Part 4 out of 11
and Supreme Judge of Controversies; and of the Times, and Occasions
of Warre, and Peace: to him it belongeth to choose Magistrates,
Counsellours, 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 alledged in the
precedent Chapter, for the same Rights, and Consequences of
Soveraignty by Institution.
Dominion Paternall How Attained
Not By Generation, But By Contract
Dominion is acquired two wayes; By Generation, and by Conquest.
The right of Dominion by Generation, is that, which the Parent
hath over his Children; and is called PATERNALL. 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 Childs Consent,
either expresse, or by other sufficient arguments declared.
For as to the Generation, God hath ordained to man a helper;
and there be alwayes 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 onely,
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 Common-wealths, this controversie is decided by the Civill Law:
and for the most part, (but not alwayes) the sentence is in
favour of the Father; because for the most part Common-wealths
have been erected by the Fathers, not by the Mothers of families.
But the question lyeth now in the state of meer Nature; where there are
supposed no lawes of Matrimony; no lawes for the Education of Children;
but the Law of Nature, and the naturall inclination of the Sexes,
one to another, and to their children. In this condition of meer 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 Meer Nature, where there are no Matrimoniall lawes,
it cannot be known who is the Father, unlesse 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, the 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.
Or Precedent Subjection Of One Of The Parents To The Other
If the Mother be the Fathers subject, the Child, is in the Fathers power:
and if the Father be the Mothers subject, (as when a Soveraign
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, Monarches of two severall Kingdomes, 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 Soveraign of each Country hath Dominion over all that
He that hath the Dominion over the Child, hath Dominion also
over their Childrens 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 Followeth The Rules Of The
Rights Of Possession
The Right of Succession to Paternall 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.
Despoticall Dominion, How Attained
Dominion acquired by Conquest, or Victory in war, is that which
some Writers call DESPOTICALL, 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 avoyd the present stroke of death, covenanteth either in
expresse words, or by other sufficient signes 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 corporall liberty allowed him;
and upon promise not to run away, nor to do violence to his Master,
is trusted by him.
Not By The Victory, But By The Consent Of The Vanquished
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 commeth in, and submitteth to the Victor;
Nor is the Victor obliged by an enemies rendring himselfe,
(without promise of life,) to spare him for this his yeelding
to discretion; which obliges not the Victor longer, than in his own
discretion hee shall think fit.
And that 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 Ransome, or Service: and therefore he that hath Quarter,
hath not his life given, but deferred till farther deliberation;
For it is not an yeelding on condition of life, but to discretion.
And then onely is his life in security, and his service due,
when the Victor hath trusted him with his corporall liberty.
For Slaves that work in Prisons, or Fetters, do it not of duty,
but to avoyd 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 himselfe the author of the same; and cannot
accuse him of injury.
In summe the Rights and Consequences of both Paternall and
Despoticall Dominion, are the very same with those of a Soveraign
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
divers Nations, whereof he hath, in one the Soveraignty by
Institution of the people assembled, and in another by Conquest,
that is by the Submission of each particular, to avoyd 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 Soveraignty. For the Soveraign is absolute over
both alike; or else there is no Soveraignty at all; and so every
man may Lawfully protect himselfe, if he can, with his own sword,
which is the condition of war.
Difference Between A Family And A Kingdom
By this it appears, that a great Family if it be not part of
some Common-wealth, is of it self, as to the Rights of Soveraignty,
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 of Master is the Soveraign.
But yet a Family is not properly a Common-wealth; unlesse 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 hee shall think best;
in the same manner as a very small company of souldiers, surprised by
an army, may cast down their armes, 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 Soveraign Rights,
from the nature, need, and designes of men, in erecting of Commonwealths,
and putting themselves under Monarchs, or Assemblies, entrusted with
power enough for their protection.
The Right Of Monarchy From Scripture
Let us now consider what the Scripture teacheth in the same point.
To Moses, the children of Israel say thus. (Exod. 20. 19)
"Speak thou to us, and we will heare thee; but let not God
speak to us, lest we dye." This is absolute obedience to Moses.
Concerning the Right of Kings, God himself by the mouth of Samuel,
saith, (1 Sam. 8. 11, 12, &c.) "This shall be the Right of the King
you will have to reigne 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 Cookes, and Bakers.
He shall take your fields, your vine-yards, and your olive-yards, and
give them to his servants. He shall take the tyth of your corne and wine,
and give it to the men of his chamber, and to his other servants.
He shall take your man-servants, and your maid-servants, and the choice
of your youth, and employ them in his businesse. He shall take
the tyth of your flocks; and you shall be his servants."
This is absolute power, and summed up in the last words,
"you shall be his servants." Againe, when the people heard
what power their King was to have, yet they consented thereto,
and say thus, (Verse. 19 &c.) "We will be as all other nations,
and our King shall judge our causes, and goe before us,
to conduct our wars." Here is confirmed the Right that Soveraigns have,
both to the Militia, and to all Judicature; in which is conteined
as absolute power, as one man can possibly transferre to another.
Again, the prayer of King Salomon to God, was this. (1 Kings 3. 9)
"Give to thy servant understanding, to judge thy people, and to
discerne between Good and Evill." It belongeth therefore to
the Soveraigne to bee Judge, and to praescribe the Rules of
Discerning Good and Evill; which Rules are Lawes; 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 forbad them, saying (1 Sam. 24. 9) "God forbid
I should do such an act against my Lord, the anoynted of God."
For obedience of servants St. Paul saith, (Coll. 3. 20) "Servants obey
your masters in All things," and, (Verse. 22) "Children obey your
Parents in All things." There is simple obedience in those that
are subject to Paternall, or Despoticall Dominion. Again, (Math. 23. 2,3)
"The Scribes and Pharisees sit in Moses chayre and therefore All that
they shall bid you observe, that observe and do." There again
is simple obedience. And St. Paul, (Tit. 3. 2) "Warn them that
they subject themselves to Princes, and to those that are in Authority,
& obey them." This obedience is also simple. Lastly, our Saviour
himselfe acknowledges, that men ought to pay such taxes as are
by Kings imposed, where he sayes, "Give to Caesar that which is Caesars;"
and payed such taxes himselfe. And that the Kings word, is sufficient
to take any thing from any subject, when there is need; and that the King
is Judge of that need: For he himselfe, as King of the Jewes,
commanded his Disciples to take the Asse, and Asses Colt to carry him
into Jerusalem, saying, (Mat. 21. 2,3) "Go into the Village over
against you, and you shall find a shee Asse tyed, and her Colt with her,
unty 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."
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.
To these places may be added also that of Genesis, (Gen. 3. 5)
"You shall be as Gods, knowing Good and Evill." and verse 11.
"Who told thee that thou wast naked? hast thou eaten of the tree,
of which I commanded thee thou shouldest not eat?" For the Cognisance
of Judicature of Good and Evill, being forbidden by the name of
the fruit of the tree of Knowledge, as a triall of Adams obedience;
The Divell to enflame the Ambition of the woman, to whom that fruit
already seemed beautifull, told her that by tasting it, they should
be as Gods, knowing Good and Evill. Whereupon having both eaten,
they did indeed take upon them Gods office, which is Judicature
of Good and Evill; but acquired no new ability to distinguish
between them aright. And whereas it is sayd, that having eaten,
they saw they were naked; no man hath so interpreted that place,
as if they had formerly blind, as saw not their own skins:
the meaning is plain, that it was then they first judged their nakednesse
(wherein it was Gods will to create them) to be uncomely; and by being
ashamed, did tacitely censure God himselfe. And thereupon God saith,
"Hast thou eaten, &c." as if he should say, doest thou that owest me
obedience, take upon thee to judge of my Commandements? Whereby it is
cleerly, (though Allegorically,) signified, that the Commands of them
that have the right to command, are not by their Subjects to be
censured, nor disputed.
Soveraign Power Ought In All Common-wealths To Be Absolute
So it appeareth plainly, to my understanding, both from Reason,
and Scripture, that the Soveraign Power, whether placed in One Man,
as in Monarchy, or in one Assembly of men, as in Popular,
and Aristocraticall Common-wealths, is as great, as possibly men
can be imagined to make it. And though of so unlimited a Power,
men may fancy many evill consequences, yet the consequences of
the want of it, which is perpetuall warre 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
Common-wealth any great Inconvenience, but what proceeds from
the Subjects disobedience, and breach of those Covenants,
from which the Common-wealth had its being. And whosoever
thinking Soveraign Power too great, will seek to make it lesse;
must subject himselfe, to the Power, that can limit it; that is
to say, to a greater.
