Part 5 out of 11
a common Enemy.
Provinciall Lawes Are Not Made By Custome,
But By The Soveraign Power
5. If the Soveraign of one Common-wealth, subdue a people that
have lived under other written Lawes, and afterwards govern
them by the same Lawes, by which they were governed before;
yet those Lawes are the Civill Lawes of the Victor, and not
of the Vanquished Common-wealth, For the Legislator is he,
not by whose authority the Lawes were first made, but by whose
authority they now continue to be Lawes. And therefore where
there be divers Provinces, within the Dominion of a Common-wealth,
and in those Provinces diversity of Lawes, which commonly are called
the Customes of each severall Province, we are not to understand
that such Customes have their Force, onely from Length of Time;
but that they were antiently Lawes written, or otherwise made known,
for the Constitutions, and Statutes of their Soveraigns; and are
now Lawes, not by vertue of the Praescription of time, but by
the Constitutions of their present Soveraigns. But if an unwritten Law,
in all the Provinces of a Dominion, shall be generally observed,
and no iniquity appear in the use thereof; that law can be no other
but a Law of Nature, equally obliging all man-kind.
Some Foolish Opinions Of Lawyers Concerning
The Making Of Lawes
6. Seeing then all Lawes, written, and unwritten, have their Authority,
and force, from the Will of the Common-wealth; that is to say,
from the Will of the Representative; which in a Monarchy is the Monarch,
and in other Common-wealths the Soveraign Assembly; a man may wonder
from whence proceed such opinions, as are found in the Books
of Lawyers of eminence in severall Common-wealths, directly,
or by consequence making the Legislative Power depend on private men,
or subordinate Judges. As for example, "That the Common Law, hath no
Controuler but the Parlament;" which is true onely where a Parlament
has the Soveraign Power, and cannot be assembled, nor dissolved,
but by their own discretion. For if there be a right in any else
to dissolve them, there is a right also to controule them,
and consequently to controule their controulings. And if there be
no such right, then the Controuler of Lawes is not Parlamentum,
but Rex In Parlamento. And where a Parlament is Soveraign,
if it should assemble never so many, or so wise men, from the
Countries subject to them, for whatsoever cause; yet there is no man
will believe, that such an Assembly hath thereby acquired to themselves
a Legislative Power. Item, that the two arms of a Common-wealth,
are Force, and Justice; The First Whereof Is In The King; The Other
Deposited In The Hands Of The Parlament. As if a Common-wealth
could consist, where the Force were in any hand, which Justice had not
the Authority to command and govern.
7. That Law can never be against Reason, our Lawyers are agreed;
and that not the Letter,(that is, every construction of it,) but that
which is according to the Intention of the Legislator, is the Law.
And it is true: but the doubt is, of whose Reason it is, that shall
be received for Law. It is not meant of any private Reason;
for then there would be as much contradiction in the Lawes,
as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it
(Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall
Perfection of Reason, Gotten By Long Study, Observation, And Experience,
(as his was.) For it is possible long study may encrease, and confirm
erroneous Sentences: and where men build on false grounds, the more
they build, the greater is the ruine; and of those that study,
and observe with equall time, and diligence, the reasons and
resolutions are, and must remain discordant: and therefore it is not
that Juris Prudentia, or wisedome of subordinate Judges; but the Reason
of this our Artificiall Man the Common-wealth, and his Command,
that maketh Law: And the Common-wealth being in their Representative
but one Person, there cannot easily arise any contradiction in the Lawes;
and when there doth, the same Reason is able, by interpretation,
or alteration, to take it away. In all Courts of Justice,
the Soveraign (which is the Person of the Common-wealth,) is he
that Judgeth: The subordinate Judge, ought to have regard to the reason,
which moved his Soveraign to make such Law, that his Sentence may be
according thereunto; which then is his Soveraigns Sentence;
otherwise it is his own, and an unjust one.
Law Made, If Not Also Made Known, Is No Law
8. From this, that the Law is a Command, and a Command consisteth
in declaration, or manifestation of the will of him that commandeth,
by voyce, writing, or some other sufficient argument of the same,
we may understand, that the Command of the Common-wealth, is Law onely
to those, that have means to take notice of it. Over naturall fooles,
children, or mad-men there is no Law, no more than over brute beasts;
nor are they capable of the title of just, or unjust; because they
had never power to make any covenant, or to understand the consequences
thereof; and consequently never took upon them to authorise the actions
of any Soveraign, as they must do that make to themselves a Common-wealth.
And as those from whom Nature, or Accident hath taken away the notice
of all Lawes in generall; so also every man, from whom any accident,
not proceeding from his own default, hath taken away the means to
take notice of any particular Law, is excused, if he observe it not;
And to speak properly, that Law is no Law to him. It is therefore
necessary, to consider in this place, what arguments, and signes
be sufficient for the knowledge of what is the Law; that is to say,
what is the will of the Soveraign, as well in Monarchies, as in other
formes of government.
Unwritten Lawes Are All Of Them Lawes Of Nature
And first, if it be a Law that obliges all the Subjects without exception,
and is not written, nor otherwise published in such places as they
may take notice thereof, it is a Law of Nature. For whatsoever men
are to take knowledge of for Law, not upon other mens words,
but every one from his own reason, must be such as is agreeable
to the reason of all men; which no Law can be, but the Law of Nature.
The Lawes of Nature therefore need not any publishing, nor Proclamation;
as being contained in this one Sentence, approved by all the world,
"Do not that to another, which thou thinkest unreasonable to be done
by another to thy selfe."
Secondly, if it be a Law that obliges only some condition of men,
or one particular man and be not written, nor published by word,
then also it is a Law of Nature; and known by the same arguments, and
signs, that distinguish those in such a condition, from other Subjects.
For whatsoever Law is not written, or some way published by him
that makes it Law, can be known no way, but by the reason of him
that is to obey it; and is therefore also a Law not only Civill,
but Naturall. For example, if the Soveraign employ a Publique Minister,
without written Instructions what to doe; he is obliged to take
for Instructions the Dictates of Reason; As if he make a Judge,
The Judge is to take notice, that his Sentence ought to be according
to the reason of his Soveraign, which being alwaies understood
to be Equity, he is bound to it by the Law of Nature: Or if an Ambassador,
he is (in al things not conteined in his written Instructions)
to take for Instruction that which Reason dictates to be most
conducing to his Soveraigns interest; and so of all other Ministers
of the Soveraignty, publique and private. All which Instructions
of naturall Reason may be comprehended under one name of Fidelity;
which is a branch of naturall Justice.
The Law of Nature excepted, it belongeth to the essence of all
other Lawes, to be made known, to every man that shall be obliged
to obey them, either by word, or writing, or some other act,
known to proceed from the Soveraign Authority. For the will of another,
cannot be understood, but by his own word, or act, or by conjecture
taken from his scope and purpose; which in the person of the
Common-wealth, is to be supposed alwaies consonant to Equity and Reason.
And in antient time, before letters were in common use, the Lawes
were many times put into verse; that the rude people taking pleasure in
singing, or reciting them, might the more easily reteine them in memory.
And for the same reason Solomon adviseth a man, to bind the ten
Commandements (Prov. 7. 3) upon his ten fingers. And for the Law
which Moses gave to the people of Israel at the renewing of the Covenant,
(Deut. 11. 19) he biddeth them to teach it their Children,
by discoursing of it both at home, and upon the way; at going to bed,
and at rising from bed; and to write it upon the posts, and dores
of their houses; and (Deut. 31. 12) to assemble the people, man,
woman, and child, to heare it read.
Nothing Is Law Where The Legislator Cannot Be Known
Nor is it enough the Law be written, and published; but also that there
be manifest signs, that it proceedeth from the will of the Soveraign.
