection to a democracy or aristocracy of another Commonwealth democratically or aristocratically governed, but monarchically.
And first, concerning an elective king, whose power is limited to his life, as it is in many places of Christendom at this day; or to certain years or months, as the dictator's power amongst the Romans; if he have right to appoint his successor, he is no more elective but hereditary. But if he have no power to elect his successor, then there is some other man, or assembly known, which after his decease may elect a new; or else the Commonwealth dieth, and dissolveth with him, and returneth to the condition of war. If it be known who have the power to give the sovereignty after his death, it is known also that the sovereignty was in them before: for none have right to give that which they have not right to possess, and keep to themselves, if they think good. But if there be none that can give the sovereignty after the decease of him that was first elected, then has he power, nay he is obliged by the law of nature, to provide, by establishing his successor, to keep to those that had trusted him with the government from relapsing into the miserable condition of civil war. And consequently he was, when elected, a sovereign absolute.
Secondly, that king whose power is limited is not superior to him, or them, that have the power to limit it; and he that is not superior is not supreme; that is to say, not sovereign. The sovereignty therefore was always in that assembly which had the right to limit him, and by consequence the government not monarchy, but either democracy or aristocracy; as of old time in Sparta, where the kings had a privilege to lead their armies, but the sovereignty was in the Ephori.
Thirdly, whereas heretofore the Roman people governed the land of Judea, for example, by a president; yet was not Judea therefore a democracy, because they were not governed by any assembly into which any of them had right to enter; nor by an aristocracy, because they were not governed by any assembly into which any man could enter by their election: but they were governed by one person, which though as to the people of Rome was an assembly of the people, or democracy; yet as to the people of Judea, which had no right at all of participating in the government, was a monarch. For though where the people are governed by an assembly, chosen by themselves out of their own number, the government is called a democracy, or aristocracy; yet when they are governed by an assembly not of their own choosing, it is a monarchy; not of one man over another man, but of one people over another people. OF all these forms of government, the matter being mortal, so that not only monarchs, but also whole assemblies die, it is necessary for the conservation of the peace of men that as there was order taken for an artificial man, so there be order also taken for an artificial eternity of life; without which men that are governed by an assembly should return into the condition of war in every age; and they that are governed by one man, as soon as their governor dieth. This artificial eternity is that which men call the right of succession.
There is no perfect form of government, where the disposing of the succession is not in the present sovereign. For if it be in any other particular man, or private assembly, it is in a person subject, and may be assumed by the sovereign at his pleasure; and consequently the right is in himself. And if it be in no particular man, but left to a new choice; then is the Commonwealth dissolved, and the right is in him that can get it, contrary to the intention of them that did institute the Commonwealth for their perpetual, and not temporary, security.
In a democracy, the whole assembly cannot fail unless the multitude that are to be governed fail. And therefore questions of the right of succession have in that form of government no place at all.
In an aristocracy, when any of the assembly dieth, the election of another into his room belonged to the assembly, as the sovereign, to whom belonged the choosing of all counsellors and officers. For that which the representative doth, as actor, every one of the subjects doth, as author. And though the sovereign assembly may give power to others to elect new men, for supply of their court, yet it is still by their authority that the election is made; and by the same it may, when the public shall require it, be recalled.
The greatest difficulty about the right of succession is in monarchy: and the difficulty ariseth from this, that at first sight, it is not manifest who is to appoint the successor; nor many times who it is whom he hath appointed. For in both these cases, there is required a more exact ratiocination than every man is accustomed to use. As to the question who shall appoint the successor of a monarch that hath the sovereign authority; that is to say, who shall determine of the right of inheritance (for elective kings and princes have not the sovereign power in propriety, but in use only), we are to consider that either he that is in possession has right to dispose of the succession, or else that right is again in the dissolved multitude. For the death of him that hath the sovereign power in property leaves the multitude without any sovereign at all; that is, without any representative in whom they should be united, and be capable of doing any one action at all: and therefore they are incapable of election of any new monarch, every man having equal right to submit himself to such as he thinks best able to protect him; or, if he can, protect himself by his own sword; which is a return to confusion and to the condition of a war of every man against every man, contrary to the end for which monarchy had its first institution. Therefore it is manifest that by the institution of monarchy, the disposing of the successor is always left to the judgement and will of the present possessor.
And for the question which may arise sometimes, who it is that the monarch in possession hath designed to the succession and inheritance of his power, it is determined by his express words and testament; or by other tacit signs sufficient.
By express words, or testament, when it is declared by him in his lifetime, viva voce, or by writing; as the first emperors of Rome declared who should be their heirs. For the word heir does not of itself imply the children or nearest kindred of a man; but whomsoever a man shall any way declare he would have to succeed him in his estate. If therefore a monarch declare expressly that such a man shall be his heir, either by word or writing, then is that man immediately after the decease of his predecessor invested in the right of being monarch.
But where testament and express words are wanting, other natural signs of the will are to be followed: whereof the one is custom. And therefore where the custom is that the next of kindred absolutely succeedeth, there also the next of kindred hath right to the succession; for that, if the will of him that was in possession had been otherwise, he might easily have declared the same in his lifetime. And likewise where the custom is that the next of the male kindred succeedeth, there also the right of succession is in the next of the kindred male, for the same reason. And so it is if the custom were to advance the female. For whatsoever custom a man may by a word control, and does not, it is a natural sign he would have that custom stand.
But where neither custom nor testament hath preceded, there it is to he understood; first, that a monarch's will is that the government remain monarchical, because he hath approved that government in himself. Secondly, that a child of his own, male or female, be preferred before any other, because men are presumed to be more inclined by nature to advance their own children than the children of other men; and of their own, rather a male than a female, because men are naturally fitter than women for actions of labour and danger. Thirdly, where his own issue faileth, rather a brother than a stranger, and so still the nearer in blood rather than the more remote, because it is always presumed that the nearer of kin is the nearer in affection; and it is evident that a man receives always, by reflection, the most honour from the greatness of his nearest kindred.
But if it be lawful for a monarch to dispose of the succession by words of contract, or testament, men may perhaps object a great inconvenience: for he may sell or give his right of governing to a stranger; which, because strangers (that is, men not used to live under the same government, nor speaking the same language) do commonly undervalue one another, may turn to the oppression of his subjects, which is indeed a great inconvenience: but it proceedeth not necessarily from the subjection to a stranger's government, but from the unskillfulness of the governors, ignorant of the true rules of politics. And therefore the Romans, when they had subdued many nations, to make their government digestible were wont to take away that grievance as much as they thought necessary by giving sometimes to whole nations, and sometimes to principal men of every nation they conquered, not only the privileges, but also the name of Romans; and took many of them into the Senate, and offices of charge, even in the Roman city. And this was it our most wise king, King James, aimed at in endeavouring the union of his two realms of England and Scotland. Which, if he could have obtained, had in all likelihood prevented the civil wars which both those kingdoms, at this present, miserable. It is not therefore any injury to the people for a monarch to dispose of the succession by will; though by the fault of many princes, it hath been sometimes found inconvenient. Of the lawfulness of it, this also is an argument; that whatsoever inconvenience can arrive by giving a kingdom to a stranger, may arrive also by so marrying with strangers, as the right of succession may descend upon them: yet this by all men is accounted lawful.
Chapter XX: Of Dominion Paternal and Despotical
A commonwealth by acquisition is that where the sovereign power is acquired by force; and it is acquired by force when men singly, or many together by plurality of voices, for fear of death, or bonds, do authorise all the actions of that man, or assembly, that hath their lives and liberty in his power.
And this kind of dominion, or sovereignty, differeth from sovereignty by institution only in this, that men who choose their sovereign do it for fear of one another, and not of him whom they institute: but in this case, they subject themselves to him they are afraid of. In both cases they do it for fear: which is to be noted by them that hold all such covenants, as proceed from fear of death or violence, void: which, if it were true, no man in any kind of Commonwealth could be obliged to obedience. It is true that in a Commonwealth once instituted, or acquired, promises proceeding from fear of death or violence are no covenants, nor obliging, when the thing promised is contrary to the laws; but the reason is not because it was made upon fear, but because he that promiseth hath no right in the thing promised. Also, when he may lawfully perform, and doth not, it is not the invalidity of the covenant that absolveth him, but the sentence of the sovereign. Otherwise, whensoever a man lawfully promiseth, he unlawfully breaketh: but when the sovereign, who is the actor, acquitteth him, then he is acquitted by him that extorted the promise, as by the author of such absolution.
But the rights and consequences of sovereignty are the same in both. His power cannot, without his consent, be transferred to another: he cannot forfeit it: he cannot be accused by any of his subjects of injury: he cannot be punished by them: he is judge of what is necessary for peace, and judge of doctrines: he is sole legislator, and supreme judge of controversies, and of the times and occasions of war and peace: to him it belonged to choose magistrates, counsellors, commanders, and all other officers and ministers; and to determine of rewards and punishments, honour and order. The reasons whereof are the same which are alleged in the precedent chapter for the same rights and consequences of sovereignty by institution.
Dominion is acquired two ways: by generation and by conquest. The right of dominion by generation is that which the parent hath over his children, and is called paternal. And is not so derived from the generation, as if therefore the parent had dominion over his child because he begat him, but from the child's consent, either express or by other sufficient arguments declared. For as to the generation, God hath ordained to man a helper, and there be always two that are equally parents: the dominion therefore over the child should belong equally to both, and he be equally subject to both, which is impossible; for no man can obey two masters. And whereas some have attributed the dominion to the man only, as being of the more excellent sex, they misreckon in it. For there is not always that difference of strength or prudence between the man and the woman as that the right can be determined without war. In Commonwealths this controversy is decided by the civil law: and for the most part, but not always, the sentence is in favour of the father, because for the most part Commonwealths have been erected by the fathers, not by the mothers of families. But the question lieth now in the state of mere nature where there are supposed no laws of matrimony, no laws for the education of children, but the law of nature and the natural inclination of the sexes, one to another, and to their children. In this condition of mere nature, either the parents between themselves dispose of the dominion over the child by contract, or do not dispose thereof at all. If they dispose thereof, the right passeth according to the contract. We find in history that the Amazons contracted with the men of the neighbouring countries, to whom they had recourse for issue, that the issue male should be sent back, but the female remain with themselves: so that the dominion of the females was in the mother.
If there be no contract, the dominion is in the mother. For in the condition of mere nature, where there are no matrimonial laws, it cannot be known who is the father unless it be declared by the mother; and therefore the right of dominion over the child dependeth on her will, and is consequently hers. Again, seeing the infant is first in the power of the mother, so as she may either nourish or expose it; if she nourish it, it oweth its life to the mother, and is therefore obliged to obey her rather than any other; and by consequence the dominion over it is hers. But if she expose it, and another find and nourish it, dominion is in him that nourisheth it. For it ought to obey him by whom it is preserved, because preservation of life being the end for which one man becomes subject to another, every man is supposed to promise obedience to him in whose power it is to save or destroy him.
If the mother be the father's subject, the child is in the father's power; and if the father be the mother's subject (as when a sovereign queen marrieth one of her subjects), the child is subject to the mother, because the father also is her subject.
If a man and a woman, monarchs of two several kingdoms, have a child, and contract concerning who shall have the dominion of him, the right of the dominion passeth by the contract. If they contract not, the dominion followeth the dominion of the place of his residence. For the sovereign of each country hath dominion over all that reside therein.
He that hath the dominion over the child hath dominion also over the children of the child, and over their children's children. For he that hath dominion over the person of a man hath dominion over all that is his, without which dominion were but a title without the effect.
The right of succession to paternal dominion proceedeth in the same manner as doth the right of succession to monarchy, of which I have already sufficiently spoken in the precedent chapter.
Dominion acquired by conquest, or victory in war, is that which some writers call despotical from Despotes, which signifieth a lord or master, and is the dominion of the master over his servant. And this dominion is then acquired to the victor when the vanquished, to avoid the present stroke of death, covenanteth, either in express words or by other sufficient signs of the will, that so long as his life and the liberty of his body is allowed him, the victor shall have the use thereof at his pleasure. And after such covenant made, the vanquished is a servant, and not before: for by the word servant (whether it be derived from servire, to serve, or from servare, to save, which I leave to grammarians to dispute) is not meant a captive, which is kept in prison, or bonds, till the owner of him that took him, or bought him of one that did, shall consider what to do with him: for such men, commonly called slaves, have no obligation at all; but may break their bonds, or the prison; and kill, or carry away captive their master, justly: but one that, being taken, hath corporal liberty allowed him; and upon promise not to run away, nor to do violence to his master, is trusted by him.
It is not therefore the victory that giveth the right of dominion over the vanquished, but his own covenant. Nor is he obliged because he is conquered; that is to say, beaten, and taken, or put to flight; but because he cometh in and submitteth to the victor; nor is the victor obliged by an enemy's rendering himself, without promise of life, to spare him for this his yielding to discretion; which obliges not the victor longer than in his own discretion he shall think fit.
And that which men do when they demand, as it is now called, quarter (which the Greeks called Zogria, taking alive) is to evade the present fury of the victor by submission, and to compound for their life with ransom or service: and therefore he that hath quarter hath not his life given, but deferred till further deliberation; for it is not a yielding on condition of life, but to discretion. And then only is his life in security, and his service due, when the victor hath trusted him with his corporal liberty. For slaves that work in prisons, or fetters, do it not of duty, but to avoid the cruelty of their task-masters.
The master of the servant is master also of all he hath, and may exact the use thereof; that is to say, of his goods, of his labour, of his servants, and of his children, as often as he shall think fit. For he holdeth his life of his master by the covenant of obedience; that is, of owning and authorising whatsoever the master shall do. And in case the master, if he refuse, kill him, or cast him into bonds, or otherwise punish him for his disobedience, he is himself the author of the same, and cannot accuse him of injury.
In sum, the rights and consequences of both paternal and despotical dominion are the very same with those of a sovereign by institution; and for the same reasons: which reasons are set down in the precedent chapter. So that for a man that is monarch of diverse nations, he hath in one the sovereignty by institution of the people assembled, and in another by conquest; that is by the submission of each particular, to avoid death or bonds; to demand of one nation more than of the other, from the title of conquest, as being a conquered nation, is an act of ignorance of the rights of sovereignty. For the sovereign is absolute over both alike; or else there is no sovereignty at all, and so every man may lawfully protect himself, if he can, with his own sword, which is the condition of war.
By this it appears that a great family, if it be not part of some Commonwealth, is of itself, as to the rights of sovereignty, a little monarchy; whether that family consist of a man and his children, or of a man and his servants, or of a man and his children and servants together; wherein the father or master is the sovereign. But yet a family is not properly a Commonwealth, unless it be of that power by its own number, or by other opportunities, as not to be subdued without the hazard of war. For where a number of men are manifestly too weak to defend themselves united, every one may use his own reason in time of danger to save his own life, either by flight, or by submission to the enemy, as he shall think best; in the same manner as a very small company of soldiers, surprised by an army, may cast down their arms and demand quarter, or run away rather than be put to the sword. And thus much shall suffice concerning what I find by speculation, and deduction, of sovereign rights, from the nature, need, and designs of men in erecting of Commonwealths, and putting themselves under monarchs or assemblies entrusted with power enough for their protection.
Let us now consider what the Scripture teacheth in the same point. To Moses the children of Israel say thus: "Speak thou to us, and we will hear thee; but let not God speak to us, lest we die."* This is absolute obedience to Moses. Concerning the right of kings, God Himself, by the mouth of Samuel, saith, "This shall be the right of the king you will have to reign over you. He shall take your sons, and set them to drive his chariots, and to be his horsemen, and to run before his chariots, and gather in his harvest; and to make his engines of war, and instruments of his chariots; and shall take your daughters to make perfumes, to be his cooks, and bakers. He shall take your fields, your vineyards, and your olive-yards, and give them to his servants. He shall take the tithe of your corn and wine, and give it to the men of his chamber, and to his other servants. He shall take your man-servants, and your maidservants, and the choice of your youth, and employ them in his business. He shall take the tithe of your flocks; and you shall be his servants."*(2) This is absolute power, and summed up in the last words, you shall be his servants. Again, when the people heard what power their king was to have, yet they consented thereto, and say thus, "We will be as all other nations, and our king shall judge our causes, and go before us, to conduct our wars."*(3) Here is confirmed the right that sovereigns have, both to the militia and to all judicature; in which is contained as absolute power as one man can possibly transfer to another. Again, the prayer of King Solomon to God was this: "Give to thy servant understanding, to judge thy people, and to discern between good and evil."*(4) It belonged therefore to the sovereign to be judge, and to prescribe the rules of discerning good and evil: which rules are laws; and therefore in him is the legislative power. Saul sought the life of David; yet when it was in his power to slay Saul, and his servants would have done it, David forbade them, saying, "God forbid I should do such an act against my Lord, the anointed of God."*(5) For obedience of servants St. Paul saith, "Servants obey your masters in all things";*(6) and, "Children obey your parents in all things."*(7) There is simple obedience in those that are subject to paternal or despotical dominion. Again, "The scribes and Pharisees sit in Moses' chair, and therefore all that they shall bid you observe, that observe and do."*(8) There again is simple obedience. And St. Paul, "Warn them that they subject themselves to princes, and to those that are in authority, and obey them."*(9) This obedience is also simple. Lastly, our Saviour Himself acknowledges that men ought to pay such taxes as are by kings imposed, where He says, "Give to Caesar that which is Caesar's"; and paid such taxes Himself. And that the king's word is sufficient to take anything from any subject, when there is need; and that the king is judge of that need: for He Himself, as king of the Jews, commanded his Disciples to take the ass and ass's colt to carry him into Jerusalem, saying, "Go into the village over against you, and you shall find a she ass tied, and her colt with her; untie them, and bring them to me. And if any man ask you, what you mean by it, say the Lord hath need of them: and they will let them go."*(10) They will not ask whether his necessity be a sufficient title; nor whether he be judge of that necessity; but acquiesce in the will of the Lord.
- Exodus, 20. 19
- (2) I Samuel, 8. 11-17
- (3) Ibid., 8. 19, 20
- (4) I Kings, 3. 9
- (5) I Samuel, 24. 6
- (6) Colossians, 3. 22
- (7) Ibid., 3. 20
- (8) Matthew, 23. 2, 3
- (9) Titus, 3. 1
- (10) Matthew, 21. 2, 3
To these places may be added also that of Genesis, "You shall be as gods, knowing good and evil."* And, "Who told thee that thou wast naked? Hast thou eaten of the tree, of which I commanded thee thou shouldest not eat?"*(2) For the cognizance or judicature of good and evil, being forbidden by the name of the fruit of the tree of knowledge, as a trial of Adam's obedience, the devil to inflame the ambition of the woman, to whom that fruit already seemed beautiful, told her that by tasting it they should be as gods, knowing good and evil. Whereupon having both eaten, they did indeed take upon them God's office, which is judicature of good and evil, but acquired no new ability to distinguish between them aright. And whereas it is said that, having eaten, they saw they were naked; no man hath so interpreted that place as if they had been formerly blind, and saw not their own skins: the meaning is plain that it was then they first judged their nakedness (wherein it was God's will to create them) to be uncomely; and by being ashamed did tacitly censure God Himself. And thereupon God saith, "Hast thou eaten," etc., as if He should say, doest thou that owest me obedience take upon thee to judge of my commandments? Whereby it is clearly, though allegorically, signified that the commands of them that have the right to command are not by their subjects to be censured nor disputed.
- Genesis, 3. 5
- (2) Ibid., 3. 11
So that it appeareth plainly, to my understanding, both from reason and Scripture, that the sovereign power, whether placed in one man, as in monarchy, or in one assembly of men, as in popular and aristocratical Commonwealths, is as great as possibly men can be imagined to make it. And though of so unlimited a power, men may fancy many evil consequences, yet the consequences of the want of it, which is perpetual war of every man against his neighbour, are much worse. The condition of man in this life shall never be without inconveniences; but there happeneth in no Commonwealth any great inconvenience but what proceeds from the subjects' disobedience and breach of those covenants from which the Commonwealth hath its being. And whosoever, thinking sovereign power too great, will seek to make it less, must subject himself to the power that can limit it; that is to say, to a greater.
The greatest objection is that of the practice; when men ask where and when such power has by subjects been acknowledged. But one may ask them again, when or where has there been a kingdom long free from sedition and civil war? In those nations whose Commonwealths have been long-lived, and not been destroyed but by foreign war, the subjects never did dispute of the sovereign power. But howsoever, an argument from the practice of men that have not sifted to the bottom, and with exact reason weighed the causes and nature of Commonwealths, and suffer daily those miseries that proceed from the ignorance thereof, is invalid. For though in all places of the world men should lay the foundation of their houses on the sand, it could not thence be inferred that so it ought to be. The skill of making and maintaining Commonwealths consisteth in certain rules, as doth arithmetic and geometry; not, as tennis play, on practice only: which rules neither poor men have the leisure, nor men that have had the leisure have hitherto had the curiosity or the method, to find out.
Chapter XXI: Of the Liberty of Subjects
Liberty, or freedom, signifieth properly the absence of opposition (by opposition, I mean external impediments of motion); and may be applied no less to irrational and inanimate creatures than to rational. For whatsoever is so tied, or environed, as it cannot move but within a certain space, which space is determined by the opposition of some external body, we say it hath not liberty to go further. And so of all living creatures, whilst they are imprisoned, or restrained with walls or chains; and of the water whilst it is kept in by banks or vessels that otherwise would spread itself into a larger space; we use to say they are not at liberty to move in such manner as without those external impediments they would. But when the impediment of motion is in the constitution of the thing itself, we use not to say it wants the liberty, but the power, to move; as when a stone lieth still, or a man is fastened to his bed by sickness.
And according to this proper and generally received meaning of the word, a freeman is he that, in those things which by his strength and wit he is able to do, is not hindered to do what he has a will to. But when the words free and liberty are applied to anything but bodies, they are abused; for that which is not subject to motion is not to subject to impediment: and therefore, when it is said, for example, the way is free, no liberty of the way is signified, but of those that walk in it without stop. And when we say a gift is free, there is not meant any liberty of the gift, but of the giver, that was not bound by any law or covenant to give it. So when we speak freely, it is not the liberty of voice, or pronunciation, but of the man, whom no law hath obliged to speak otherwise than he did. Lastly, from the use of the words free will, no liberty can be inferred of the will, desire, or inclination, but the liberty of the man; which consisteth in this, that he finds no stop in doing what he has the will, desire, or inclination to do.
Fear and liberty are consistent: as when a man throweth his goods into the sea for fear the ship should sink, he doth it nevertheless very willingly, and may refuse to do it if he will; it is therefore the action of one that was free: so a man sometimes pays his debt, only for fear of imprisonment, which, because no body hindered him from detaining, was the action of a man at liberty. And generally all actions which men do in Commonwealths, for fear of the law, are actions which the doers had liberty to omit.
Liberty and necessity are consistent: as in the water that hath not only liberty, but a necessity of descending by the channel; so, likewise in the actions which men voluntarily do, which, because they proceed their will, proceed from liberty, and yet because every act of man's will and every desire and inclination proceedeth from some cause, and that from another cause, in a continual chain (whose first link is in the hand of God, the first of all causes), proceed from necessity. So that to him that could see the connexion of those causes, the necessity of all men's voluntary actions would appear manifest. And therefore God, that seeth and disposeth all things, seeth also that the liberty of man in doing what he will is accompanied with the necessity of doing that which God will and no more, nor less. For though men may do many things which God does not command, nor is therefore author of them; yet they can have no passion, nor appetite to anything, of which appetite God's will is not the cause. And did not His will assure the necessity of man's will, and consequently of all that on man's will dependeth, the liberty of men would be a contradiction and impediment to the omnipotence and liberty of God. And this shall suffice, as to the matter in hand, of that natural liberty, which only is properly called liberty.
But as men, for the attaining of peace and conservation of themselves thereby, have made an artificial man, which we call a Commonwealth; so also have they made artificial chains, called civil laws, which they themselves, by mutual covenants, have fastened at one end to the lips of that man, or assembly, to whom they have given the sovereign power, and at the other to their own ears. These bonds, in their own nature but weak, may nevertheless be made to hold, by the danger, though not by the difficulty of breaking them.
In relation to these bonds only it is that I am to speak now of the liberty of subjects. For seeing there is no Commonwealth in the world wherein there be rules enough set down for the regulating of all the actions and words of men (as being a thing impossible): it followeth necessarily that in all kinds of actions, by the laws pretermitted, men have the liberty of doing what their own reasons shall suggest for the most profitable to themselves. For if we take liberty in the proper sense, for corporal liberty; that is to say, freedom from chains and prison, it were very absurd for men to clamour as they do for the liberty they so manifestly enjoy. Again, if we take liberty for an exemption from laws, it is no less absurd for men to demand as they do that liberty by which all other men may be masters of their lives. And yet as absurd as it is, this is it they demand, not knowing that the laws are of no power to protect them without a sword in the hands of a man, or men, to cause those laws to be put in execution. The liberty of a subject lieth therefore only in those things which, in regulating their actions, the sovereign hath pretermitted: such as is the liberty to buy, and sell, and otherwise contract with one another; to choose their own abode, their own diet, their own trade of life, and institute their children as they themselves think fit; and the like.
Nevertheless we are not to understand that by such liberty the sovereign power of life and death is either abolished or limited. For it has been already shown that nothing the sovereign representative can do to a subject, on what pretence soever, can properly be called injustice or injury; because every subject is author of every act the sovereign doth, so that he never wanteth right to any thing, otherwise than as he himself is the subject of God, and bound thereby to observe the laws of nature. And therefore it may and doth often happen in Commonwealths that a subject may be put to death by the command of the sovereign power, and yet neither do the other wrong; as when Jephthah caused his daughter to be sacrificed: in which, and the like cases, he that so dieth had liberty to do the action, for which he is nevertheless, without injury, put to death. And the same holdeth also in a sovereign prince that putteth to death an innocent subject. For though the action be against the law of nature, as being contrary to equity (as was the killing of Uriah by David); yet it was not an injury to Uriah, but to God. Not to Uriah, because the right to do what he pleased was given him by Uriah himself; and yet to God, because David was God's subject and prohibited all iniquity by the law of nature. Which distinction, David himself, when he repented the fact, evidently confirmed, saying, "To thee only have I sinned." In the same manner, the people of Athens, when they banished the most potent of their Commonwealth for ten years, thought they committed no injustice; and yet they never questioned what crime he had done, but what hurt he would do: nay, they commanded the banishment of they knew not whom; and every citizen bringing his oyster shell into the market place, written with the name of him he desired should be banished, without actually accusing him sometimes banished an Aristides, for his reputation of justice; and sometimes a scurrilous jester, as Hyperbolus, to make a jest of it. And yet a man cannot say the sovereign people of Athens wanted right to banish them; or an Athenian the liberty to jest, or to be just.