The greatest objection is, that of the Practise; 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 Kingdome
long free from Sedition and Civill Warre. In those Nations, whose
Common-wealths have been long-lived, and not been destroyed, but by
forraign warre, the Subjects never did dispute of the Soveraign Power.
But howsoever, an argument for the Practise of men, that have not
sifted to the bottom, and with exact reason weighed the causes,
and nature of Common-wealths, 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 Common-wealths, consisteth in
certain Rules, as doth Arithmetique and Geometry; not (as Tennis-play)
on Practise onely: 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.
OF THE LIBERTY OF SUBJECTS
Liberty, or FREEDOME, signifieth (properly) the absence of Opposition;
(by Opposition, I mean externall Impediments of motion;) and may be
applyed no lesse to Irrational, and Inanimate creatures, than to Rationall.
For whatsoever is so tyed, or environed, as it cannot move, but within
a certain space, which space is determined by the opposition of some
externall body, we say it hath not Liberty to go further.
And so of all living creatures, whilest they are imprisoned,
or restrained, with walls, or chayns; and of the water whilest it
is kept in by banks, or vessels, that otherwise would spread
it selfe into a larger space, we use to say, they are not at Liberty,
to move in such manner, as without those externall impediments they would.
But when the impediment of motion, is in the constitution of the thing
it selfe, we use not to say, it wants the Liberty; but the Power to move;
as when a stone lyeth still, or a man is fastned to his bed by sicknesse.
What It Is To Be Free
And according to this proper, and generally received meaning
of the word, A FREE-MAN, is "he, that in those things, which by his
strength and wit he is able to do, is not hindred to doe what
he has a will to." But when the words Free, and Liberty, are applyed
to any thing but Bodies, they are abused; for that which is not
subject to Motion, is not subject to Impediment: And therefore,
when 'tis 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 Guift is free, there is not meant any liberty
of the Guift, 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 then he did. Lastly, from the use
of the word Freewill, no liberty can be inferred to 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 doe.
Feare And Liberty Consistent
Feare and Liberty are consistent; as when a man throweth his goods
into the Sea for Feare the ship should sink, he doth it neverthelesse
very willingly, and may refuse to doe it if he will: It is therefore
the action, of one that was Free; so a man sometimes pays his debt,
only for Feare of Imprisonment, which because no body hindred him
from detaining, was the action of a man at Liberty. And generally
all actions which men doe in Common-wealths, for Feare of the law,
or actions, which the doers had Liberty to omit.
Liberty And Necessity Consistent
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 doe; which
(because they proceed from their will) proceed from Liberty;
and yet because every act of mans will, and every desire,
and inclination proceedeth from some cause, which causes in
a continuall chaine (whose first link 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 mens voluntary actions, would appeare 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, & no more, nor lesse. 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 any thing, of which appetite Gods will is not the cause.
And did not his will assure the Necessity of mans will, and
consequently of all that on mans 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 naturall Liberty, which only is properly called Liberty.
Artificiall Bonds, Or Covenants
But as men, for the atteyning of peace, and conservation of
themselves thereby, have made an Artificiall Man, which we call
a Common-wealth; so also have they made Artificiall Chains,
called Civill Lawes, which they themselves, by mutuall covenants,
have fastned at one end, to the lips of that Man, or Assembly,
to whom they have given the Soveraigne Power; and at the other end
to their own Ears. These Bonds in their own nature but weak,
may neverthelesse be made to hold, by the danger, though not
by the difficulty of breaking them.
Liberty Of Subjects Consisteth In Liberty From Covenants
In relation to these Bonds only it is, that I am to speak now,
of the Liberty of Subjects. For seeing there is no Common-wealth
in the world, 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 praetermitted, men have the Liberty,
of doing what their own reasons shall suggest, for the most profitable
to themselves. For if wee take Liberty in the proper sense,
for corporall Liberty; that is to say, freedome from chains,
and prison, it were very absurd for men to clamor as they doe,
for the Liberty they so manifestly enjoy. Againe, if we take Liberty,
for an exemption from Lawes, it is no lesse absurd, for men to demand
as they doe, 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 Lawes 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, lyeth therefore
only in those things, which in regulating their actions, the Soveraign
hath praetermitted; such as is the Liberty to buy, and sell,
and otherwise contract with one another; to choose their own aboad,
their own diet, their own trade of life, and institute their children
as they themselves think fit; & the like.
Liberty Of The Subject Consistent With
The Unlimited Power Of The Soveraign
Neverthelesse we are not to understand, that by such Liberty,
the Soveraign Power of life, and death, is either abolished, or limited.
For it has been already shewn, that nothing the Soveraign Representative
can doe to a Subject, on what pretence soever, can properly be called
Injustice, or Injury; because every Subject is Author of every act
the Soveraign 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 Common-wealths, that a Subject may be
put to death, by the command of the Soveraign Power; and yet neither
doe the other wrong: as when Jeptha caused his daughter to be sacrificed:
In which, and the like cases, he that so dieth, had Liberty to doe
the action, for which he is neverthelesse, without Injury put to death.
And the same holdeth also in a Soveraign Prince, that putteth to death
an Innocent Subject. For though the action be against the law of Nature,
as being contrary to Equitie, (as was the killing of Uriah, by David;)
yet it was not an Injurie to Uriah; but to God. Not to Uriah,
because the right to doe what he pleased, was given him by Uriah himself;
And yet to God, because David was Gods Subject; and prohibited all
Iniquitie 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 Common-wealth for ten years,
thought they committed no Injustice; and yet they never questioned
what crime he had done; but what hurt he would doe: Nay they commanded
the banishment of they knew not whom; and every Citizen bringing
his Oystershell into the market place, written with the name of him
he desired should be banished, without actuall 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 Soveraign People of Athens wanted right
to banish them; or an Athenian the Libertie to Jest, or to be Just.
The Liberty Which Writers Praise, Is The Liberty
Of Soveraigns; Not Of Private Men
The Libertie, whereof there is so frequent, and honourable mention,
in the Histories, and Philosophy of the Antient Greeks, and Romans,
and in the writings, and discourse of those that from them have
received all their learning in the Politiques, is not the Libertie
of Particular men; but the Libertie of the Common-wealth: which is
the same with that, which every man then should have, if there were
no Civil Laws, nor Common-wealth at all. And the effects of it
also be the same. For as amongst masterlesse men, there is
perpetuall 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 Libertie
in every Particular man: So in States, and Common-wealths not dependent
on one another, every Common-wealth, (not every man) has an absolute
Libertie, to doe what it shall judge (that is to say, what that Man,
or Assemblie that representeth it, shall judge) most conducing
to their benefit. But withall, they live in the condition of a
perpetuall war, and upon the confines of battel, with their frontiers
armed, and canons planted against their neighbours round about.
The Athenians, and Romanes, were free; that is, free Common-wealths:
not that any particular men had the Libertie to resist their own
Representative; but that their Representative had the Libertie 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 inferre, that a particular man has more Libertie, or Immunitie
from the service of the Commonwealth there, than in Constantinople.
Whether a Common-wealth be Monarchicall, or Popular, the Freedome
is still the same.
But it is an easy thing, for men to be deceived, by the specious
name of Libertie; and for want of Judgement to distinguish,
mistake that for their Private Inheritance, and Birth right,
which is the right of the Publique only. And when the same errour
is confirmed by the authority of men in reputation for their writings
in this subject, it is no wonder if it produce sedition,
and change of Government. In these westerne parts of the world,
we are made to receive our opinions concerning the Institution,
and Rights of Common-wealths, from Aristotle, Cicero, and other men,
Greeks and Romanes, 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 Common-wealths,
which were Popular; as the Grammarians describe the Rules of Language,
out of the Practise 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 Politiques,(lib.6.cap.2)
"In democracy, Liberty is to be supposed: for 'tis commonly held,
that no man is Free in any other Government." And as Aristotle;
so Cicero, and other Writers have grounded their Civill doctrine,
on the opinions of the Romans, who were taught to hate Monarchy,
at first, by them that having deposed their Soveraign, shared amongst
them the Soveraignty of Rome; and afterwards by their Successors.
And by reading of these Greek, and Latine Authors, men from their
childhood have gotten a habit (under a false shew of Liberty,)
of favouring tumults, and of licentious controlling the actions
of their Soveraigns; and again of controlling those controllers,
with the effusion of so much blood; as I think I may truly say,
there was never any thing so deerly bought, as these Western parts
have bought the learning of the Greek and Latine tongues.
Liberty Of The Subject How To Be Measured
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 Soveraign, he may neverthelesse, without Injustice, refuse to do;
we are to consider, what Rights we passe away, when we make
a Common-wealth; or (which is all one,) what Liberty we deny our selves,
by owning all the Actions (without exception) of the Man, or Assembly
we make our Soveraign. 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 expresse words, "I Authorise all his Actions," or from the
Intention of him that submitteth himselfe 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 Soveraignty; namely, the Peace of the Subjects
within themselves, and their Defence against a common Enemy.