For private men, when they have, or think they have force enough
to secure their unjust designes, and convoy them safely to their
ambitious ends, may publish for Lawes what they please, without,
or against the Legislative Authority. There is therefore requisite,
not only a Declaration of the Law, but also sufficient signes
of the Author, and Authority. The Author, or Legislator is supposed
in every Common-wealth to be evident, because he is the Soveraign,
who having been Constituted by the consent of every one, is supposed
by every one to be sufficiently known. And though the ignorance,
and security of men be such, for the most part, as that when the memory
of the first Constitution of their Common-wealth is worn out,
they doe not consider, by whose power they use to be defended
against their enemies, and to have their industry protected,
and to be righted when injury is done them; yet because no
man that considers, can make question of it, no excuse can be
derived from the ignorance of where the Soveraignty is placed.
And it is a Dictate of Naturall Reason, and consequently an
evident Law of Nature, that no man ought to weaken that power,
the protection whereof he hath himself demanded, or wittingly received
against others. Therefore of who is Soveraign, no man, but by
his own fault, (whatsoever evill men suggest,) can make any doubt.
The difficulty consisteth in the evidence of the Authority derived
from him; The removing whereof, dependeth on the knowledge of the
publique Registers, publique Counsels, publique Ministers, and
publique Seales; by which all Lawes are sufficiently verified.
Difference Between Verifying And Authorising
Verifyed, I say, not Authorised: for the Verification, is but
the Testimony and Record; not the Authority of the law; which consisteth
in the Command of the Soveraign only.
The Law Verifyed By The Subordinate Judge
If therefore a man have a question of Injury, depending on the
Law of Nature; that is to say, on common Equity; the Sentence
of the Judge, that by Commission hath Authority to take cognisance
of such causes, is a sufficient Verification of the Law of Nature
in that individuall case. For though the advice of one that professeth
the study of the Law, be usefull for the avoyding of contention;
yet it is but advice; tis the Judge must tell men what is Law,
upon the hearing of the Controversy.
By The Publique Registers
But when the question is of injury, or crime, upon a written Law;
every man by recourse to the Registers, by himself, or others,
may (if he will) be sufficiently enformed, before he doe such injury,
or commit the crime, whither it be an injury, or not: Nay he ought to
doe so: for when a man doubts whether the act he goeth about, be just,
or injust; and may informe himself, if he will; the doing is unlawfull.
In like manner, he that supposeth himself injured, in a case determined
by the written Law, which he may by himself, or others see and consider;
if he complaine before he consults with the Law, he does unjustly,
and bewrayeth a disposition rather to vex other men, than to demand
his own right.
By Letters Patent, And Publique Seale
If the question be of Obedience to a publique Officer; To have seen
his Commission, with the Publique Seale, and heard it read; or to
have had the means to be informed of it, if a man would, is a sufficient
Verification of his Authority. For every man is obliged to doe
his best endeavour, to informe himself of all written Lawes,
that may concerne his own future actions.
The Interpretation Of The Law Dependeth
On The Soveraign Power
The Legislator known; and the Lawes, either by writing, or by the light of Nature, sufficiently published; there wanteth yet another very materiall circumstance to make them obligatory. For it is not the Letter, but the Intendment, or Meaning; that is to say, the authentique Interpretation of the Law (which is the sense of the Legislator,) in which the nature of the Law consisteth; And therefore the Interpretation of all Lawes dependeth on the Authority Soveraign; and the Interpreters can be none but those, which the Soveraign, (to whom only the Subject oweth obedience) shall appoint. For else, by the craft of an Interpreter, the Law my be made to beare a sense, contrary to that of the Soveraign; by which means the Interpreter becomes the Legislator.
All Lawes Need Interpretation
All Laws, written, and unwritten, have need of Interpretation.
The unwritten Law of Nature, though it be easy to such, as without
partiality, and passion, make use of their naturall reason,
and therefore leaves the violators thereof without excuse;
yet considering there be very few, perhaps none, that in some cases
are not blinded by self love, or some other passion, it is now become
of all Laws the most obscure; and has consequently the greatest need
of able Interpreters. The written Laws, if they be short, are easily
mis-interpreted, from the divers significations of a word, or two;
if long, they be more obscure by the diverse significations of
many words: in so much as no written Law, delivered in few,
or many words, can be well understood, without a perfect understanding
of the finall causes, for which the Law was made; the knowledge of
which finall causes is in the Legislator. To him therefore there can
not be any knot in the Law, insoluble; either by finding out the ends,
to undoe it by; or else by making what ends he will, (as Alexander
did with his sword in the Gordian knot,) by the Legislative power;
which no other Interpreter can doe.
The Authenticall Interpretation Of Law Is Not
That Of Writers
The Interpretation of the Lawes of Nature, in a Common-wealth,
dependeth not on the books of Morall Philosophy. The Authority
of writers, without the Authority of the Common-wealth, maketh not
their opinions Law, be they never so true. That which I have written
in this Treatise, concerning the Morall Vertues, and of their necessity,
for the procuring, and maintaining peace, though it bee evident Truth,
is not therefore presently Law; but because in all Common-wealths
in the world, it is part of the Civill Law: For though it be
naturally reasonable; yet it is by the Soveraigne Power that
it is Law: Otherwise, it were a great errour, to call the Lawes
of Nature unwritten Law; whereof wee see so many volumes published,
and in them so many contradictions of one another, and of themselves.
The Interpreter Of The Law Is The Judge Giving Sentence
Viva Voce In Every Particular Case
The Interpretation of the Law of Nature, is the Sentence of the Judge
constituted by the Soveraign Authority, to heare and determine
such controversies, as depend thereon; and consisteth in the
application of the Law to the present case. For in the act of
Judicature, the Judge doth no more but consider, whither the demand
of the party, be consonant to naturall reason, and Equity;
and the Sentence he giveth, is therefore the Interpretation
of the Law of Nature; which Interpretation is Authentique;
not because it is his private Sentence; but because he giveth it by
Authority of the Soveraign, whereby it becomes the Soveraigns Sentence;
which is Law for that time, to the parties pleading.
The Sentence Of A Judge, Does Not Bind Him, Or Another
Judge To Give Like Sentence In Like Cases Ever After
But because there is no Judge Subordinate, nor Soveraign, but may
erre in a Judgement of Equity; if afterward in another like case
he find it more consonant to Equity to give a contrary Sentence,
he is obliged to doe it. No mans error becomes his own Law;
nor obliges him to persist in it. Neither (for the same reason)
becomes it a Law to other Judges, though sworn to follow it.
For though a wrong Sentence given by authority of the Soveraign,
if he know and allow it, in such Lawes as are mutable, be a
constitution of a new Law, in cases, in which every little
circumstance is the same; yet in Lawes immutable, such as are
the Lawes of Nature, they are no Lawes to the same, or other Judges,
in the like cases for ever after. Princes succeed one another;
and one Judge passeth, another commeth; nay, Heaven and Earth
shall passe; but not one title of the Law of Nature shall passe;
for it is the Eternall Law of God. Therefore all the Sentences
of precedent Judges that have ever been, cannot all together make
a Law contrary to naturall Equity: Nor any Examples of former Judges,
can warrant an unreasonable Sentence, or discharge the present Judge
of the trouble of studying what is Equity (in the case he is to Judge,)
from the principles of his own naturall reason. For example sake,
'Tis against the Law of Nature, To Punish The Innocent; and Innocent
is he that acquitteth himselfe Judicially, and is acknowledged
for Innocent by the Judge. Put the case now, that a man is accused
of a capitall crime, and seeing the powers and malice of some enemy,
and the frequent corruption and partiality of Judges, runneth away
for feare of the event, and afterwards is taken, and brought to a
legall triall, and maketh it sufficiently appear, he was not guilty
of the crime, and being thereof acquitted, is neverthelesse condemned
to lose his goods; this is a manifest condemnation of the Innocent.