The liberty whereof there is so frequent and honourable mention in the histories and philosophy of the ancient Greeks and Romans, and in the writings and discourse of those that from them have received all their learning in the politics, is not the liberty of particular men, but the liberty of the Commonwealth: which is the same with that which every man then should have, if there were no civil laws nor Commonwealth at all. And the effects of it also be the same. For as amongst masterless men, there is perpetual war of every man against his neighbour; no inheritance to transmit to the son, nor to expect from the father; no propriety of goods or lands; no security; but a full and absolute liberty in every particular man: so in states and Commonwealths not dependent on one another, every Commonwealth, not every man, has an absolute liberty to do what it shall judge, that is to say, what that man or assembly that representeth it shall judge, most conducing to their benefit. But withal, they live in the condition of a perpetual war, and upon the confines of battle, with their frontiers armed, and cannons planted against their neighbours round about. The Athenians and Romans were free; that is, free Commonwealths: not that any particular men had the liberty to resist their own representative, but that their representative had the liberty to resist, or invade, other people. There is written on the turrets of the city of Luca in great characters at this day, the word LIBERTAS; yet no man can thence infer that a particular man has more liberty or immunity from the service of the Commonwealth there than in Constantinople. Whether a Commonwealth be monarchical or popular, the freedom is still the same.
But it is an easy thing for men to be deceived by the specious name of liberty; and, for want of judgement to distinguish, mistake that for their private inheritance and birthright which is the right of the public only. And when the same error is confirmed by the authority of men in reputation for their writings on this subject, it is no wonder if it produce sedition and change of government. In these western parts of the world we are made to receive our opinions concerning the institution and rights of Commonwealths from Aristotle, Cicero, and other men, Greeks and Romans, that, living under popular states, derived those rights, not from the principles of nature, but transcribed them into their books out of the practice of their own Commonwealths, which were popular; as the grammarians describe the rules of language out of the practice of the time; or the rules of poetry out of the poems of Homer and Virgil. And because the Athenians were taught (to keep them from desire of changing their government) that they were freemen, and all that lived under monarchy were slaves; therefore Aristotle puts it down in his Politics "In democracy, liberty is to be supposed: for it is commonly held that no man is free in any other government."* And as Aristotle, so Cicero and other writers have grounded their civil doctrine on the opinions of the Romans, who were taught to hate monarchy: at first, by them that, having deposed their sovereign, shared amongst them the sovereignty of Rome; and afterwards by their successors. And by reading of these Greek and Latin authors, men from their childhood have gotten a habit, under a false show of liberty, of favouring tumults, and of licentious controlling the actions of their sovereigns; and again of controlling those controllers; with the effusion of so much blood, as I think I may truly say there was never anything so dearly bought as these western parts have bought the learning of the Greek and Latin tongues.
- Aristotle, Politics, Bk VI
To come now to the particulars of the true liberty of a subject; that is to say, what are the things which, though commanded by the sovereign, he may nevertheless without injustice refuse to do; we are to consider what rights we pass away when we make a Commonwealth; or, which is all one, what liberty we deny ourselves by owning all the actions, without exception, of the man or assembly we make our sovereign. For in the act of our submission consisteth both our obligation and our liberty; which must therefore be inferred by arguments taken from thence; there being no obligation on any man which ariseth not from some act of his own; for all men equally are by nature free. And because such arguments must either be drawn from the express words, "I authorise all his actions," or from the intention of him that submitteth himself to his power (which intention is to be understood by the end for which he so submitteth), the obligation and liberty of the subject is to be derived either from those words, or others equivalent, or else from the end of the institution of sovereignty; namely, the peace of the subjects within themselves, and their defence against a common enemy.
First therefore, seeing sovereignty by institution is by covenant of every one to every one; and sovereignty by acquisition, by covenants of the vanquished to the victor, or child to the parent; it is manifest that every subject has liberty in all those things the right whereof cannot by covenant be transferred. I have shown before, in the fourteenth Chapter, that covenants not to defend a man's own body are void. Therefore,
If the sovereign command a man, though justly condemned, to kill, wound, or maim himself; or not to resist those that assault him; or to abstain from the use of food, air, medicine, or any other thing without which he cannot live; yet hath that man the liberty to disobey.
If a man be interrogated by the sovereign, or his authority, concerning a crime done by himself, he is not bound (without assurance of pardon) to confess it; because no man, as I have shown in the same chapter, can be obliged by covenant to accuse himself.
Again, the consent of a subject to sovereign power is contained in these words, "I authorise, or take upon me, all his actions"; in which there is no restriction at all of his own former natural liberty: for by allowing him to kill me, I am not bound to kill myself when he commands me. It is one thing to say, "Kill me, or my fellow, if you please"; another thing to say, "I will kill myself, or my fellow." It followeth, therefore, that
No man is bound by the words themselves, either to kill himself or any other man; and consequently, that the obligation a man may sometimes have, upon the command of the sovereign, to execute any dangerous or dishonourable office, dependeth not on the words of our submission, but on the intention; which is to be understood by the end thereof. When therefore our refusal to obey frustrates the end for which the sovereignty was ordained, then there is no liberty to refuse; otherwise, there is.
Upon this ground a man that is commanded as a soldier to fight against the enemy, though his sovereign have right enough to punish his refusal with death, may nevertheless in many cases refuse, without injustice; as when he substituteth a sufficient soldier in his place: for in this case he deserteth not the service of the Commonwealth. And there is allowance to be made for natural timorousness, not only to women (of whom no such dangerous duty is expected), but also to men of feminine courage. When armies fight, there is on one side, or both, a running away; yet when they do it not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonourably. For the same reason, to avoid battle is not injustice, but cowardice. But he that enrolleth himself a soldier, or taketh impressed money, taketh away the excuse of a timorous nature, and is obliged, not only to go to the battle, but also not to run from it without his captain's leave. And when the defence of the Commonwealth requireth at once the help of all that are able to bear arms, every one is obliged; because otherwise the institution of the Commonwealth, which they have not the purpose or courage to preserve, was in vain.
To resist the sword of the Commonwealth in defence of another man, guilty or innocent, no man hath liberty; because such liberty takes away from the sovereign the means of protecting us, and is therefore destructive of the very essence of government. But in case a great many men together have already resisted the sovereign power unjustly, or committed some capital crime for which every one of them expecteth death, whether have they not the liberty then to join together, and assist, and defend one another? Certainly they have: for they but defend their lives, which the guilty man may as well do as the innocent. There was indeed injustice in the first breach of their duty: their bearing of arms subsequent to it, though it be to maintain what they have done, is no new unjust act. And if it be only to defend their persons, it is not unjust at all. But the offer of pardon taketh from them to whom it is offered the plea of self-defence, and maketh their perseverance in assisting or defending the rest unlawful.
As for other liberties, they depend on the silence of the law. In cases where the sovereign has prescribed no rule, there the subject hath the liberty to do, or forbear, according to his own discretion. And therefore such liberty is in some places more, and in some less; and in some times more, in other times less, according as they that have the sovereignty shall think most convenient. As for example, there was a time when in England a man might enter into his own land, and dispossess such as wrongfully possessed it, by force. But in after times that liberty of forcible entry was taken away by a statute made by the king in Parliament. And in some places of the world men have the liberty of many wives: in other places, such liberty is not allowed.
If a subject have a controversy with his sovereign of debt, or of right of possession of lands or goods, or concerning any service required at his hands, or concerning any penalty, corporal or pecuniary, grounded on a precedent law, he hath the same liberty to sue for his right as if it were against a subject, and before such judges as are appointed by the sovereign. For seeing the sovereign demandeth by force of a former law, and not by virtue of his power, he declareth thereby that he requireth no more than shall appear to be due by that law. The suit therefore is not contrary to the will of the sovereign, and consequently the subject hath the liberty to demand the hearing of his cause, and sentence according to that law. But if he demand or take anything by pretence of his power, there lieth, in that case, no action of law: for all that is done by him in virtue of his power is done by the authority of every subject, and consequently, he that brings an action against the sovereign brings it against himself.
If a monarch, or sovereign assembly, grant a liberty to all or any of his subjects, which grant standing, he is disabled to provide for their safety; the grant is void, unless he directly renounce or transfer the sovereignty to another. For in that he might openly (if it had been his will), and in plain terms, have renounced or transferred it and did not, it is to be understood it was not his will, but that the grant proceeded from ignorance of the repugnancy between such a liberty and the sovereign power: and therefore the sovereignty is still retained, and consequently all those powers which are necessary to the exercising thereof; such as are the power of war and peace, of judicature, of appointing officers and counsellors, of levying money, and the rest named in the eighteenth Chapter.
The obligation of subjects to the sovereign is understood to last as long, and no longer, than the power lasteth by which he is able to protect them. For the right men have by nature to protect themselves, when none else can protect them, can by no covenant be relinquished. The sovereignty is the soul of the Commonwealth; which, once departed from the body, the members do no more receive their motion from it. The end of obedience is protection; which, wheresoever a man seeth it, either in his own or in another's sword, nature applieth his obedience to it, and his endeavour to maintain it. And though sovereignty, in the intention of them that make it, be immortal; yet is it in its own nature, not only subject to violent death by foreign war, but also through the ignorance and passions of men it hath in it, from the very institution, many seeds of a natural mortality, by intestine discord.
If a subject be taken prisoner in war, or his person or his means of life be within the guards of the enemy, and hath his life and corporal liberty given him on condition to be subject to the victor, he hath liberty to accept the condition; and, having accepted it, is the subject of him that took him; because he had no other way to preserve himself. The case is the same if he be detained on the same terms in a foreign country. But if a man be held in prison, or bonds, or is not trusted with the liberty of his body, he cannot be understood to be bound by covenant to subjection, and therefore may, if he can, make his escape by any means whatsoever.
If a monarch shall relinquish the sovereignty, both for himself and his heirs, his subjects return to the absolute liberty of nature; because, though nature may declare who are his sons, and who are the nearest of his kin, yet it dependeth on his own will, as hath been said in the precedent chapter, who shall be his heir. If therefore he will have no heir, there is no sovereignty, nor subjection. The case is the same if he die without known kindred, and without declaration of his heir. For then there can no heir be known, and consequently no subjection be due.
If the sovereign banish his subject, during the banishment he is not subject. But he that is sent on a message, or hath leave to travel, is still subject; but it is by contract between sovereigns, not by virtue of the covenant of subjection. For whosoever entereth into another's dominion is subject to all the laws thereof, unless he have a privilege by the amity of the sovereigns, or by special license.
If a monarch subdued by war render himself subject to the victor, his subjects are delivered from their former obligation, and become obliged to the victor. But if he be held prisoner, or have not the liberty of his own body, he is not understood to have given away the right of sovereignty; and therefore his subjects are obliged to yield obedience to the magistrates formerly placed, governing not in their own name, but in his. For, his right remaining, the question is only of the administration; that is to say, of the magistrates and officers; which if he have not means to name, he is supposed to approve those which he himself had formerly appointed.
Chapter XXII: Of Systems Subject Political and Private
Having spoken of the generation, form, and power of a Commonwealth, I am in order to speak next of the parts thereof. And first of systems, which resemble the similar parts or muscles of a body natural. By systems, I understand any numbers of men joined in one interest or one business. Of which some are regular, and some irregular. Regular are those where one man, or assembly of men, is constituted representative of the whole number. All other are irregular. OF regular, some are absolute and independent, subject to none but their own representative: such are only Commonwealths, of which I have spoken already in the five last precedent chapters. Others are dependent; that is to say, subordinate to some sovereign power, to which every one, as also their representative, is subject. OF systems subordinate, some are political, and some private. Political (otherwise called bodies politic and persons in law) are those which are made by authority from the sovereign power of the Commonwealth. Private are those which are constituted by subjects amongst themselves, or by authority from a stranger. For no authority derived from foreign power, within the dominion of another, is public there, but private.
And of private systems, some are lawful; some unlawful: lawful are those which are allowed by the Commonwealth; all other are unlawful. Irregular systems are those which, having no representative, consist only in concourse of people; which if not forbidden by the Commonwealth, nor made on evil design (such as are conflux of people to markets, or shows, or any other harmless end), are lawful. But when the intention is evil, or (if the number be considerable) unknown, they are unlawful.
In bodies politic the power of the representative is always limited: and that which prescribeth the limits thereof is the power sovereign. For power unlimited is absolute sovereignty. And the sovereign, in every Commonwealth, is the absolute representative of all the subjects; and therefore no other can be representative of any part of them, but so far forth as he shall give leave: and to give leave to a body politic of subjects to have an absolute representative, to all intents and purposes, were to abandon the government of so much of the Commonwealth, and to divide the dominion, contrary to their peace and defence, which the sovereign cannot be understood to do, by any grant that does not plainly and directly discharge them of their subjection. For consequences of words are not the signs of his will, when other consequences are signs of the contrary; but rather signs of error and misreckoning, to which all mankind is too prone.
The bounds of that power which is given to the representative of a body politic are to be taken notice of from two things. One is their writ, or letters from the sovereign: the other is the law of the Commonwealth.
For though in the institution or acquisition of a Commonwealth, which is independent, there needs no writing, because the power of the representative has there no other bounds but such as are set out by the unwritten law of nature; yet in subordinate bodies, there are such diversities of limitation necessary, concerning their businesses, times, and places, as can neither be remembered without letters, nor taken notice of, unless such letters be patent, that they may be read to them, and withal sealed, or testified, with the seals or other permanent signs of the authority sovereign.
And because such limitation is not always easy or perhaps possible to be described in writing, the ordinary laws, common to all subjects, must determine what the representative may lawfully do in all cases where the letters themselves are silent. And therefore
In a body politic, if the representative be one man, whatsoever he does in the person of the body which is not warranted in his letters, nor by the laws, is his own act, and not the act of the body, nor of any other member thereof besides himself: because further than his letters or the laws limit, he representeth no man's person, but his own. But what he does according to these is the act of every one: for of the act of the sovereign every one is author, because he is their representative unlimited; and the act of him that recedes not from the letters of the sovereign is the act of the sovereign, and therefore every member of the body is author of it.
But if the representative be an assembly, whatsoever that assembly shall decree, not warranted by their letters or the laws, is the act of the assembly, or body politic, and the act of every one by whose vote the decree was made; but not the act of any man that being present voted to the contrary; nor of any man absent, unless he voted it by procreation. It is the act of the assembly because voted by the major part; and if it be a crime, the assembly may be punished, as far forth as it is capable, as by dissolution, or forfeiture of their letters (which is to such artificial and fictitious bodies, capital) or, if the assembly have a common stock, wherein none of the innocent members have propriety, by pecuniary mulct. For from corporal penalties nature hath bodies politic. But they that gave not their vote are therefore innocent, because the assembly cannot represent any man in things unwarranted by their letters, and consequently are not involved in their votes.
If the person of the body politic, being in one man, borrow money of a stranger, that is, of one that is not of the same body (for no letters need limit borrowing, seeing it is left to men's own inclinations to limit lending), the debt is the representative's. For if he should have authority from his letters to make the members pay what he borroweth, he should have by consequence the sovereignty of them; and therefore the grant were either void, as proceeding from error, commonly incident to human nature, and an insufficient sign of the will of the granter; or if it be avowed by him, then is the representer sovereign, and falleth not under the present question, which is only of bodies subordinate. No member therefore is obliged to pay the debt so borrowed, but the representative himself: because he that lendeth it, being a stranger to the letters, and to the qualification of the body, understandeth those only for his debtors that are engaged; and seeing the representer can engage himself, and none else, has him only debtor, who must therefore pay him, out of the common stock, if there be any, or, if there be none, out of his own estate.
If he come into debt by contract, or mulct, the case is the same.
But when the representative is an assembly, and the debt to a stranger; all they, and only they, are responsible for the debt that gave their votes to the borrowing of it, or to the contract that made it due, or to the fact for which the mulct was imposed; because every one of those in voting did engage himself for the payment: for he that is author of the borrowing is obliged to the payment, even of the whole debt, though when paid by any one, he be discharged.
But if the debt be to one of the assembly, the assembly only is obliged to the payment, out of their common stock, if they have any: for having liberty of vote, if he vote the money shall be borrowed, he votes it shall be paid; if he vote it shall not be borrowed, or be absent, yet because in lending he voteth the borrowing, he contradicteth his former vote, and is obliged by the latter, and becomes both borrower and lender, and consequently cannot demand payment from any particular man, but from the common treasury only; which failing, he hath no remedy, nor complaint but against himself, that being privy to the acts of the assembly, and to their means to pay, and not being enforced, did nevertheless through his own folly lend his money.
It is manifest by this that in bodies politic subordinate, and subject to a sovereign power, it is sometimes not only lawful, but expedient, for a particular man to make open protestation against the decrees of the representative assembly, and cause their dissent to be registered, or to take witness of it; because otherwise they may be obliged to pay debts contracted, and be responsible for crimes committed by other men. But in a sovereign assembly that liberty is taken away, both because he that protesteth there denies their sovereignty, and also because whatsoever is commanded by the sovereign power is as to the subject (though not so always in the sight of God) justified by the command: for of such command every subject is the author.
The variety of bodies is almost infinite: for they are not only distinguished by the several affairs for which they are constituted, wherein there is an unspeakable diversity; but also by the times, places, and numbers, subject to many limitations. And as to their affairs, some are ordained for government; as first, the government of a province may be committed to an assembly of men, wherein all resolutions shall depend on the votes of the major part; and then this assembly is a body politic, and their power limited by commission. This word province signifies a charge or care of business, which he whose it is committeth to another man to be administered for and under him; and therefore when in one Commonwealth there be diverse countries that have their laws distinct one from another, or are far distant in place, the administration of the government being committed to diverse persons, those countries where the sovereign is not resident, but governs by commission, are called provinces. But of the government of a province, by an assembly residing in the province itself, there be few examples. The Romans, who had the sovereignty of many provinces, yet governed them always by presidents and praetors; and not by assemblies, as they governed the city of Rome and territories adjacent. In like manner, when there were colonies sent from England to plant Virginia, and Summer Islands, though the government of them here were committed to assemblies in London, yet did those assemblies never commit the government under them to any assembly there, but did to each plantation send one governor: for though every man, where he can be present by nature, desires to participate of government; yet where they cannot be present, they are by nature also inclined to commit the government of their common interest rather to a monarchical, than a popular, form of government: which is also evident in those men that have great private estates; who, when they are unwilling to take the pains of administering the business that belongs to them, choose rather to trust one servant than an assembly either of their friends or servants. But howsoever it be in fact, yet we may suppose the government of a province or colony committed to an assembly: and when it is, that which in this place I have to say is this: that whatsoever debt is by that assembly contracted, or whatsoever unlawful act is decreed, is the act only of those that assented, and not of any that dissented, or were absent, for the reasons before alleged. Also that an assembly residing out of the bounds of that colony whereof they have the government cannot execute any power over the persons or goods of any of the colony, to seize on them for debt, or other duty, in any place without the colony itself, as having no jurisdiction nor authority elsewhere, but are left to the remedy which the law of the place alloweth them. And though the assembly have right to impose mulct upon any of their members that shall break the laws they make; yet out of the colony itself, they have no right to execute the same. And that which is said here of the rights of an assembly for the government of a province, or a colony, is applicable also to an assembly for the government of a town, a university, or a college, or a church, or for any other government over the persons of men.
And generally, in all bodies politic, if any particular member conceive himself injured by the body itself, the cognizance of his cause belonged to the sovereign, and those the sovereign hath ordained for judges in such causes, or shall ordain for that particular cause; and not to the body itself. For the whole body is in this case his fellow subject, which, in a sovereign assembly, is otherwise: for there, if the sovereign be not judge, though in his own cause, there can be no judge at all.
In a body politic, for the well ordering of foreign traffic, the most commodious representative is an assembly of all the members; that is to say, such a one as every one that adventureth his money may be present at all the deliberations and resolutions of the body, if they will themselves. For proof whereof we are to consider the end for which men that are merchants, and may buy and sell, export and import their merchandise, according to their own discretions, do nevertheless bind themselves up in one corporation. It is true, there be few merchants that with the merchandise they buy at home can freight a ship to export it; or with that they buy abroad, to bring it home; and have therefore need to join together in one society, where every man may either participate of the gain, according to the proportion of his adventure, or take his own, and sell what he transports, or imports, at such prices as he thinks fit. But this is no body politic, there being no common representative to oblige them to any other law than that which is common to all other subjects. The end of their incorporating is to make their gain the greater; which is done two ways: by sole buying, and sole selling, both at home and abroad. So that to grant to a company of merchants to be a corporation, or body politic, is to grant them a double monopoly, whereof one is to be sole buyers; another to be sole sellers. For when there is a company incorporate for any particular foreign country, they only export the commodities vendible in that country; which is sole buying at home, and sole selling abroad. For at home there is but one buyer, and abroad but one that selleth; both which is gainful to the merchant, because thereby they buy at home at lower, and sell abroad at higher, rates: and abroad there is but one buyer of foreign merchandise, and but one that sells them at home, both which again are gainful to the adventurers. OF this double monopoly one part is disadvantageous to the people at home, the other to foreigners. For at home by their sole exportation they set what price they please on the husbandry and handiworks of the people, and by the sole importation, what price they please on all foreign commodities the people have need of, both which are ill for the people. On the contrary, by the sole selling of the native commodities abroad, and sole buying the foreign commodities upon the place, they raise the price of those, and abate the price of these, to the disadvantage of the foreigner: for where but one selleth, the merchandise is the dearer; and where but one buyeth, the cheaper: such corporations therefore are no other than monopolies, though they would be very profitable for a Commonwealth, if, being bound up into one body in foreign markets, they were at liberty at home, every man to buy and sell at what price he could.
The end then of these bodies of merchants, being not a common benefit to the whole body (which have in this case no common stock, but what is deducted out of the particular adventures, for building, buying, victualling and manning of ships), but the particular gain of every adventurer, it is reason that every one be acquainted with the employment of his own; that is, that every one be of the assembly that shall have the power to order the same; and be acquainted with their accounts. And therefore the representative of such a body must be an assembly, where every member of the body may be present at the consultations, if he will.
If a body politic of merchants contract a debt to a stranger by the act of their representative assembly, every member is liable by himself for the whole. For a stranger can take no notice of their private laws, but considereth them as so many particular men, obliged every one to the whole payment, till payment made by one dischargeth all the rest: but if the debt be to one of the company, the creditor is debtor for the whole to himself, and cannot therefore demand his debt, but only from the common stock, if there be any.
If the Commonwealth impose a tax upon the body, it is understood to be laid upon every member proportionably to his particular adventure in the company. For there is in this case no other common stock, but what is made of their particular adventures.
If a mulct be laid upon the body for some unlawful act, they only are liable by whose votes the act was decreed, or by whose assistance it was executed; for in none of the rest is there any other crime but being of the body; which, if a crime, because the body was ordained by the authority of the Commonwealth, is not his.
If one of the members be indebted to the body, he may be sued by the body, but his goods cannot be taken, nor his person imprisoned by the authority of the body; but only by authority of the Commonwealth: for they can do it by their own authority, they can by their own authority give judgement that the debt is due; which is as much as to be judge in their own cause.
These bodies made for the government of men, or of traffic, be either perpetual, or for a time prescribed by writing. But there be bodies also whose times are limited, and that only by the nature of their business. For example, if a sovereign monarch, or a sovereign assembly, shall think fit to give command to the towns and other several parts of their territory to send to him their deputies to inform him of the condition and necessities of the subjects, or to advise with him for the making of good laws, or for any other cause, as with one person representing the whole country, such deputies, having a place and time of meeting assigned them, are there, and at that time, a body politic, representing every subject of that dominion; but it is only for such matters as shall be propounded unto them by that man, or assembly, that by the sovereign authority sent for them; and when it shall be declared that nothing more shall be propounded, nor debated by them, the body is dissolved. For if they were the absolute representative of the people, then were it the sovereign assembly; and so there would be two sovereign assemblies, or two sovereigns, over the same people; which cannot consist with their peace. And therefore where there is once a sovereignty, there can be no absolute representation of the people, but by it. And for the limits of how far such a body shall represent the whole people, they are set forth in the writing by which they were sent for. For the people cannot choose their deputies to other intent than is in the writing directed to them from their sovereign expressed.
Private bodies regular and lawful are those that are constituted without letters, or other written authority, saving the laws common to all other subjects. And because they be united in one person representative, they are held for regular; such as are all families, in which the father or master ordereth the whole family. For he obligeth his children, and servants, as far as the law permitteth, though not further, because none of them are bound to obedience in those actions which the law hath forbidden to be done. In all other actions, during the time they are under domestic government, they are subject to their fathers and masters, as to their immediate sovereigns. For the father and master being before the institution of Commonwealth absolute sovereigns in their own families, they lose afterward no more of their authority than the law of the Commonwealth taketh from them.
Private bodies regular, but unlawful, are those that unite themselves into one person representative, without any public authority at all; such as are the corporations of beggars, thieves and gipsies, the better to order their trade of begging and stealing; and the corporations of men that by authority from any foreign person themselves in another's dominion, for the easier propagation of doctrines, and for making a party against the power of the Commonwealth.
Irregular systems, in their nature but leagues, or sometimes mere concourse of people without union to any particular design, not by obligation of one to another, but proceeding only from a similitude of wills and inclinations, become lawful, or unlawful, according to the lawfulness, or unlawfulness, of every particular man's design therein: and his design is to be understood by the occasion.