Subjects Have Liberty To Defend Their Own Bodies,
Even Against Them That Lawfully Invade Them;
First therefore, seeing Soveraignty by Institution, is by Covenant
of every one to every one; and Soveraignty 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 shewn
before in the 14. Chapter, that Covenants, not to defend a mans
own body, are voyd. Therefore,
Are Not Bound To Hurt Themselves;
If the Soveraign command a man (though justly condemned,) to kill,
wound, or mayme himselfe; or not to resist those that assault him;
or to abstain from the use of food, ayre, 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 Soveraign, or his Authority,
concerning a crime done by himselfe, he is not bound (without assurance
of Pardon) to confesse it; because no man (as I have shewn in the
same Chapter) can be obliged by Covenant to accuse himselfe.
Again, the Consent of a Subject to Soveraign 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
naturall Liberty: For by allowing him to Kill Me, I am not bound
to Kill my selfe when he commands me. "Tis one thing to say
"Kill me, or my fellow, if you please;" another thing to say,
"I will kill my selfe, or my fellow." It followeth therefore, that
No man is bound by the words themselves, either to kill himselfe,
or any other man; And consequently, that the Obligation a man may
sometimes have, upon the Command of the Soveraign 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 refusall to obey,
frustrates the End for which the Soveraignty was ordained;
then there is no Liberty to refuse: otherwise there is.
Nor To Warfare, Unless They Voluntarily Undertake It
Upon this ground, a man that is commanded as a Souldier to fight
against the enemy, though his Soveraign have Right enough to punish his
refusall with death, may neverthelesse in many cases refuse, without
Injustice; as when he substituteth a sufficient Souldier in his place:
for in this case he deserteth not the service of the Common-wealth.
And there is allowance to be made for naturall timorousnesse,
not onely 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 trechery, but fear, they are not esteemed to do it unjustly,
but dishonourably. For the same reason, to avoyd battell,
is not Injustice, but Cowardise. But he that inrowleth himselfe
a Souldier, or taketh imprest mony, taketh away the excuse of
a timorous nature; and is obliged, not onely to go to the battell,
but also not to run from it, without his Captaines leave.
And when the Defence of the Common-wealth, requireth at once
the help of all that are able to bear Arms, every one is obliged;
because otherwise the Institution of the Common-wealth, which they
have not the purpose, or courage to preserve, was in vain.
To resist the Sword of the Common-wealth, in defence of another man,
guilty, or innocent, no man hath Liberty; because such Liberty,
takes away from the Soveraign, 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 Soveraign Power Unjustly, or committed some Capitall crime,
for which every one of them expecteth death, whether have they not
the Liberty then to joyn 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 onely 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, unlawfull.
The Greatest Liberty Of Subjects, Dependeth On
The Silence Of The Law
As for other Lyberties, they depend on the silence of the Law.
In cases where the Soveraign has prescribed no rule, there the Subject
hath the liberty to do, or forbeare, according to his own discretion.
And therefore such Liberty is in some places more, and in some lesse;
and in some times more, in other times lesse, according as they that
have the Soveraignty shall think most convenient. As for Example,
there was a time, when in England a man might enter in to his own Land,
(and dispossesse 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 is 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 controversie with his Soveraigne, of Debt,
or of right of possession of lands or goods, or concerning any
service required at his hands, or concerning any penalty corporall,
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 Soveraign. For seeing the
Soveraign demandeth by force of a former Law, and not by vertue
of his Power; he declareth thereby, that he requireth no more,
than shall appear to be due by that Law. The sute therefore is not
contrary to the will of the Soveraign; 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 any thing by pretence
of his Power; there lyeth, in that case, no action of Law:
for all that is done by him in Vertue of his Power, is done by
the Authority of every subject, and consequently, he that brings
an action against the Soveraign, brings it against himselfe.
If a Monarch, or Soveraign 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 voyd; unlesse he directly
renounce, or transferre the Soveraignty to another. For in that
he might openly, (if it had been his will,) and in plain termes,
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 Soveraign Power;
and therefore the Soveraignty is still retayned; and consequently
all those Powers, which are necessary to the exercising thereof;
such as are the Power of Warre, and Peace, of Judicature,
of appointing Officers, and Councellours, of levying Mony,
and the rest named in the 18th Chapter.
In What Cases Subjects Are Absolved Of Their Obedience
To Their Soveraign
The Obligation of Subjects to the Soveraign 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 Soveraignty is the Soule of
the Common-wealth; which once departed from the Body, the members
doe 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 anothers sword, Nature applyeth his obedience to it,
and his endeavour to maintaine it. And though Soveraignty,
in the intention of them that make it, be immortall; yet is it
in its own nature, not only subject to violent death, by forreign war;
but also through the ignorance, and passions of men, it hath in it,
from the very institution, many seeds of a naturall mortality,
by Intestine Discord.
In Case Of Captivity
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
corporall Libertie given him, on condition to be Subject to the Victor,
he hath Libertie to accept the condition; and having accepted it,
is the subject of him that took him; because he had no other way
to preserve himselfe. The case is the same, if he be deteined
on the same termes, in a forreign country. But if a man be held
in prison, or bonds, or is not trusted with the libertie of his bodie;
he cannot be understood to be bound by Covenant to subjection;
and therefore may, if he can, make his escape by any means whatsoever.
In Case The Soveraign Cast Off The Government From
Himself And His Heyrs
If a Monarch shall relinquish the Soveraignty, both for himself,
and his heires; His Subjects returne to the absolute Libertie of Nature;
because, though Nature may declare who are his Sons, and who are
the nerest of his Kin; yet it dependeth on his own will,
(as hath been said in the precedent chapter,) who shall be his Heyr.
If therefore he will have no Heyre, there is no Soveraignty,
nor Subjection. The case is the same, if he dye without known Kindred,
and without declaration of his Heyre. For then there can no Heire
be known, and consequently no Subjection be due.
In Case Of Banishment
If the Soveraign Banish his Subject; during the Banishment,
he is not Subject. But he that is sent on a message, or hath
leave to travell, is still Subject; but it is, by Contract
between Soveraigns, not by vertue of the covenant of Subjection.
For whosoever entreth into anothers dominion, is Subject to all
the Lawes thereof; unless he have a privilege by the amity of
the Soveraigns, or by speciall licence.
In Case The Soveraign Render Himself Subject To Another
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 Soveraigntie; 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.
OF SYSTEMES SUBJECT, POLITICALL, AND PRIVATE
The Divers Sorts Of Systemes Of People
Having spoken of the Generation, Forme, and Power of a Common-wealth,
I am in order to speak next of the parts thereof. And first of Systemes,
which resemble the similar parts, or Muscles of a Body naturall.
By SYSTEMES; I understand any numbers of men joyned in one Interest,
or one Businesse. 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 Common-wealths;
Of which I have spoken already in the 5. last preceding chapters.
Others are Dependent; that is to say, Subordinate to some Soveraign Power,
to which every one, as also their Representative is Subject.
Of Systemes subordinate, some are Politicall, and some Private.
Politicall (otherwise Called Bodies Politique, and Persons In Law,)
are those, which are made by authority from the Soveraign Power
of the Common-wealth. Private, are those, which are constituted
by Subjects amongst themselves, or by authoritie from a stranger.
For no authority derived from forraign power, within the Dominion
of another, is Publique there, but Private.
And of Private Systemes, some are Lawfull; some Unlawfull:
Lawfull, are those which are allowed by the Common-wealth:
all other are Unlawfull. Irregular Systemes, are those which
having no Representative, consist only in concourse of People;
which if not forbidden by the Common-wealth, nor made on evill designe,
(such as are conflux of People to markets, or shews, or any other
harmelesse end,) are Lawfull. But when the Intention is evill,
or (if the number be considerable) unknown, they are Unlawfull.
In All Bodies Politique The Power Of The Representative
In Bodies Politique, the power of the Representative is alwaies Limited:
And that which prescribeth the limits thereof, is the Power Soveraign.
For Power Unlimited, is absolute Soveraignty. And the Soveraign,
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 Politique 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 Soveraign cannot
be understood to doe, by any Grant, that does not plainly,
and directly discharge them of their subjection. For consequences
of words, are not the signes of his will, when other consequences
are signes of the contrary; but rather signes of errour,
and misreckoning; to which all mankind is too prone.
The bounds of that Power, which is given to the Representative
of a Bodie Politique, are to be taken notice of, from two things.