I say therefore, that there is no place in the world, where this
can be an interpretation of a Law of Nature, or be made a Law by
the Sentences of precedent Judges, that had done the same.
For he that judged it first, judged unjustly; and no Injustice
can be a pattern of Judgement to succeeding Judges. A written Law
may forbid innocent men to fly, and they may be punished for flying:
But that flying for feare of injury, should be taken for presumption
of guilt, after a man is already absolved of the crime Judicially,
is contrary to the nature of a Presumption, which hath no place
after Judgement given. Yet this is set down by a great Lawyer
for the common Law of England. "If a man," saith he, "that is Innocent,
be accused of Felony, and for feare flyeth for the same; albeit he
judicially acquitteth himselfe of the Felony; yet if it be found that
he fled for the Felony, he shall notwithstanding his Innocency,
Forfeit all his goods, chattels, debts, and duties. For as to the
Forfeiture of them, the Law will admit no proofe against the
Presumption in Law, grounded upon his flight." Here you see,
An Innocent Man, Judicially Acquitted, Notwithstanding His Innocency,
(when no written Law forbad him to fly) after his acquitall,
Upon A Presumption In Law, condemned to lose all the goods he hath.
If the Law ground upon his flight a Presumption of the fact,
(which was Capitall,) the Sentence ought to have been Capitall:
if the presumption were not of the Fact, for what then ought he
to lose his goods? This therefore is no Law of England; nor is
the condemnation grounded upon a Presumption of Law, but upon
the Presumption of the Judges. It is also against Law, to say
that no Proofe shall be admitted against a Presumption of Law.
For all Judges, Soveraign and subordinate, if they refuse to
heare Proofe, refuse to do Justice: for though the Sentence be Just,
yet the Judges that condemn without hearing the Proofes offered,
are Unjust Judges; and their Presumption is but Prejudice;
which no man ought to bring with him to the Seat of Justice,
whatsoever precedent judgements, or examples he shall pretend to follow.
There be other things of this nature, wherein mens Judgements
have been perverted, by trusting to Precedents: but this is enough
to shew, that though the Sentence of the Judge, be a Law to the
party pleading, yet it is no Law to any Judge, that shall succeed
him in that Office.
In like manner, when question is of the Meaning of written Lawes,
he is not the Interpreter of them, that writeth a Commentary upon them.
For Commentaries are commonly more subject to cavill, than the Text;
and therefore need other Commentaries; and so there will be no end
of such Interpretation. And therefore unlesse there be an Interpreter
authorised by the Soveraign, from which the subordinate Judges
are not to recede, the Interpreter can be no other than the ordinary Judges, in the some manner, as they are in cases of the unwritten Law; and their Sentences are to be taken by them that plead, for Lawes in that particular case; but not to bind other Judges, in like cases to give like judgements. For a Judge may erre in the Interpretation even of written Lawes; but no errour of a subordinate Judge, can change the Law, which is the generall Sentence of the Soveraigne.
The Difference Between The Letter
And Sentence Of The Law
In written Lawes, men use to make a difference between the Letter,
and the Sentence of the Law: And when by the Letter, is meant
whatsoever can be gathered from the bare words, 'tis well distinguished.
For the significations of almost all words, are either in themselves,
or in the metaphoricall use of them, ambiguous; and may be drawn in
argument, to make many senses; but there is onely one sense of the Law.
But if by the Letter, be meant the Literall sense, then the Letter,
and the Sentence or intention of the Law, is all one. For the literall
sense is that, which the Legislator is alwayes supposed to be Equity:
For it were a great contumely for a Judge to think otherwise
of the Soveraigne. He ought therefore, if the Word of the Law
doe not fully authorise a reasonable Sentence, to supply it with
the Law of Nature; or if the case be difficult, to respit Judgement
till he have received more ample authority. For Example, a written Law
ordaineth, that he which is thrust out of his house by force,
shall be restored by force: It happens that a man by negligence
leaves his house empty, and returning is kept out by force,
in which case there is no speciall Law ordained. It is evident,
that this case is contained in the same Law: for else there is
no remedy for him at all; which is to be supposed against the
Intention of the Legislator. Again, the word of the Law,
commandeth to Judge according to the Evidence: A man is accused
falsly of a fact, which the Judge saw himself done by another;
and not by him that is accused. In this case neither shall the
Letter of the Law be followed to the condemnation of the Innocent,
nor shall the Judge give Sentence against the evidence of the Witnesses;
because the Letter of the Law is to the contrary: but procure
of the Soveraign that another be made Judge, and himselfe Witnesse.
So that the incommodity that follows the bare words of a written Law,
may lead him to the Intention of the Law, whereby to interpret
the same the better; though no Incommodity can warrant a Sentence
against the Law. For every Judge of Right, and Wrong, is not Judge
of what is Commodious, or Incommodious to the Common-wealth.
The Abilities Required In A Judge
The abilities required in a good Interpreter of the Law, that is
to say, in a good Judge, are not the same with those of an Advocate;
namely the study of the Lawes. For a Judge, as he ought to take
notice of the Fact, from none but the Witnesses; so also he ought
to take notice of the Law, from nothing but the Statutes,
and Constitutions of the Soveraign, alledged in the pleading,
or declared to him by some that have authority from the Soveraign Power
to declare them; and need not take care before-hand, what hee
shall Judge; for it shall bee given him what hee shall say
concerning the Fact, by Witnesses; and what hee shall say in
point of Law, from those that shall in their pleadings shew it,
and by authority interpret it upon the place. The Lords of Parlament
in England were Judges, and most difficult causes have been heard
and determined by them; yet few of them were much versed in the
study of the Lawes, and fewer had made profession of them:
and though they consulted with Lawyers, that were appointed to be
present there for that purpose; yet they alone had the authority
of giving Sentence. In like manner, in the ordinary trialls of Right,
Twelve men of the common People, are the Judges, and give Sentence,
not onely of the Fact, but of the Right; and pronounce simply
for the Complaynant, or for the Defendant; that is to say,
are Judges not onely of the Fact, but also of the Right: and in
a question of crime, not onely determine whether done, or not done;
but also whether it be Murder, Homicide, Felony, Assault, and the like,
which are determinations of Law: but because they are not supposed
to know the Law of themselves, there is one that hath Authority
to enforme them of it, in the particular case they are to Judge of.
But yet if they judge not according to that he tells them,
they are not subject thereby to any penalty; unlesse it be made appear,
they did it against their consciences, or had been corrupted by reward.
The things that make a good Judge, or good Interpreter of the Lawes,
are, first A Right Understanding of that principall Law of Nature
called Equity; which depending not on the reading of other mens
Writings, but on the goodnesse of a mans own naturall Reason,
and Meditation, is presumed to be in those most, that have had
most leisure, and had the most inclination to meditate thereon.
Secondly, Contempt Of Unnecessary Riches, and Preferments.
Thirdly, To Be Able In Judgement To Devest Himselfe Of All Feare,
Anger, Hatred, Love, And Compassion. Fourthly, and lastly,
Patience To Heare; Diligent Attention In Hearing; And Memory To Retain,
Digest And Apply What He Hath Heard.
Divisions Of Law
The difference and division of the Lawes, has been made in divers
manners, according to the different methods, of those men that
have written of them. For it is a thing that dependeth not on Nature,
but on the scope of the Writer; and is subservient to every mans
proper method. In the Institutions of Justinian, we find seven
sorts of Civill Lawes.
1. The Edicts, Constitutions, and Epistles Of The Prince, that is,
of the Emperour; because the whole power of the people was in him.
Like these, are the Proclamations of the Kings of England.
