The Elements of Law/Part II/Chapter 28

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Chapter 28: Of the Duty of Them That Have Sovereign Power[edit]

1. Having hitherto set forth how a body politic is made, and how it may be destroyed, this place requireth to say something concerning the preservation of the same. Not purposing to enter into the particulars of the art of government, but to sum up the general heads, wherein such art is to be employed, and in which consisteth the duty of him or them that have the sovereign power. For the duty of a sovereign consisteth in the good government of the people; and although the acts of sovereign power be no injuries to the subjects who have consented to the same by their implicit wills, yet when they tend to the hurt of the people in general, they be breaches of the law of nature, and of the divine Law; and consequently, the contrary acts are the duties of sovereigns, and required at their hands to the utmost of their endeavour, by God Almighty, under the pain of eternal death. And as the art and duty of sovereigns consist in the same acts, so also doth their profit. For the end of art is profit; and governing to the profit of the subjects, is governing to the profit of the sovereign, as hath been showed Part II. chapter XXIV, section 1. And these three: 1. the law over them that have sovereign power; 2. their duty; 3. their profit: are one and the same thing contained in this sentence, Salus populi suprema lex; by which must be understood, not the mere preservation of their lives, but generally their benefit and good. So that this is the general law for sovereigns: that they procure, to the uttermost of their endeavour, the good of the people.

2. And forasmuch as eternal is better than temporal good, it is evident, that they who are in sovereign authority, are by the law of nature obliged to further the establishing of all such doctrines and rules, and the commanding of all such actions, as in their conscience they believe to be the true way thereunto. For unless they do so, it cannot be said truly, that they have done the uttermost of their endeavour.

3. For the temporal good of people, it consisteth in four points: 1. Multitude. 2. Commodity of living. 3. Peace amongst ourselves. 4. Defence against foreign power. Concerning multitude, it is the duty of them that are in sovereign authority, to increase the people, in as much as they are governors of mankind under God Almighty, who having created but one man, and one woman, declared that it was his will they should be multiplied and increased afterwards. And seeing this is to be done by ordinances concerning copulation: they are by the law of nature bound to make such ordinances concerning the same, as may tend to the increase of mankind. And hence it cometh, that in them who have sovereign authority: not to forbid such copulations as are against the use of nature; not to forbid the promiscuous use of women; not to forbid one woman to have many husbands; not to forbid marriages within certain degrees of kindred and affinity: are against the Law of nature. For though it be not evident, that a private man living under the law of natural reason only, doth break the same, by doing any of these things aforesaid; yet it is manifestly apparent, that being so prejudicial as they are to the improvement of mankind, that not to forbid the same, is against the law of natural reason, in him that hath taken into his hands any portion of mankind to improve.

4. The commodity of living consisteth in liberty and wealth. By Liberty I mean, that there be no prohibition without necessity of any thing to any man, which was lawful to him in the law of nature; that is to say, that there be no restraint of natural liberty, but what is necessary for the good of the commonwealth; and that well-meaning men may not fall into the danger of laws, as into snares, before they be aware. It appertaineth also to this liberty, that a man may have commodious passage from place to place, and not be imprisoned or confined with the difficulty of ways, and want of means for transportation of things necessary. And for the wealth of people, it consisteth in three things: the well ordering of trade, procuring of labour, and forbidding the superfluous consuming of food and apparel. All those therefore that are in sovereign authority, and have taken upon them the government of people, are bound by the law of nature to make ordinances consisting in the points aforenamed; as being contrary to the law of nature, unnecessarily, either for one's own fancy, to enthral, or tie men so, as they cannot move without danger; or to suffer them whose maintenance is our benefit, to want anything necessary for them, by our negligence.