One is their Writt, or Letters from the Soveraign: the other is
the Law of the Common-wealth.
By Letters Patents:
For though in the Institution or Acquisition of a Common-wealth,
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 remembred without Letters,
nor taken notice of, unlesse such Letters be Patent, that they may
be read to them, and withall sealed, or testified, with the Seales,
or other permanent signes of the Authority Soveraign.
And The Lawes
And because such Limitation is not alwaies easie, or perhaps
possible to be described in writing; the ordinary Lawes,
common to all Subjects, must determine, that the Representative may
lawfully do, in all Cases, where the Letters themselves are silent.
When The Representative Is One Man, His Unwarranted
Acts Are His Own Onely
In a Body Politique, 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 Lawes, is his own act, and not the act of the Body,
nor of any other Member thereof besides himselfe: Because further
than his Letters, or the Lawes limit, he representeth no mans person,
but his own. But what he does according to these, is the act
of every one: For of the Act of the Soveraign every one is Author,
because he is their Representative unlimited; and the act of him
that recedes not from the Letters of the Soveraign, is the act
of the Soveraign, and therefore every member of the Body is Author of it.
When It Is An Assembly, It Is The Act Of Them
That Assented Onely
But if the Representative be an Assembly, whatsoever that Assembly
shall Decree, not warranted by their Letters, or the Lawes,
is the act of the Assembly, or Body Politique, 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,
unlesse he Voted it by procuration. 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 farre-forth as it is capable, as by dissolution,
or forfeiture of their Letters (which is to such artificiall,
and fictitious Bodies, capitall,) or (if the Assembly have
a Common stock, wherein none of the Innocent Members have propriety,)
by pecuniary Mulct. For from corporall penalties Nature hath exempted
all Bodies Politique. 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.
When The Representative Is One Man, If He Borrow Mony,
Or Owe It, By Contract; He Is Lyable Onely, The Members Not
If the person of the Body Politique being in one man, borrow mony
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 mens own
inclinations to limit lending) the debt is the Representatives.
For if he should have Authority from his Letters, to make the members
pay what he borroweth, he should have by consequence the Soveraignty
of them; and therefore the grant were either voyd, as proceeding
from Errour, commonly incident to humane Nature, and an unsufficient
signe of the will of the Granter; or if it be avowed by him,
then is the Representer Soveraign, and falleth not under
the present question, which is onely of Bodies subordinate.
No member therefore is obliged to pay the debt so borrowed,
but the Representative himselfe: because he that lendeth it,
being a stranger to the Letters, and to the qualification
of the Body, understandeth those onely for his debtors, that are engaged;
and seeing the Representer can ingage himselfe, and none else,
has him onely for 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.
When It Is An Assembly, They Onely Are Liable
That Have Assented
But when the Representative is an Assembly, and the debt to a stranger;
all they, and onely 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 himselfe for
the payment: For he that is author of the borrowing, is obliged
to the payment, even of the whole debt, though when payd by any one,
he be discharged.
If The Debt Be To One Of The Assembly,
The Body Onely Is Obliged
But if the debt be to one of the Assembly, the Assembly onely is
obliged to the payment, out of their common stock (if they have any:)
For having liberty of Vote, if he Vote the Mony, shall be borrowed,
he Votes it shall be payd; 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 later,
and becomes both borrower and lender, and consequently cannot
demand payment from any particular man, but from the common
Treasure onely; which fayling he hath no remedy, nor complaint,
but against himselfe, that being privy to the acts of the Assembly,
and their means to pay, and not being enforced, did neverthelesse
through his own folly lend his mony.
Protestation Against The Decrees Of Bodies Politique
Sometimes Lawful; But Against Soveraign Power Never
It is manifest by this, that in Bodies Politique subordinate,
and subject to a Soveraign Power, it is sometimes not onely lawfull,
but expedient, for a particular man to make open protestation
against the decrees of the Representative Assembly, and cause
their dissent to be Registred, or to take witnesse of it;
because otherwise they may be obliged to pay debts contracted,
and be responsible for crimes committed by other men: But in
a Soveraign Assembly, that liberty is taken away, both because
he that protesteth there, denies their Soveraignty; and also
because whatsoever is commanded by the Soveraign Power, is as to
the Subject (though not so alwayes in the sight of God) justified
by the Command; for of such command every Subject is the Author.
Bodies Politique For Government Of A Province,
Colony, Or Town
The variety of Bodies Politique, is almost infinite; for they are
not onely distinguished by the severall affaires, for which they
are constituted, wherein there is an unspeakable diversitie;
but also by the times, places, and numbers, subject to many limitations.
And as to their affaires, 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 Politique,
and their power limited by Commission. This word Province signifies
a charge, or care of businesse, which he whose businesse it is,
committeth to another man, to be administred for, and under him;
and therefore when in one Common-wealth there be divers Countries,
that have their Lawes distinct one from another, or are farre
distant in place, the Administration of the Government being committed
to divers persons, those Countries where the Soveraign is not resident,
but governs by Commission, are called Provinces. But of the government
of a Province, by an Assembly residing in the Province it selfe,
there be few examples. The Romans who had the Soveraignty of
many Provinces; yet governed them alwaies 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 Sommer-Ilands; 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 Governour;
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 enclined, to commit the Government of their
common Interest rather to a Monarchicall, then 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 paines of administring the businesse that belongs to them,
choose rather to trust one Servant, than a 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
unlawfull Act is decreed, is the Act onely of those that assented, and not
of any that dissented, or were absent, for the reasons before alledged.
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 Colonie, to seize on them for debt,
or other duty, in any place without the Colony it selfe, as having
no Jurisdiction, nor Authoritie elsewhere, but are left to the remedie,
which the Law of the place alloweth them. And though the Assembly
have right, to impose a Mulct upon any of their members, that shall
break the Lawes they make; yet out of the Colonie it selfe,
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 appliable also to an Assembly for the Government
of a Town, or University, or a College, or a Church, or for any other
Government over the persons of men.
And generally, in all Bodies Politique, if any particular member
conceive himself Injured by the Body it self, the Cognisance of
his cause belongeth to the Soveraign, and those the Soveraign hath
ordained for Judges in such causes, or shall ordaine for that
particular cause; and not to the Body it self. For the whole Body
is in this case his fellow subject, which in a Soveraign Assembly,
is otherwise: for there, if the Soveraign be not Judge, though in
his own cause, there can be no Judge at all.
Bodies Politique For Ordering Of Trade
In a Bodie Politique, for the well ordering of forraigne Traffique,
the most commodious Representative is an Assembly of all the members;
that is to say, such a one, as every one that adventureth his mony,
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,
doe neverthelesse bind themselves up in one Corporation.
It is true, there be few Merchants, that with the Merchandise
they buy at home, can fraight a Ship, to export it; or with that
they buy abroad, to bring it home; and have therefore need to joyn
together in one Society; where every man may either participate
of the gaine, 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 Politique,
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 gaine the greater; which is done
two wayes; 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 Politique, 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 forraign 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 gainfull 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 forraign Merchandise, and but one that sels them at home;
both which againe are gainfull to the adventurers.
Of this double Monopoly one part is disadvantageous to the people
at home, the other to forraigners. For at home by their sole
exportation they set what price they please on the husbandry
and handy-works of the people; and by the sole importation,
what price they please on all forraign 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 forraign commodities upon the place, they raise the price of those,
and abate the price of these, to the disadvantage of the forraigner:
For where but one selleth, the Merchandise is the dearer;
and where but one buyeth the cheaper: Such Corporations therefore
are no other then Monopolies; though they would be very profitable
for a Common-wealth, if being bound up into one body in forraigne
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 gaine
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 Politique of Merchants, contract a debt to a stranger
by the act of their Representative Assembly, every Member is lyable
by himself for the whole. For a stranger can take no notice of their
private Lawes, 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 debter for the whole to himself, and cannot therefore
demand his debt, but only from the common stock, if there be any.
If the Common-wealth impose a Tax upon the Body, it is understood
to be layd 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 layd upon the Body for some unlawfull act, they only
are lyable 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
ordeyned by the authority of the Common-wealth,) 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 Common-wealth: for if they can doe 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.
A Bodie Politique For Counsel To Be Given
To The Soveraign
These Bodies made for the government of Men, or of Traffique,
be either perpetuall, or for a time prescribed by writing.
But there be Bodies also whose times are limited, and that
only by the nature of their businesse. For example, if a
Soveraign Monarch, or a Soveraign Assembly, shall think fit
to give command to the towns, and other severall parts of their
territory, to send to him their Deputies, to enforme him of the
condition, and necessities of the Subjects, or to advise with him
for the making of good Lawes, 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 Politique, representing every Subject of that Dominion;
but it is onely for such matters as shall be propounded unto them
by that Man, or Assembly, that by the Soveraign 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 Soveraign
Assembly; and so there would be two Soveraign Assemblies, or two
Soveraigns, over the same people; which cannot consist with their Peace.