2. The Decrees Of The Whole People Of Rome (comprehending the Senate,)
when they were put to the Question by the Senate. These were Lawes,
at first, by the vertue of the Soveraign Power residing in the people;
and such of them as by the Emperours were not abrogated, remained Lawes
by the Authority Imperiall. For all Lawes that bind, are understood
to be Lawes by his authority that has power to repeale them.
Somewhat like to these Lawes, are the Acts of Parliament in England.
3. The Decrees Of The Common People (excluding the Senate,)
when they were put to the question by the Tribune of the people.
For such of them as were not abrogated by the Emperours,
remained Lawes by the Authority Imperiall. Like to these,
were the Orders of the House of Commons in England.
4. Senatus Consulta, the Orders Of The Senate; because when the people
of Rome grew so numerous, as it was inconvenient to assemble them;
it was thought fit by the Emperour, that men should Consult
the Senate in stead of the people: And these have some resemblance
with the Acts of Counsell.
5. The Edicts Of Praetors, and (in some Cases) of the Aediles:
such as are the Chiefe Justices in the Courts of England.
6. Responsa Prudentum; which were the Sentences, and Opinions
of those Lawyers, to whom the Emperour gave Authority to interpret
the Law, and to give answer to such as in matter of Law demanded
their advice; which Answers, the Judges in giving Judgement
were obliged by the Constitutions of the Emperour to observe;
And should be like the Reports of Cases Judged, if other Judges
be by the Law of England bound to observe them. For the Judges
of the Common Law of England, are not properly Judges, but Juris
Consulti; of whom the Judges, who are either the Lords, or Twelve
men of the Country, are in point of Law to ask advice.
7. Also, Unwritten Customes, (which in their own nature are
an imitation of Law,) by the tacite consent of the Emperour,
in case they be not contrary to the Law of Nature, are very Lawes.
Another division of Lawes, is into Naturall and Positive.
Naturall are those which have been Lawes from all Eternity;
and are called not onely Naturall, but also Morall Lawes;
consisting in the Morall Vertues, as Justice, Equity, and all
habits of the mind that conduce to Peace, and Charity; of which
I have already spoken in the fourteenth and fifteenth Chapters.
Positive, are those which have not been for Eternity; but have been
made Lawes by the Will of those that have had the Soveraign Power
over others; and are either written, or made known to men,
by some other argument of the Will of their Legislator.
Another Division Of Law
Again, of Positive Lawes some are Humane, some Divine; And of Humane
positive lawes, some are Distributive, some Penal. Distributive are
those that determine the Rights of the Subjects, declaring to
every man what it is, by which he acquireth and holdeth a propriety
in lands, or goods, and a right or liberty of action; and these speak
to all the Subjects. Penal are those, which declare, what Penalty
shall be inflicted on those that violate the Law; and speak to
the Ministers and Officers ordained for execution. For though every one
ought to be informed of the Punishments ordained beforehand for their
transgression; neverthelesse the Command is not addressed to the
Delinquent, (who cannot be supposed will faithfully punish himselfe,)
but to publique Ministers appointed to see the Penalty executed.
And these Penal Lawes are for the most part written together with
the Lawes Distributive; and are sometimes called Judgements.
For all Lawes are generall judgements, or Sentences of the Legislator;
as also every particular Judgement, is a Law to him, whose case is Judged.
Divine Positive Law How Made Known To Be Law
Divine Positive Lawes (for Naturall Lawes being Eternall,
and Universall, are all Divine,) are those, which being the
Commandements of God, (not from all Eternity, nor universally
addressed to all men, but onely to a certain people, or to
certain persons,) are declared for such, by those whom God
hath authorised to declare them. But this Authority of man
to declare what be these Positive Lawes of God, how can it be known?
God may command a man by a supernaturall way, to deliver Lawes
to other men. But because it is of the essence of Law, that he
who is to be obliged, be assured of the Authority of him that
declareth it, which we cannot naturally take notice to be from God,
How Can A Man Without Supernaturall Revelation Be Assured Of
The Revelation Received By The Declarer? and How Can He Be Bound
To Obey Them? For the first question, how a man can be assured
of the Revelation of another, without a Revelation particularly
to himselfe, it is evidently impossible: for though a man may be
induced to believe such Revelation, from the Miracles they see him doe,
or from seeing the Extraordinary sanctity of his life, or from seeing
the Extraordinary wisedome, or Extraordinary felicity of his Actions,
all which are marks of Gods extraordinary favour; yet they are not
assured evidence of speciall Revelation. Miracles are Marvellous workes:
but that which is marvellous to one, may not be so to another.
Sanctity may be feigned; and the visible felicities of this world,
are most often the work of God by Naturall, and ordinary causes.
And therefore no man can infallibly know by naturall reason,
that another has had a supernaturall revelation of Gods will;
but only a beliefe; every one (as the signs thereof shall appear
greater, or lesser) a firmer, or a weaker belief.
But for the second, how he can be bound to obey them; it is not so hard.
For if the Law declared, be not against the Law of Nature (which is
undoubtedly Gods Law) and he undertake to obey it, he is bound by
his own act; bound I say to obey it, but not bound to believe it:
for mens beliefe, and interiour cogitations, are not subject to the
commands, but only to the operation of God, ordinary, or extraordinary.
Faith of Supernaturall Law, is not a fulfilling, but only an assenting
to the same; and not a duty that we exhibite to God, but a gift
which God freely giveth to whom he pleaseth; as also Unbelief is not
a breach of any of his Lawes; but a rejection of them all,
except the Lawes Naturall. But this that I say, will be made yet cleerer,
by the Examples, and Testimonies concerning this point in holy Scripture.
The Covenant God made with Abraham (in a Supernaturall Manner) was thus,
(Gen. 17. 10) "This is the Covenant which thou shalt observe between
Me and Thee and thy Seed after thee." Abrahams Seed had not this
revelation, nor were yet in being; yet they are a party to the Covenant,
and bound to obey what Abraham should declare to them for Gods Law;
which they could not be, but in vertue of the obedience they owed
to their Parents; who (if they be Subject to no other earthly power,
as here in the case of Abraham) have Soveraign power over their children,
and servants. Againe, where God saith to Abraham, "In thee shall
all Nations of the earth be blessed: For I know thou wilt command
thy children, and thy house after thee to keep the way of the Lord,
and to observe Righteousnesse and Judgement," it is manifest,
the obedience of his Family, who had no Revelation, depended on
their former obligation to obey their Soveraign. At Mount Sinai
Moses only went up to God; the people were forbidden to approach
on paine of death; yet were they bound to obey all that Moses declared
to them for Gods Law. Upon what ground, but on this submission
of their own, "Speak thou to us, and we will heare thee; but let not God
speak to us, lest we dye?" By which two places it sufficiently appeareth,
that in a Common-wealth, a subject that has no certain and assured
Revelation particularly to himself concerning the Will of God,
is to obey for such, the Command of the Common-wealth: for if men
were at liberty, to take for Gods Commandements, their own dreams,
and fancies, or the dreams and fancies of private men; scarce two men
would agree upon what is Gods Commandement; and yet in respect of them,
every man would despise the Commandements of the Common-wealth.
I conclude therefore, that in all things not contrary to the Morall Law,
(that is to say, to the Law of Nature,) all Subjects are bound
to obey that for divine Law, which is declared to be so, by the Lawes
of the Common-wealth. Which also is evident to any mans reason;
for whatsoever is not against the Law of Nature, may be made Law
in the name of them that have the Soveraign power; and there is
no reason men should be the lesse obliged by it, when tis propounded
in the name of God. Besides, there is no place in the world where men
are permitted to pretend other Commandements of God, than are declared
for such by the Common-wealth. Christian States punish those that
revolt from Christian Religion, and all other States, those that set up
any Religion by them forbidden. For in whatsoever is not regulated
by the Common-wealth, tis Equity (which is the Law of Nature,
and therefore an eternall Law of God) that every man equally
enjoy his liberty.