The leagues of subjects, because leagues are commonly made for mutual defence, are in a Commonwealth (which is no more than a league of all the subjects together) for the most part unnecessary, and savour of unlawful design; and are for that cause unlawful, and go commonly by the name of factions, or conspiracies. For a league being a connexion of men by covenants, if there be no power given to any one man or assembly (as in the condition of mere nature) to compel them to performance, is so long only valid as there ariseth no just cause of distrust: and therefore leagues between Commonwealths, over whom there is no human power established to keep them all in awe, are not only lawful, but also profitable for the time they last. But leagues of the subjects of one and the same Commonwealth, where every one may obtain his right by means of the sovereign power, are unnecessary to the maintaining of peace and justice, and, in case the design of them be evil or unknown to the Commonwealth, unlawful. For all uniting of strength by private men is, if for evil intent, unjust; if for intent unknown, dangerous to the public, and unjustly concealed.
If the sovereign power be in a great assembly, and a number of men, part of the assembly, without authority consult a part to contrive the guidance of the rest, this is a faction, or conspiracy unlawful, as being a fraudulent seducing of the assembly for their particular interest. But if he whose private interest is to be debated and judged in the assembly make as many friends as he can, in him it is no injustice, because in this case he is no part of the assembly. And though he hire such friends with money, unless there be an express law against it, yet it is not injustice. For sometimes, as men's manners are, justice cannot be had without money, and every man may think his own cause just till it be heard and judged.
In all Commonwealths, if a private man entertain more servants than the government of his estate and lawful employment he has for them requires, it is faction, and unlawful. For having the protection of the Commonwealth, he needeth not the defence of private force. And whereas in nations not thoroughly civilized, several numerous families have lived in continual hostility and invaded one another with private force, yet it is evident enough that they have done unjustly, or else that they had no Commonwealth.
And as factions for kindred, so also factions for government of religion, as of Papists, Protestants, etc., or of state, as patricians and plebeians of old time in Rome, and of aristocraticals and democraticals of old time in Greece, are unjust, as being contrary to the peace and safety of the people, and a taking of the sword out of the hand of the sovereign.
Concourse of people is an irregular system, the lawfulness or unlawfulness whereof dependeth on the occasion, and on the number of them that are assembled. If the occasion be lawful, and manifest, the concourse is lawful; as the usual meeting of men at church, or at a public show, in usual numbers: for if the numbers be extraordinarily great, the occasion is not evident; and consequently he that cannot render a particular and good account of his being amongst them is to be judged conscious of an unlawful and tumultuous design. It may be lawful for a thousand men to join in a petition to be delivered to a judge or magistrate; yet if a thousand men come to present it, it is a tumultuous assembly, because there needs but one or two for that purpose. But in such cases as these, it is not a set number that makes the assembly unlawful, but such a number as the present officers are not able to suppress and bring to justice.
When an unusual number of men assemble against a man whom they accuse, the assembly is an unlawful tumult; because they may deliver their accusation to the magistrate by a few, or by one man. Such was the case of St. Paul at Ephesus; where Demetrius, and a great number of other men, brought two of Paul's companions before the magistrate, saying with one voice, "Great is Diana of the Ephesians"; which was their way of demanding justice against them for teaching the people such doctrine as was against their religion and trade. The occasion here, considering the laws of that people, was just; yet was their assembly judged unlawful, and the magistrate reprehended them for it, in these words, "If Demetrius and the other workmen can accuse any man of any thing, there be pleas, and deputies; let them accuse one another. And if you have any other thing to demand, your case may be judged in an assembly lawfully called. For we are in danger to be accused for this day's sedition, because there is no cause by which any man can render any reason of this concourse of people."* Where he calleth an assembly whereof men can give no just account, a sedition, and such as they could not answer for. And this is all I shall say concerning systems, and assemblies of people, which may be compared, as I said, to the similar parts of man's body: such as be lawful, to the muscles; such as are unlawful, to wens, biles, and apostems, engendered by the unnatural conflux of evil humours.
- Acts, 19. 40
Chapter XXIII: Of the Public Ministers of Sovereign Power
In the last chapter I have spoken of the similar parts of a Commonwealth: in this I shall speak of the parts organical, which are public ministers.
A public minister is he that by the sovereign, whether a monarch or an assembly, is employed in any affairs, with authority to represent in that employment the person of the Commonwealth. And whereas every man or assembly that hath sovereignty representeth two persons, or, as the more common phrase is, has two capacities, one natural and another politic; as a monarch hath the person not only of the Commonwealth, but also of a man, and a sovereign assembly hath the person not only of the Commonwealth, but also of the assembly: they that be servants to them in their natural capacity are not public ministers; but those only that serve them in the administration of the public business. And therefore neither ushers, nor sergeants, nor other officers that wait on the assembly for no other purpose but for the commodity of the men assembled, in an aristocracy or democracy; nor stewards, chamberlains, cofferers, or any other officers of the household of a monarch, are public ministers in a monarchy. OF public ministers, some have charge committed to them of a general administration, either of the whole dominion or of a part thereof. Of the whole, as to a protector, or regent, may be committed by the predecessor of an infant king, during his minority, the whole administration of his kingdom. In which case, every subject is so far obliged to obedience as the ordinances he shall make, and the commands he shall give, be in the king's name, and not inconsistent with his sovereign power. Of a part, or province; as when either a monarch or a sovereign assembly shall give the general charge thereof to a governor, lieutenant, prefect or viceroy: and in this case also, every one of that province is obliged to all he shall do in the name of the sovereign, and that not incompatible with the sovereign's right. For such protectors, viceroys, and governors have no other right but what depends on the sovereigns will; and no commission that can be given them can be interpreted for a declaration of the will to transfer the sovereignty, without express and perspicuous words to that purpose. And this kind of public ministers resembleth the nerves and tendons that move the several limbs of a body natural.
Others have special administration; that is to say, charges of some special business, either at home or abroad: as at home, first, for the economy of a Commonwealth, they that have authority concerning the treasury, as tributes, impositions, rents, fines, or whatsoever public revenue, to collect, receive, issue, or take the accounts thereof, are public ministers: ministers, because they serve the person representative, and can do nothing against his command, nor without his authority; public, because they serve him in his political capacity.
Secondly, they that have authority concerning the militia; to have the custody of arms, forts, ports; to levy, pay, or conduct soldiers; or to provide for any necessary thing for the use of war, either by land or sea, are public ministers. But a soldier without command, though he fight for the Commonwealth, does not therefore represent the person of it; because there is none to represent it to. For every one that hath command represents it to them only whom he commandeth.
They also that have authority to teach, or to enable others to teach the people their duty to the sovereign power, and instruct them in the knowledge of what is just and unjust, thereby to render them more apt to live in godliness and in peace amongst themselves, and resist the public enemy, are public ministers: ministers, in that they do it not by their own authority, but by another's; and public, because they do it, or should do it, by no authority but that of the sovereign. The monarch or the sovereign assembly only hath immediate authority from God to teach and instruct the people; and no man but the sovereign receiveth his power Dei gratia simply; that is to say, from the favour of none but God: all other receive theirs from the favour and providence of God and their sovereigns; as in a monarchy Dei gratia et regis; or Dei providentia et voluntate regis.
They also to whom jurisdiction is given are public ministers. For in their seats of justice they represent the person of the sovereign; and their sentence is his sentence; for, as hath been before declared, all judicature is essentially annexed to the sovereignty; and therefore all other judges are but ministers of him or them that have the sovereign power. And as controversies are of two sorts, namely of fact and of law; so are judgements, some of fact, some of law: and consequently in the same controversy, there may be two judges, one of fact, another of law.
And in both these controversies, there may arise a controversy between the party judged and the judge; which, because they be both subjects to the sovereign, ought in equity to be judged by men agreed on by consent of both; for no man can be judge in his own cause. But the sovereign is already agreed on for judged by them both, and is therefore either to hear the cause, and determine it himself, or appoint for judge such as they shall both agree on. And this agreement is then understood to be made between them diverse ways; as first, if the defendant be allowed to except against such of his judges whose interest maketh him suspect them (for as to the complainant, he hath already chosen his own judge); those which he excepteth not against are judges he himself agrees on. Secondly, if he appeal to any other judge, he can appeal no further; for his appeal is his choice. Thirdly, if he appeal to the sovereign himself, and he by himself, or by delegates which the parties shall agree on, give sentence; that sentence is final: for the defendant is judged by his own judges, that is to say, by himself.
These properties of just and rational judicature considered, I cannot forbear to observe the excellent constitution of the courts of justice established both for common and also for public pleas in England. By common pleas, I mean those where both the complainant and defendant are subjects: and by public (which are also called pleas of the crown) those where the complainant is the sovereign. For whereas there were two orders of men, whereof one was lords, the other commons, the lords had this privilege, to have for judges in all capital crimes none but lords; and of them, as many as would be present; which being ever acknowledged as a privilege of favour, their judges were none but such as they had themselves desired. And in all controversies, every subject (as also in civil controversies the lords) had for judges men of the country where the matter in controversy lay; against which he might make his exceptions, till at last twelve men without exception being agreed on, they were judged by those twelve. So that having his own judges, there could be nothing alleged by the party why the sentence should not be final. These public persons, with authority from the sovereign power, either to instruct or judge the people, are such members of the Commonwealth as may fitly be compared to the organs of voice in a body natural.
Public ministers are also all those that have authority from the sovereign to procure the execution of judgements given; to publish the sovereigns commands; to suppress tumults; to apprehend and imprison malefactors; and other acts tending to the conservation of the peace. For every act they do by such authority is the act of the Commonwealth; and their service answerable to that of the hands in a body natural.
Public ministers abroad are those that represent the person of their own sovereign to foreign states. Such are ambassadors, messengers, agents, and heralds, sent by public authority, and on public business.
But such as are sent by authority only of some private party of a troubled state, though they be received, are neither public nor private ministers of the Commonwealth, because none of their actions have the Commonwealth for author. Likewise, an ambassador sent from a prince to congratulate, condole, or to assist at a solemnity; though the authority be public, yet because the business is private, and belonging to him in his natural capacity, is a private person. Also if a man be sent into another country, secretly to explore their counsels and strength; though both the authority and the business be public, yet because there is none to take notice of any person in him, but his own, he is but a private minister; but yet a minister of the Commonwealth; and may be compared to an eye in the body natural. And those that are appointed to receive the petitions or other informations of the people, and are, as it were, the public ear, are public ministers and represent their sovereign in that office.
Neither a counsellor, nor a council of state, if we consider with no authority judicature or command, but only of giving advice to the sovereign when it is required, or of offering it when it is not required, is a public person. For the advice is addressed to the sovereign only, whose person cannot in his own presence be represented to him by another. But a body of counsellors are never without some other authority, either of judicature or of immediate administration: as in a monarchy, they represent the monarch in delivering his commands to the public ministers: in a democracy, the council or senate propounds the result of their deliberations to the people, as a council; but when they appoint judges, or hear causes, or give audience to ambassadors, it is in the quality of a minister of the people: and in an aristocracy the council of state is the sovereign assembly itself, and gives counsel to none but themselves.
Chapter XXIV: Of the Nutrition and Procreation of a Commonwealth
The nutrition of a Commonwealth consisteth in the plenty and distribution of materials conducing to life: in concoction or preparation, and, when concocted, in the conveyance of it by convenient conduits to the public use.
As for the plenty of matter, it is a thing limited by nature to those commodities which, from the two breasts of our common mother, land and sea, God usually either freely giveth or for labour selleth to mankind.
For the matter of this nutriment consisting in animals, vegetables, and minerals, God hath freely laid them before us, in or near to the face of the earth, so as there needeth no more but the labour and industry of receiving them. Insomuch as plenty dependeth, next to God's favour, merely on the labour and industry of men.
This matter, commonly called commodities, is partly native and partly foreign: native, that which is to be had within the territory of the Commonwealth; foreign, that which is imported from without. And because there is no territory under the dominion of one Commonwealth, except it be of very vast extent, that produceth all things needful for the maintenance and motion of the whole body; and few that produce not something more than necessary; the superfluous commodities to be had within become no more superfluous, but supply these wants at home, by importation of that which may be had abroad, either by exchange, or by just war, or by labour: for a man's labour also is a commodity exchangeable for benefit, as well as any other thing: and there have been Commonwealths that, having no more territory than hath served them for habitation, have nevertheless not only maintained, but also increased their power, partly by the labour of trading from one place to another, and partly by selling the manufactures, whereof the materials were brought in from other places.
The distribution of the materials of this nourishment is the constitution of mine, and thine, and his; that is to say, in one word, propriety; and belonged in all kinds of Commonwealth to the sovereign power. For where there is no Commonwealth, there is, as hath been already shown, a perpetual war of every man against his neighbour; and therefore everything is his that getteth it and keepeth it by force; which is neither propriety nor community, but uncertainty. Which is so evident that even Cicero, a passionate defender of liberty, in a public pleading attributeth all propriety to the law civil: "Let the civil law," saith he, "be once abandoned, or but negligently guarded, not to say oppressed, and there is nothing that any man can be sure to receive from his ancestor, or leave to his children." And again: "Take away the civil law, and no man knows what is his own, and what another man's." Seeing therefore the introduction of propriety is an effect of Commonwealth, which can do nothing but by the person that represents it, it is the act only of the sovereign; and consisteth in the laws, which none can make that have not the sovereign power. And this they well knew of old, who called that Nomos (that is to say, distribution), which we call law; and defined justice by distributing to every man his own.
In this distribution, the first law is for division of the land itself: wherein the sovereign assigneth to every man a portion, according as he, and not according as any subject, or any number of them, shall judge agreeable to equity and the common good. The children of Israel were a Commonwealth in the wilderness; but wanted the commodities of the earth till they were masters of the Land of Promise; which afterward was divided amongst them, not by their own discretion, but by the discretion of Eleazar the priest, and Joshua their general: who when there were twelve tribes, making them thirteen by subdivision of the tribe of Joseph, made nevertheless but twelve portions of the land, and ordained for the tribe of Levi no land, but assigned them the tenth part of the whole fruits; which division was therefore arbitrary. And though a people coming into possession of a land by war do not always exterminate the ancient inhabitants, as did the Jews, but leave to many, or most, or all of them their estates; yet it is manifest they hold them afterwards, as of the victor's distribution; as the people of England held all theirs of William the Conqueror.
From whence we may collect that the propriety which a subject hath in his lands consisteth in a right to exclude all other subjects from the use of them; and not to exclude their sovereign, be it an assembly or a monarch. For seeing the sovereign, that is to say, the Commonwealth (whose person he representeth), is understood to do nothing but in order to the common peace and security, this distribution of lands is to be understood as done in order to the same: and consequently, whatsoever distribution he shall make in prejudice thereof is contrary to the will of every subject that committed his peace and safety to his discretion and conscience, and therefore by the will of every one of them is to be reputed void. It is true that a sovereign monarch, or the greater part of a sovereign assembly, may ordain the doing of many things in pursuit of their passions, contrary to their own consciences, which is a breach of trust and of the law of nature; but this is not enough to authorize any subject, either to make war upon, or so much as to accuse of injustice, or any way to speak evil of their sovereign; because they have authorized all his actions, and, in bestowing the sovereign power, made them their own. But in what cases the commands of sovereigns are contrary to equity and the law of nature is to be considered hereafter in another place.
In the distribution of land, the Commonwealth itself may be conceived to have a portion, and possess and improve the same by their representative; and that such portion may be made sufficient to sustain the whole expense to the common peace and defence necessarily required: which were very true, if there could be any representative conceived free from human passions and infirmities. But the nature of men being as it is, the setting forth of public land, or of any certain revenue for the Commonwealth, is in vain, and tendeth to the dissolution of government, to the condition of mere nature, and war, as soon as ever the sovereign power falleth into the hands of a monarch, or of an assembly, that are either too negligent of money or too hazardous in engaging the public stock into long or costly war. Commonwealths can endure no diet: for seeing their expense is not limited by their own appetite but by external accidents, and the appetites of their neighbours, the public riches cannot be limited by other limits than those which the emergent occasions shall require. And whereas in England, there were by the Conqueror diverse lands reserved to his own use (besides forests and chases, either for his recreation or for preservation of woods), and diverse services reserved on the land he gave his subjects; yet it seems they were not reserved for his maintenance in his public, but in his natural capacity: for he and his successors did, for all that, lay arbitrary taxes on all subjects' land when they judged it necessary. Or if those public lands and services were ordained as a sufficient maintenance of the Commonwealth, it was contrary to the scope of the institution, being (as it appeared by those ensuing taxes) insufficient and (as it appears by the late small revenue of the Crown) subject to alienation and diminution. It is therefore in vain to assign a portion to the Commonwealth, which may sell or give it away, and does sell and give it away when it is done by their representative.
As the distribution of lands at home, so also to assign in what places, and for what commodities, the subject shall traffic abroad belonged to the sovereign. For if it did belong to private persons to use their own discretion therein, some of them would be drawn for gain, both to furnish the enemy with means to hurt the Commonwealth, and hurt it themselves by importing such things as, pleasing men's appetites, be nevertheless noxious, or at least unprofitable to them. And therefore it belonged to the Commonwealth (that is, to the sovereign only) to approve or disapprove both of the places and matter of foreign traffic.
Further, seeing it is not enough to the sustentation of a Commonwealth that every man have a propriety in a portion of land, or in some few commodities, or a natural property in some useful art, and there is no art in the world but is necessary either for the being or well-being almost of every particular man; it is necessary that men distribute that which they can spare, and transfer their propriety therein mutually one to another by exchange and mutual contract. And therefore it belonged to the Commonwealth (that is to say, to the sovereign) to appoint in what manner all kinds of contract between subjects (as buying, selling, exchanging, borrowing, lending, letting, and taking to hire) are to be made, and by what words and words and sign they shall be understood for valid. And for the matter and distribution of the nourishment to the several members of the Commonwealth, thus much, considering the model of the whole work, is sufficient.
By concoction, I understand the reducing of all commodities which are not presently consumed, but reserved for nourishment in time to come, to something of equal value, and withal so portable as not to hinder the motion of men from place to place; to the end a man may have in what place soever such nourishment as the place affordeth. And this is nothing else but gold, and silver, and money. For gold and silver, being, as it happens, almost in all countries of the world highly valued, is a commodious measure of the value of all things else between nations; and money, of what matter soever coined by the sovereign of a Commonwealth, is a sufficient measure of the value of all things else between the subjects of that Commonwealth. By the means of which measures all commodities, movable and immovable, are made to accompany a man to all places of his resort, within and without the place of his ordinary residence; and the same passeth from man to man within the Commonwealth, and goes round about, nourishing, as it passeth, every part thereof; in so much as this concoction is, as it were, the sanguification of the Commonwealth: for natural blood is in like manner made of the fruits of the earth; and, circulating, nourisheth by the way every member of the body of man.
And because silver and gold have their value from the matter itself, they have first this privilege; that the value of them cannot be altered by the power of one nor of a few Commonwealths; as being a common measure of the commodities of all places. But base money may easily be enhanced or abased. Secondly, they have the privilege to make Commonwealths move and stretch out their arms, when need is, into foreign countries; and supply, not only private subjects that travel, but also whole armies with provision. But that coin, which is not considerable for the matter, but for the stamp of the place, being unable to endure change of air, hath its effect at home only; where also it is subject to the change of laws, and thereby to have the value diminished, to the prejudice many times of those that have it.
The conduits and ways by which it is conveyed to the public use are of two sorts: one, that conveyeth it to the public coffers; the other, that issueth the same out again for public payments. Of the first sort are collectors, receivers, and treasurers; of the second are the treasurers again, and the officers appointed for payment of several public or private ministers. And in this also the artificial man maintains his resemblance with the natural; whose veins, receiving the blood from the several parts of the body, carry it to the heart; where, being made vital, the heart by the arteries sends it out again, to enliven and enable for motion all the members of the same.
The procreation or children of a Commonwealth are those we call plantations, or colonies; which are numbers of men sent out from the Commonwealth, under a conductor or governor, to inhabit a foreign country, either formerly void of inhabitants, or made void then by war. And when a colony is settled, they are either a Commonwealth of themselves, discharged of their subjection to their sovereign that sent them (as hath been done by many Commonwealths of ancient time), in which case the Commonwealth from which they went was called their metropolis, or mother, and requires no more of them than fathers require of the children whom they emancipate and make free from their domestic government, which is honour and friendship; or else they remain united to their metropolis, as were the colonies of the people of Rome; and then they are no Commonwealths themselves, but provinces, and parts of the Commonwealth that sent them. So that the right of colonies, saving honour and league with their metropolis, dependeth wholly on their license, or letters, by which their sovereign authorized them to plant.
Chapter XXV: Of Counsel
How fallacious it is to judge of the nature of things by the ordinary and inconstant use of words appeareth in nothing more than in the confusion of counsels and commands, arising from the imperative manner of speaking in them both, and in many other occasions besides. For the words do this are the words not only of him that commandeth; but also of him that giveth counsel; and of him that exhorteth; and yet there are but few that see not that these are very different things; or that cannot distinguish between them when they perceive who it is that speaketh, and to whom the speech is directed, and upon what occasion. But finding those phrases in men's writings, and being not able or not willing to enter into a consideration of the circumstances, they mistake sometimes the precepts of counsellors for the precepts of them that command; and sometimes the contrary; according as it best agreeth with the conclusions they would infer, or the actions they approve. To avoid which mistakes and render to those terms of commanding, counselling, and exhorting, their proper and distinct significations, I define them thus.
Command is where a man saith, "Do this," or "Do not this," without expecting other reason than the will of him that says it. From this it followeth manifestly that he that commandeth pretendeth thereby his own benefit: for the reason of his command is his own will only, and the proper object of every man's will is some good to himself.
Counsel is where a man saith, "Do," or "Do not this," and deduceth his reasons from the benefit that arriveth by it to him to whom he saith it. And from this it is evident that he that giveth counsel pretendeth only (whatsoever he intendeth) the good of him to whom he giveth it.
Therefore between counsel and command, one great difference is that command is directed to a man's own benefit, and counsel to the benefit of another man. And from this ariseth another difference, that a man may be obliged to do what he is commanded; as when he hath covenanted to obey: but he cannot be obliged to do as he is counselled, because the hurt of not following it is his own; or if he should covenant to follow it, then is the counsel turned into the nature of a command. A third difference between them is that no man can pretend a right to be of another man's counsel; because he is not to pretend benefit by it to himself: but to demand right to counsel another argues a will to know his designs, or to gain some other good to himself; which, as I said before, is of every man's will the proper object.
This also is incident to the nature of counsel; that whatsoever it be, he that asketh it cannot in equity accuse or punish it: for to ask counsel of another is to permit him to give such counsel as he shall think best; and consequently, he that giveth counsel to his sovereign (whether a monarch or an assembly) when he asketh it, cannot in equity be punished for it, whether the same be conformable to the opinion of the most, or not, so it be to the proposition in debate. For if the sense of the assembly can be taken notice of, before the debate be ended, they should neither ask nor take any further counsel; for sense of the assembly is the resolution of the debate and end of all deliberation. And generally he that demandeth counsel is author of it, and therefore cannot punish it; and what the sovereign cannot, no man else can. But if one subject giveth counsel to another to do anything contrary to the laws, whether that counsel proceed from evil intention or from ignorance only, it is punishable by the Commonwealth; because ignorance of the law is no good excuse, where every man is bound to take notice of the laws to which he is subject.
Exhortation, and dehortation is counsel, accompanied with signs in him that giveth it of vehement desire to have it followed; or, to say it more briefly, counsel vehemently pressed. For he that exhorteth doth not deduce the consequences of what he adviseth to be done, and tie himself therein to the rigor of true reasoning, but encourages him he counselleth to action: as he that dehorteth deterreth him from it. And therefore they have in their speeches a regard to the common passions and opinions of men, in deducing their reasons; and make use of similitudes, metaphors, examples, and other tools of oratory, to persuade their hearers of the utility, honour, or justice of following their advice.
From whence may be inferred, first, that exhortation and dehortation is directed to the good of him that giveth the counsel, not of him that asketh it, which is contrary to the duty of a counsellor; who, by the definition of counsel, ought to regard, not his own benefit, but his whom he adviseth. And that he directeth his counsel to his own benefit is manifest enough by the long and vehement urging, or by the artificial giving thereof; which being not required of him, and consequently proceeding from his own occasions, is directed principally to his own benefit, and but accidentally to the good of him that is counselled, or not at all.
Secondly, that the use of exhortation and dehortation lieth only where a man is to speak to a multitude, because when the speech is addressed to one, he may interrupt him and examine his reasons more rigorously than can be done in a multitude; which are too many to enter into dispute and dialogue with him that speaketh indifferently to them all at once.
Thirdly, that they that exhort and dehort, where they are required to give counsel, are corrupt counsellors and, as it were, bribed by their own interest. For though the counsel they give be never so good, yet he that gives it is no more a good counsellor than he that giveth a just sentence for a reward is a just judge. But where a man may lawfully command, as a father in his family, or a leader in an army, his exhortations and dehortations are not only lawful, but also necessary and laudable: but then they are no more counsels, but commands; which when they are for execution of sour labour, sometimes necessity, and always humanity, requireth to be sweetened in the delivery by encouragement, and in the tune and phrase of counsel rather than in harsher language of command.
Examples of the difference between command and counsel we may take from the forms of speech that express them in Holy Scripture. "Have no other Gods but me"; "Make to thyself no graven image"; "Take not God's name in vain"; "Sanctify the Sabbath"; "Honour thy parents"; "Kill not"; "Steal not," etc. are commands, because the reason for which we are to obey them is drawn from the will of God our King, whom we are obliged to obey. But these words, "Sell all thou hast; give it to the poor; and follow me," are counsel, because the reason for which we are to do so is drawn from our own benefit, which is this; that we shall have "treasure in Heaven." These words, "Go into the village over against you, and you shall find an ass tied, and her colt; loose her, and bring her to me," are a command; for the reason of their fact is drawn from the will of their master: but these words, "Repent, and be baptized in the name of Jesus," are counsel; because the reason why we should so do tendeth not to any benefit of God Almighty, who shall still be King in what manner soever we rebel, but of ourselves, who have no other means of avoiding the punishment hanging over us for our sins.
As the difference of counsel from command hath been now deduced from the nature of counsel, consisting in a deducing of the benefit or hurt that may arise to him that is to be to be counselled, by the necessary or probable consequences of the action he propoundeth; so may also the differences between apt and inept counsellors be derived from the same. For experience, being but memory of the consequences of like actions formerly observed, and counsel but the speech whereby that experience is made known to another, the virtues and defects of counsel are the same with the virtues and defects intellectual: and to the person of a Commonwealth, his counsellors serve him in the place of memory and mental discourse. But with this resemblance of the Commonwealth to a natural man, there is one dissimilitude joined, of great importance; which is that a natural man receiveth his experience from the natural objects of sense, which work upon him without passion or interest of their own; whereas they that give counsel to the representative person of a Commonwealth may have, and have often, their particular ends and passions that render their counsels always suspected, and many times unfaithful. And therefore we may set down for the first condition of a good counsellor: that his ends and interest be not inconsistent with the ends and interest of him he counselleth.