And therefore where there is once a Soveraignty, there can be no absolute
Representation of the people, but by it. And for the limits of how
farre 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 Soveraign expressed.
A Regular Private Body, Lawfull, As A Family
Private Bodies Regular, and Lawfull, are those that are constituted
without Letters, or other written Authority, saving the Lawes 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 farre 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 domestique
government, they are subject to their Fathers, and Masters,
as to their immediate Soveraigns. For the Father, and Master
being before the Institution of Common-wealth, absolute Soveraigns
in their own Families, they lose afterward no more of their Authority,
than the Law of the Common-wealth taketh from them.
Private Bodies Regular, But Unlawfull
Private Bodies Regular, but Unlawfull, are those that unite
themselves into one person Representative, without any publique
Authority at all; such as are the Corporations of Beggars, Theeves
and Gipsies, the better to order their trade of begging, and stealing;
and the Corporations of men, that by Authority from any forraign Person,
unite themselves in anothers Dominion, for easier propagation of
Doctrines, and for making a party, against the Power of the Common-wealth.
Systemes Irregular, Such As Are Private Leagues
Irregular Systemes, in their nature, but Leagues, or sometimes
meer concourse of people, without union to any particular designe,
not by obligation of one to another, but proceeding onely from
a similitude of wills and inclinations, become Lawfull, or Unlawfull,
according to the lawfulnesse, or unlawfulnesse of every particular
mans design therein: And his designe is to be understood by the occasion.
The Leagues of Subjects, (because Leagues are commonly made for
mutuall defence,) are in a Common-wealth (which is no more than
a League of all the Subjects together) for the most part unnecessary,
and savour of unlawfull designe; and are for that cause Unlawfull,
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 meer Nature) to compell them to performance, is so long onely valid,
as there ariseth no just cause of distrust: and therefore Leagues
between Common-wealths, over whom there is no humane Power established,
to keep them all in awe, are not onely lawfull, but also profitable
for the time they last. But Leagues of the Subjects of one and the
same Common-wealth, where every one may obtain his right by means
of the Soveraign Power, are unnecessary to the maintaining of Peace
and Justice, and (in case the designe of them be evill, or Unknown
to the Common-wealth) unlawfull. For all uniting of strength by
private men, is, if for evill intent, unjust; if for intent unknown,
dangerous to the Publique, and unjustly concealed.
If the Soveraign 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 unlawfull, 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 mony, (unlesse there be an expresse Law against it,)
yet it is not Injustice. For sometimes, (as mens manners are,)
Justice cannot be had without mony; and every man may think his
own cause just, till it be heard, and judged.
Feuds Of Private Families
In all Common-wealths, if a private man entertain more servants,
than the government of his estate, and lawfull employment he has for
them requires, it is Faction, and unlawfull. For having the protection
of the Common-wealth, he needeth not the defence of private force.
And whereas in Nations not throughly civilized, severall numerous
Families have lived in continuall hostility, and invaded one another
with private force; yet it is evident enough, that they have
done unjustly; or else that they had no Common-wealth.
Factions For Government
And as Factions for Kindred, so also Factions for Government
of Religion, as of Papists, Protestants, &c. or of State,
as Patricians, and Plebeians of old time in Rome, and of
Aristocraticalls and Democraticalls 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 Soveraign.
Concourse of people, is an Irregular Systeme, the lawfulnesse,
or unlawfulnesse, whereof dependeth on the occasion, and on the
number of them that are assembled. If the occasion be lawfull,
and manifest, the Concourse is lawfull; as the usuall meeting of
men at Church, or at a publique Shew, in usuall 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 unlawfull,
and tumultuous designe. It may be lawfull for a thousand men,
to joyn 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 Unlawfull,
but such a number, as the present Officers are not able to suppresse,
and bring to Justice.
When an unusuall number of men, assemble against a man whom they accuse;
the Assembly is an Unlawfull 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 Pauls companions before the Magistrate, saying with
one Voyce, "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 Lawes of that People, was just; yet was their Assembly
Judged Unlawfull, and the Magistrate reprehended them for it,
in these words,(Acts 19. 40) "If Demetrius and the other work-men
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 dayes 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 Systemes, and Assemblyes of People,
which may be compared (as I said,) to the Similar parts of mans Body;
such as be Lawfull, to the Muscles; such as are Unlawfull, to Wens,
Biles, and Apostemes, engendred by the unnaturall conflux of evill humours.
OF THE PUBLIQUE MINISTERS OF SOVERAIGN POWER
In the last Chapter I have spoken of the Similar parts of a
Common-wealth; In this I shall speak of the parts Organicall,
which are Publique Ministers.
Publique Minister Who
A PUBLIQUE MINISTER, is he, that by the Soveraign, (whether a Monarch,
or an Assembly,) is employed in any affaires, with Authority to
represent in that employment, the Person of the Common-wealth.
And whereas every man, or assembly that hath Soveraignty,
representeth two Persons, or (as the more common phrase is)
has two Capacities, one Naturall, and another Politique, (as a Monarch,
hath the person not onely of the Common-wealth, but also of a man;
and a Soveraign Assembly hath the Person not onely of the Common-wealth,
but also of the Assembly); they that be servants to them in their
naturall Capacity, are not Publique Ministers; but those onely that
serve them in the Administration of the Publique businesse.
And therefore neither Ushers, nor Sergeants, nor other Officers
that waite 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 houshold of a Monarch, are Publique Ministers in a Monarchy.
Ministers For The Generall Administration
Of Publique 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 bee committed by the
Predecessor of an Infant King, during his minority, the whole
Administration of his Kingdome. 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 Kings name, and not
inconsistent with his Soveraigne Power. Of a Part, or Province;
as when either a Monarch, or a Soveraign Assembly, shall give the
generall charge thereof to a Governour, Lieutenant, Praefect,
or Vice-Roy: And in this case also, every one of that Province,
is obliged to all he shall doe in the name of the Soveraign, and that
not incompatible with the Soveraigns Right. For such Protectors,
Vice-Roys, and Governours, have no other right, but what depends
on the Soveraigns Will; and no Commission that can be given them,
can be interpreted for a Declaration of the will to transferre
the Soveraignty, without expresse and perspicuous words to that purpose.
And this kind of Publique Ministers resembleth the Nerves, and Tendons
that move the severall limbs of a body naturall.
For Speciall Administration, As For Oeconomy
Others have speciall Administration; that is to say, charges of
some speciall businesse, either at home, or abroad: As at home,
First, for the Oeconomy of a Common-wealth, They that have Authority
concerning the Treasure, as Tributes, Impositions, Rents, Fines,
or whatsoever publique revenue, to collect, receive, issue,
or take the Accounts thereof, are Publique Ministers: Ministers,
because they serve the Person Representative, and can doe nothing
against his Command, nor without his Authority: Publique,
because they serve him in his Politicall Capacity.
Secondly, they that have Authority concerning the Militia;
to have the custody of Armes, Forts, Ports; to Levy, Pay,
or Conduct Souldiers; or to provide for any necessary thing
for the use of war, either by Land or Sea, are publique Ministers.
But a Souldier without Command, though he fight for the Common-wealth,
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.
For Instruction Of The People
They also that have authority to teach, or to enable others
to teach the people their duty to the Soveraign Power, and instruct
them in the knowledge of what is just, and unjust, thereby to render
them more apt to live in godlinesse, and in peace among themselves,
and resist the publique enemy, are Publique Ministers: Ministers,
in that they doe it not by their own Authority, but by anothers;
and Publique, because they doe it (or should doe it) by no Authority,
but that of the Soveraign. The Monarch, or the Soveraign Assembly only
hath immediate Authority from God, to teach and instruct the people;
and no man but the Soveraign, 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 Soveraigns;
as in a Monarchy Dei Gratia & Regis; or Dei Providentia & Voluntate Regis.
They also to whom Jurisdiction is given, are Publique Ministers.
For in their Seats of Justice they represent the person of the Soveraign;
and their Sentence, is his Sentence; For (as hath been before
declared) all Judicature is essentially annexed to the Soveraignty;
and therefore all other Judges are but Ministers of him, or them
that have the Soveraign 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 controversie, there may be two Judges,
one of Fact, another of Law.