Another Division Of Lawes
There is also another distinction of Laws, into Fundamentall,
and Not Fundamentall: but I could never see in any Author,
what a Fundamentall Law signifieth. Neverthelesse one may very
reasonably distinguish Laws in that manner.
A Fundamentall Law What
For a Fundamentall Law in every Common-wealth is that, which being
taken away, the Common-wealth faileth, and is utterly dissolved;
as a building whose Foundation is destroyed. And therefore a
Fundamentall Law is that, by which Subjects are bound to uphold
whatsoever power is given to the Soveraign, whether a Monarch,
or a Soveraign Assembly, without which the Common-wealth cannot stand,
such as is the power of War and Peace, of Judicature, of Election
of Officers, and of doing whatsoever he shall think necessary
for the Publique good. Not Fundamentall is that the abrogating whereof,
draweth not with it the dissolution of the Common-Wealth; such as are
the Lawes Concerning Controversies between subject and subject.
Thus much of the Division of Lawes.
Difference Between Law And Right
I find the words Lex Civilis, and Jus Civile, that is to say,
Law and Right Civil, promiscuously used for the same thing,
even in the most learned Authors; which neverthelesse ought not to be so.
For Right is Liberty, namely that Liberty which the Civil Law leaves us:
But Civill Law is an Obligation; and takes from us the Liberty which
the Law of Nature gave us. Nature gave a Right to every man to secure
himselfe by his own strength, and to invade a suspected neighbour,
by way of prevention; but the Civill Law takes away that Liberty,
in all cases where the protection of the Lawe may be safely stayd for.
Insomuch as Lex and Jus, are as different as Obligation and Liberty.
And Between A Law And A Charter
Likewise Lawes and Charters are taken promiscuously for the same thing.
Yet Charters are Donations of the Soveraign; and not Lawes, but
exemptions from Law. The phrase of a Law is Jubeo, Injungo, I Command,
and Enjoyn: the phrase of a Charter is Dedi, Concessi, I Have Given,
I Have Granted: but what is given or granted, to a man, is not forced
upon him, by a Law. A Law may be made to bind All the Subjects of
a Common-wealth: a Liberty, or Charter is only to One man,
or some One part of the people. For to say all the people of
a Common-wealth, have Liberty in any case whatsoever; is to say,
that in such case, there hath been no Law made; or else having
been made, is now abrogated.
OF CRIMES, EXCUSES, AND EXTENUATIONS
A Sinne, is not onely a Transgression of a Law, but also any Contempt of
the Legislator. For such Contempt, is a breach of all his Lawes at once.
And therefore may consist, not onely in the Commission of a Fact,
or in the Speaking of Words by the Lawes forbidden, or in the
Omission of what the Law commandeth, but also in the Intention,
or purpose to transgresse. For the purpose to breake the Law,
is some degree of Contempt of him, to whom it belongeth to
see it executed. To be delighted in the Imagination onely,
of being possessed of another mans goods, servants, or wife,
without any intention to take them from him by force, or fraud,
is no breach of the Law, that sayth, "Thou shalt not covet:"
nor is the pleasure a man my have in imagining, or dreaming of
the death of him, from whose life he expecteth nothing but dammage,
and displeasure, a Sinne; but the resolving to put some Act in execution,
that tendeth thereto. For to be pleased in the fiction of that,
which would please a man if it were reall, is a Passion so adhaerent
to the Nature both of a man, and every other living creature,
as to make it a Sinne, were to make Sinne of being a man.
The consideration of this, has made me think them too severe,
both to themselves, and others, that maintain, that the First
motions of the mind, (though checked with the fear of God) be Sinnes.
But I confesse it is safer to erre on that hand, than on the other.
A Crime What
A Crime, is a sinne, consisting in the Committing (by Deed, or Word) of
that which the Law forbiddeth, or the Omission of what it hath commanded.
So that every Crime is a sinne; but not every sinne a Crime.
To intend to steale, or kill, is a sinne, though it never appeare
in Word, or Fact: for God that seeth the thoughts of man, can lay it
to his charge: but till it appear by some thing done, or said,
by which the intention may be Crime; which distinction the Greeks
observed in the word amartema, and egklema, or aitia; wherof
the former, (which is translated Sinne,) signifieth any swarving
from the Law whatsoever; but the two later, (which are translated Crime,)
signifie that sinne onely, whereof one man may accuse another.
But of Intentions, which never appear by any outward act, there is
no place for humane accusation. In like manner the Latines by
Peccatum, which is Sinne, signifie all manner of deviation from
the Law; but by crimen, (which word they derive from Cerno,
which signifies to perceive,) they mean onely such sinnes,
as my be made appear before a Judge; and therfore are not meer Intentions.
Where No Civill Law Is, There Is No Crime
From this relation of Sinne to the Law, and of Crime to the Civill Law,
may be inferred, First, that where Law ceaseth, Sinne ceaseth.
But because the Law of Nature is eternall, Violation of Covenants,
Ingratitude, Arrogance, and all Facts contrary to any Morall vertue,
can never cease to be Sinne. Secondly, that the Civill Law ceasing,
Crimes cease: for there being no other Law remaining, but that of Nature,
there is no place for Accusation; every man being his own Judge,
and accused onely by his own Conscience, and cleared by the
Uprightnesse of his own Intention. When therefore his Intention
is Right, his fact is no Sinne: if otherwise, his fact is Sinne;
but not Crime. Thirdly, That when the Soveraign Power ceaseth,
Crime also ceaseth: for where there is no such Power, there is no
protection to be had from the Law; and therefore every one may protect
himself by his own power: for no man in the Institution of Soveraign
Power can be supposed to give away the Right of preserving his
own body; for the safety whereof all Soveraignty was ordained.
But this is to be understood onely of those, that have not themselves
contributed to the taking away of the Power that protected them:
for that was a Crime from the beginning.
Ignorance Of The Law Of Nature Excuseth No Man
The source of every Crime, is some defect of the Understanding;
or some errour in Reasoning, or some sudden force of the Passions.
Defect in the Understanding, is Ignorance; in Reasoning,
Erroneous Opinion. Again, ignorance is of three sort; of the Law,
and of the Soveraign, and of the Penalty. Ignorance of the Law
of Nature Excuseth no man; because every man that hath attained
to the use of Reason, is supposed to know, he ought not to do to another,
what he would not have done to himselfe. Therefore into what place
soever a man shall come, if he do any thing contrary to that Law,
it is a Crime. If a man come from the Indies hither, and perswade
men here to receive a new Religion, or teach them any thing that
tendeth to disobedience of the Lawes of this Country, though he be
never so well perswaded of the truth of what he teacheth,
he commits a Crime, and may be justly punished for the same,
not onely because his doctrine is false, but also because he does
that which he would not approve in another, namely, that comming
from hence, he should endeavour to alter the Religion there.
But ignorance of the Civill Law, shall Excuse a man in a strange Country,
till it be declared to him; because, till then no Civill Law is binding.
Ignorance Of The Civill Law Excuseth Sometimes
In the like manner, if the Civill Law of a mans own Country,
be not so sufficiently declared, as he may know it if he will;
nor the Action against the Law of Nature; the Ignorance is a
good Excuse: In other cases ignorance of the Civill Law, Excuseth not.
Ignorance Of The Soveraign Excuseth Not
Ignorance of the Soveraign Power, in the place of a mans ordinary
residence, Excuseth him not; because he ought to take notice of
the Power, by which he hath been protected there.