Secondly, because the office of a counsellor, when an action comes into deliberation, is to make manifest the consequences of it in such manner as he that is counselled may be truly and evidently informed, he ought to propound his advice in such form of speech as may make the truth most evidently appear; that is to say, with as firm ratiocination, as significant and proper language, and as briefly, as the evidence will permit. And therefore rash and unevident inferences, such as are fetched only from examples, or authority of books, and are not arguments of what is good or evil, but witnesses of fact or of opinion; obscure, confused, and ambiguous expressions; also all metaphorical speeches tending to the stirring up of passion (because such reasoning and such expressions are useful only to deceive or to lead him we counsel towards other ends than his own), are repugnant to the office of a counsellor.
Thirdly, because the ability of counselling proceedeth from experience and long study, and no man is presumed to have experience in all those things that to the administration of a great Commonwealth are necessary to be known, no man is presumed to be a good counsellor but in such business as he hath not only been much versed in, but hath also much meditated on and considered. For seeing the business of a Commonwealth is this; to preserve the people in peace at home, and defend them against foreign invasion; we shall find it requires great knowledge of the disposition of mankind, of the rights of government, and of the nature of equity, law, justice, and honour, not to be attained without study; and of the strength, commodities, places, both of their own country and their neighbours'; as also of the inclinations and designs of all nations that may any way annoy them. And this is not attained to without much experience. Of which things, not only the whole sum, but every one of the particulars requires the age and observation of a man in years, and of more than ordinary study. The wit required for counsel, as I have said before (Chapter VIII), is judgement. And the differences of men in that point come from different education; of some, to one kind of study or business, and of others, to another. When for the doing of anything there be infallible rules (as in engines and edifices, the rules of geometry), all the experience of the world cannot equal his counsel that has learned or found out the rule. And when there is no such rule, he that hath most experience in that particular kind of business has therein the best judgement, and is the best counsellor.
Fourthly, to be able to give counsel to a Commonwealth, in a business that hath reference to another Commonwealth, it is necessary to be acquainted with the intelligences and letters that come from thence, and with all the records of treaties and other transactions of state between them; which none can do but such as the representative shall think fit. By which we may see that they who are not called to counsel can have no good counsel in such cases to obtrude.
Fifthly, supposing the number of counsellors equal, a man is better counselled by hearing them apart than in an assembly; and that for many causes. First, in hearing them apart, you have the advice of every man; but in an assembly many of them deliver their advice with aye or no, or with their hands or feet, not moved by their own sense, but by the eloquence of another, or for fear of displeasing some that have spoken, or the whole by contradiction, or for fear of appearing duller in apprehension than those that have applauded the contrary opinion. Secondly, in an assembly of many there cannot choose but be some interests are contrary to that of the public; and these their interests make passionate, and passion eloquent, and eloquence draws others into the same advice. For the passions of men, which asunder are moderate, as the heat of one brand; in assembly are like many brands that inflame one another (especially when they blow one another with orations) to the setting of the Commonwealth on fire, under pretence of counselling it. Thirdly, in hearing every man apart, one may examine, when there is need, the truth or probability of his reasons, and of the grounds of the advice he gives, by frequent interruptions and objections; which cannot be done in an assembly, where in every difficult question a man is rather astonied and dazzled with the variety of discourse upon it, than informed of the course he ought to take. Besides, there cannot be an assembly of many, called together for advice, wherein there be not some that have the ambition to be thought eloquent, and also learned in the politics; and give not their advice with care of the business propounded, but of the applause of their motley orations, made of the diverse colored threads or shreds of thread or shreds of authors; which is an impertinence, at least, that takes away the time of serious consultation, and in the secret way of counselling apart is easily avoided. Fourthly, in deliberations that ought to be kept secret, whereof there be many occasions in public business, the counsels of many, and especially in assemblies, are dangerous; and therefore great assemblies are necessitated to commit such affairs to lesser numbers, and of such persons as are most versed, and in whose fidelity they have most confidence.
To conclude, who is there that so far approves the taking of counsel from a great assembly of counsellors, that wisheth for, or would accept of their pains, when there is a question of marrying his children, disposing of his lands, governing his household, or managing his private estate, especially if there be amongst them such as wish not his prosperity? A man that doth his business by the help of many prudent counsellors, with every one consulting apart in his proper element, does it best; as he that useth able seconds at tennis play, placed in their proper stations. He does next best that useth his own judgement only; as he that has no second at all. But he that is carried up and down to his business in a framed counsel, which cannot move but by the plurality of consenting opinions, the execution whereof is commonly, out of envy or interest, retarded by the part dissenting, does it worst of all, and like one that is carried to the ball, though by good players, yet in a wheelbarrow, or other frame, heavy of itself, and retarded also by the inconcurrent judgements and endeavours of them that drive it; and so much the more, as they be more that set their hands to it; and most of all, when there is one or more amongst them that desire to have him lose. And though it be true that many eyes see more than one, yet it is not to be understood of many counsellors, but then only when the final resolution is in one man. Otherwise, because many eyes see the same thing in diverse lines, and are apt to look asquint towards their private benefit; they that desire not to miss their mark, though they look about with two eyes, yet they never aim but with one: and therefore no great popular Commonwealth was ever kept up, but either by a foreign enemy that united them; or by the reputation of some one eminent man amongst them; or by the secret counsel of a few; or by the mutual fear of equal factions; and not by the open consultations of the assembly. And as for very little Commonwealths, be they popular or monarchical, there is no human wisdom can uphold them longer than the jealousy lasteth of their potent neighbours.
Chapter XXVI: Of Civil Laws
By civil laws, I understand the laws that men are therefore bound to observe, because they are members, not of this or that Commonwealth in particular, but of a Commonwealth. For the knowledge of particular laws belongeth to them that profess the study of the laws of their several countries; but the knowledge of civil law in general, to any man. The ancient law of Rome was called their civil law, from the word civitas, which signifies a Commonwealth: and those countries which, having been under the Roman Empire and governed by that law, retain still such part thereof as they think fit, call that part the civil law to distinguish it from the rest of their own civil laws. But that is not it I intend to speak of here; my design being not to show what is law here and there, but what is law; as Plato, Aristotle, Cicero, and diverse others have done, without taking upon them the profession of the study of the law.
And first it is manifest that law in general is not counsel, but command; nor a command of any man to any man, but only of him whose command is addressed to one formerly obliged to obey him. And as for civil law, it addeth only the name of the person commanding, which is persona civitatis, the person of the Commonwealth.
Which considered, I define civil law in this manner. Civil law is to every subject those rules which the Commonwealth hath commanded him, by word, writing, or other sufficient sign of the will, to make use of for the distinction of right and wrong; that is to say, of that is contrary and what is not contrary to the rule.
In which definition there is nothing that is that is not at first sight evident. For every man seeth that some laws are addressed to all the subjects in general; some to particular provinces; some to particular vocations; and some to particular men; and are therefore laws to every of those to whom the command is directed, and to none else. As also, that laws are the rules of just and unjust, nothing being reputed unjust that is not contrary to some law. Likewise, that none can make laws but the Commonwealth, because our subjection is to the Commonwealth only; and that commands are to be signified by sufficient signs, because a man knows not otherwise how to obey them. And therefore, whatsoever can from this definition by necessary consequence be deduced, ought to be acknowledged for truth. Now I deduce from it this that followeth.
1. The legislator in all Commonwealths is only the sovereign, be he one man, as in a monarchy, or one assembly of men, as in a democracy or aristocracy. For the legislator is he that maketh the law. And the Commonwealth only prescribes and commandeth the observation of those rules which we call law: therefore the Commonwealth is the legislator. But the Commonwealth is no person, nor has capacity to do anything but by the representative, that is, the sovereign; and therefore the sovereign is the sole legislator. For the same reason, none can abrogate a law made, but the sovereign, because a law is not abrogated but by another law that forbiddeth it to be put in execution.
2. The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws. For having power to make and repeal laws, he may, when he pleaseth, free himself from that subjection by repealing those laws that trouble him, and making of new; and consequently he was free before. For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound.
3. When long use obtaineth the authority of a law, it is not the length of time that maketh the authority, but the will of the sovereign signified by his silence (for silence is sometimes an signified by his silence (for silence is sometimes an argument of consent); and it is no longer law, than the sovereign shall be silent therein. And therefore if the sovereign shall have a question of right grounded, not upon his present will, but upon the laws formerly made, the length of time shall bring no prejudice to his right: but the question shall be judged by equity. For many unjust actions and unjust sentences go uncontrolled a longer time than any man can remember. And our lawyers account no customs law but such as reasonable, and that evil customs are to be abolished: but the judgement of what is reasonable, and of what is to be abolished, belonged to him that maketh the law, which is the sovereign assembly or monarch.
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 virtues on these depending, in the condition of mere nature (as I have said before in the end of the fifteenth Chapter), are not properly laws, but qualities that dispose men to peace and to obedience. When a Commonwealth is once settled, then are they actually laws, and not before; as being then the commands of the Commonwealth; and therefore also civil laws: for it is the sovereign power that obliges men to obey them. For the differences of private men, to declare what is equity, what is justice, and is moral virtue, and to make them binding, there is need of the ordinances of sovereign power, and punishments to be ordained for such as shall break them; which ordinances are therefore part of the civil law. The law of nature therefore is a part of the civil law in all Commonwealths of the world. Reciprocally also, the civil law is a part of the dictates of nature. For justice, that is to say, performance of covenant, and giving to every man his own, is a dictate of the law of nature. But every subject in a Commonwealth hath covenanted to obey the civil law; either one with another, as when they assemble to make a common representative, or with the representative itself one by one when, subdued by the sword, they promise obedience that they may receive life; and therefore obedience to the civil law is part also of the law of nature. Civil and natural law are not different kinds, but different parts of law; whereof one part, being written, is called civil the other unwritten, natural. But the right of nature, that is, the natural liberty of man, may by the civil law be abridged and restrained: nay, the end of making laws is no other but such restraint, without which there cannot possibly be any peace. And law was brought into the world for nothing else but to limit the natural liberty of particular men in such manner as they might not hurt, but assist one another, and join together against a common enemy.
5. If the sovereign of one Commonwealth subdue a people that have lived under other written laws, and afterwards govern them by the same laws by which they were governed before, yet those laws are the civil laws of the victor, and not of the vanquished Commonwealth. For the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws. And therefore where there be diverse provinces within the dominion of a Commonwealth, and in those provinces diversity of laws, which commonly are called the customs of each several province, we are not to understand that such customs have their force only from length of time; but that they were anciently laws written, or otherwise made known, for the constitutions and statutes of their sovereigns; and are now laws, not by virtue of the prescription of time, but by the constitutions of their present sovereigns. But if an unwritten law, in all the provinces of a dominion, shall be generally observed, and no iniquity appear in the use thereof, that law can be no other but a law of nature, equally obliging all mankind.
6. Seeing then all laws, written and unwritten, have their authority and force from the will of the Commonwealth; that is to say, from the will of the representative, which in a monarchy is the monarch, and in other Commonwealths the sovereign assembly; a man may wonder from whence proceed such opinions as are found in the books of lawyers of eminence in several Commonwealths, directly or by consequence making the legislative power depend on private men or subordinate judges. As for example, that the common law hath no controller but the Parliament; which is true only where a parliament has the sovereign power, and cannot be assembled nor dissolved, but by their own discretion. For if there be a right in any else to dissolve them, there is a right also to control them, and consequently to control their controllings. And if there be no such right, then the controller of laws is not parlamentum, but rex in parlamento. And where a parliament is sovereign, if it should assemble never so many or so wise men from the countries subject to them, for whatsoever cause, yet there is no man will believe that such an assembly hath thereby acquired to themselves a legislative power. Item, that the two arms of a Commonwealth are force and justice; the first whereof is in the king, the other deposited in the hands of the Parliament. As if a Commonwealth could consist where the force were in any hand which justice had not the authority to command and govern.
7. That law can never be against reason, our lawyers are agreed: and that not the letter (that is, every construction of it), but that which is according to the intention of the legislator, is the law. And it is true: but the doubt is of whose reason it is that shall be received for law. It is not meant of any private reason; for then there would be as much contradiction in the laws as there is in the Schools; nor yet, as Sir Edward Coke makes it, an "Artificial perfection of reason, gotten by long study, observation, and experience," as his was. For it is possible long study may increase and confirm erroneous sentences: and where men build on false grounds, the more they build, the greater is the ruin: and of those that study and observe with equal time and diligence, the reasons and resolutions are, and must remain, discordant: and therefore it is not that juris prudentia, or wisdom of subordinate judges, but the reason of this our artificial man the Commonwealth, and his command, that maketh law: and the Commonwealth being in their representative but one person, there cannot easily arise any contradiction in the laws; and when there doth, the same reason is able, by interpretation or alteration, to take it away. In all courts of justice, the sovereign (which is the person of the Commonwealth) is he that judgeth: the subordinate judge ought to have regard to the reason which moved his sovereign to make such law, that his sentence may be according thereunto, which then is his sovereigns sentence; otherwise it is his own, and an unjust one.
8. From this, that the law is a command, and a command consisteth in declaration or manifestation of the will of him that commandeth, by voice, writing, or some other sufficient argument of the same, we may understand that the command of the Commonwealth is law only to those that have means to take notice of it. Over natural fools, children, or madmen there is no law, no more than over brute beasts; nor are they capable of the title of just or unjust, because they had never power to make any covenant or to understand the consequences thereof, and consequently never took upon them to authorize the actions of any sovereign, as they must do that make to themselves a Commonwealth. And as those from whom nature or accident hath taken away the notice of all laws in general; so also every man, from whom any accident not proceeding from his own default, hath taken away the means to take notice of any particular law, is excused if he observe it not; and to speak properly, that law is no law to him. It is therefore necessary to consider in this place what arguments and signs be sufficient for the knowledge of what is the law; that is to say, what is the will of the sovereign, as well in monarchies as in other forms of government.
And first, if it be a law that obliges all the subjects without exception, and is not written, nor otherwise published in such places as they may take notice thereof, it is a law of nature. For whatever men are to take knowledge of for law, not upon other men's words, but every one from his own reason, must be such as is agreeable to the reason of all men; which no law can be, but the law of nature. The laws of nature therefore need not any publishing nor proclamation; as being contained in this one sentence, approved by all the world, Do not that to another which thou thinkest unreasonable to be done by another to thyself.
Secondly, if it be a law that obliges only some condition of men, or one particular man, and be not written, nor published by word, then also it is a law of nature, and known by the same arguments and signs that distinguish those in such a condition from other subjects. For whatsoever law is not written, or some way published by him that makes it law, can be known no way but by the reason of him that is to obey it; and is therefore also a law not only civil, but natural. For example, if the sovereign employ a public minister, without written instructions what to do, he is obliged to take for instructions the dictates of reason: as if he make a judge, the judge is to take notice that his sentence ought to be according to the reason of his sovereign, which being always understood to be equity, he is bound to it by the law of nature: or if an ambassador, he is, in all things not contained in his written instructions, to take for instruction that which reason dictates to be most conducing to his sovereign's interest; and so of all other ministers of the sovereignty, public and private. All which instructions of natural reason may be comprehended under one name of fidelity, which is a branch of natural justice.
The law of nature excepted, it belonged to the essence of all other laws to be made known to every man that shall be obliged to obey them, either by word, or writing, or some other act known to proceed from the sovereign authority. For the will of another cannot be understood but by his own word, or act, or by conjecture taken from his scope and purpose; which in the person of the Commonwealth is to be supposed always consonant to equity and reason. And in ancient time, before letters were in common use, the laws were many times put into verse; that the rude people, taking pleasure in singing or reciting them, might the more easily retain them in memory. And for the same reason Solomon adviseth a man to bind the Ten Commandments upon his ten fingers.* And for the Law which Moses gave to the people of Israel at the renewing of the Covenant, he biddeth them to teach it their children, by discoursing of it both at home and upon the way, at going to bed and at rising from bed; and to write it upon the posts and doors of their houses;*(2) and to assemble the people, man, woman, and child, to hear it read.*(3)
- Proverbs, 7. 3
- (2) Deuteronomy, 11. 19
- (3) Ibid., 31. 12
Nor is it enough the law be written and published, but also that there be manifest signs that it proceedeth from the will of the sovereign. For private men, when they have, or think they have, force enough to secure their unjust designs, and convoy them safely to their ambitious ends, may publish for laws what they please, without or against the legislative authority. There is therefore requisite, not only a declaration of the law, but also sufficient signs of the author and authority. The author or legislator is supposed in every Commonwealth to be evident, because he is the sovereign, who, having been constituted by the consent of every one, is supposed by every one to be sufficiently known. And though the ignorance and security of men be such, for the most part, as that when the memory of the first constitution of their Commonwealth is worn out, they do not consider by whose power they use to be defended against their enemies, and to have their industry protected, and to be righted when injury is done them; yet because no man that considers can make question of it, no excuse can be derived from the ignorance of where the sovereignty is placed. And it is a dictate of natural reason, and consequently an evident law of nature, that no man ought to weaken that power the protection whereof he hath himself demanded or wittingly received against others. Therefore of who is sovereign, no man, but by his own fault (whatsoever evil men suggest), can make any doubt. The difficulty cocsisteth in the evidence of the authority derived from him; the removing whereof dependeth on the knowledge of the public registers, public counsels, public ministers, and public seals; by which all laws are sufficiently verified; verified, I say, not authorized: for the verification is but the testimony and record; not the authority of the law, which consisteth in the command of the sovereign only.
If therefore a man have a question of injury, depending on the law of nature; that is to say, on common equity; the sentence of the judge, that by commission hath authority to take cognizance of such causes, is a sufficient verification of the law of nature in that individual case. For though the advice of one that professeth the study of the law be useful for the avoiding of contention, yet it is but advice: it is the judge must tell men what is law, upon the hearing of the controversy.
But when the question is of injury, or crime, upon a written law, every man by recourse to the registers by himself or others may, if he will, be sufficiently informed, before he do such injury, or commit the crime, whether it be an injury or not; nay, he ought to do so: for when a man doubts whether the act he goeth about be just or unjust, and may inform himself if he will, the doing is unlawful. In like manner, he that supposeth himself injured, in a case determined by the written law, which he may by himself or others see and consider; if he complain before he consults with the law, he does unjustly, and bewrayeth a disposition rather to vex other men than to demand his own right.
If the question be of obedience to a public officer, to have seen his commission with the public seal, and heard it read, or to have had the means to be informed of it, if a man would, is a sufficient verification of his authority. For every man is obliged to do his best endeavour to inform himself of all written laws that may concern his own future actions.
The legislator known, and the laws either by writing or by the light of nature sufficiently published, there wanteth yet another very material circumstance to make them obligatory. For it is not the letter, but the intendment, or meaning; that is to say, the authentic interpretation of the law (which is the sense of the legislator), in which the nature of the law consisteth; and therefore the interpretation of all laws dependeth on the authority sovereign; and the interpreters can be none but those which the sovereign, to whom only the subject oweth obedience, shall appoint. For else, by the craft of an interpreter, the law may be made to bear a sense contrary to that of the sovereign, by which means the interpreter becomes the legislator.
All laws, written and unwritten, have need of interpretation. The unwritten law of nature, though it be easy to such as without partiality and passion make use of their natural reason, and therefore leaves the violators thereof without excuse; yet considering there be very few, perhaps none, that in some cases are not blinded by self-love, or some other passion, it is now become of all laws the most obscure, and has consequently the greatest need of able interpreters. The written laws, if laws, if they be short, are easily misinterpreted, for the diverse significations of a word or two; if long, they be more obscure by the diverse significations of many words: in so much as no written law, delivered in few or many words, can be well understood without a perfect understanding of the final causes for which the law was made; the knowledge of which final causes is in the legislator. To him therefore there cannot be any knot in the law insoluble, either by finding out the ends to undo it by, or else by making what ends he will (as Alexander did with his sword in the Gordian knot) by the legislative power; which no other interpreter can do.
The interpretation of the laws of nature in a Commonwealth dependeth not on the books of moral philosophy. The authority of writers, without the authority of the Commonwealth, maketh not their opinions law, be they never so true. That which I have written in this treatise concerning the moral virtues, and of their necessity for the procuring and maintaining peace, though it be evident truth, is not therefore presently law, but because in all Commonwealths in the world it is part of the civil law. For though it be naturally reasonable, yet it is by the sovereign power that it is law: otherwise, it were a great error to call the laws of nature unwritten law; whereof we see so many volumes published, and in them so many contradictions of one another and of themselves.
The interpretation of the law of nature is the sentence of the judge constituted by the sovereign authority to hear and determine such controversies as depend thereon, and consisteth in the application of the law to the present case. For in the act of judicature the judge doth no more but consider whether the demand of the party be consonant to natural reason and equity; and the sentence he giveth is therefore the interpretation of the law of nature; which interpretation is authentic, not because it is his private sentence, but because he giveth it by authority of the sovereign, whereby it becomes the sovereign's sentence; which is law for that time to the parties pleading.
But because there is no judge subordinate, nor sovereign, but may err in a judgement equity; if afterward in another like case he find it more consonant to equity to give a contrary sentence, he is obliged to do it. No man's error becomes his own law, nor obliges him to persist in it. Neither, for the same reason, becomes it a law to other judges, though sworn to follow it. For though a wrong sentence given by authority of the sovereign, if he know and allow it, in such laws as are mutable, be a constitution of a new law in cases in which every little circumstance is the same; yet in laws immutable, such as are the laws of nature, they are no laws to the same or other judges in the like cases for ever after. Princes succeed one another; and one judge passeth, another cometh; nay, heaven and earth shall pass; but not one tittle of the law of nature shall pass; for it is the eternal law of God. Therefore all the sentences of precedent judges that have ever been cannot all together make a law contrary to natural equity. Nor any examples of former judges can warrant an unreasonable sentence, or discharge the present judge of the trouble of studying what is equity (in the case he is to judge) from the principles of his own natural reason. For example sake, it is against the law of nature to punish the innocent; and innocent is he that acquitteth himself judicially and is acknowledged for innocent by the judge. Put the case now that a man is accused of a capital crime, and seeing the power and malice of some enemy, and the frequent corruption and partiality of judges, runneth away for fear of the event, and afterwards is taken and brought to a legal trial, and maketh it sufficiently appear he was not guilty of the crime, and being thereof acquitted is nevertheless condemned to lose his goods; this is a manifest condemnation of the innocent. I say therefore that there is no place in the world where this can be an interpretation of a law of nature, or be made a law by the sentences of precedent judges that had done the same. For he that judged it first judged unjustly; and no injustice can be a pattern of judgement to succeeding judges. A written law may forbid innocent men to fly, and they may be punished for flying: but that flying for fear of injury should be taken for presumption of guilt, after a man is already absolved of the crime judicially, is contrary to the nature of a presumption, which hath no place after judgement given. Yet this is set down by a great lawyer for the common law of England: "If a man," saith he, "that is innocent be accused of felony, and for fear flyeth for the same; albeit he judicially acquitteth himself of the felony; yet if it be found that he fled for the felony, he shall, notwithstanding his innocency, forfeit all his goods, chattels, debts, and duties. For as to the forfeiture of them, the law will admit no proof against the presumption in law, grounded upon his flight." Here you see an innocent man, judicially acquitted, notwithstanding his innocency (when no written law forbade him to fly) after his acquittal, upon a presumption in law, condemned to lose all the goods he hath. If the law ground upon his flight a presumption of the fact, which was capital, the sentence ought to have been capital: the presumption were not of the fact, for what then ought he to lose his goods? This therefore is no law of England; nor is the condemnation grounded upon a presumption of law, but upon the presumption of the judges. It is also against law to say that no proof shall be admitted against a presumption of law. For all judges, sovereign and subordinate, if they refuse to hear proof, refuse to do justice: for though the sentence be just, yet the judges that condemn, without hearing the proofs offered, are unjust judges; and their presumption is but prejudice; which no man ought to bring with him to the seat of justice whatsoever precedent judgements or examples he shall pretend to follow. There be other things of this nature, wherein men's judgements have been perverted by trusting to precedents: but this is enough to show that though the sentence of the judge be a law to the party pleading, yet it is no law any judge that shall succeed him in that office.
In like manner, when question is of the meaning of written laws, he is not the interpreter of them that writeth a commentary upon them. For commentaries are commonly more subject to cavil than the text, and therefore need other commentaries; and so there will be no end of such interpretation. And therefore unless there be an interpreter authorized by the sovereign, from which the subordinate judges are not to recede, the interpreter can be no other than the ordinary judges, in the same manner as they are in cases of the unwritten law; and their sentences are to be taken by them that plead for laws in that particular case, but not to bind other judges in like cases to give like judgements. For a judge may err in the interpretation even of written laws; but no error of a subordinate judge can change the law, which is the general sentence of the sovereign.
In written laws men use to make a difference between the letter and the sentence of the law: and when by the letter is meant whatsoever can be gathered from the bare words, it is well distinguished. For the significations of almost all are either in themselves, or in the metaphorical use of them, ambiguous; and may be drawn in argument to make many senses; but there is only one sense of the law. But if by the letter be meant the literal sense, then the letter and the sentence or intention of the law is all one. For the literal sense is that which the legislator intended should by the letter of the law be signified. Now the intention of the legislator is always supposed to be equity: for it were a great contumely for a judge to think otherwise of the sovereign. He ought therefore, if the word of the law do not fully authorize a reasonable sentence, to supply it with the law of nature; or if the case be difficult, to respite judgement till he have received more ample authority. For example, a written law ordaineth that he which is thrust out of his house by force shall be restored by force. It happens that a man by negligence leaves his house empty, and returning is kept out by force, in which case there is no special law ordained. It is evident that this case is contained in the same law; for else there is no remedy for him at all, which is to be supposed against the intention of the legislator. Again, the word of the law commandeth to judge according to the evidence. A man is accused falsely of a fact which the judge himself saw done by another, and not by him that is accused. In this case neither shall the letter of the law be followed to the condemnation of the innocent, nor shall the judge give sentence against the evidence of the witnesses, because the letter of the law is to the contrary; but procure of the sovereign that another be made judge, and himself witness. So that the incommodity that follows the bare words of a written law may lead him to the intention of the law, whereby to interpret the same the better; though no incommodity can warrant a sentence against the law. For every judge of right and wrong is not judge of what is commodious or incommodious to the Commonwealth.