And in both these controversies, there may arise a controversie
between the party Judged, and the Judge; which because they be both
Subjects to the Soveraign, 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 Soveraign is already agreed on for Judge by them both,
and is therefore either to heare 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 divers wayes;
as first, if the Defendant be allowed to except against such of
his Judges, whose interest maketh him suspect them, (for as to
the Complaynant he hath already chosen his own Judge,) those which
he excepteth not against, are Judges he himself agrees on.
Secondly, if he appeale to any other Judge, he can appeale no further;
for his appeale is his choice. Thirdly, if he appeale to the Soveraign
himself, and he by himself, or by Delegates which the parties shall
agree on, give Sentence; that Sentence is finall: for the Defendant
is Judged by his own Judges, that is to say, by himself.
These properties of just and rationall Judicature considered,
I cannot forbeare to observe the excellent constitution of
the Courts of Justice, established both for Common, and also
for Publique Pleas in England. By Common Pleas, I meane those,
where both the Complaynant and Defendant are Subjects: and by Publique,
(which are also called Pleas of the Crown) those, where the Complaynant
is the Soveraign. For whereas there were two orders of men,
whereof one was Lords, the other Commons; The Lords had this Priviledge,
to have for Judges in all Capitall crimes, none but Lords; and of them,
as many as would be present; which being ever acknowledged as
a Priviledge of favour, their Judges were none but such as they had
themselves desired. And in all controversies, every Subject
(as also in civill controversies the Lords) had for Judges,
men of the Country where the matter in controversie 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 alledged by the party,
why the sentence should not be finall, These publique persons,
with Authority from the Soveraign Power, either to Instruct,
or Judge the people, are such members of the Common-wealth,
as may fitly be compared to the organs of Voice in a Body naturall.
Publique Ministers are also all those, that have Authority from
the Soveraign, to procure the Execution of Judgements given;
to publish the Soveraigns Commands; to suppresse Tumults; to apprehend,
and imprison Malefactors; and other acts tending to the conservation
of the Peace. For every act they doe by such Authority, is the act
of the Common-wealth; and their service, answerable to that of the Hands,
in a Bodie naturall.
Publique Ministers abroad, are those that represent the Person
of their own Soveraign, to forraign States. Such are Ambassadors,
Messengers, Agents, and Heralds, sent by publique Authoritie,
and on publique Businesse.
But such as are sent by Authoritie only of some private partie
of a troubled State, though they be received, are neither Publique,
nor Private Ministers of the Common-wealth; because none of their
actions have the Common-wealth for Author. Likewise, an Ambassador
sent from a Prince, to congratulate, condole, or to assist at
a solemnity, though Authority be Publique; yet because the businesse
is Private, and belonging to him in his naturall 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 Businesse be Publique; 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 Common-wealth;
and may be compared to an Eye in the Body naturall. And those that
are appointed to receive the Petitions or other informations
of the People, and are as it were the publique Eare, are Publique
Ministers, and represent their Soveraign in that office.
Counsellers Without Other Employment Then
To Advise Are Not Publique Ministers
Neither a Counsellor, nor a Councell of State, if we consider it
with no Authority of Judicature or Command, but only of giving
Advice to the Soveraign when it is required, or of offering it
when it is not required, is a Publique Person. For the Advice
is addressed to the Soveraign 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
Publique Ministers: In a Democracy, the Councell, or Senate
propounds the Result of their deliberations to the people,
as a Councell; but when they appoint Judges, or heare Causes,
or give Audience to Ambassadors, it is in the quality of a Minister
of the People: And in an Aristocracy the Councell of State is the
Soveraign Assembly it self; and gives counsell to none but themselves.
OF THE NUTRITION, AND PROCREATION OF A COMMON-WEALTH
The Nourishment Of A Common-wealth Consisteth
In The Commodities Of Sea And Land;
The NUTRITION of a Common-wealth 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 Publique 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 man-kind.
For the Matter of this Nutriment, consisting in Animals, Vegetals,
and Minerals, God hath freely layd them before us, in or neer 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 Gods favour) meerly on the labour and industry of men.
This Matter, commonly called Commodities, is partly Native,
and partly Forraign: Native, that which is to be had within
the Territory of the Common-wealth; Forraign, that which is
imported from without. And because there is no Territory
under the Dominion of one Common-wealth, (except it be of very
vast extent,) that produceth all things needfull 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 Warre, or by Labour: for a mans Labour also, is a commodity
exchangeable for benefit, as well as any other thing: And there have
been Common-wealths that having no more Territory, than hath
served them for habitation, have neverthelesse, not onely maintained,
but also encreased their Power, partly by the labour of trading
from one place to another, and partly by selling the Manifactures,
whereof the Materials were brought in from other places.
And The Right Of Distribution Of Them
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 belongeth in all kinds of Common-wealth
to the Soveraign Power. For where there is no Common-wealth,
there is, (as hath been already shewn) a perpetuall warre of every man
against his neighbour; And therefore every thing 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 publique pleading, attributeth all Propriety
to the Law Civil, "Let the Civill 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 Civill Law, and no man
knows what is his own, and what another mans." Seeing therefore the
Introduction of Propriety is an effect of Common-wealth; which can do
nothing but by the Person that Represents it, it is the act onely
of the Soveraign; and consisteth in the Lawes, which none can make
that have not the Soveraign 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.
All Private Estates Of Land Proceed Originally
From The Arbitrary Distribution Of The Soveraign
In this Distribution, the First Law, is for Division of the Land
it selfe: wherein the Soveraign 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 Common-wealth in the Wildernesse; 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 Generall: who when there were twelve Tribes,
making them thirteen by subdivision of the Tribe of Joseph;
made neverthelesse 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 comming into possession of a land by warre,
do not alwaies exterminate the antient Inhabitants, (as did the Jewes,)
but leave to many, or most, or all of them their Estates; yet it is
manifest they hold them afterwards, as of the Victors distribution;
as the people of England held all theirs of William the Conquerour.
Propriety Of A Subject Excludes Not The Dominion
Of The Soveraign, But Onely Of Another Subject
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 Soveraign,
be it an Assembly, or a Monarch. For seeing the Soveraign,
that is to say, the Common-wealth (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 voyd. It is true, that a Soveraign Monarch,
or the greater part of a Soveraign 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 authorise any subject, either to make
warre upon, or so much as to accuse of Injustice, or any way
to speak evill of their Soveraign; because they have authorised all
his actions, and in bestowing the Soveraign Power, made them their own.
But in what cases the Commands of Soveraigns are contrary to Equity,
and the Law of Nature, is to be considered hereafter in another place.
The Publique Is Not To Be Dieted
In the Distribution of land, the Common-wealth it selfe, may be
conceived to have a portion, and possesse, and improve the same
by their Representative; and that such portion may be made sufficient,
to susteine the whole expence to the common Peace, and defence
necessarily required: Which were very true, if there could be
any Representative conceived free from humane passions, and infirmities.
But the nature of men being as it is, the setting forth of Publique Land,
or of any certaine Revenue for the Common-wealth, is in vaine;
and tendeth to the dissolution of Government, and to the condition
of meere Nature, and War, assoon as ever the Soveraign Power
falleth into the hands of a Monarch, or of an Assembly, that are either
too negligent of mony, or too hazardous in engaging the publique stock,
into a long, or costly war. Common-wealths can endure no Diet:
For seeing their expence is not limited by their own appetite,
but by externall Accidents, and the appetites of their neighbours,
the Publique Riches cannot be limited by other limits, than those which
the emergent occasions shall require. And whereas in England,
there were by the Conquerour, divers Lands reserved to his own use,
(besides Forrests, and Chases, either for his recreation, or for
preservation of Woods,) and divers services reserved on the Land he
gave his Subjects; yet it seems they were not reserved for his
Maintenance in his Publique, but in his Naturall 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
publique Lands, and Services, were ordained as a sufficient
maintenance of the Common-wealth, it was contrary to the scope
of the Institution; being (as it appeared by those ensuing Taxes)
insufficient, and (as it appeares by the late Revenue of the Crown)
Subject to Alienation, and Diminution. It is therefore in vaine, to
assign a portion to the Common-wealth; which may sell, or give it away;
and does sell, and give it away when tis done by their Representative.
The Places And Matter Of Traffique Depend,
As Their Distribution, On The Soveraign
As the Distribution of Lands at home; so also to assigne in what places,
and for what commodities, the Subject shall traffique abroad,
belongeth to the Soveraign. For if it did belong to private persons
to use their own discretion therein, some of them would bee drawn
for gaine, both to furnish the enemy with means to hurt the
Common-wealth, and hurt it themselves, by importing such things,
as pleasing mens appetites, be neverthelesse noxious, or at least
unprofitable to them. And therefore it belongeth to the Common-wealth,
(that is, to the Soveraign only,) to approve, or disapprove both
of the places, and matter of forraign Traffique.