Ignorance Of The Penalty Excuseth Not
Ignorance of the Penalty, where the Law is declared, Excuseth no man:
For in breaking the Law, which without a fear of penalty to follow,
were not a Law, but vain words, he undergoeth the penalty,
though he know not what it is; because, whosoever voluntarily
doth any action, accepteth all the known consequences of it;
but Punishment is a known consequence of the violation of the Lawes,
in every Common-wealth; which punishment, if it be determined
already by the Law, he is subject to that; if not, then is he
subject to Arbitrary punishment. For it is reason, that he which
does Injury, without other limitation than that of his own Will,
should suffer punishment without other limitation, than that of
his Will whose Law is thereby violated.
Punishments Declared Before The Fact,
Excuse From Greater Punishments After It
But when a penalty, is either annexed to the Crime in the Law it selfe,
or hath been usually inflicted in the like cases; there the Delinquent
is Excused from a greater penalty. For the punishment foreknown, if not
great enough to deterre men from the action, is an invitement to it:
because when men compare the benefit of their Injustice,
with the harm of their punishment, by necessity of Nature
they choose that which appeareth best for themselves; and therefore
when they are punished more than the Law had formerly determined,
or more than others were punished for the same Crime; it the Law
that tempted, and deceiveth them.
Nothing Can Be Made A Crime By
A Law Made After The Fact
No Law, made after a Fact done, can make it a Crime: because if
the Fact be against the Law of Nature, the Law was before the Fact;
and a Positive Law cannot be taken notice of, before it be made;
and therefore cannot be Obligatory. But when the Law that forbiddeth
a Fact, is made before the Fact be done; yet he that doth the Fact,
is lyable to the Penalty ordained after, in case no lesser Penalty
were made known before, neither by Writing, nor by Example,
for the reason immediatly before alledged.
False Principles Of Right And Wrong Causes Of Crime
From defect in Reasoning, (that is to say, from Errour,) men are
prone to violate the Lawes, three wayes. First, by Presumption
of false Principles; as when men from having observed how in all places,
and in all ages, unjust Actions have been authorised, by the force,
and victories of those who have committed them; and that potent men,
breaking through the Cob-web Lawes of their Country, the weaker sort,
and those that have failed in their Enterprises, have been esteemed
the onely Criminals; have thereupon taken for Principles, and grounds
of their Reasoning, "That Justice is but a vain word: That whatsoever
a man can get by his own Industry, and hazard, is his own:
That the Practice of all Nations cannot be unjust: That examples
of former times are good Arguments of doing the like again;"
and many more of that kind: Which being granted, no Act in it selfe
can be a Crime, but must be made so (not by the Law, but) by the
successe of them that commit it; and the same Fact be vertuous,
or vicious, as Fortune pleaseth; so that what Marius makes a Crime,
Sylla shall make meritorious, and Caesar (the same Lawes standing)
turn again into a Crime, to the perpetuall disturbance of the
Peace of the Common-wealth.
False Teachers Mis-interpreting The Law Of Nature
Secondly, by false Teachers, that either mis-interpret the Law of Nature,
making it thereby repugnant to the Law Civill; or by teaching for Lawes,
such Doctrines of their own, or Traditions of former times,
as are inconsistent with the duty of a Subject.
And False Inferences From True Principles, By Teachers
Thirdly, by Erroneous Inferences from True Principles; which happens
commonly to men that are hasty, and praecipitate in concluding,
and resolving what to do; such as are they, that have both a great
opinion of their own understanding, and believe that things
of this nature require not time and study, but onely common experience,
and a good naturall wit; whereof no man thinks himselfe unprovided:
whereas the knowledge, of Right and Wrong, which is no lesse difficult,
there is no man will pretend to, without great and long study.
And of those defects in Reasoning, there is none that can Excuse
(though some of them may Extenuate) a Crime, in any man, that
pretendeth to the administration of his own private businesse;
much lesse in them that undertake a publique charge; because
they pretend to the Reason, upon the want whereof they would
ground their Excuse.
By Their Passions;
Of the Passions that most frequently are the causes of Crime,
one, is Vain-glory, or a foolish over-rating of their own worth;
as if difference of worth, were an effect of their wit, or riches,
or bloud, or some other naturall quality, not depending on the Will
of those that have the Soveraign Authority. From whence proceedeth
a Presumption that the punishments ordained by the Lawes, and extended
generally to all Subjects, ought not to be inflicted on them,
with the same rigour they are inflicted on poore, obscure,
and simple men, comprehended under the name of the Vulgar.
Presumption Of Riches,
Therefore it happeneth commonly, that such as value themselves by
the greatnesse of their wealth, adventure on Crimes, upon hope
of escaping punishment, by corrupting publique Justice, or obtaining
Pardon by Mony, or other rewards.
And that such as have multitude of Potent Kindred; and popular men,
that have gained reputation amongst the Multitude, take courage
to violate the Lawes, from a hope of oppressing the Power,
to whom it belongeth to put them in execution.
And that such as have a great, and false opinion of their own Wisedome,
take upon them to reprehend the actions, and call in question
the Authority of them that govern, and so to unsettle the Lawes
with their publique discourse, as that nothing shall be a Crime,
but what their own designes require should be so. It happeneth also
to the same men, to be prone to all such Crimes, as consist in Craft,
and in deceiving of their Neighbours; because they think their designes
are too subtile to be perceived. These I say are effects of a false
presumption of their own Wisdome. For of them that are the first movers
in the disturbance of Common-wealth, (which can never happen without
a Civill Warre,) very few are left alive long enough, to see their
new Designes established: so that the benefit of their Crimes,
redoundeth to Posterity, and such as would least have wished it:
which argues they were not as wise, as they thought they were.
And those that deceive upon hope of not being observed, do commonly
deceive themselves, (the darknesse in which they believe they lye hidden,
being nothing else but their own blindnesse;) and are no wiser than
Children, that think all hid, by hiding their own eyes.
And generally all vain-glorious men, (unlesse they be withall timorous,)
are subject to Anger; as being more prone than others to interpret
for contempt, the ordinary liberty of conversation: And there are
few Crimes that may not be produced by Anger.
Hatred, Lust, Ambition, Covetousnesse, Causes Of Crime
As for the Passions, of Hate, Lust, Ambition, and Covetousnesse,
what Crimes they are apt to produce, is so obvious to every mans
experience and understanding, as there needeth nothing to be said
of them, saving that they are infirmities, so annexed to the nature,
both of man, and all other living creatures, as that their effects
cannot be hindred, but by extraordinary use of Reason, or a constant
severity in punishing them. For in those things men hate,
they find a continuall, and unavoydable molestation; whereby either
a mans patience must be everlasting, or he must be eased by removing
the power of that which molesteth him; The former is difficult;
the later is many times impossible, without some violation of the Law.
Ambition, and Covetousnesse are Passions also that are perpetually
incumbent, and pressing; whereas Reason is not perpetually present,
to resist them: and therefore whensoever the hope of impunity appears,
their effects proceed. And for Lust, what it wants in the lasting,
it hath in the vehemence, which sufficeth to weigh down the apprehension
of all easie, or uncertain punishments.
Fear Sometimes Cause Of Crime, As When
The Danger Is Neither Present, Nor Corporeall
Of all Passions, that which enclineth men least to break the Lawes,
is Fear. Nay, (excepting some generous natures,) it is the onely thing,
(when there is apparence of profit, or pleasure by breaking the Lawes,)
that makes men keep them. And yet in many cases a Crime may be
committed through Feare.
For not every Fear justifies the Action it produceth, but the fear
onely of corporeall hurt, which we call Bodily Fear, and from
which a man cannot see how to be delivered, but by the action.