The abilities required in a good interpreter of the law, that is to say, in a good judge, are not the same with those of an advocate; namely, the study of the laws. For a judge, as he ought to take notice of the fact from none but the witnesses, so also he ought to take notice of the law from nothing but the statutes and constitutions of the sovereign, alleged in the pleading, or declared to him by some that have authority from the sovereign power to declare them; and need not take care beforehand what he shall judge; for it shall be given him what he shall say concerning the fact, by witnesses; and what he shall say in point of law, from those that shall in their pleadings show it, and by authority interpret it upon the place. The Lords of Parliament in England were judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the laws, and fewer had made profession of them; and though they consulted with lawyers that were appointed to be present there for that purpose, yet they alone had the authority of giving sentence. In like manner, in the ordinary trials of right, twelve men of the common people are the judges and give sentence, not only of the fact, but of the right; and pronounce simply for the complainant or for the defendant; that is to say, are judges not only of the fact, but also of the right; and in a question of crime, not only determine whether done or not done, but also whether it be murder, homicide, felony, assault, and the like, which are determinations of law: but because they are not supposed to know the law of themselves, there is one that hath authority to inform them of it in the particular case they are to judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unless it be made appear they did it against their consciences, or had been corrupted by reward.
The things that make a good judge or good interpreter of the laws are, first, a right understanding of that principal law of nature called equity; which, depending not on the reading of other men's writings, but on the goodness of a man's own natural reason and meditation, is presumed to be in those most that had most leisure, and had the most inclination to meditate thereon. Secondly, contempt of unnecessary riches and preferments. Thirdly, to be able in judgement to divest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, patience to hear, diligent attention in hearing, and memory to retain, digest, and apply what he hath heard.
The difference and division of the laws has been made in diverse manners, according to the different methods of those men that have written of them. For it is a thing that dependeth on nature, but on the scope of the writer, and is subservient to every man's proper method. In the Institutions of Justinian, we find seven sorts of civil laws:
1. The edicts, constitutions, and epistles of prince; that is, of the emperor, because the whole power of the people was in him. Like these are the proclamations of the kings of England.
2. The decrees of the whole people of Rome, comprehending the Senate, when they were put to the question by the Senate. These were laws, at first, by the virtue of the sovereign power residing in the people; and such of them as by the emperors were not abrogated remained laws by the authority imperial. For all laws that bind are understood to be laws by his authority that has power to repeal them. Somewhat like to these laws are the Acts of Parliament in England.
3. The decrees of the common people, excluding the Senate, when they were put to the question by the tribune of the people. For such of them as were not abrogated by the emperors, remained laws by the authority imperial. Like to these were the orders of the House of Commons in England.
4. Senatus consulta, the orders of the Senate: because when the people of Rome grew so numerous as it was inconvenient to assemble them, it was thought fit by the emperor that men should consult the Senate instead of the people: and these have some resemblance with the Acts of Council.
5. The edicts of praetors, and in some cases of the aediles: such as are the chief justices in the courts of England.
6. Responsa prudentum, which were the sentences and opinions of those lawyers to whom the emperor gave authority to interpret the law, the law, and to give answer to such as in matter of law demanded their advice; which answers the judges in giving judgement were obliged by the constitutions of the emperor to observe: and should be like the reports of cases judged, if other judges be by the law of England bound to observe them. For the judges of the common law of England are not properly judges, but juris consulti; of whom the judges, who are either the lords, or twelve men of the country, are in point of law to ask advice.
7. Also, unwritten customs, which in their own nature are an imitation of law, by the tacit consent of the emperor, in case they be not contrary to the law of nature, are very laws.
Another division of laws is into natural and positive. Natural are those which have been laws from all eternity, and are called not only natural, but also moral laws, consisting in the moral virtues; as justice, equity, and all habits of the mind that conduce to peace and charity, of which I have already spoken in the fourteenth and fifteenth Chapters.
Positive are those which have not been from eternity, but have been made laws by the will of those that have had the sovereign power over others, and are either written or made known to men by some other argument of the will of their legislator.
Again, of positive laws some are human, some divine: and of human positive laws, some are distributive, some penal. Distributive are those that determine the rights of the subjects, declaring to every man what it is by which he acquireth and holdeth a propriety in lands or goods, and a right or liberty of action: and these speak to all the subjects. Penal are those which declare what penalty shall be inflicted on those that violate the law; and speak to the ministers and officers ordained for execution. For though every one ought to be informed of the punishments ordained beforehand for their transgression; nevertheless the command is not addressed to the delinquent (who cannot be supposed will faithfully punish himself), but to public ministers appointed to see the penalty executed. And these penal laws are for the most part written together with the laws distributive, and are sometimes called judgements. For all laws are general judgements, or sentences of the legislator; as also every particular judgement is a law to him whose case is judged.
Divine positive laws (for natural laws, being eternal and universal, are all divine) are those which, being the commandments of God, not from all eternity, nor universally addressed to all men, but only to a certain people or to certain persons, are declared for such by those whom God hath authorized to declare them. But this authority of man to declare what be these positive of God, how can it be known? God may command a man, by a supernatural way, to deliver laws to other men. But because it is of the essence of law that he who is to be obliged be assured of the authority of him that declareth it, which we cannot naturally take notice to be from God, how can a man without supernatural revelations be assured of the revelation received by the declarer? And how can he be bound to obey bound to obey them? For the first question, how a man can be assured of the revelation of another without a revelation particularly to himself, it is evidently impossible: for though a man may be induced to believe such revelation, from the miracles they see him do, or from seeing the extraordinary sanctity of his life, or from seeing the extraordinary wisdom, or extraordinary felicity of his actions, all which are marks of God's extraordinary favour; yet they are not assured evidences of special revelation. Miracles are marvellous works; but that which is marvellous to one may not be so to another. Sanctity may be feigned; and the visible felicities of this world are most often the work of God by natural and ordinary causes. And therefore no man can infallibly know by natural reason that another has had a supernatural revelation of God's will but only a belief; every one, as the signs thereof shall appear greater or lesser, a firmer or a weaker belief.
But for the second, how he can be bound to obey them, it is not so hard. For if the law declared be not against the law of nature, which is undoubtedly God's law, and he undertake to obey it, he is bound by his own act; bound I say to obey it, but not bound to believe it: for men's belief, and interior cogitations, are not subject to the commands, but only to the operation of God, ordinary or extraordinary. Faith of supernatural law is not a fulfilling, but only an assenting to the same; and not a duty that we exhibit to God, but a gift which God freely giveth to whom He pleaseth; as also unbelief is not a breach of any of His laws, but a rejection of them all, except the laws natural. But this that I say will be made yet clearer by, the examples and testimonies concerning this point in Holy Scripture. The covenant God made with Abraham in a supernatural manner was thus, "This is the covenant which thou shalt observe between me and thee and thy seed after thee."* Abraham's seed had not this revelation, nor were yet in being; yet they are a party to the covenant, and bound to obey what Abraham should declare to them for God's law; which they could not be but in virtue of the obedience they owed to their parents, who (if they be subject to no other earthly power, as here in the case of Abraham) have sovereign power over their children and servants. Again, where God saith to Abraham, "In thee shall all nations of the earth be blessed: for I know thou wilt command thy children and thy house after thee to keep the way of the Lord, and to observe righteousness and judgement," it is manifest the obedience of his family, who had no revelation, depended on their former obligation to obey their sovereign. At Mount Sinai Moses only went up to God; the people were forbidden to approach on pain of death; yet were they bound to obey all that Moses declared to them for God's law. Upon what ground, but on this submission of their own, "Speak thou to us, and we will hear thee; but let not God speak to us, lest we die"? By which two places it sufficiently appeareth that in a Commonwealth a subject that has no certain and assured revelation particularly to himself concerning the will of God is to obey for such the command of the Commonwealth: for if men were at liberty to take for God's commandments their own dreams and fancies, or the dreams and fancies of private men, scarce two men would agree upon what is God's commandment; and yet in respect of them every man would despise the commandments of the Commonwealth. I conclude, therefore, that in all things not contrary to the moral law (that is to say, to the law of nature), all subjects are bound to obey that for divine law which is declared to be so by the laws of the Commonwealth. Which also is evident to any man's reason; for whatsoever is not against the law of nature may be made law in the name of them that have the sovereign power; there is no reason men should be the less obliged by it when it is propounded in the name of God. Besides, there is no place in the world where men are permitted to pretend other commandments of God than are declared for such by the Commonwealth. Christian states punish those that revolt from Christian religion; and all other states, those that set up any religion by them forbidden. For in whatsoever is not regulated by the Commonwealth, it is equity (which is the law of nature, and therefore an eternal law of God) that every man equally enjoy his liberty.
- Genesis, 17. 10
There is also another distinction of laws into fundamental and not fundamental: but I could never see in any author what a fundamental law signifieth. Nevertheless one may very reasonably distinguish laws in that manner.
For a fundamental law in every Commonwealth is that which, being taken away, the Commonwealth faileth and is utterly dissolved, as a building whose foundation is destroyed. And therefore a fundamental law is that by which subjects are bound to uphold whatsoever power is given to the sovereign, whether a monarch or a sovereign assembly, without which the Commonwealth cannot stand; such as is the power of war and peace, of judicature, of election of officers, and of doing whatsoever he shall think necessary for the public good. Not fundamental is that, the abrogating whereof draweth not with it the dissolution of the Commonwealth; such as are the laws concerning controversies between subject and subject. Thus much of the division of laws.
I find the words lex civilis and jus civile, that is to say, and law and right civil, promiscuously used for the same thing, even in the most learned authors; which nevertheless ought not to be so. For right is liberty, namely that liberty which the civil law leaves us: but civil law is an obligation, and takes from us the liberty which the law of nature gave us. Nature gave a right to every man to secure himself by his own strength, and to invade a suspected neighbour by way of prevention: but the civil law takes away that liberty, in all cases where the protection of the law may be safely stayed for. Insomuch as lex and jus are as different as obligation and liberty.
Likewise laws and charters are taken promiscuously for the same thing. Yet charters are donations of the sovereign; and not laws, but exemptions from law. The phrase of a law is jubeo, injungo; I command and enjoin: the phrase of a charter is dedi, concessi; I have given, I have granted: but what is given or granted to a man is not forced upon him by a law. A law may be made to bind all the subjects of a Commonwealth: a liberty or charter is only to one man or some one part of the people. For to say all the people of a Commonwealth have liberty in any case whatsoever is to say that, in such case, there hath been no law made; or else, having been made, is now abrogated.
Chapter XXVII: Of Crimes, Excuses, and Extenuations
A sin is not only a transgression of a law, but also any contempt of the legislator. For such contempt is a breach of all his laws at once, and therefore may consist, not only in the commission of a fact, or in the speaking of words by the laws forbidden, or in the omission of what the law commandeth, but also in the intention or purpose to transgress. For the purpose to break the law is some degree of contempt of him to whom it belonged to see it executed. To be delighted in the imagination only of being possessed of another man's goods, servants, or wife, without any intention to take them from him by force or fraud, is no breach of the law, that saith, "Thou shalt not covet": nor is the pleasure a man may have in imagining or dreaming of the death of him from whose life he expecteth nothing but damage and displeasure, a sin; but the resolving to put some act in execution that tendeth thereto. For to be pleased in the fiction of that which would please a man if it were real is a passion so adherent to the nature both of man and every other living creature, as to make it a sin were to make sin of being a man. Th consideration of this has made me think them too severe, both to themselves and others, that maintain that the first motions of the mind, though checked with the fear of God, be sins. But I confess it is safer to err on that hand than on the other.
A crime is a sin consisting in the committing by deed or word of that which the law forbiddeth, or the omission of what it hath commanded. So that every crime is a sin; but not every sin a crime. To intend to steal or kill is a sin, though it never appear in word or fact: for God that seeth the thought of man can lay it to his charge: but till it appear by something done, or said, by which the intention may be argued by a human judge, it hath not the name of crime: which distinction the Greeks observed in the word amartema and egklema or aitia; whereof the former (which is translated sin) signifieth any swerving from the law whatsoever; but the two latter (which are translated crime) signify that sin only whereof one man may accuse another. But of intentions, which never appear by any outward act, there is no place for human accusation. In like manner the Latins by peccatum, which is sin, signify all manner of deviation from the law; but by crimen (which word they derive from cerno, which signifies to perceive) they mean only such sins as may be made appear before a judge, and therefore are not mere intentions.
From this relation of sin to the law, and of crime to the civil law, may be inferred, first, that where law ceaseth, sin ceaseth. But because the law of nature is eternal, violation of covenants, ingratitude, arrogance, and all facts contrary to any moral virtue can never cease to be sin. Secondly, that the civil law ceasing, crimes cease: for there being no other law remaining but that of nature, there is no place for accusation; every man being his own judge, and accused only by his own conscience, and cleared by the uprightness of his own intention. When therefore his intention is right, his fact is no sin; if otherwise, his fact is sin, but not crime. Thirdly, that when the sovereign power ceaseth, crime also ceaseth: for where there is no such power, there is no protection to be had from the law; and therefore every one may protect himself by his own power: for no man in the institution of sovereign power can be supposed to give away the right of preserving his own body, for the safety whereof all sovereignty was ordained. But this is to be understood only of those that have not themselves contributed to the taking away of the power that protected them: for that was a crime from the beginning.
The source of every crime is some defect of the understanding, or some error in reasoning, or some sudden force of the passions. Defect in the understanding is ignorance; in reasoning, erroneous opinion. Again, ignorance is of three sorts; of the law, and of the sovereign, and of the penalty. Ignorance of the law of nature excuseth no man, because every man that hath attained to the use of reason is supposed to know he ought not to do to another what he would not have done to himself. Therefore into what place soever a man shall come, if he do anything contrary to that law, it is a crime. If a man come from the Indies hither, and persuade men here to receive a new religion, or teach them anything that tendeth to disobedience of the laws of this country, though he be never so well persuaded of the truth of what he teacheth, he commits a crime, and may be justly punished for the same, not only because his doctrine is false, but also because he does that which he would not approve in another; namely, that coming from hence, he should endeavour to alter the religion there. But ignorance of the civil law shall excuse a man in a strange country till it be declared to him, because till then no civil law is binding.
In the like manner, if the civil law of a man's own country be not so sufficiently declared as he may know it if he will; nor the action against the law of nature; the ignorance is a good excuse: in other cases ignorance of the civil law excuseth not.
Ignorance of the sovereign power the place of a man's ordinary residence excuseth him not, because he ought to take notice of the power by which he hath been protected there.
Ignorance of the penalty, where the law is declared, excuseth no man: for in breaking the law, which without a fear of penalty to follow were not a law, but vain words, he undergoeth the penalty, though he know not what it is; because whosoever voluntarily doth any action, accepteth all the known consequences of it; but punishment is a known consequence of the violation of the laws in every Commonwealth; which punishment, if it be determined already by the law, he is subject to that; if not, then is he subject to arbitrary punishment. For it is reason that he which does injury, without other limitation than that of his own will, should suffer punishment without other limitation than that of his will whose law is thereby violated.
But when a penalty is either annexed to the crime in the law itself, or hath been usually inflicted in the like cases, there the delinquent is excused from a greater penalty. For the punishment foreknown, if not great enough to deter men from the action, is an invitement to it: because when men compare the benefit of their injustice with the harm of their punishment, by necessity of nature they choose that which appeareth best for themselves: and therefore when they are punished more than the law had formerly determined, or more than others were punished for the same crime, it is the law that tempted and deceiveth them.
No law made after a fact done can make it a crime: because if the fact be against the law of nature, the law was before the fact; and a positive law cannot be taken notice of before it be made, and therefore cannot be obligatory. But when the law that forbiddeth a fact is made before the fact be done, yet he that doth the fact is liable to the penalty ordained after, in case no lesser penalty were made known before, neither by writing nor by example, for the reason immediately before alleged.
From defect in reasoning (that is to say, from error), men are prone to violate the laws three ways. First, by presumption of false principles: as when men, from having observed how in all places and in all ages unjust actions have been authorised by the force and victories of those who have committed them; and that, potent men breaking through the cobweb laws of their country, the weaker sort and those that have failed in their enterprises have been esteemed the only criminals; have thereupon taken for principles and grounds of their reasoning that justice is but a vain word: that whatsoever a man can get by his own industry and hazard is his own: that the practice of all nations cannot be unjust: that examples of former times are good arguments of doing the like again; and many more of that kind: which being granted, no act in itself can be a crime, but must be made so, not by the law, but by the success of them that commit it; and the same fact be virtuous or vicious fortune pleaseth; so that what Marius makes a crime, Sylla shall make meritorious, and Caesar (the same laws standing) turn again into a crime, to the perpetual disturbance of the peace of the Commonwealth.
Secondly, by false teachers that either misinterpret the law of nature, making it thereby repugnant to the law civil, or by teaching for laws such doctrines of their own, or traditions of former times, as are inconsistent with the duty of a subject.
Thirdly, by erroneous inferences from true principles; which happens commonly to men that are hasty and precipitate in concluding and resolving what to do; such as are they that have both a great opinion of their own understanding and believe that things of this nature require not time and study, but only common experience and a good natural wit, whereof no man thinks himself unprovided: whereas the knowledge of right and wrong, which is no less difficult, there is no man will pretend to without great and long study. And of those defects in reasoning, there is none that can excuse, though some of them may extenuate, a crime in any man that pretendeth to the administration of his own private business; much less in them that undertake a public charge, because they pretend to the reason upon the want whereof they would ground their excuse. OF the passions that most frequently are the causes of crime, one is vainglory, or a foolish overrating of their own worth; as if difference of worth were an effect of their wit, or riches, or blood, or some other natural quality, not depending on the will of those that have the sovereign authority. From whence proceedeth a presumption that the punishments ordained by the laws, and extended generally to all subjects, ought not to be inflicted on them with the same rigor they are inflicted on poor, obscure, and simple men, comprehended under the name of the vulgar.
Therefore it happeneth commonly that such as value themselves by the greatness of their wealth adventure on crimes, upon hope of escaping punishment by corrupting public justice, or obtaining pardon by money or other rewards.
And that such as have multitude of potent kindred, and popular men that have gained reputation amongst the multitude, take courage to violate the laws from a hope of oppressing the power to whom it belonged to put them in execution.
And that such as have a great and false opinion of their own wisdom take upon them to reprehend the actions and call in question the authority of them that govern, and so to unsettle the laws with their public discourse, as that nothing shall be a crime but what their own designs require should be so. It happeneth also to the same men to be prone to all such crimes as consist in craft, and in deceiving of their neighbours; because they think their designs are too subtle to be perceived. These I say are effects of a false presumption of their own wisdom. For of them that are the first movers in the disturbance of Commonwealth (which can never happen without a civil war), very few are left alive long enough to see their new designs established: so that the benefit of their crimes redoundeth to posterity and such as would least have wished it: which argues they were not so wise as they thought they were. And those that deceive upon hope of not being observed do commonly deceive themselves, the darkness in which they believe they lie hidden being nothing else but their own blindness, and are no wiser than children that think all hid by hiding their own eyes.
And generally all vainglorious men, unless they be withal timorous, are subject to anger; as being more prone than others to interpret for contempt the ordinary liberty of conversation: and there are few crimes that may not be produced by anger.
As for the passions, of hate, lust, ambition, and covetousness, what crimes they are apt to produce is so obvious to every man's experience and understanding as there needeth nothing to be said of them, saving that they are infirmities, so annexed to the nature, both of man and all other living creatures, as that their effects cannot be hindered but by extraordinary use of reason, or a constant severity in punishing them. For in those things men hate, they find a continual and unavoidable molestation; whereby either a man's patience must be everlasting, or he must be eased by removing the power of that which molesteth him: the former is difficult; the latter is many times impossible without some violation of the law. Ambition and covetousness are passions also that are perpetually incumbent and pressing; whereas reason is not perpetually present to resist them: and therefore whensoever the hope of impunity appears, their effects proceed. And for lust, what it wants in the lasting, it hath in the vehemence, which sufficeth to weigh down the apprehension of all easy or uncertain punishments. OF all passions, that which inclineth men least to break the laws is fear. Nay, excepting some generous natures, it is the only thing (when there is appearance of profit or pleasure by breaking the laws) that makes men keep them. And yet in many cases a crime may be committed through fear.
For not every fear justifies the action it produceth, but the fear only of corporeal hurt, which we call bodily fear, and from which a man cannot see how to be delivered but by the action. A man is assaulted, fears present death, from which he sees not how to escape but by wounding him that assaulteth him; if he wound him to death, this is no crime, because no man is supposed, at the making of a Commonwealth to have abandoned the defence of his life or limbs, where the law cannot arrive time enough to his assistance. But to kill a man because from his actions or his threatenings I may argue he will kill me when he can (seeing I have time and means to demand protection from the sovereign power) is a crime. Again, a man receives words of disgrace, or some little injuries, for which they that made the laws had assigned no punishment, nor thought it worthy of a man that hath the use of reason to take notice of, and is afraid unless he revenge it he shall fall into contempt, and consequently be obnoxious to the like injuries from others; and to avoid this, breaks the law, and protects himself for the future by the terror of his private revenge. This is a crime: for the hurt is not corporeal, but fantastical, and (though, in this corner of the world, made sensible by a custom not many years since begun, amongst young and vain men) so light as a gallant man, and one that is assured of his own courage, cannot take notice of. Also a man may stand in fear of spirits, either through his own superstition or through too much credit given to other men that tell him of strange dreams and visions; and thereby be made believe they will hurt him for doing or omitting diverse things which, nevertheless, to do or omit is contrary to the laws; and that which is so done, or omitted, is not to be excused by this fear, but is a crime. For, as I have shown before in the second Chapter, dreams be naturally but the fancies remaining in sleep, after the impressions our senses had formerly received waking; and, when men are by any accident unassured they have slept, seem to be real visions; and therefore he that presumes to break the law upon his own or another's dream or pretended vision, or upon other fancy of the power of invisible spirits than is permitted by the Commonwealth, leaveth the law of nature, which is a certain offence, and followeth the imagery of his own or another private man's brain, which he can never know whether it signifieth anything or nothing, nor whether he that tells his dream say true or lie; which if every private man should have leave to do (as they must, by the law of nature, if any one have it), there could no law be made to hold, and so all Commonwealth would be dissolved.
From these different sources of crimes, it appears already that all crimes are not, as the Stoics of old time maintained, of the same alloy. There is place, not only for excuse, by which that which seemed a crime is proved to be none at all; but also for extenuation, by which the crime, that seemed great, is made less. For though all crimes do equally deserve the name of injustice, as all deviation from a straight line is equally crookedness, which the Stoics rightly observed; yet it does not follow that all crimes are equally unjust, no more than that all crooked lines are equally crooked; which the Stoics, not observing, held it as great a crime to kill a hen, against the law, as to kill one's father.
That which totally excuseth a fact, and takes away from it the nature of a crime, can be none but that which, at the same time, taketh away the obligation of the law. For the fact committed once against the law, if he that committed it be obliged to the law, can be no other than a crime.
The want of means to know the law totally excuseth: for the law whereof a man has no means to inform himself is not obligatory. But the want of diligence to enquire shall not be considered as a want of means; nor shall any man that pretendeth to reason enough for the government of his own affairs be supposed to want means to know the laws of nature; because they are known by the reason he pretends to: only children and madmen are excused from offences against the law natural.
Where a man is captive, or in the power of the enemy (and he is then in the power of the enemy when his person, or his means of living, is so), if it be without his own fault, the obligation of the law ceaseth; because he must obey the enemy, or die, and consequently such obedience is no crime: for no man is obliged (when the protection of the law faileth) not to protect himself by the best means he can.
If a man by the terror of present death be compelled to do a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory, yet a man would reason thus: "If I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained." Nature therefore compels him to the fact.
When a man is destitute of food or other thing necessary for his life, and cannot preserve himself any other way but by some fact against the law; as if in a great famine he take the food by force, or stealth, which he cannot obtain for money, nor charity; or in defence of his life, snatch away another man's sword; he is totally excused for the reason next before alleged.
Again, facts done against the law, by the authority of another, are by that authority excused against the author, because no man ought to accuse his own fact in another that is but his instrument: but it is not excused against a third person thereby injured, because in the violation of the law both the author and actor are criminals. From hence it followeth that when that man or assembly that hath the sovereign power commandeth a man to do that which is contrary to a former law, the doing of it is totally excused: for he ought not to condemn it himself, because he is the author; and what cannot justly be condemned by the sovereign cannot justly be punished by any other. Besides, when the sovereign commandeth anything to be done against his own former law, the command, as to that particular fact, is an abrogation of the law.
If that man or assembly that hath the sovereign power disclaim any right essential to the sovereignty, whereby there accrueth to the subject any liberty inconsistent with the sovereign power; that is to say, with the very being of a Commonwealth; if the subject shall refuse to obey the command in anything, contrary to the liberty granted, this is nevertheless a sin, and contrary to the duty of the subject: for he to take notice of what is inconsistent with the sovereignty, because it was erected by his own consent and for his own defence, and that such liberty as is inconsistent with it was granted through ignorance of the evil consequence thereof. But if he not only disobey, but also resist a public minister in the execution of it, then it is a crime, because he might have been righted, without any breach of the peace, upon complaint.
The degrees of crime are taken on diverse scales, and measured, first, by the malignity of the source, or cause: secondly, by the contagion of the example: thirdly, by the mischief of the effect: and fourthly, by the concurrence of times, places, and persons.
The same fact done against the law, if it proceed from presumption of strength, riches, or friends to resist those that are to execute the law, is a greater crime than if it proceed from hope of not being discovered, or of escape by flight: for presumption of impunity by force is a root from whence springeth, at all times, and upon all temptations, a contempt of all laws; whereas in the latter case the apprehension of danger that makes a man fly renders him more obedient for the future. A crime which know to be so is greater than the same crime proceeding from a false persuasion that it is lawful: for he that committeth it against his own conscience presumeth on his force, or other power, which encourages him to commit the same again, but he that doth it by error, after the error shown him, is conformable to the law.