The Laws Of Transferring Property Belong
Also To The Soveraign
Further, seeing it is not enough to the Sustentation of a Common-wealth,
that every man have a propriety in a portion of Land, or in some
few commodities, or a naturall property in some usefull 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 transferre
their propriety therein, mutually one to another, by exchange,
and mutuall contract. And therefore it belongeth to the Common-wealth,
(that is to say, to the Soveraign,) to appoint in what manner,
all kinds of contract between Subjects, (as buying, selling,
exchanging, borrowing, lending, letting, and taking to hire,)
are to bee made; and by what words, and signes they shall be
understood for valid. And for the Matter, and Distribution of
the Nourishment, to the severall Members of the Common-wealth,
thus much (considering the modell of the whole worke) is sufficient.
Mony The Bloud Of A Common-wealth
By Concoction, I understand the reducing of all commodities,
which are not presently consumed, but reserved for Nourishment
in time to come, to some thing of equal value, and withall so portably,
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 Mony. For Gold
and Silver, being (as it happens) almost in all Countries of the world
highly valued, is a commodious measure for the value of all things
else between Nations; and Mony (of what matter soever coyned by the
Soveraign of a Common-wealth,) is a sufficient measure of the value
of all things else, between the Subjects of that Common-wealth.
By the means of which measures, all commodities, Moveable,
and Immoveable, 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 Common-wealth; 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 Common-wealth:
For naturall Bloud 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 it self;
they have first this priviledge, that the value of them cannot be
altered by the power of one, nor of a few Common-wealths;
as being a common measure of the commodities of all places.
But base Mony, may easily be enhanced, or abased. Secondly, they have
the priviledge to make Common-wealths, move, and stretch out their armes,
when need is, into forraign Countries; and supply, not only private
Subjects that travell, but also whole Armies with provision.
But that Coyne, which is not considerable for the Matter, but for the
Stamp of the place, being unable to endure change of ayr, 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 Way Of Mony To The Publique Use
The Conduits, and Wayes by which it is conveyed to the Publique use,
are of two sorts; One, that Conveyeth it to the Publique Coffers;
The other, that Issueth the same out againe for publique payments.
Of the first sort, are Collectors, Receivers, and Treasurers;
of the second are the Treasurers againe, and the Officers appointed
for payment of severall publique or private Ministers. And in this also,
the Artificiall Man maintains his resemblance with the Naturall;
whose Veins receiving the Bloud from the severall Parts of the Body,
carry it to the Heart; where being made Vitall, the Heart by
the Arteries sends it out again, to enliven, and enable for motion
all the Members of the same.
The Children Of A Common-wealth Colonies
The Procreation, or Children of a Common-wealth, are those
we call Plantations, or Colonies; which are numbers of men sent out
from the Common-wealth, under a Conductor, or Governour, to inhabit
a Forraign Country, either formerly voyd of Inhabitants, or made
voyd then, by warre. And when a Colony is setled, they are either
a Common-wealth of themselves, discharged of their subjection to
their Soveraign that sent them, (as hath been done by many
Common-wealths of antient time,) in which case the Common-wealth
from which they went was called their Metropolis, or Mother,
and requires no more of them, then Fathers require of the Children,
whom they emancipate, and make free from their domestique 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 Common-wealths themselves, but Provinces,
and parts of the Common-wealth that sent them. So that the Right
of Colonies (saving Honour, and League with their Metropolis,)
dependeth wholly on their Licence, or Letters, by which their Soveraign
authorised them to Plant.
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 may other occasions besides.
For the words "Doe this," are the words not onely of him that Commandeth;
but also of him that giveth Counsell; 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 mens writings, and being not able, or not willing to enter
into a consideration of the circumstances, they mistake sometimes
the Precepts of Counsellours, for the Precepts of them that command;
and sometimes the contrary; according as it best agreeth with the
conclusions they would inferre, or the actions they approve.
To avoyd which mistakes, and render to those termes of Commanding,
Counselling, and Exhorting, their proper and distinct significations,
I define them thus.
Differences Between Command And Counsell
COMMAND is, where a man saith, "Doe this," or "Doe this not,"
without expecting other reason than the Will of him that sayes 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 onely, and the proper object of every mans Will,
is some Good to himselfe.
COUNSELL, is where a man saith, "Doe" or "Doe not this," and
deduceth his own 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 Counsell, pretendeth onely (whatsoever he intendeth)
the good of him, to whom he giveth it.
Therefore between Counsell and Command, one great difference is,
that Command is directed to a mans own benefit; and Counsell
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 Counsell turned into the nature
of a Command. A third difference between them is, that no man can
pretend a right to be of another mans Counsell; because he is not
to pretend benefit by it to himselfe; but to demand right to
Counsell another, argues a will to know his designes, or to gain
some other Good to himselfe; which (as I said before) is of every mans
will the proper object.
This also is incident to the nature of Counsell; that whatsoever it be,
he that asketh it, cannot in equity accuse, or punish it: For to ask
Counsell of another, is to permit him to give such Counsell as he
shall think best; And consequently, he that giveth counsell to
his Soveraign, (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 Counsell;
For the Sense of the Assembly, is the Resolution of the Debate,
and End of all Deliberation. And generally he that demandeth Counsell,
is Author of it; and therefore cannot punish it; and what the Soveraign
cannot, no man else can. But if one Subject giveth Counsell to another,
to do any thing contrary to the Lawes, whether that Counsell proceed
from evill intention, or from ignorance onely, it is punishable
by the Common-wealth; because ignorance of the Law, is no good
excuse, where every man is bound to take notice of the Lawes
to which he is subject.
Exhortation And Dehortation What
EXHORTATION, and DEHORTATION, is Counsell, accompanied with signes
in him that giveth it, of vehement desire to have it followed;
or to say it more briefly, Counsell Vehemently Pressed. For he that
Exhorteth, doth not deduce the consequences of what he adviseth
to be done, and tye himselfe therein to the rigour 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 tooles of Oratory, to perswade their Hearers of the Utility,
Honour, or Justice of following their advise.
From whence may be inferred, First, that Exhortation and Dehortation,
is directed to the Good of him that giveth the Counsell, not of him
that asketh it, which is contrary to the duty of a Counsellour;
who (by the definition of Counsell) ought to regard, not his own
benefits, but his whom he adviseth. And that he directeth his Counsell
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 accidentarily to the good
of him that is Counselled, or not at all.
Secondly, that the use of Exhortation and Dehortation lyeth onely,
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 Counsell, are corrupt Counsellours,
and as it were bribed by their own interest. For though the Counsell
they give be never so good; yet he that gives it, is no more
a good Counsellour, 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 onely lawfull, but also necessary, and laudable: But then they
are no more Counsells, but Commands; which when they are for Execution
of soure labour; sometimes necessity, and alwayes humanity requireth
to be sweetned in the delivery, by encouragement, and in the tune
and phrase of Counsell, rather then in harsher language of Command.
Examples of the difference between Command and Counsell, we may take
from the formes of Speech that expresse them in Holy Scripture.
"Have no other Gods but me; Make to thy selfe no graven Image;
Take not Gods name in vain; Sanctifie the Sabbath; Honour thy Parents;
Kill not; Steale not," &c. 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 poore; and follow me," are Counsell; 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 Asse tyed, 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 Counsell;
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 rebell;
but of our selves, who have no other means of avoyding the punishment
hanging over us for our sins.
Differences Of Fit And Unfit Counsellours
As the difference of Counsell from Command, hath been now deduced
from the nature of Counsell, consisting in a deducing of the benefit,
or hurt that may arise to him that is to be Counselled, by the necessary
or probable consequences of the action he propoundeth; so may also the
differences between apt, and inept counsellours be derived from the same.
For Experience, being but Memory of the consequences of like actions
formerly observed, and Counsell but the Speech whereby that experience
is made known to another; the Vertues, and Defects of Counsell,
are the same with the Vertues, and Defects Intellectuall:
And to the Person of a Common-wealth, his Counsellours serve him
in the place of Memory, and Mentall Discourse. But with this
resemblance of the Common-wealth, to a naturall man, there is one
dissimilitude joyned, of great importance; which is, that a naturall
man receiveth his experience, from the naturall objects of sense,
which work upon him without passion, or interest of their own;
whereas they that give Counsell to the Representative person of
a Common-wealth, may have, and have often their particular ends,
and passions, that render their Counsells alwayes suspected,
and many times unfaithfull. And therefore we may set down for the
first condition of a good Counsellour, That His Ends, And Interest,
Be Not Inconsistent With The Ends And Interest Of Him He Counselleth.