A man is assaulted, fears present death, from which he sees not
how to escape, but by wounding him that assaulteth him; If he wound
him to death, this is no Crime; because no man is supposed at the
making of a Common-wealth, to have abandoned the defence of his life,
or limbes, where the Law cannot arrive time enough to his assistance.
But to kill a man, because from his actions, or his threatnings,
I may argue he will kill me when he can, (seeing I have time,
and means to demand protection, from the Soveraign Power,) is a Crime.
Again, a man receives words of disgrace, or some little injuries
(for which they that made the Lawes, had assigned no punishment,
nor thought it worthy of a man that hath the use of Reason,
to take notice of,) and is afraid, unlesse he revenge it,
he shall fall into contempt, and consequently be obnoxious
to the like injuries from others; and to avoyd this, breaks
the Law, and protects himselfe for the future, by the terrour
of his private revenge. This is a Crime; For the hurt is not
Corporeall, but Phantasticall, and (though in this corner of
the world, made sensible by a custome not many years since begun,
amongst young and vain men,) so light, as a gallant man, and one
that is assured of his own courage, cannot take notice of.
Also a man may stand in fear of Spirits, either through his own
superstition, or through too much credit given to other men,
that tell him of strange Dreams and visions; and thereby be made
believe they will hurt him, for doing, or omitting divers things,
which neverthelesse, to do, or omit, is contrary to the Lawes;
And that which is so done, or omitted, is not to be Excused by this fear;
but is a Crime. For (as I have shewn before in the second Chapter)
Dreams be naturally but the fancies remaining in sleep, after the
impressions our Senses had formerly received waking; and when men
are by any accident unassured they have slept, seem to be reall Visions;
and therefore he that presumes to break the Law upon his own,
or anothers Dream, or pretended Vision, or upon other Fancy
of the power of Invisible Spirits, than is permitted by the
Common-wealth, leaveth the Law of Nature, which is a certain offence,
and followeth the imagery of his own, or another private mans brain,
which he can never know whether it signifieth any thing, or nothing,
nor whether he that tells his Dream, say true, or lye; which if
every private man should have leave to do, (as they must by the
Law of Nature, if any one have it) there could no Law be made to hold,
and so all Common-wealth would be dissolved.
Crimes Not Equall
From these different sources of Crimes, it appeares already,
that all Crimes are not (as the Stoicks of old time maintained)
of the same allay. There is place, not only for EXCUSE,
by which that which seemed a Crime, is proved to be none at all;
but also for EXTENUATION, by which the Crime, that seemed great,
is made lesse. For though all Crimes doe equally deserve the name
of Injustice, as all deviation from a strait line is equally
crookednesse, which the Stoicks rightly observed; yet it does not
follow that all Crimes are equally unjust, no more than that all
crooked lines are equally crooked; which the Stoicks not observing,
held it as great a Crime, to kill a Hen, against the Law,
as to kill ones Father.
That which totally Excuseth a Fact, and takes away from it the
nature of a Crime, can be none but that, which at the same time,
taketh away the obligation of the Law. For the fact committed
once against the Law, if he that committed it be obliged to the Law,
can be no other than a Crime.
The want of means to know the Law, totally Excuseth: For the Law
whereof a man has no means to enforme himself, is not obligatory.
But the want of diligence to enquire, shall not be considered
as a want of means; Nor shall any man, that pretendeth to reason
enough for the Government of his own affairs, be supposed to want
means to know the Lawes of Nature; because they are known by the
reason he pretends to: only Children, and Madmen are Excused from
offences against the Law Naturall.
Where a man is captive, or in the power of the enemy, (and he is
then in the power of the enemy, when his person, or his means of
living, is so,) if it be without his own fault, the Obligation
of the Law ceaseth; because he must obey the enemy, or dye;
and consequently such obedience is no Crime: for no man is obliged
(when the protection of the Law faileth,) not to protect himself,
by the best means he can.
If a man by the terrour of present death, be compelled to doe
a fact against the Law, he is totally Excused; because no Law
can oblige a man to abandon his own preservation. And supposing
such a Law were obligatory; yet a man would reason thus, "If I
doe it not, I die presently; if I doe it, I die afterwards;
therefore by doing it, there is time of life gained;" Nature therefore
compells him to the fact.
When a man is destitute of food, or other thing necessary for his life,
and cannot preserve himselfe any other way, but by some fact against
the Law; as if in a great famine he take the food by force, or stealth,
which he cannot obtaine for mony nor charity; or in defence of his life,
snatch away another mans Sword, he is totally Excused, for the reason
next before alledged.
Excuses Against The Author
Again, Facts done against the Law, by the authority of another,
are by that authority Excused against the Author; because no man
ought to accuse his own fact in another, that is but his instrument:
but it is not Excused against a third person thereby injured;
because in the violation of the law, bothe the Author, and Actor
are Criminalls. From hence it followeth that when that Man,
or Assembly, that hath the Soveraign Power, commandeth a man
to do that which is contrary to a former Law, the doing of it
is totally Excused: For he ought not to condemn it himselfe,
because he is the Author; and what cannot justly be condemned
by the Soveraign, cannot justly be punished by any other.
Besides, when the Soveraign commandeth any thing to be done
against his own former Law, the Command, as to that particular fact,
is an abrogation of the Law.
If that Man, or Assembly, that hath the Soveraign Power, disclaime
any Right essentiall to the Soveraignty, whereby there accrueth
to the Subject, any liberty inconsistent with the Soveraign Power,
that is to say, with the very being of a Common-wealth, if the Subject
shall refuse to obey the Command in any thing, contrary to the
liberty granted, this is neverthelesse a Sinne, and contrary to
the duty of the Subject: for he ought to take notice of what is
inconsistent with the Soveraignty, because it was erected by his
own consent, and for his own defence; and that such liberty as is
inconsistent with it, was granted through ignorance of the evill
consequence thereof. But if he not onely disobey, but also resist
a publique Minister in the execution of it, then it is a Crime;
because he might have been righted, (without any breach of the Peace,)
The Degrees of Crime are taken on divers Scales, and measured,
First, by the malignity of the Source, or Cause: Secondly, by the
contagion of the Example: Thirdly, by the mischiefe of the Effect;
and Fourthly, by the concurrence of Times, Places, and Persons.
Presumption Of Power, Aggravateth
The same Fact done against the Law, if it proceed from Presumption
of strength, riches, or friends to resist those that are to execute
the Law, is a greater Crime, than if it proceed from hope of not
being discovered, or of escape by flight: For Presumption of impunity
by force, is a Root, from whence springeth, at all times, and upon
all temptations, a contempt of all Lawes; whereas in the later case,
the apprehension of danger, that makes a man fly, renders him more
obedient for the future. A Crime which we know to be so, is greater
than the same Crime proceeding from a false perswasion that
it is lawfull: For he that committeth it against his own conscience,
presumeth on his force, or other power, which encourages him to commit
the same again: but he that doth it by errour, after the errour
shewn him, is conformable to the Law.
Evill Teachers, Extenuate
Hee, whose errour proceeds from the authority of a Teacher,
or an Interpreter of the Law publiquely authorised, is not so faulty,
as he whose errour proceedeth from a peremptory pursute of his
own principles, and reasoning: For what is taught by one that
teacheth by publique Authority, the Common-wealth teacheth,
and hath a resemblance of Law, till the same Authority controuleth it;
and in all Crimes that contain not in them a denyall of the
Soveraign Power, nor are against an evident Law, Excuseth totally:
whereas he that groundeth his actions, on his private Judgement,
ought according to the rectitude, or errour thereof, to stand, or fall.
Examples Of Impunity, Extenuate
The same Fact, if it have been constantly punished in other men,
as a greater Crime, than if there have been may precedent
Examples of impunity. For those Examples, are so many hopes
of Impunity given by the Soveraign himselfe: And because he which
furnishes a man with such a hope, and presumption of mercy,
as encourageth him to offend, hath his part in the offence;
he cannot reasonably charge the offender with the whole.