He whose error proceeds from the authority of a teacher, or an interpreter of the law publicly authorised, is not so faulty as he whose error proceedeth from a peremptory pursuit of his own principles and reasoning: for what is taught by one that teacheth by public authority, the Commonwealth teacheth, and hath a resemblance of law, till the same authority controlleth it; and in all crimes that contain not in them a denial of the sovereign power, nor are against an evident law, excuseth totally; whereas he that groundeth his actions on his private judgement ought, according to the rectitude or error thereof, to stand or fall.
The same fact, if it have been constantly punished in other men, is a greater crime than if there have been many precedent examples of impunity. For those examples are so many hopes of impunity, given by the sovereign himself: and because he which furnishes a man with such a hope and presumption of mercy, as encourageth him to offend, hath his part in the offence, he cannot reasonably charge the offender with the whole.
A crime arising from a sudden passion is not so great as when the same ariseth from long meditation: for in the former case there is a place for extenuation in the common infirmity of human nature; but he that doth it with premeditation has used circumspection, and cast his eye on the law, on the punishment, and on the consequence thereof to human society; all which in committing the crime he hath contemned and postponed to his own appetite. But there is no suddenness of passion sufficient for a total excuse: for all the time between the first knowing of the law, and the commission of the fact, shall be taken for a time of deliberation, because he ought, by meditation of the law, to rectify the irregularity of his passions.
Where the law is publicly, and with assiduity, before all the people read and interpreted, a fact done against it is a greater crime than where men are left without such instruction to enquire of it with difficulty, uncertainty, and interruption of their callings, and be informed by private men: for in this case, part of the fault is discharged upon common infirmity; but in the former there is apparent negligence, which is not without some contempt of the sovereign power.
Those facts which the law expressly condemneth, but the lawmaker by other manifest signs of his will tacitly approveth, are less crimes than the same facts condemned both by the law and lawmaker. For seeing the will of the lawmaker is a law, there appear in this case two contradictory laws; which would totally excuse, if men were bound to take notice of the sovereigns approbation, by other arguments than are expressed by his command. But because there are punishments consequent, not only to the transgression of his law, but also to the observing of it he is in part a cause of the transgression, and therefore cannot reasonably impute the whole crime to the delinquent. For example, the law condemneth duels; the punishment is made capital: on the contrary part, he that refuseth duel is subject to contempt and scorn, without remedy; and sometimes by the sovereign himself thought unworthy to have any charge or preferment in war: if thereupon he accept duel, considering all men lawfully endeavour to obtain the good opinion of them that have the sovereign power, he ought not in reason to be rigorously punished, seeing part of the fault may be discharged on the punisher: which I say, not as wishing liberty of private revenges, or any other kind of disobedience, but a care in governors not to countenance anything obliquely which directly they forbid. The examples of princes, to those that see them, are, and ever have been, more potent to govern their actions than the laws themselves. And though it be our duty to do, not what they do, but what they say; yet will that duty never be performed till it please God to give men an extraordinary and supernatural grace to follow that precept.
Again, if we compare crimes by the mischief of their effects; first, the same fact when it redounds to the damage of many is greater than when it redounds to the hurt of few. And therefore when a fact hurteth, not only in the present, but also by example in the future, it is a greater crime than if it hurt only in the present: for the former is a fertile crime, and multiplies to the hurt of many; the latter is barren. To maintain doctrines contrary to the religion established in the Commonwealth is a greater fault in an authorised preacher than in a private person: so also is it to live profanely, incontinently, or do any irreligious act whatsoever. Likewise in a professor of the law, to maintain any point, or do any act, that tendeth to the weakening of the sovereign power is a greater crime than in another man: also in a man that hath such reputation for wisdom as that his counsels are followed, or his actions imitated by many, his fact against the law is a greater crime than the same fact in another: for such men not only commit crime, but teach it for law to all other men. And generally all crimes are the greater by the scandal they give; that is to say, by becoming stumbling-blocks to the weak, that look not so much upon the way they go in, as upon the light that other men carry before them.
Also facts of hostility against the present state of the Commonwealth are greater crimes than the same acts done to private men: for the damage extends itself to all: such are the betraying of the strengths or revealing of the secrets of the Commonwealth to an enemy; also all attempts upon the representative of the Commonwealth, be it a monarch or an assembly; and all endeavours by word or deed to diminish the authority of the same, either in the present time or in succession: which crimes the Latins understand by crimina laesae majestatis, and consist in design, or act, contrary to a fundamental law.
Likewise those crimes which render judgements of no effect are greater crimes than injuries done to one or a few persons; as to receive money to give false judgement or testimony is a greater crime than otherwise to deceive a man of the like or a greater sum; because not only he has wrong, that falls by such judgements, but all judgements are rendered useless, and occasion ministered to force and private revenges.
Also robbery and depeculation of the public treasury or revenues is a greater crime than the robbing or defrauding of a private man, because to rob the public is to rob many at once; also the counterfeit usurpation of public ministry, the counterfeiting of public seals, or public coin, than counterfeiting of a private man's person or his seal, because the fraud thereof extendeth to the damage of many. OF facts against the law done to private men, the greater crime is that where the damage, in the common opinion of men, is most sensible. And therefore:
To kill against the law is a greater crime than any other injury, life preserved.
And to kill with torment, greater than simply to kill.
And mutilation of a limb, greater than the spoiling a man of his goods.
And the spoiling a man of his goods by terror of death or wounds, than by clandestine surreption.
And by clandestine surreption, than by consent fraudulently obtained.
And the violation of chastity by force, greater than by flattery.
And of a woman married, than of a woman not married.
For all these things are commonly so valued; though some men are more, and some less, sensible of the same offence. But the law regardeth not the particular, but the general inclination of mankind.
And therefore the offence men take from contumely, in words or gesture, when they produce no other harm than the present grief of him that is reproached, hath been neglected in the laws of the Greeks, Romans, and other both ancient and modern Commonwealths; supposing the true cause of such grief to consist, not in the contumely (which takes no hold upon men conscious of their own virtue), but in the pusillanimity of him that is offended by it.
Also a crime against a private man is much aggravated by the person, time, and place. For to kill one's parent is a greater crime than to kill another: for the parent ought to have the honour of a sovereign (though he have surrendered his power to the civil law), because he had it originally by nature. And to rob a poor man is a greater crime than to rob a rich man, because it is to the poor a more sensible damage.
And a crime committed in the time or place appointed for devotion is greater than if committed at another time or place: for it proceeds from a greater contempt of the law.
Many other cases of aggravation and extenuation might be added; but by these I have set down, it is obvious to every man to take the altitude of any other crime proposed.
Lastly, because in almost all crimes there is an injury done, not only to some private men, but also to the Commonwealth, the same crime, when the accusation is in the name of the Commonwealth, is called public crime; and when in the name of a private man, a private crime; and the pleas according thereupon called public, judicia publica, pleas of the crown; or private pleas. As in an accusation of murder, if the accuser be a private man, the plea is a private plea; if the accuser be the sovereign, the plea is a public plea.
Chapter XXVIII: Of Punishments and Rewards
A punishment is an evil inflicted by public authority on him that hath done or omitted that which is judged by the same authority to be a transgression of the law, to the end that the will of men may thereby the better be disposed to obedience.
Before I infer anything from this definition, there is a question to be answered of much importance; which is, by what door the right or authority of punishing, in any case, came in. For by that which has been said before, no man is supposed bound by covenant not to resist violence; and consequently it cannot be intended that he gave any right to another to lay violent hands upon his person. In the making of a Commonwealth every man giveth away the right of defending another, but not of defending himself. Also he obligeth himself to assist him that hath the sovereignty in the punishing of another, but of himself not. But to covenant to assist the sovereign in doing hurt to another, unless he that so covenanteth have a right to do it himself, is not to give him a right to punish. It is manifest therefore that the right which the Commonwealth (that is, he or they that represent it) hath to punish is not grounded on any concession or gift of the subjects. But I have also shown formerly that before the institution of Commonwealth, every man had a right to everything, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of punishing which is exercised in every Commonwealth. For the subjects did not give the sovereign that right; but only, in laying down theirs, strengthened him to use his own as he should think fit for the preservation of them all: so that it was not given, but left to him, and to him only; and, excepting the limits set him by natural law, as entire as in the condition of mere nature, and of war of every one against his neighbour.
From the definition of punishment, I infer, first, that neither private revenges nor injuries of private men can properly be styled punishment, because they proceed not from public authority.
Secondly, that to be neglected and unpreferred by the public favour is not a punishment, because no new evil is thereby on any man inflicted; he is only left in the estate he was in before.
Thirdly, that the evil inflicted by public authority, without precedent public condemnation, is not to be styled by the name of punishment, but of a hostile act, because the fact for which a man is punished ought first to be judged by public authority to be a transgression of the law.
Fourthly, that the evil inflicted by usurped power, and judges without authority from the sovereign, is not punishment, but an act of hostility, because the acts of power usurped have not for author the person condemned, and therefore are not acts of public authority.
Fifthly, that all evil which is inflicted without intention or possibility of disposing the delinquent or, by his example, other men to obey the laws is not punishment, but an act of hostility, because without such an end no hurt done is contained under that name.
Sixthly, whereas to certain actions there be annexed by nature diverse hurtful consequences; as when a man in assaulting another is himself slain or wounded; or when he falleth into sickness by the doing of some unlawful act; such hurt, though in respect of God, who is the author of nature, it may be said to be inflicted, and therefore a punishment divine; yet it is not contained in the name of punishment in respect of men, because it is not inflicted by the authority of man.
Seventhly, if the harm inflicted be less than the benefit of contentment that naturally followeth the crime committed, that harm is not within the definition and is rather the price or redemption than the punishment of a crime: because it is of the nature of punishment to have for end the disposing of men to obey the law; which end (if it be less than the benefit of the transgression) it attaineth not, but worketh a contrary effect.
Eighthly, if a punishment be determined and prescribed in the law itself, and after the crime committed there be a greater punishment inflicted, the excess is not punishment, but an act of hostility. For seeing the aim of punishment is not a revenge, but terror; and the terror of a great punishment unknown is taken away by the declaration of a less, the unexpected addition is no part of the punishment. But where there is no punishment at all determined by the law, there whatsoever is inflicted hath the nature of punishment. For he that goes about the violation of a law, wherein no penalty is determined, expecteth an indeterminate, that is to say, an arbitrary punishment.
Ninthly, harm inflicted for a fact done before there was a law that forbade it is not punishment, but an act of hostility: for before the law, there is no transgression of the law: but punishment supposeth a fact judged to have been a transgression of the law; therefore harm inflicted before the law made is not punishment, but an act of hostility.
Tenthly, hurt inflicted on the representative of the Commonwealth is not punishment, but an act of hostility: because it is of the nature of punishment to be inflicted by public authority, which is the authority only of the representative itself.
Lastly, harm inflicted upon one that is a declared enemy falls not under the name of punishment: because seeing they were either never subject to the law, and therefore cannot transgress it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgress it, all the harms that can be done them must be taken as acts of hostility. But in declared hostility all infliction of evil is lawful. From whence it followeth that if a subject shall by fact or word wittingly and deliberately deny the authority of the representative of the Commonwealth (whatsoever penalty hath been formerly ordained for treason), he may lawfully be made to suffer whatsoever the representative will: for in denying subjection, he denies such punishment as by the law hath been ordained, and therefore suffers as an enemy of the Commonwealth; that is, according to the will of the representative. For the punishments set down in the law are to subjects, not to enemies; such as are they that, having been by their own act subjects, deliberately revolting, deny the sovereign power.
The first and most general distribution of punishments is into divine and human. Of the former I shall have occasion to speak in a more convenient place hereafter.
Human are those punishments that be inflicted by the commandment of man; and are either corporal, or pecuniary, or ignominy, or imprisonment, or exile, or mixed of these.
Corporal punishment is that which is inflicted on the body directly, and according to the intention of him that inflicteth it: such as are stripes, or wounds, or deprivation of such pleasures of the body as were before lawfully enjoyed.
And of these, some be capital, some less than capital. Capital is the infliction of death; and that either simply or with torment. Less than capital are stripes, wounds, chains, and any other corporal pain not in its own nature mortal. For if upon the infliction of a punishment death follow, not in the intention of the inflicter, the punishment is not to be esteemed capital, though the harm prove mortal by an accident not to be foreseen; in which case death is not inflicted, but hastened.
Pecuniary punishment is that which consisteth not only in the deprivation of a sum of money, but also of lands, or any other goods which are usually bought and sold for money. And in case the law that ordaineth such a punishment be made with design to gather money from such as shall transgress the same, it is not properly a punishment, but the price of privilege and exemption from the law, which doth not absolutely forbid the fact but only to those that are not able to pay the money: except where the law is natural, or part of religion; for in that case it is not an exemption from the law, but a transgression of it. As where a law exacteth a pecuniary mulct of them that take the name of God in vain, the payment of the mulct is not the price of a dispensation to swear, but the punishment of the transgression of a law indispensable. In like manner if the law impose a sum of money to be paid to him that has been injured, this is but a satisfaction for the hurt done him, and extinguisheth the accusation of the party injured, not the crime of the offender.
Ignominy is the infliction of such evil as is made dishonourable; or the deprivation of such good as is made honourable by the Commonwealth. For there be some things honourable by nature; as the effects of courage, magnanimity, strength, wisdom, and other abilities of body and mind: others made honourable by the Commonwealth; as badges, titles, offices, or any other singular mark of the sovereigns favour. The former, though they may fail by nature or accident, cannot be taken away by a law; and therefore the loss of them is not punishment. But the latter may be taken away by the public authority that made them honourable, and are properly punishments: such are, degrading men condemned, of their badges, titles, and offices; or declaring them incapable of the like in time to come.
Imprisonment is when a man is by public authority deprived of liberty, and may happen from two diverse ends; whereof one is the safe custody of a man accused; the other is the inflicting of pain on a man condemned. The former is not punishment, because no man is supposed to be punished before he be judicially heard and declared guilty. And therefore whatsoever hurt a man is made to suffer by bonds or restraint before his cause be heard, over and above that which is necessary to assure his custody, is against the law of nature. But the latter is punishment because evil, and inflicted by public authority for somewhat that has by the same authority been judged a transgression of the law. Under this word imprisonment, I comprehend all restraint of motion caused by an external obstacle, be it a house, which is called by the general name of a prison; or an island, as when men are said to be confined to it; or a place where men are set to work, as in old time men have been condemned to quarries, and in these times to galleys; or be it a chain or any other such impediment.
Exile (banishment) is when a man is for a crime condemned to depart out of the dominion of the Commonwealth, or out of a certain part thereof, and during a prefixed time, or for ever, not to return into it; and seemeth not in its own nature, without other circumstances, to be a punishment, but rather an escape, or a public commandment to avoid punishment by flight. And Cicero says there was never any such punishment ordained in the city of Rome; but calls it a refuge of men in danger. For if a man banished be nevertheless permitted to enjoy his goods, and the revenue of his lands, the mere change of air is no punishment; nor does it tend to that benefit of the Commonwealth for which all punishments are ordained, that is to say, to the forming of men's wills to the observation of the law; but many times to the damage of the Commonwealth. For a banished man is a lawful enemy of the Commonwealth that banished him, as being no more a member of the same. But if he be withal deprived of his lands, or goods, then the punishment lieth not in the exile, but is to be reckoned amongst punishments pecuniary.
All punishments of innocent subjects, be they great or little, are against the law of nature: for punishment is only for transgression of the law, and therefore there can be no punishment of the innocent. It is therefore a violation, first, of that law of nature which forbiddeth all men, in their revenges, to look at anything but some future good: for there can arrive no good to the Commonwealth by punishing the innocent. Secondly, of that which forbiddeth ingratitude: for seeing all sovereign power is originally given by the consent of every one of the subjects, to the end they should as long as they are obedient be protected thereby, the punishment of the innocent is a rendering of evil for good. And thirdly, of the law that commandeth equity; that is to say, an equal distribution of justice, which in punishing the innocent is not observed.
But the infliction of what evil soever on an innocent man that is not a subject, if it be for the benefit of the Commonwealth, and without violation of any former covenant, is no breach of the law of nature. For all men that are not subjects are either enemies, or else they have ceased from being so by some precedent covenants. But against enemies, whom the Commonwealth judgeth capable to do them hurt, it is lawful by the original right of nature to make war; wherein the sword judgeth not, nor doth the victor make distinction of nocent and innocent as to the time past, nor has other respect of mercy than as it conduceth to the good of his own people. And upon this ground it is that also in subjects who deliberately deny the authority of the Commonwealth established, the vengeance is lawfully extended, not only to the fathers, but also to the third and fourth generation not yet in being, and consequently innocent of the fact for which they are afflicted: because the nature of this offence consisteth in the renouncing of subjection, which is a relapse into the condition of war commonly called rebellion; and they that so offend, suffer not as subjects, but as enemies. For rebellion is but war renewed.
Reward is either of gift or by contract. When by contract, it is called salary and wages; which is benefit due for service performed or promised. When of gift, it is benefit proceeding from the grace of them that bestow it, to encourage or enable men to do them service. And therefore when the sovereign of a Commonwealth appointeth a salary to any public office, he that receiveth it is bound in justice to perform his office; otherwise, he is bound only in honour to acknowledgement and an endeavour of requital. For though men have no lawful remedy when they be commanded to quit their private business to serve the public, without reward or salary, yet they are not bound thereto by the law of nature, nor by the institution of the Commonwealth, unless the service cannot otherwise be done; because it is supposed the sovereign may make use of all their means, insomuch as the most common soldier may demand the wages of his warfare as a debt.
The benefits which a sovereign bestoweth on a subject, for fear of some power and ability he hath to do hurt to the Commonwealth, are not properly rewards: for they are not salaries, because there is in this case no contract supposed, every man being obliged already not to do the Commonwealth disservice: nor are they graces, because they be extorted by fear, which ought not to be incident to the sovereign power: but are rather sacrifices, which the sovereign, considered in his natural person, and not in the person of the Commonwealth, makes for the appeasing the discontent of him he thinks more potent than himself; and encourage not to obedience, but, on the contrary, to the continuance and increasing of further extortion.
And whereas some salaries are certain, and proceed from the public treasury; and others uncertain and casual, proceeding from the execution of the office for which the salary is ordained; the latter is in some cases hurtful to the Commonwealth, as in the case of judicature. For where the benefit of the judges, and ministers of a court of justice, ariseth for the multitude of causes that are brought to their cognizance, there must needs follow two inconveniences: one is the nourishing of suits; for the more suits, the greater benefit: and another that depends on that, which is contention which is about jurisdiction; each court drawing to itself as many causes as it can. But in offices of execution there are not those inconveniences, because their employment cannot be increased by any endeavour of their own. And thus much shall suffice for the nature of punishment and reward; which are, as it were, the nerves and tendons that move the limbs and joints of a Commonwealth.
Hitherto I have set forth the nature of man, whose pride and other passions have compelled him to submit himself to government; together with the great power of his governor, whom I compared to LEVIATHAN, taking that comparison out of the two last verses of the one-and-fortieth of Job; where God, having set forth the great power of Leviathan, calleth him king of the proud. "There is nothing," saith he, "on earth to be compared with him. He is made so as not to be afraid. He seeth every high thing below him; and is king of all the children of pride." But because he is mortal, and subject to decay, as all other earthly creatures are; and because there is that in heaven, though not on earth, that he should stand in fear of, and whose laws he ought to obey; I shall in the next following chapters speak of his diseases and the causes of his mortality, and of what laws of nature he is bound to obey.
Chapter XXIX: Of Those Things That Weaken or Tend to the Dissolution of a Commonwealth
Though nothing can be immortal which mortals make; yet, if men had the use of reason they pretend to, their Commonwealths might be secured, at least, from perishing by internal diseases. For by the nature of their institution, they are designed to live as long as mankind, or as the laws of nature, or as justice itself, which gives them life. Therefore when they come to be dissolved, not by external violence, but intestine disorder, the fault is not in men as they are the matter, but as they are the makers and orderers of them. For men, as they become at last weary of irregular jostling and hewing one another, and desire with all their hearts to conform themselves into one firm and lasting edifice; so for want both of the art of making fit laws to square their actions by, and also of humility and patience to suffer the rude and cumbersome points of their present greatness to be taken off, they cannot without the help of a very able architect be compiled into any other than a crazy building, such as, hardly lasting out their own time, must assuredly fall upon the heads of their posterity.
Amongst the infirmities therefore of a Commonwealth, I will reckon in the first place those that arise from an imperfect institution, and resemble the diseases of a natural body, which proceed from a defectuous procreation. OF which this is one: that a man to obtain a kingdom is sometimes content with less power than to the peace and defence of the Commonwealth is necessarily required. From whence it cometh to pass that when the exercise of the power laid by is for the public safety to be resumed, it hath the resemblance of an unjust act, which disposeth great numbers of men, when occasion is presented, to rebel; in the same manner as the bodies of children gotten by diseased parents are subject either to untimely death, or to purge the ill quality derived from their vicious conception, by breaking out into biles and scabs. And when kings deny themselves some such necessary power, it is not always (though sometimes) out of ignorance of what is necessary to the office they undertake, but many times out of a hope to recover the same again at their pleasure: wherein they reason not well; because such as will hold them to their promises shall be maintained against them by foreign Commonwealths; who in order to the good of their own subjects let slip few occasions to weaken the estate of their neighbours. So was Thomas Becket, Archbishop of Canterbury, supported against Henry the Second by the Pope; the subjection of ecclesiastics to the Commonwealth having been dispensed with by William the Conqueror at his reception, when he took an oath not to infringe the liberty of the Church. And so were the barons, whose power was by William Rufus, to have their help in transferring the succession from his elder brother to himself, increased to a degree inconsistent with the sovereign power, maintained in their rebellion against King John by the French.
Nor does this happen in monarchy only. For whereas the style of the ancient Roman Commonwealth was, "The Senate and People of Rome"; neither senate nor people pretended to the whole power; which first caused the seditions of Tiberius Gracchus, Caius Gracchus, Lucius Saturninus, and others; and afterwards the wars between the senate and the people under Marius and Sylla; and again under Pompey and Caesar to the extinction of their democracy and the setting up of monarchy.
The people of Athens bound themselves but from one only action, which was that no man on pain of death should propound the renewing of the war for the island of Salamis; and yet thereby, if Solon had not caused to be given out he was mad, and afterwards in gesture and habit of a madman, and in verse, propounded it to the people that flocked about him, they had had an enemy perpetually in readiness, even at the gates of their city: such damage, or shifts, are all Commonwealths forced to that have their power never so little limited.
In the second place, I observe the diseases of a Commonwealth that proceed from the poison of seditious doctrines, whereof one is that every private man is judge of good and evil actions. This is true in the condition of mere nature, where there are no civil laws; and also under civil government in such cases as are not determined by the law. But otherwise, it is manifest that the measure of good and evil actions is the civil law; and the judge the legislator, who is always representative of the Commonwealth. From this false doctrine, men are disposed to debate with themselves and dispute the commands of the Commonwealth, and afterwards to obey or disobey them as in their private judgments they shall think fit; whereby the Commonwealth is distracted and weakened.
Another doctrine repugnant to civil society is that whatsoever a man does against his conscience is sin; and it dependeth on the presumption of making himself judge of good and evil. For a man's conscience and his judgement is the same thing; and as the judgement, so also the conscience may be erroneous. Therefore, though he that is subject to no civil law sinneth in all he does against his conscience, because he has no other rule to follow but his own reason, yet it is not so with him that lives in a Commonwealth, because the law is the public conscience by which he hath already undertaken to be guided. Otherwise in such diversity as there is of private consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the sovereign power farther than it shall seem good in his own eyes.
It hath been also commonly taught that faith and sanctity are not to be attained by study and reason, but by supernatural inspiration or infusion. Which granted, I see not why any man should render a reason of his faith; or why every Christian should not be also a prophet; or why any man should take the law of his country rather than his own inspiration for the rule of his action. And thus we fall again into the fault of taking upon us to judge of good and evil; or to make judges of it such private men as pretend to be supernaturally inspired, to the dissolution of all civil government. Faith comes by hearing, and hearing by those accidents which guide us into the presence of them that speak to us; which accidents are all contrived by God Almighty, and yet are not supernatural, but only, for the great number of them that concur to every effect, unobservable. Faith and sanctity are indeed not very frequent; but yet they are not miracles, but brought to pass by education, discipline, correction, and other natural ways by which God worketh them in His elect, at such time as He thinketh fit. And these three opinions, pernicious to peace and government, have in this part of the world proceeded chiefly from tongues and pens of unlearned divines; who, joining the words of Holy Scripture together otherwise is agreeable to reason, do what they can to make men think that sanctity and natural reason cannot stand together.
A fourth opinion repugnant to the nature of a Commonwealth is this: that he that hath the sovereign power is subject to the civil laws. It is true that sovereigns are all subject to the laws of nature, because such laws be divine and divine and cannot by any man or Commonwealth be abrogated. But to those laws which the sovereign himself, that is, which the Commonwealth, maketh, he is not subject. For to be subject to laws is to be to be subject to the Commonwealth, that is, to the sovereign representative, that is, to himself which is not subjection, but freedom from the laws. Which error, because it setteth the laws above the sovereign, setteth also a judge above him, and a power to punish him; which is to make a new sovereign; and again for the same reason a third to punish the second; and so continually without end, to the confusion and dissolution of the Commonwealth.
A fifth doctrine that tendeth to the dissolution of a Commonwealth is that every private man has an absolute propriety in his goods, such as excludeth the right of the sovereign. Every man has indeed a propriety that excludes the right of every other subject: and he has it only from the sovereign power, without the protection whereof every other man should have right to the same. But the right of the sovereign also be excluded, he cannot perform the office they have put him into, which is to defend them both from foreign enemies and from the injuries of one another; and consequently there is no longer a Commonwealth.
And if the propriety of subjects exclude not the right of the sovereign representative to their goods; much less, to their offices of judicature or execution in which they represent the sovereign himself.
There is a sixth doctrine, plainly and directly against the essence of a Commonwealth, and it is this: that the sovereign power may be divided. For what is it to divide the power of a Commonwealth, but to dissolve it; for powers divided mutually destroy each other. And for these doctrines men are chiefly beholding to some of those that, making profession of the laws, endeavour to make them depend upon their own learning, and not upon the legislative power.