5. For maintaining of peace at home, there be so many things necessarily to be considered, and taken order in, as there be several causes concurring to sedition. And first, it is necessary to set out to every subject his propriety, and distinct lands and goods, upon which he may exercise and have the benefit of his own industry, and without which men would fall out amongst themselves, as did the herdsmen of Abraham and Lot, every man encroaching and usurping as much of the common benefit as he can, which tendeth to quarrel and sedition. Secondly, to divide the burthens, and charge of the commonwealth proportionably. Now there is a proportionably to every man's ability, and there is a proportionably to his benefit by commonwealth: and this latter is it, which is according to the law of nature. For the burdens of the commonwealth being the price that we pay for the benefit thereof, they ought to be measured thereby. And there is no reason, when two men equally enjoying, by the benefit of the commonwealth, their peace and liberty, to use their industry to get their livings, whereof one spareth, and layeth up somewhat, the other spendeth all he gets, why they should not equally contribute to the common charge. That seemeth therefore to be the most equal way of dividing the burden of public charge, when every man shall contribute according to what he spendeth, and not according to what he gets; and this is then done, when men pay the commonwealth's part in the payments they make for their own provision. And this seemeth not only most equal, but also least sensible, and least to trouble the mind of them that pay it. For there is nothing so aggravateth the grief of parting with money, to the public, as to think they are overrated, and that their neighbours whom they envy, do thereupon insult over them; and this disposeth them to resistance, and (after that such resistance hath produced a mischief) to rebellion.

6. Another thing necessary for the maintaining of peace, is the due execution of justice; which consisteth principally in the right performance of their duties, on the parts of those, who are the magistrates ordained for the same by and under the authority of the sovereign power; which being private men in respect of the sovereign, and consequently such as may have private ends, whereby they may be corrupted by gifts, or intercession of friends, ought to be kept in awe, by a higher power, lest people, grieved by their injustice, should take upon them to make their own revenges, to the disturbance of the common peace; which can by no way be avoided in the principal and immediate magistrates, without the judicature of the sovereign himself, or some extraordinary power delegated by him. It is therefore necessary, that there be a power extraordinary, as there shall be occasion from time to time, for the syndication of judges and other magistrates, that shall abuse their authority, to the wrong and discontent of the people; and a free and open way for the presenting of grievances to him or them that have the sovereign. authority.

7. Besides those considerations by which are prevented the discontents that arise from oppression, there ought to be some means for the keeping under of those, that are disposed to rebellion by ambition; which consist principally in the constancy of him that hath the sovereign power, who ought therefore constantly to grace and encourage such, as being able to serve the commonwealth, do nevertheless contain themselves within the bounds of modesty, without repining at the authority of such as are employed, and without aggravating the errors, which (as men) they may commit; especially when they suffer not in their own particular. and constantly to show displeasure and dislike of the contrary. And not only so, but also to ordain severe punishments, for such as shall by reprehension of public actions, affect popularity and applause amongst the multitude, by which they may be enabled to have a faction in the commonwealth at their devotion.

8. Another thing necessary, is the rooting out from the consciences of men all those opinions which seem to justify, and give pretence of right to rebellious actions; such as are: the opinion, that a man can do nothing lawfully against his private conscience; that they who have the sovereignty, are subject to the civil laws; that there is any authority of subjects, whose negative may hinder the affirmative of the sovereign power; that any subject hath a propriety distinct from the dominion of the commonwealth; that there is a body of the people without him or them that have the sovereign power; and that any lawful sovereign may be resisted under the name of a tyrant; which opinions are they, which, Part II. chap. XXVII, sect. 5-10, have been declared to dispose men to rebellion. And because opinions which are gotten by education, and in length of time are made habitual, cannot be taken away by force, and upon the sudden: they must therefore be taken away also, by time and education. And seeing the said opinions have proceeded from private and public teaching, and those teachers have received them from grounds and principles, which they have learned in the Universities, from the doctrine of Aristotle, and others (who have delivered nothing concerning morality and policy demonstratively; but being passionately addicted to popular government, have insinuated their opinions, by eloquent sophistry): there is no doubt, if the true doctrine concerning the law of nature, and the properties of a body politic, and the nature of law in general, were perspicuously set down, and taught in the Universities, but that young men, who come thither void of prejudice, and whose minds are yet as white paper, capable of any instruction, would more easily receive the same, and afterward teach it to the people, both in books and otherwise, than now they do the contrary.

9. The last thing contained in that supreme law, salus populi, is their defence; and consisteth partly in the obedience and unity of the subjects, of which hath been already spoken, and in which consisteth the means of levying soldiers, and of having money, arms, ships, and fortified places in readiness of defence; and partly, in the avoiding of unnecessary wars. For such commonwealths, or such monarchs, as affect war for itself, that is to say, out of ambition, or of vain-glory, or that make account to revenge every little injury, or disgrace done by their neighbours, if they ruin not themselves, their fortune must be better than they have reason to expect.