Secondly, Because the office of a Counsellour, 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 advise, in such forme of speech,
as may make the truth most evidently appear; that is to say,
with as firme ratiocination, as significant and proper language,
and as briefly, as the evidence will permit. And therefore Rash,
And Unevident Inferences; (such as are fetched onely from Examples,
or authority of Books, and are not arguments of what is good,
or evill, but witnesses of fact, or of opinion,) Obscure, Confused,
And Ambiguous Expressions, Also All Metaphoricall Speeches, Tending To
The Stirring Up Of Passion, (because such reasoning, and such
expressions, are usefull onely to deceive, or to lead him
we Counsell towards other ends than his own) Are Repugnant
To The Office Of A Counsellour.
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 Common-wealth
are necessary to be known, No Man Is Presumed To Be A Good Counsellour,
But In Such Businesse, As He Hath Not Onely Been Much Versed In,
But Hath Also Much Meditated On, And Considered. For seeing the
businesse of a Common-wealth is this, to preserve the people at home,
and defend them against forraign Invasion, we shall find,
it requires great knowledge of the disposition of Man-kind,
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 designes
of all Nations that may any way annoy them. And this is not attained to,
without much experience. Of which things, not onely the whole summe,
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 is Judgement. And the differences
of men in that point come from different education, of some to one kind
of study, or businesse, and of others to another. When for the doing
of any thing, there be Infallible rules, (as in Engines, and Edifices,
the rules of Geometry,) all the experience of the world cannot equall
his Counsell, that has learnt, or found out the Rule. And when there
is no such Rule, he that hath most experience in that particular
kind of businesse, has therein the best Judgement, and is
the best Counsellour.
Fourthly, to be able to give Counsell to a Common-wealth,
in a businesse that hath reference to another Common-wealth,
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 doe,
but such as the Representative shall think fit. By which we may see,
that they who are not called to Counsell, can have no good Counsell
in such cases to obtrude.
Fifthly, Supposing the number of Counsellors equall, a man is better
Counselled by hearing them apart, then in an Assembly; and that
for many causes. First, in hearing them apart, you have the advice
of every man; but in an Assembly may of them deliver their advise with I,
or No, or with their hands, or feet, not moved by their own sense,
but by the eloquence of another, or for feare of displeasing
some that have spoken, or the whole Assembly, by contradiction;
or for feare 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 whose interests are contrary to that
of the Publique; and these their Interests make passionate,
and Passion eloquent, and Eloquence drawes 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 enflame one another,
(especially when they blow one another with Orations) to the setting
of the Common-wealth 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 advise 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 dazled 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 Politiques; and give not their advice with care
of the businesse propounded, but of the applause of their motly orations,
made of the divers colored threds, 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 Publique Businesse,) the Counsells of many,
and especially in Assemblies, are dangerous; And therefore great
Assemblies are necessitated to commit such affaires 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
Counsell from a great Assembly of Counsellours, 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 businesse
by the help of many and prudent Counsellours, 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 businesse
in a framed Counsell, 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 Wheele-barrough, or other frame, heavy of it self,
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 eys see more then one; yet it is not to be understood
of many Counsellours; but then only, when the finall Resolution
is in one man. Otherwise, because many eyes see the same thing
in divers lines, and are apt to look asquint towards their
private benefit; they that desire not to misse their marke,
though they look about with two eyes, yet they never ayme but with one;
And therefore no great Popular Common-wealth was ever kept up;
but either by a forraign Enemy that united them; or by the
reputation of some one eminent Man amongst them; or by the secret
Counsell of a few; or by the mutuall feare of equall factions;
and not by the open Consultations of the Assembly. And as for
very little Common-wealths, be they Popular, or Monarchicall,
there is no humane wisdome can uphold them, longer then the
Jealousy lasteth of their potent Neighbours.
OF CIVILL LAWES
Civill Law what
By CIVILL LAWES, I understand the Lawes, that men are therefore
bound to observe, because they are Members, not of this, or that
Common-wealth in particular, but of a Common-wealth. For the knowledge
of particular Lawes belongeth to them, that professe the study of
the Lawes of their severall Countries; but the knowledge of Civill Law
in generall, to any man. The antient Law of Rome was called their
Civil Law, from the word Civitas, which signifies a Common-wealth;
And those Countries, which having been under the Roman Empire,
and governed by that Law, retaine still such part thereof as they
think fit, call that part the Civill Law, to distinguish it from
the rest of their own Civill Lawes. But that is not it I intend
to speak of here; my designe being not to shew what is Law here,
and there; but what is Law; as Plato, Aristotle, Cicero, and divers
others have done, without taking upon them the profession of
the study of the Law.
And first it manifest, that Law in generall, is not Counsell,
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 Civill Law, it addeth only the name of the person
Commanding, which is Persona Civitatis, the Person of the Common-wealth.
Which considered, I define Civill Law in this Manner. "CIVILL LAW,
Is to every Subject, those Rules, which the Common-wealth 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 what is contrary, and what is not contrary to the Rule."
In which definition, there is nothing that is not at first sight evident.
For every man seeth, that some Lawes are addressed to all the Subjects
in generall; some to particular Provinces; some to particular Vocations;
and some to particular Men; and are therefore Lawes, to every of those
to whom the Command is directed; and to none else. As also,
that Lawes are the Rules of Just, and Unjust; nothing being
reputed Unjust, that is not contrary to some Law. Likewise, that
none can make Lawes but the Common-wealth; because our Subjection
is to the Common-wealth 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.
The Soveraign Is Legislator
1. The Legislator in all Common-wealths, is only the Soveraign,
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 Common-wealth only, praescribes,
and commandeth the observation of those rules, which we call Law:
Therefore the Common-wealth is the Legislator. But the Common-wealth
is no Person, nor has capacity to doe any thing, but by the
Representative, (that is, the Soveraign;) and therefore the Soveraign
is the sole Legislator. For the same reason, none can abrogate
a Law made, but the Soveraign; because a Law is not abrogated,
but by another Law, that forbiddeth it to be put in execution.
And Not Subject To Civill Law
2. The Soveraign of a Common-wealth, be it an Assembly, or one Man,
is not subject to the Civill Lawes. For having power to make,
and repeale Lawes, he may when he pleaseth, free himselfe from
that subjection, by repealing those Lawes 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 himselfe; because he that can bind, can release;
and therefore he that is bound to himselfe onely, is not bound.
Use, A Law Not By Vertue Of Time, But Of
The Soveraigns Consent
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 Soveraign signified by his silence, (for Silence is sometimes
an argument of Consent;) and it is no longer Law, then the
Soveraign shall be silent therein. And therefore if the Soveraign
shall have a question of Right grounded, not upon his present Will,
but upon the Lawes formerly made; the Length of Time shal bring
no prejudice to his Right; but the question shal 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 Customes Law, but such as are reasonable, and that evill Customes
are to be abolished; But the Judgement of what is reasonable,
and of what is to be abolished, belongeth to him that maketh the Law,
which is the Soveraign Assembly, or Monarch.
The Law Of Nature, And The Civill Law Contain Each Other
4. The Law of Nature, and the Civill Law, contain each other,
and are of equall extent. For the Lawes of Nature, which consist
in Equity, Justice, Gratitude, and other morall Vertues on
these depending, in the condition of meer Nature (as I have said
before in the end of the 15th Chapter,) are not properly Lawes,
but qualities that dispose men to peace, and to obedience.
When a Common-wealth is once settled, then are they actually Lawes,
and not before; as being then the commands of the Common-wealth;
and therefore also Civill Lawes: for it is the Soveraign Power
that obliges men to obey them. For in the differences of private men,
to declare, what is Equity, what is Justice, and what is morall Vertue,
and to make them binding, there is need of the Ordinances of
Soveraign Power, and Punishments to be ordained for such as shall
break them; which Ordinances are therefore part of the Civill Law.
The Law of Nature therefore is a part of the Civill Law in all
Common-wealths of the world. Reciprocally also, the Civill 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 Common-wealth,
hath covenanted to obey the Civill Law, (either one with another,
as when they assemble to make a common Representative, or with
the Representative it selfe one by one, when subdued by the Sword
they promise obedience, that they may receive life;) And therefore
Obedience to the Civill Law is part also of the Law of Nature.
Civill, and Naturall Law are not different kinds, but different
parts of Law; whereof one part being written, is called Civill,
the other unwritten, Naturall. But the Right of Nature, that is,
the naturall Liberty of man, may by the Civill Law be abridged,
and restrained: nay, the end of making Lawes, is no other, but such
Restraint; without the which there cannot possibly be any Peace.
And Law was brought into the world for nothing else, but to limit
the naturall liberty of particular men, in such manner, as they
might not hurt, but assist one another, and joyn together against