And as false doctrine, so also oftentimes the example of different government in a neighbouring nation disposeth men to alteration of the form already settled. So the people of the Jews were stirred up to reject God, and to call upon the prophet Samuel for a king after the manner of the nations: so also the lesser cities of Greece were continually disturbed with seditions of the aristocratical and democratical factions; one part of almost every Commonwealth desiring to imitate the Lacedaemonians; the other, the Athenians. And I doubt not but many men have been contented to see the late troubles in England out of an imitation of the Low Countries, supposing there needed no more to grow rich than to change, as they had done, the form of their government. For the constitution of man's nature is of itself subject to desire novelty: when therefore they are provoked to the same by the neighbourhood also of those that have been enriched by it, it is almost impossible to be content with those that solicit them to change; and love the first beginnings, though they be grieved with the continuance of disorder; like hot bloods that, having gotten the itch, tear themselves with their own nails till they can endure the smart no longer.
And as to rebellion in particular against monarchy, one of the most frequent causes of it is the reading of the books of policy and histories of the ancient Greeks and Romans; from which young men, and all others that are unprovided of the antidote of solid reason, receiving a strong and delightful impression of the great exploits of war achieved by the conductors of their armies, receive withal a pleasing idea of all they have done besides; and imagine their great prosperity not to have proceeded from the emulation of particular men, but from the virtue of their popular form of government not considering the frequent seditions and civil wars produced by the imperfection of their policy. From the reading, I say, of such books, men have undertaken to kill their kings, because the Greek and Latin writers in their books and discourses of policy make it lawful and laudable for any man so to do, provided before he do it he call him tyrant. For they say not regicide, that is, killing of a king, but tyrannicide, that is, killing of a tyrant, is lawful. From the same books they that live under a monarch conceive an the opinion that the subjects in a popular Commonwealth enjoy liberty, but that in a monarchy they are all slaves. I say, they that live under a monarchy conceive such an opinion; not that they live under a popular government: for they find no such matter. In sum, I cannot imagine how anything can be more prejudicial to a monarchy than the allowing of such books to be publicly read, without present applying such correctives of discreet masters as are fit to take away their venom: which venom I will not doubt to compare to the biting of a mad dog, which is a disease that physicians call hydrophobia, or fear of water. For as he that is so bitten has a continual torment of thirst, and yet abhorreth water; and is in such an estate as if the poison endeavoured to convert him into a dog; so when a monarchy is once bitten to the quick by those democratical writers that continually snarl at that estate, it wanteth nothing more than a strong monarch, which nevertheless out of a certain tyrannophobia, or fear of being strongly governed, when they have him, they abhor.
As there have been doctors that hold there be three souls in a man; so there be also that think there may be more souls, that is, more sovereigns, than one in a Commonwealth; and set up a supremacy against the sovereignty; canons against laws; and a ghostly authority against the civil; working on men's minds with words and distinctions that of themselves signify nothing, but bewray, by their obscurity, that there walketh (as some think invisibly) another kingdom, as it were a kingdom of fairies, in the dark. Now seeing it is manifest that the civil power and the power of the Commonwealth is the same thing; and that supremacy, and the power of making canons, and granting faculties, implieth a Commonwealth; it followeth that where one is sovereign, another supreme; where one can make laws, and another make canons; there must needs be two Commonwealths, of one and the same subjects; which is a kingdom divided in itself, and cannot stand. For notwithstanding the insignificant distinction of temporal and ghostly, they are still two kingdoms, and every subject is subject to two masters. For seeing the ghostly power challengeth the right to declare what is sin, it challengeth by consequence to declare what is law, sin being nothing but the transgression of the law; and again, the civil power challenging to declare what is law, every subject must obey two masters, who both will have their commands be observed as law, which is impossible. Or, if it be but one kingdom, either the civil, which is the power of the Commonwealth, must be subordinate to the ghostly, and then there is no sovereignty but the ghostly; or the ghostly must be subordinate to the temporal, and then there is no supremacy but the temporal. When therefore these two powers oppose one another, the Commonwealth cannot but be in great danger of civil war and dissolution. For the civil authority being more visible, and standing in the clearer light of natural reason, cannot choose but draw to it in all times a very considerable part of the people: and the spiritual, though it stand in the darkness of School distinctions and hard words; yet, because the fear of darkness and ghosts is greater than other fears, cannot want a party sufficient to trouble, and sometimes to destroy, a Commonwealth. And this is a disease which not unfitly may be compared to the epilepsy, or falling sickness (which the Jews took to be one kind of possession by spirits), in the body natural. For as in this disease there is an unnatural spirit or wind in the head that obstructeth the roots of the nerves and, moving them violently, taketh the motion which naturally they should have from the power of the soul in the brain; thereby causeth violent and irregular motions, which men call convulsions, in the parts; insomuch as he that is seized therewith falleth down sometimes into the water, and sometimes into the fire, as a man deprived of his senses: so also in the body politic, when the spiritual power moveth the members of a Commonwealth by the terror of punishments and hope of rewards, which are the nerves of it, otherwise than by the civil power, which is the soul of the Commonwealth, they ought to be moved; and by strange and hard words suffocates their understanding; it must needs thereby distract the people, and either overwhelm the Commonwealth with oppression, or cast it into the fire of a civil war.
Sometimes also in the merely civil government there be more than one soul: as when the power of levying money, which is the nutritive faculty, has depended on a general assembly; the power of conduct and command, which is the motive faculty, on one man; and the power of making laws, which is the rational faculty, on the accidental consent, not only of those two, but also of a third: this endangereth the Commonwealth, sometimes for want of consent to good laws, but most often for want of such nourishment as is necessary to life and motion. For although few perceive that such government is not government, but division of the Commonwealth into three factions, and call it mixed monarchy; yet the truth is that it is not one independent Commonwealth, but three independent factions; nor one representative person, but three. In the kingdom of God there may be three persons independent, without breach of unity in God that reigneth; but where men reign, that be subject to diversity of opinions, it cannot be so. And therefore if the king bear the person of the people, and the general assembly bear also the person of the people, and another assembly bear the person of a part of the people, they are not one person, nor one sovereign; but three persons, and three sovereigns.
To what disease in the natural body of man I may exactly compare this irregularity of a Commonwealth, I know not. But I have seen a man that had another man growing out of his side, with a head, arms, breast, and stomach of his own: if he had had another man growing out of his other side, the comparison might then have been exact.
Hitherto I have named such diseases of a Commonwealth as are of the greatest and most present danger. There be other, not so great, which nevertheless are not unfit to be observed. As first, the difficulty of raising money for the necessary uses of the Commonwealth, especially in the approach of war. This difficulty ariseth from the opinion that every subject hath of a propriety in his lands and goods exclusive of the sovereign's right to the use of the same. From whence it cometh to pass that the sovereign power, which foreseeth the necessities and dangers of the Commonwealth, finding the passage of money to the public treasury obstructed by the tenacity of the people, whereas it ought to extend itself, to encounter and prevent such dangers in their beginnings, contracteth itself as long as it can, and when it cannot longer, struggles with the people by stratagems of law to obtain little sums, which, not sufficing, he is fain at last violently to open the way for present supply or perish; and, being put often to these extremities, at last reduceth the people to their due temper, or else the Commonwealth must perish. Insomuch as we may compare this distemper very aptly to an ague; wherein, the fleshy parts being congealed, or by venomous matter obstructed, the veins which by their natural course empty themselves into the heart, are not (as they ought to be) supplied from the arteries, whereby there succeedeth at first a cold contraction and trembling of the limbs; and afterwards a hot and strong endeavour of the heart to force a passage for the blood; and before it can do that, contenteth itself with the small refreshments of such things as cool for a time, till, if nature be strong enough, it break at last the contumacy of the parts obstructed, and dissipateth the venom into sweat; or, if nature be too weak, the patient dieth.
Again, there is sometimes in a Commonwealth a disease which resembleth the pleurisy; and that is when the treasury of the Commonwealth, flowing out of its due course, is gathered together in too much abundance in one or a few private men, by monopolies or by farms of the public revenues; in the same manner as the blood in a pleurisy, getting into the membrane of the breast, breedeth there an inflammation, accompanied with a fever and painful stitches.
Also, the popularity of a potent subject, unless the Commonwealth have very good caution of his fidelity, is a dangerous disease; because the people, which should receive their motion from the authority of the sovereign, by the flattery and by the reputation of an ambitious man, are drawn away from their obedience to the laws to follow a man of whose virtues and designs they have no knowledge. And this is commonly of more danger in a popular government than in a monarchy, because an army is of so great force and multitude as it may easily be made believe they are the people. By this means it was that Julius Caesar, who was set up by the people against the senate, having won to himself the affections of his army, made himself master both of senate and people. And this proceeding of popular and ambitious men is plain rebellion, and may be resembled to the effects of witchcraft.
Another infirmity of a Commonwealth is the immoderate greatness of a town, when it is able to furnish out of its own circuit the number and expense of a great army; as also the great number of corporations, which are as it were many lesser Commonwealths in the bowels of a greater, like worms in the entrails of a natural man. To may be added, liberty of disputing against absolute power by pretenders to political prudence; which though bred for the most part in the lees of the people, yet animated by false doctrines are perpetually meddling with the fundamental laws, to the molestation of the Commonwealth, like the little worms which physicians call ascarides.
We may further add the insatiable appetite, or bulimia, of enlarging dominion, with the incurable wounds thereby many times received from the enemy; and the wens, of ununited conquests, which are many times a burden, and with less danger lost than kept; as also the lethargy of ease, and consumption of riot and vain expense.
Lastly, when in a war, foreign or intestine, the enemies get a final victory, so as, the forces of the Commonwealth keeping the field no longer, there is no further protection of subjects in their loyalty, then is the Commonwealth dissolved, and every man at liberty to protect himself by such courses as his own discretion shall suggest unto him. For the sovereign is the public soul, giving life and motion to the Commonwealth, which expiring, the members are governed by it no more than the carcass of a man by his departed, though immortal, soul. For though the right of a sovereign monarch cannot be extinguished by the act of another, yet the obligation of the members may. For he that wants protection may seek it anywhere; and, when he hath it, is obliged (without fraudulent pretence of having submitted himself out of fear) to protect his protection as long as he is able. But when the power of an assembly is once suppressed, the right of the same perisheth utterly, because the assembly itself is extinct; and consequently, there is no possibility for sovereignty to re-enter.
Chapter XXX: Of the Office of the Sovereign Representative
The office of the sovereign, be it a monarch or an assembly, consisteth in the end for which he was trusted with the sovereign power, namely the procuration of the safety of the people, to which he is obliged by the law of nature, and to render an account thereof to God, the Author of that law, and to none but Him. But by safety here is not meant a bare preservation, but also all other contentments of life, which every man by lawful industry, without danger or hurt to the Commonwealth, shall acquire to himself.
And this is intended should be done, not by care applied to individuals, further than their protection from injuries when they shall complain; but by a general providence, contained in public instruction, both of doctrine and example; and in the making and executing of good laws to which individual persons may apply their own cases.
And because, if the essential rights of sovereignty (specified before in the eighteenth Chapter) be taken away, the Commonwealth is thereby dissolved, and every man returneth into the condition and calamity of a war with every other man, which is the greatest evil that can happen in this life; it is the office of the sovereign to maintain those rights entire, and consequently against his duty, first, to transfer to another or to lay from himself any of them. For he that deserteth the means deserteth the ends; and he deserteth the means that, being the sovereign, acknowledgeth himself subject to the civil laws, and renounceth the power of supreme judicature; or of making war or peace by his own authority; or of judging of the necessities of the Commonwealth; or of levying money and soldiers when and as much as in his own conscience he shall judge necessary; or of making officers and ministers both of war and peace; or of appointing teachers, and examining what doctrines are conformable or contrary to the defence, peace, and good of the people. Secondly, it is against his duty to let the people be ignorant or misinformed of the grounds and reasons of those his essential rights, because thereby men are easy to be seduced and drawn to resist him when the Commonwealth shall require their use and exercise.
And the grounds of these rights have the rather need drafter need to be diligently and truly taught, because they cannot be maintained by any civil law or terror of legal punishment. For a civil law that shall forbid rebellion (and such is all resistance to the essential rights of sovereignty) is not, as a civil law, any obligation but by virtue only of the law of nature that forbiddeth the violation of faith; which natural obligation, if men know not, they cannot know the right of any law the sovereign maketh. And for the punishment, they take it but for an act of hostility; which when they think they have strength enough, they will endeavour, by acts of hostility, to avoid.
As I have heard some say that justice is but a word, without substance; and that whatsoever a man can by force or art acquire to himself, not only in the condition of war, but also in a Commonwealth, is his own, which I have already shown to be false: so there be also that maintain that there are no grounds, nor principles of reason, to sustain those essential rights which make sovereignty absolute. For if there were, they would have been found out in some place or other; whereas we see there has not hitherto been any Commonwealth where those rights have been acknowledged, or challenged. Wherein they argue as ill, as if the savage people of America should deny there were any grounds or principles of reason so to build a house as to last as long as the materials, because they never yet saw any so well built. Time and industry produce every day new knowledge. And as the art of well building is derived from principles of reason, observed by industrious men that had long studied the nature of materials, and the diverse effects of figure and proportion, long after mankind began, though poorly, to build: so, long time after men have begun to constitute Commonwealths, imperfect and apt to relapse into disorder, there may principles of reason be found out, by industrious meditation, to make their constitution, excepting by external violence, everlasting. And such are those which I have in this discourse set forth: which, whether they come not into the sight of those that have power to make use of them, or be neglected by them or not, concerneth my particular interest, at this day, very little. But supposing that these of mine are not such principles of reason; yet I am sure they are principles from authority of Scripture, as I shall make it appear when I shall come to speak of the kingdom of God, administered by Moses, over the Jews, His peculiar people by covenant.
But they say again that though the principles be right, yet common people are not of capacity enough to be made to understand them. I should be glad that the rich and potent subjects of a kingdom, or those that are accounted the most learned, were no less incapable than they. But all men know that the obstructions to this kind of doctrine proceed not so much from the difficulty of the matter, as from the interest of them that are to learn. Potent men digest hardly anything that setteth up a power to bridle their affections; and learned men, anything that discovereth their errors, and thereby their authority: whereas the common people's minds, unless they be tainted with dependence on the potent, or scribbled over with the opinions of their doctors, are like clean paper, fit to receive whatsoever by public authority shall be imprinted in them. Shall whole nations be brought to acquiesce in the great mysteries of Christian religion, which are above reason; and millions of men be made believe that the same body may be in innumerable places at one and the same time, which is against reason; and shall not men be able, by their teaching and preaching, protected by the law, to make that received which is so consonant to reason that any unprejudicated man needs no more to learn it than to hear it? I conclude therefore that in the instruction of the people in the essential rights which are the natural and fundamental laws of sovereignty, there is no difficulty, whilst a sovereign has his power entire, but what proceeds from his own fault, or the fault of those whom he trusteth in the administration of the Commonwealth; and consequently, it is his duty to cause them so to be instructed; and not only his duty, but his benefit also, and security against the danger that may arrive to himself in his natural person from rebellion.
And, to descend to particulars, the people are to be taught, first, that they ought not to be in love with any form of government they see in their neighbour nations, more than with their own, nor, whatsoever present prosperity they behold in nations that are otherwise governed than they, to desire change. For the prosperity of a people ruled by an aristocratical or democratical assembly cometh not from aristocracy, nor from democracy, but from the obedience and concord of the subjects: nor do the people flourish in a monarchy because one man has the right to rule them, but because they obey him. Take away in any kind of state the obedience, and consequently the concord of the people, and they shall not only not flourish, but in short time be dissolved. And they that go about by disobedience to do no more than reform the Commonwealth shall find they do thereby destroy it; like the foolish daughters of Peleus, in the fable, which desiring to renew the youth of their decrepit father, did by the counsel of Medea cut him in pieces and boil him, together with strange herbs, but made not of him a new man. This desire of change is like the breach of the first of God's Commandments: for there God says, Non habebis Deos alienos: "Thou shalt not have the Gods of other nations"; and in another place concerning kings, that they are gods.
Secondly, they are to be taught that they ought not to be led with admiration of the virtue of any of their fellow subjects, how high soever he stand, nor how conspicuously soever he shine in the Commonwealth; nor of any assembly, except the sovereign assembly, so as to defer to them any obedience or honour appropriate to the sovereign only, whom, in their particular stations, they represent; nor to receive any influence from them, but such as is conveyed by them from the sovereign authority. For that sovereign cannot be imagined to love his people as he ought that is not jealous of them, but suffers them by the flattery of popular men to be seduced from their loyalty, as they have often been, not only secretly, but openly, so as to proclaim marriage with them in facie ecclesiae by preachers, and by publishing the same in the open streets: which may fitly be compared to the violation of the second of the Ten Commandments.
Thirdly, in consequence to this, they ought to be informed how great a fault it is to speak evil of the sovereign representative, whether one man or an assembly of men; or to argue and dispute his power, or any way to use his name irreverently, whereby he may be brought into contempt with his people, and their obedience, in which the safety of the Commonwealth consisteth, slackened. Which doctrine the third Commandment by resemblance pointeth to.
Fourthly, seeing people cannot be taught this, nor, when it is taught, remember it, nor after one generation past so much as know in whom the sovereign power is placed, without setting apart from their ordinary labour some certain times in which they may attend those that are appointed to instruct them; it is necessary that some such times be determined wherein they may assemble together, and, after prayers and praises given to God, the Sovereign of sovereigns, hear those their duties told them, and the positive laws, such as generally concern them all, read and expounded, and be put in mind of the authority that maketh them laws. To this end had the Jews every seventh day a Sabbath, in which the law was read and expounded; and in the solemnity whereof they were put in mind that their king was God; that having created the world in six days, He rested on the seventh day; and by their resting on it from their labour, that that God was their king, which redeemed them from their servile and painful labour in Egypt, and gave them a time, after they had rejoiced in God, to take joy also in themselves, by lawful recreation. So that the first table of the Commandments is spent all in setting down the sum of God's absolute power; not only as God, but as King by pact, in peculiar, of the Jews; and may therefore give light to those that have sovereign power conferred on them by the consent of men, to see what doctrine they ought to teach their subjects.
And because the first instruction of children dependeth on the care of their parents, it is necessary that they should be obedient to them whilst they are under their tuition; and not only so, but that also afterwards, as gratitude requireth, they acknowledge the benefit of their education by external signs of honour. To which end they are to be taught that originally the father of every man was also his sovereign lord, with power over him of life and death; and that the fathers of families, when by instituting a Commonwealth they resigned that absolute power, yet it was never intended they should lose the honour due unto them for their education. For to relinquish such right was not necessary to the institution of sovereign power; nor would there be any reason why any man should desire to have children, or take the care to nourish and instruct them, if they were afterwards to have no other benefit from them than from other men. And this accordeth with the fifth Commandment.
Again, every sovereign ought to cause justice to be taught, which, consisting in taking from no man what is his, is as much as to say, to cause men to be taught not to deprive their neighbours, by violence or fraud, of anything which by the sovereign authority is theirs. Of things held in propriety, those that are dearest to a man are his own life and limbs; and in the next degree, in most men, those that concern conjugal affection; and after them riches and means of living. Therefore the people are to be taught to abstain from violence to one another's person by private revenges, from violation of conjugal honour, and from forcible rapine and fraudulent surreption of one another's goods. For which purpose also it is necessary they be shown the evil consequences of false judgment, by corruption either of judges or witnesses, whereby the distinction of propriety is taken away, and justice becomes of no effect: all which things are intimated in the sixth, seventh, eighth, and ninth Commandments.
Lastly, they are to be taught that not only the unjust facts, but the designs and intentions to do them, though by accident hindered, are injustice; which consisteth in the pravity of the will, as well as in the irregularity of the act. And this is the intention of the tenth Commandment, and the sum of the second table; which is reduced all to this one commandment of mutual charity, "Thou shalt love thy neighbour as thy self"; as the sum of the first table is reduced to "the love of God"; whom they had then newly received as their king.
As for the means and conduits by which the people may receive this instruction, we are to search by what means so many opinions contrary to the peace of mankind, upon weak and false principles, have nevertheless been so deeply rooted in them. I mean those which I have in the precedent the precedent chapter specified: as that men shall judge of what is lawful and unlawful, not by the law itself, but by their own consciences; that is to say, by their own private judgements: that subjects sin in obeying the commands of the Commonwealth, unless they themselves have first judged them to be lawful: that their propriety in their riches is such as to exclude the dominion which the Commonwealth hath the same: that it is lawful for subjects to kill such as they call tyrants: that the sovereign power may be divided, and the like; which come to be instilled into the people by this means. They whom necessity or covetousness keepeth attent on their trades and labour; and they, on the other side, whom superfluity or sloth carrieth after their sensual pleasures (which two sorts of men take up the greatest part of mankind), being diverted from the deep meditation which the of truth, not only in the matter of natural justice, but also of all other sciences necessarily requireth, receive the notions of their duty chiefly from divines in the pulpit, and partly from such of their neighbours or familiar acquaintance as having the faculty of discoursing readily and plausibly seem wiser and better learned in cases of law and conscience than themselves. And the divines, and such others as make show of learning, derive their knowledge from the universities, and from the schools of law, or from the books which by men eminent in those schools and universities have been published. It is therefore manifest that the instruction of the people dependeth wholly on the right teaching of youth in the universities. But are not, may some man say, the universities of England learned enough already to do that? Or is it, you will undertake to teach the universities? Hard questions. Yet to the first, I doubt not to answer: that till towards the latter end of Henry the Eighth, the power of the Pope was always upheld against the power of the Commonwealth, principally by the universities; and that the doctrines by so many preachers against the sovereign power of the king, and by so many lawyers and others that had their education there, is a sufficient argument that, though the universities were not authors of those false doctrines, yet they knew not how to plant the true. For in such a contradiction of opinions, it is most certain that they have not been sufficiently instructed; and it is no wonder, if they yet retain a relish of that subtle liquor wherewith they were first seasoned against the civil authority. But to the latter question, it is not fit nor needful for me to say either aye or no: for any man that sees what I am doing may easily perceive what I think.
The safety of the people requireth further, from him or them that have the sovereign power, that justice be equally administered to all degrees of people; that is, that as well the rich and mighty, as poor and obscure persons, may be righted of the injuries done them; so as the great may have no greater hope of impunity, when they do violence, dishonour, or any injury to the meaner sort, than when one of these does the like to one of them: for in this consisteth equity; to which, as being a precept of the law of nature, a sovereign is as much subject as any of the meanest of his people. All breaches of the law are offences against the Commonwealth: but there be some that are also against private persons. Those that concern the Commonwealth only may without breach of equity be pardoned; for every man may pardon what is done against himself, according to his own discretion. But an offence against a private man cannot in equity be pardoned without the consent of him that is injured; or reasonable satisfaction.
The inequality of subjects proceedeth from the acts of sovereign power, and therefore has no more place in the presence of the sovereign; that is to say, in a court of justice, than the inequality between kings and their subjects in the presence of the King of kings. The honour of great persons is to be valued for their beneficence, and the aids they give to men of inferior rank, or not at all. And the violences, oppressions, and injuries they do are not extenuated, but aggravated, by the greatness of their persons, because they have least need to commit them. The consequences of this partiality towards the great proceed in this manner. Impunity maketh insolence; insolence, hatred; and hatred, an endeavour to pull down all oppressing and contumelious greatness, though with the ruin of the Commonwealth.
To equal justice appertaineth also the equal imposition of taxes; the equality whereof dependeth not on the equality of riches, but on the equality of the debt that every man oweth to the Commonwealth for his defence. It is not enough for a man to labour for the maintenance of his life; but also to fight, if need be, for the securing of his labour. They must either do as the Jews did after their return from captivity, in re-edifying the Temple, build with one hand and hold the sword in the other, or else they must hire others to fight for them. For the impositions that are laid on the people by the sovereign power are nothing else but the wages due to them that hold the public sword to defend private men in the exercise of several trades and callings. Seeing then the benefit that every one receiveth thereby is the enjoyment of life, which is equally dear to poor and rich, the debt which a poor man oweth them that defend his life is the same which a rich man oweth for the defence of his; saving that the rich, who have the service of the poor, may be debtors not only for their own persons, but for many more. Which considered, the equality of imposition consisteth rather in the equality of that which is consumed, than of the riches of the persons that consume the same. For what reason is there that he which laboureth much and, sparing the fruits of his labour, consumeth little should be more charged than he that, living idly, getteth little and spendeth all he gets; seeing the one hath no more protection from the Commonwealth than the other? But when the impositions are laid upon those things which men consume, every man payeth equally for what he useth; nor is the Commonwealth defrauded by the luxurious waste of private men.
And whereas many men, by accident inevitable, become unable to maintain themselves by their labour, they ought not to be left to the charity of private persons, but to be provided for, as far forth as the necessities of nature require, by the laws of the Commonwealth. For as it is uncharitableness in any man to neglect the impotent; so it is in the sovereign of a Commonwealth, to expose them to the hazard of such uncertain charity.
But for such as have strong bodies the case is otherwise; they are to be forced to work; and to avoid the excuse of not finding employment, there ought to be such laws as may encourage all manner of arts; as navigation, agriculture, fishing, and all manner of manufacture that requires labour. The multitude of poor and yet strong people still increasing, they are to be transplanted into countries not sufficiently inhabited; where nevertheless they are not to exterminate those they find there; but constrain them to inhabit closer together, and not range a great deal of ground to snatch what they find, but to court each little plot with art and labour, to give them their sustenance in due season. And when all the world is overcharged with inhabitants, then the last remedy of all is war, which provideth for every man, by victory or death.
To the care of the sovereign belongeth the making of good laws. But what is a good law? By a good law, I mean not a just law: for no law can be unjust. The law is made by the sovereign power, and all that is done by such power is warranted and owned by every one of the people; and that which every man will have so, no man can say is unjust. It is in the laws of a Commonwealth, as in the laws of gaming: whatsoever the gamesters all agree on is injustice to none of them. A good law is that which is needful, for the good of the people, and withal perspicuous.
For the use of laws (which are but rules authorized) is not to bind the people from all voluntary actions, but to direct and keep them in such a motion as not to hurt themselves by their own impetuous desires, rashness, or indiscretion; as hedges are set, not to stop travellers, but to keep them in the way. And therefore a law that is not needful, having not the true end of a law, is not good. A law may be conceived to be good when it is for the benefit of the sovereign, though it be not necessary for the people, but it is not so. For the good of the sovereign and people cannot be separated. It is a weak sovereign that has weak subjects; and a weak people whose sovereign wanteth power to rule them at his will. Unnecessary laws are not good laws, but traps for money which, where the right of sovereign power is acknowledged, are superfluous; and where it is not acknowledged, insufficient to defend the people.
The perspicuity consisteth not so much in the words of the law itself, as in a declaration of the causes and motives for which it was made. That is it that shows us the meaning of the legislator; and the meaning of the legislator known, the law is more easily understood by few than many words. For all words are subject to ambiguity; and therefore multiplication of words in the body of the law is multiplication of ambiguity: besides it seems to imply, by too much diligence, that whosoever can evade the words is without the compass of the law. And this is a cause of many unnecessary processes. For when I consider how short were the laws of ancient times, and how they grew by degrees still longer, methinks I see a contention between the penners and pleaders of the law; the former seeking to circumscribe the latter, and the latter to evade their circumscriptions; and that the pleaders have got the victory. It belongeth therefore to the office of a legislator (such as is in all Commonwealths the supreme representative, be it one man or an assembly) to make the reason perspicuous why the law was made, and the body of the law itself as short, but in as proper and significant terms, as may be.
It belongeth also to the office of the sovereign to make a right application of punishments and rewards. And seeing the end of punishing is not revenge and discharge of choler, but correction either of the offender or of others by his example, the severest punishments are to be inflicted for those crimes that are of most danger to the public; such as are those which proceed from malice to the government established; those that spring from contempt of justice; those that provoke indignation in the multitude; and those which, unpunished, seem authorized, as when they are committed by sons, servants, or favourites of men in authority: for indignation carrieth men, not only against the actors and authors of injustice, but against all power that is likely to protect them; as in the case of Tarquin, when for the insolent act of one of his sons he was driven out of Rome, and the monarchy itself dissolved. But crimes of infirmity; such as are those which proceed from great provocation, from great fear, great need, or from ignorance whether the fact be a great crime or not, there is place many times for lenity, without prejudice to the Commonwealth; and lenity, when there is such place for it, is required by the law of nature. The punishment of the leaders and teachers in a commotion; not the poor seduced people, when they are punished, can profit the Commonwealth by their example. To be severe to people is to punish ignorance which may in great part be imputed to the sovereign, whose fault it was they were no better instructed.
In like manner it belongeth to the office and duty of the sovereign to apply his rewards always so as there may arise from them benefit to the Commonwealth: wherein consisteth their use and end; and is then done when they that have well served the Commonwealth are, with as little expense of the common treasury as is possible, so well recompensed as others thereby may be encouraged, both to serve the same as faithfully as they can, and to study the arts by which they may be enabled to do it better. To buy with money or preferment, from a popular ambitious subject to be quiet and desist from making ill impressions in the minds of the people, has nothing of the nature of reward (which is ordained not for disservice, but for service past); nor a sign of gratitude, but of fear; nor does it tend to the benefit, but to the damage of the public. It is a contention with ambition, that of Hercules with the monster Hydra, which, having many heads, for every one that was vanquished there grew up three. For in like manner, when the stubbornness of one popular man is overcome with reward, there arise many more by the example, that do the same mischief in hope of like benefit: and as all sorts of manufacture, so also malice increaseth by being vendible. And though sometimes a civil war may be deferred by such ways as that, yet the danger grows still the greater, and the public ruin more assured. It is therefore against the duty of the sovereign, to whom the public safety is committed, to reward those that aspire to greatness by disturbing the peace of their country, and not rather to oppose the beginnings of such men with a little danger, than after a longer time with greater.
Another business of the sovereign is to choose good counsellors; I mean such whose advice he is to take in the government of the Commonwealth. For this word counsel (consilium, corrupted from considium) is of a large signification, and comprehendeth all assemblies of men that sit together, not only to deliberate what is to be done hereafter, but also to judge of facts past, and of law for the present. I take it here in the first sense only: and in this sense, there is no choice of counsel, neither in a democracy nor aristocracy; because the persons counselling are members of the person counselled. The choice of counsellors therefore is proper to monarchy, in which the sovereign that endeavoureth not to make choice of those that in every kind are the most able, dischargeth not his office as he ought to do. The most able counsellors are they that have least hope of benefit by giving evil counsel, and most knowledge of those things that conduce to the peace and defence of the Commonwealth. It is a hard matter to know who expecteth benefit from public troubles; but the signs that guide to a just suspicion is the soothing of the people in their unreasonable or irremediable grievances by men whose estates are not sufficient to discharge their accustomed expenses, and may easily be observed by any one whom it concerns to know it. But to know who has most knowledge of the public affairs is yet harder; and they that know them need them a great deal the less. For to know who knows the rules almost of any art is a great degree of the knowledge of the same art, because no man can be assured of the truth of another's rules but he that is first taught to understand them. But the best signs of knowledge of any art are much conversing in it and constant good effects of it. Good counsel comes not by lot, nor by inheritance; and therefore there is no more reason to expect good advice from the rich or noble in matter of state, than in delineating the dimensions of a fortress; unless we shall think there needs no method in the study of the politics, as there does in the study of geometry, but only to be lookers on; which is not so. For the politics is the harder study of the two. Whereas in these parts of Europe it hath been taken for a right of certain persons to have place in the highest council of state by inheritance, it derived from the conquests of the ancient Germans; wherein many absolute lords, joining together to conquer other nations, would not enter into the confederacy without such privileges as might be marks of difference, in time following, between their posterity and the posterity of their subjects; which privileges being inconsistent with the sovereign power, by the favour of the sovereign they may seem to keep; but contending for them as their right, they must needs by degrees let them go, and have at last no further honour than adhereth naturally to their abilities.
And how able soever be the counsellors in any affair, the benefit of their counsel is greater when they give every one his advice, and the reasons of it apart, than when they do it in an assembly by way of orations; and when they have premeditated, than when they speak on the sudden; both because they have more time to survey the consequences of action, and are less subject to be carried away to contradiction through envy, emulation, or other passions arising from the difference of opinion.
The best counsel, in those things that concern not other nations, but only the ease and benefit the subjects may enjoy, by laws that look only inward, is to be taken from the general informations and complaints of the people of each province, who are best acquainted with their own wants, and ought therefore, when they demand nothing in derogation of the essential rights of sovereignty, to be diligently taken notice of. For without those essential rights, as I have often before said, the Commonwealth cannot at all subsist.
A commander of an army in chief, if he be not popular, shall not be beloved, nor feared as he ought to be by his army, and consequently cannot perform that office with good success. He must therefore be industrious, valiant, affable, liberal and fortunate, that he may gain an opinion both of sufficiency and of loving his soldiers. This is popularity, and breeds in the soldiers both desire and courage to recommend themselves to his favour; and protects the severity of the general, in punishing, when need is, the mutinous or negligent soldiers. But this love of soldiers, if caution be not given of the commander's fidelity, is a dangerous thing to sovereign power; especially when it is in the hands of an assembly not popular. It belongeth therefore to the safety of the people, both that they be good conductors and faithful subjects, to whom the sovereign commits his armies.
But when the sovereign himself is popular; that is, reverenced and beloved of his people, there is no danger at all from the popularity of a subject. For soldiers are never so generally unjust as to side with their captain, though they love him, against their sovereign, when they love not only his person, but also his cause. And therefore those who by violence have at any time suppressed the power of their lawful sovereign, before they could settle themselves in his place, have been always put to the trouble of contriving their titles to save the people from the shame of receiving them. To have a known right to sovereign power is so popular a quality as he that has it needs no more, for his own part, to turn the hearts of his subjects to him, but that they see him able absolutely to govern his own family: nor, on the part of his enemies, but a disbanding of their armies. For the greatest and most active part of mankind has never hitherto been well contented with the present.
Concerning the offices of one sovereign to another, which are comprehended in that law which is commonly called the law of nations, I need not say anything in this place, because the law of nations and the law of nature is the same thing. And every sovereign hath the same right in procuring the safety of his people, that any particular man can have in procuring the safety of his own body. And the same law that dictateth to men that have no civil government what they ought to do, and what to avoid in regard of one another, dictateth the same to Commonwealths; that is, to the consciences of sovereign princes and sovereign assemblies; there being no court of natural justice, but in the conscience only, where not man, but God reigneth; whose laws, such of them as oblige all mankind, in respect of God, as he is the Author of nature, are natural; and in respect of the same God, as he is King of kings, are laws. But of the kingdom of God, as King of kings, and as King also of a peculiar people, I shall speak in the rest of this discourse.
Chapter XXXI: Of the Kingdom of God by Nature
That the condition of mere nature, that is to say, of absolute liberty, such as is theirs that neither are sovereigns nor subjects, is anarchy and the condition of war: that the precepts, by which men are guided to avoid that condition, are the laws of nature: that a Commonwealth without sovereign power is but a word without substance and cannot stand: that subjects owe to sovereigns simple obedience in all things wherein their obedience is not repugnant to the laws of God, I have sufficiently proved in that which I have already written. There wants only, for the entire knowledge of civil duty, to know what are those laws of God. For without that, a man knows not, when he is commanded anything by the civil power, whether it be contrary to the law of God or not: and so, either by too much civil obedience offends the Divine Majesty, or, through fear of offending God, transgresses the commandments of the Commonwealth. To avoid both these rocks, it is necessary to know what are the laws divine. And seeing the knowledge of all law dependeth on the knowledge of the sovereign power, I shall say something in that which followeth of the KINGDOM OF GOD.
"God is King, let the earth rejoice,"* saith the psalmist. And again, "God is King though the nations be angry; and he that sitteth on the cherubim, though the earth be moved."*(2) Whether men will or not, they must be subject always to the divine power. By denying the existence or providence of God, men may shake off their ease, but not their yoke. But to call this power of God, which extendeth itself not only to man, but also to beasts, and plants, and bodies inanimate, by the name of kingdom, is but a metaphorical use of the word. For he only is properly said to reign that governs his subjects by his word and by promise of rewards to those that obey it, by threatening them with punishment that obey it not. Subjects therefore in the kingdom of God are not bodies inanimate, nor creatures irrational; because they understand no precepts as his: nor atheists, nor they that believe not that God has any care of the actions of mankind; because they acknowledge no word for his, nor have hope of his rewards, or fear of his threatenings. They therefore that believe there is a God that governeth the world, and hath given precepts, and propounded rewards and punishments to mankind, are God's subjects; all the rest are to be understood as enemies.
- Psalms, 97. 1
- (2) Ibid., 99. 1
To rule by words requires that such words be manifestly made known; for else they are no laws: for to the nature of laws belongeth a sufficient and clear promulgation, such as may take away the excuse of ignorance; which in the laws of men is but of one only kind, and that is, proclamation or promulgation by the voice of man. But God declareth his laws three ways; by the dictates of natural reason, by revelation, and by the voice of some man to whom, by the operation of miracles, he procureth credit with the rest. From hence there ariseth a triple word of God, rational, sensible, and prophetic; to which correspondeth a triple hearing: right reason, sense supernatural, and faith. As for sense supernatural, which consisteth in revelation or inspiration, there have not been any universal laws so given, because God speaketh not in that manner but to particular persons, and to diverse men diverse things.
From the difference between the other two kinds of God's word, rational and prophetic, there may be attributed to God a twofold kingdom, natural and prophetic: natural, wherein He governeth as many of mankind as acknowledge His providence, by the natural dictates of right reason; and prophetic, wherein having chosen out one peculiar nation, the Jews, for His subjects, He governed them, and none but them, not only by natural reason, but by positive laws, which He gave them by the mouths of His holy prophets. Of the natural kingdom of God I intend to speak in this chapter.
The right of nature whereby God reigneth over men, and punisheth those that break his laws, is to be derived, not from His creating them, as if He required obedience as of gratitude for His benefits, but from His irresistible power. I have formerly shown how the sovereign right ariseth from pact: to show how the same right may arise from nature requires no more but to show in what case it is never taken away. Seeing all men by nature had right to all things, they had right every one to reign over all the rest. But because this right could not be obtained by force, it concerned the safety of every one, laying by that right, to set up men, with sovereign authority, by common consent, to rule and defend them: whereas if there had been any man of power irresistible, there had been no reason why he should not by that power have ruled and defended both himself and them, according to his own discretion. To those therefore whose power is irresistible, the dominion of all men adhereth naturally by their excellence of power; and consequently it is from that power that the kingdom over men, and the right of afflicting men at his pleasure, belongeth naturally to God Almighty; not as Creator and gracious, but as omnipotent. And though punishment be due for sin only, because by that word is understood affliction for sin; yet the right of afflicting is not always derived from men's sin, but from God's power.
This question: why evil men often prosper; and good men suffer adversity, has been much disputed by the ancient, and is the same with this of ours: by what right God dispenseth the prosperities and adversities of this life; and is of that difficulty, as it hath shaken the faith, not only of the vulgar, but of philosophers and, which is more, of the saints, concerning the Divine Providence. "How good," saith David, "is the God of Israel to those that are upright in heart; and yet my feet were almost gone, my treadings had well-nigh slipped; for I was grieved at the wicked, when I saw the ungodly in such prosperity."* And Job, how earnestly does he expostulate with God for the many afflictions he suffered, notwithstanding his righteousness? This question in the case of Job is decided by God Himself, not by arguments derived from Job's sin, but His own power. For whereas the friends of Job drew their arguments from his affliction to his sin, and he defended himself by the conscience of his innocence, God Himself taketh up the matter, and having justified the affliction by arguments drawn from His power, such as this, "Where wast thou when I laid the foundations of the earth,"*(2) and the like, both approved Job's innocence and reproved the erroneous doctrine of his friends. Conformable to this doctrine is the sentence of our Saviour concerning the man that was born blind, in these words, "Neither hath this man sinned, nor his fathers; but that the works of God might be made manifest in him." And though it be said, "that death entered into the world by sin," (by which is meant that if Adam had never sinned, he had never died, that is, never suffered any separation of his soul from his body), it follows not thence that God could not justly have afflicted him, though he had not sinned, as well as He afflicteth other living creatures that cannot sin.
- Psalms, 73. 1-3
- (2) Job, 38. 4
Having spoken of the right of God's sovereignty as grounded only on nature, we are to consider next what are the divine laws, or dictates of natural reason; which laws concern either the natural duties of one man to another, or the honour naturally due to our Divine Sovereign. The first are the same laws of nature, of which I have spoken already in the fourteenth and fifteenth Chapters of this treatise; namely, equity, justice, mercy, humility, and the rest of the moral virtues. It remaineth therefore that we consider what precepts are dictated to men by their natural reason only, without other word of God, touching the honour and worship of the Divine Majesty.
Honour consisteth in the inward thought and opinion of the power and goodness of another: and therefore to honour God is to think as highly of His power and goodness as is possible. And of that opinion, the external signs appearing in the words and actions of men are called worship; which is one part of that which the Latins understand by the word cultus: for cultus signifieth properly, and constantly, that labour which a man bestows on anything with a purpose to make benefit by it. Now those things whereof we make benefit are either subject to us, and the profit they yield followeth the labour we bestow upon them as a natural effect; or they are not subject to us, but answer our labour according to their own wills. In the first sense the labour bestowed on the earth is called culture; and the education of children, a culture of their minds. In the second sense, where men's wills are to be wrought to our purpose, not by force, but by complaisance, it signifieth as much as courting, that is, winning of favour by good offices; as by praises, by acknowledging their power, and by whatsoever is pleasing to them from whom we look for any benefit. And this is properly worship: in which sense publicola is understood for a worshipper of the people; and cultus Dei, for the worship of God.
From internal honour, consisting in the opinion of power and goodness, arise three passions; love, which hath reference to goodness; and hope, and fear, that relate to power: and three parts of external worship; praise, magnifying, and blessing: the subject of praise being goodness; the subject of magnifying and blessing being power, and the effect thereof felicity. Praise and magnifying are signified both by words and actions: by words, when we say a man is good or great; by actions, when we thank him for his bounty, and obey his power. The opinion of the happiness of another can only be expressed by words.
There be some signs of honour, both in attributes and actions, that be naturally so; as amongst attributes, good, just, liberal, and the like; and amongst actions, prayers, thanks, and obedience. Others are so by institution, or custom of men; and in some times and places are honourable; in others, dishonourable; in others, indifferent: such as are the gestures in salutation, prayer, and thanksgiving, in different times and places, differently used. The former is natural; the latter arbitrary worship.
And of arbitrary worship, there be two differences: for sometimes it is commanded, sometimes voluntary worship: commanded, when it is such as he requireth who is worshipped: free, when it is such as the worshipper thinks fit. When it is commanded, not the words or gesture, but the obedience is the worship. But when free, the worship consists in the opinion of the beholders: for if to them the words or actions by which we intend honour seem ridiculous, and tending to contumely; they are no worship, because no signs of honour; and no signs of honour, because a sign is not a sign to him that giveth it, but to him to whom it is made, that is, to the spectator.
Again there is a public an private worship. Public is the worship that a Commonwealth performeth, as one person. Private is that which a private person exhibiteth. Public, in respect of the whole Commonwealth, is free; but in respect of particular men it is not so. Private is in secret free; but in the sight of the multitude it is never without some restraint, either from the laws or from the opinion of men; which is contrary to the nature of liberty.
The end of worship amongst men is power. For where a man seeth another worshipped, he supposeth him powerful, and is the readier to obey him; which makes his power greater. But God has no ends: the worship we do him proceeds from our duty and is directed according to our capacity by those rules of honour that reason dictateth to be done by the weak to the more potent men, in hope of benefit, for fear of damage, or in thankfulness for good already received from them.
That we may know what worship of God is taught us by the light of nature, I will begin with His attributes. Where, first, it is manifest, we ought to attribute to Him existence: for no man can have the will to honour that which he thinks not to have any being.
Secondly, that those philosophers who said the world, or the soul of the world, was God spake unworthily of Him, and denied His existence: for by God is understood the cause of the world; and to say the world is God is to say there is no cause of it, that is, no God.
Thirdly, to say the world was not created, but eternal, seeing that which is eternal has no cause, is to deny there is a God.
Fourthly, that they who, attributing, as they think, ease to God, take from Him the care of mankind, take from Him his honour: for it takes away men's love and fear of Him, which is the root of honour.
Fifthly, in those things that signify greatness and power, to say He is finite is not to honour Him: for it is not a sign of the will to honour God to attribute to Him less than we can; and finite is less than we can, because to finite it is easy to add more.
Therefore to attribute figure to Him is not honour; for all figure is finite:
Nor to say we conceive, and imagine, or have an idea of Him in our mind; for whatsoever we conceive is finite:
Nor to attribute to Him parts or totality; which are the attributes only of things finite:
Nor to say He is in this or that place; for whatsoever is in place is bounded and finite:
Nor that He is moved or resteth; for both these attributes ascribe to Him place:
Nor that there be more gods than one, because it implies them all finite; for there cannot be more than one infinite:
Nor to ascribe to Him (unless metaphorically, meaning not the passion, but the effect) passions that partake of grief; as repentance, anger, mercy: or of want; as appetite, hope, desire; or of any passive faculty: for passion is power limited by somewhat else.
And therefore when we ascribe to God a will, it is not to be understood, as that of man, for a rational appetite; but as the power by which He effecteth everything.
Likewise when we attribute to Him sight, and other acts of sense; as also knowledge and understanding; which in us is nothing else but a tumult of the mind, raised by external things that press the organical parts of man's body: for there is no such thing in God, and, being things that depend on natural causes, cannot be attributed to Him.
He that will attribute to God nothing but what is warranted by natural reason must either use such negative attributes as infinite, eternal, incomprehensible; or superlatives, as most high, most great, and the like; or indefinite, as good, just, holy, creator; and in such sense as if He meant not to declare what He is (for that were to circumscribe Him within the limits of our fancy), but how much we admire Him, and how ready we would be to obey Him; which is a sign of humility, and of a will to honour Him as much as we can: for there is but one name to signify our conception of His nature, and that is I AM; and but one name of His relation to us, and that is God, in which is contained father, king, and lord.
Concerning the actions of divine worship, it is a most general precept of reason that they be signs of the intention to honour God; such as are, first, prayers: for not the carvers, when they made images, were thought to make them gods, but the people that prayed to them.
Secondly, thanksgiving; which differeth from prayer in divine worship no otherwise than that prayers precede, and thanks succeed, the benefit, the end both of the one and the other being to acknowledge God for author of all benefits as well past as future.
Thirdly, gifts; that is to say, sacrifices and oblations, if they be of the best, are signs of honour, for they are thanksgivings.
Fourthly, not to swear by any but God is naturally a sign of honour, for it is a confession that God only knoweth the heart and that no man's wit or strength can protect a man against God's vengeance on the perjured.
Fifthly, it is a part of rational worship to speak considerately of God, for it argues a fear of Him, and fear is a confession of His power. Hence followeth, that the name of God is not to be used rashly and to no purpose; for that is as much as in vain: and it is to no purpose unless it be by way of oath, and by order of the Commonwealth, to make judgements certain; or between Commonwealths, to avoid war. And that disputing of God's nature is contrary to His honour, for it is supposed that in this natural kingdom of God, there is no other way to know anything but by natural reason; that is, from the principles of natural science; which are so far from teaching us anything of God's nature, as they cannot teach us our own nature, nor the nature of the smallest creature living. And therefore, when men out of the principles of natural reason dispute of the attributes of God, they but dishonour Him: for in the attributes which we give to God, we are not to consider the signification of philosophical truth, but the signification of pious intention to do Him the greatest honour we are able. From the want of which consideration have proceeded the volumes of disputation about the nature of God that tend not to His honour, but to the honour of our own wits and learning; and are nothing else but inconsiderate and vain abuses of His sacred name.
Sixthly, in prayers, thanksgiving, offerings and sacrifices, it is a dictate of natural reason that they be every one in his kind the best and most significant of honour. As, for example, that prayers and thanksgiving be made in words and phrases not sudden, nor light, nor plebeian, but beautiful and well composed; for else we do not God as much honour as we can. And therefore the heathens did absurdly to worship images for gods, but their doing it in verse, and with music, both of voice and instruments, was reasonable. Also that the beasts they offered in sacrifice, and the gifts they offered, and their actions in worshipping, were full of submission, and commemorative of benefits received, was according to reason, as proceeding from an intention to honour him.
Seventhly, reason directeth not only to worship God in secret, but also, and especially, in public, and in the sight of men: for without that, that which in honour is most acceptable, the procuring others to honour Him is lost.
Lastly, obedience to His laws (that is, in this case to the laws of nature) is the greatest worship of all. For as obedience is more acceptable to God than sacrifice; so also to set light by His commandments is the greatest of all contumelies. And these are the laws of that divine worship which natural reason dictateth to private men.
But seeing a Commonwealth is but one person, it ought also to exhibit to God but one worship; which then it doth when it commandeth it to be exhibited by private men, publicly. And this is public worship, the property whereof is to be uniform: for those actions that are done differently by different men cannot said to be a public worship. And therefore, where many sorts of worship be allowed, proceeding from the different religions of private men, it cannot be said there is any public worship, nor that the Commonwealth is of any religion at all.
And because words (and consequently the attributes of God) have their signification by agreement and constitution of men, those attributes are to be held significative of honour that men intend shall so be; and whatsoever may be done by the wills of particular men, where there is no law but reason, may be done by the will of the Commonwealth by laws civil. And because a Commonwealth hath no will, nor makes no laws but those that are made by the will of him or them that have the sovereign power, it followeth that those attributes which the sovereign ordaineth in the worship of God for signs of honour ought to be taken and used for such by private men in their public worship.
But because not all actions are signs by constitution, but some are naturally signs of honour, others of contumely, these latter, which are those that men are ashamed to do in the sight of them they reverence, cannot be made by human power a part of divine worship; nor the former, such as are decent, modest, humble behaviour, ever be separated from it. But whereas there be an infinite number of actions and gestures of an indifferent nature, such of them as the Commonwealth shall ordain to be publicly and universally in use, as signs of honour and part of God's worship, are to be taken and used for such by the subjects. And that which is said in the Scripture, "It is better to obey God than man," hath place in the kingdom of God by pact, and not by nature.
Having thus briefly spoken of the natural kingdom of God, and His natural laws, I will add only to this chapter a short declaration of His natural punishments. There is no action of man in this life that is not the beginning of so long a chain of consequences as no human providence is high enough to give a man a prospect to the end. And in this chain there are linked together both pleasing and unpleasing events; in such manner as he that will do anything for his pleasure, must engage himself to suffer all the pains annexed to it; and these pains are the natural punishments of those actions which are the beginning of more harm than good. And hereby it comes to pass that intemperance is naturally punished with diseases; rashness, with mischances; injustice, with the violence of enemies; pride, with ruin; cowardice, with oppression; negligent government of princes, with rebellion; and rebellion, with slaughter. For seeing punishments are consequent to the breach of laws, natural punishments must be naturally consequent to the breach of the laws of nature, and therefore follow them as their natural, not arbitrary, effects.
And thus far concerning the constitution, nature, and right of sovereigns, and concerning the duty of subjects, derived from the principles of natural reason. And now, considering how different this doctrine is from the practice of the greatest part of the world, especially of these western parts that have received their moral learning from Rome and Athens, and how much depth of moral philosophy is required in them that have the administration of the sovereign power, I am at the point of believing this my labour as useless as the Commonwealth of Plato: for he also is of opinion that it is impossible for the disorders of state, and change of governments by civil war, ever to be taken away till sovereigns be philosophers. But when I consider again that the science of natural justice is the only science necessary for sovereigns and their principal ministers, and that they need not be charged with the sciences mathematical, as by Plato they are, further than by good laws to encourage men to the study of them; and that neither Plato nor any other philosopher hitherto hath put into order, and sufficiently or probably proved all the theorems of moral doctrine, that men may learn thereby both how to govern and how to obey, I recover some hope that one time or other this writing of mine may fall into the hands of a sovereign who will consider it himself (for it is short, and I think clear) without the help of any interested or envious interpreter; and by the exercise of entire sovereignty, in protecting the public teaching of it, convert this truth of speculation into the utility of practice.