A Crime arising from a sudden Passion, is not so great, as when
the same ariseth from long meditation: For in the former case
there is a place for Extenuation, in the common infirmity of
humane nature: but he that doth it with praemeditation, has used
circumspection, and cast his eye, on the Law, on the punishment,
and on the consequence thereof to humane society; all which
in committing the Crime, hee hath contemned, and postposed to
his own appetite. But there is no suddennesse of Passion sufficient
for a totall Excuse: For all the time between the first knowing
of the Law, and the Commission of the Fact, shall be taken for
a time of deliberation; because he ought by meditation of the Law,
to rectifie the irregularity of his Passions.
Where the Law is publiquely, and with assiduity, before all
the people read, and interpreted; a fact done against it, is a
greater Crime, than where men are left without such instruction,
to enquire of it with difficulty, uncertainty, and interruption
of their Callings, and be informed by private men: for in this case,
part of the fault is discharged upon common infirmity; but in the
former there is apparent negligence, which is not without some
contempt of the Soveraign Power.
Tacite Approbation Of The Soveraign, Extenuates
Those facts which the Law expresly condemneth, but the Law-maker
by other manifest signes of his will tacitly approveth, are lesse Crimes,
than the same facts, condemned both by the Law, and Lawmaker.
For seeing the will of the Law-maker is a Law, there appear
in this case two contradictory Lawes; which would totally Excuse,
if men were bound to take notice of the Soveraigns approbation,
by other arguments, than are expressed by his command. But because
there are punishments consequent, not onely to the transgression
of his Law, but also to the observing of it, he is in part a cause
of the transgression, and therefore cannot reasonably impute
the whole Crime to the Delinquent. For example, the Law condemneth
Duells; the punishment is made capitall: On the contrary part,
he that refuseth Duell, is subject to contempt and scorne,
without remedy; and sometimes by the Soveraign himselfe thought
unworthy to have any charge, or preferment in Warre: If thereupon
he accept Duell, considering all men lawfully endeavour to obtain
the good opinion of them that have the Soveraign Power, he ought not
in reason to be rigorously punished; seeing part of the fault
may be discharged on the punisher; which I say, not as wishing
liberty of private revenges, or any other kind of disobedience;
but a care in Governours, not to countenance any thing obliquely,
which directly they forbid. The examples of Princes, to those
that see them, are, and ever have been, more potent to govern
their actions, than the Lawes themselves. And though it be our duty
to do, not what they do, but what they say; yet will that duty never
be performed, till it please God to give men an extraordinary,
and supernaturall grace to follow that Precept.
Comparison Of Crimes From Their Effects
Again, if we compare Crimes by the mischiefe of their Effects,
First, the same fact, when it redounds to the dammage of many,
is greater, than when it redounds to the hurt of few. And therefore,
when a fact hurteth, not onely in the present, but also, (by example)
in the future, it is a greater Crime, than if it hurt onely
in the present: for the former, is a fertile Crime, and multiplyes
to the hurt of many; the later is barren. To maintain doctrines
contrary to the Religion established in the Common-wealth, is a
greater fault, in an authorised Preacher, than in a private person:
So also is it, to live prophanely, incontinently, or do any
irreligious act whatsoever. Likewise in a Professor of the Law,
to maintain any point, on do any act, that tendeth to the weakning
of the Soveraign Power, as a greater Crime, than in another man:
Also in a man that hath such reputation for wisedome, as that his
counsells are followed, or his actions imitated by many, his fact
against the Law, is a greater Crime, than the same fact in another:
For such men not onely commit Crime, but teach it for Law to
all other men. And generally all Crimes are the greater,
by the scandall they give; that is to say, by becoming stumbling-blocks
to the weak, that look not so much upon the way they go in,
as upon the light that other men carry before them.
Also Facts of Hostility against the present state of the Common-wealth,
are greater Crimes, than the same acts done to private men;
For the dammage extends it selfe to all: Such are the betraying
of the strengths, or revealing of the secrets of the Common-wealth
to an Enemy; also all attempts upon the Representative of the
Common-wealth, be it a monarch, or an Assembly; and all endeavours
by word, or deed to diminish the Authority of the same, either in
the present time, or in succession: which Crimes the Latines
understand by Crimina Laesae Majestatis, and consist in designe,
or act, contrary to a Fundamentall Law.
Bribery And False Testimony
Likewise those Crimes, which render Judgements of no effect,
are greater Crimes, than Injuries done to one, or a few persons;
as to receive mony to give False judgement, or testimony,
is a greater Crime, than otherwise to deceive a man of the like,
or a greater summe; because not onely he has wrong, that falls
by such judgements; but all Judgements are rendered uselesse,
and occasion ministred to force, and private revenges.
Also Robbery, and Depeculation of the Publique treasure, or Revenues,
is a greater Crime, than the robbing, or defrauding of a Private man;
because to robbe the publique, is to robbe many at once.
Also the Counterfeit usurpation of publique Ministery, the Counterfeiting
of publique Seales, or publique Coine, than counterfeiting of
a private mans person, or his seale; because the fraud thereof,
extendeth to the dammage of many.
Crimes Against Private Men Compared
Of facts against the Law, done to private men, the greater Crime,
is that, where the dammage in the common opinion of men, is
most sensible. And therefore
To kill against the Law, is a greater Crime, that any other injury,
And to kill with Torment, greater, than simply to kill.
And Mutilation of a limbe, greater, than the spoyling a man
of his goods.
And the spoyling a man of his goods, by Terrour of death,
or wounds, than by clandestine surreption.
And by clandestine Surreption, than by consent fraudulently obtained.
And the violation of chastity by Force, greater, than by flattery.
And of a woman Married, than of a woman not married.
For all these things are commonly so valued; though some men are more,
and some lesse sensible of the same offence. But the Law regardeth
not the particular, but the generall inclination of mankind.
And therefore the offence men take, from contumely, in words,
or gesture, when they produce no other harme, than the present griefe
of him that is reproached, hath been neglected in the Lawes of
the Greeks, Romans, and other both antient, and moderne Common-wealths;
supposing the true cause of such griefe to consist, not in the
contumely, (which takes no hold upon men conscious of their own Vertue,)
but in the Pusillanimity of him that is offended by it.
Also a Crime against a private man, is much aggravated by the person,
time, and place. For to kill ones Parent, is a greater Crime,
than to kill another: for the Parent ought to have the honour
of a Soveraign, (though he have surrendred his Power to the Civill Law,)
because he had it originally by Nature. And to Robbe a poore man,
is a greater Crime, than to robbe a rich man; because 'tis to
the poore a more sensible dammage.
And a Crime committed in the Time, or Place appointed for Devotion,
is greater, than if committed at another time or place: for it proceeds
from a greater contempt of the Law.
Many other cases of Aggravation, and Extenuation might be added:
but by these I have set down, it is obvious to every man,
to take the altitude of any other Crime proposed.
Publique Crimes What
Lastly, because in almost all Crimes there is an Injury done,
not onely to some Private man, but also to the Common-wealth;
the same Crime, when the accusation is in the name of the Common-wealth,
is called Publique Crime; and when in the name of a Private man,
a Private Crime; And the Pleas according thereunto called Publique,
Judicia Publica, Pleas of the Crown; or Private Pleas. As in an
Accusation of Murder, if the accuser be a Private man, the plea is a
Private plea; if the accuser be the Soveraign, the plea is a Publique plea.
OF PUNISHMENTS, AND REWARDS
The Definition Of Punishment
"A PUNISHMENT, is an Evill inflicted by publique Authority, on him
that hath done, or omitted that which is Judged by the same Authority
to be a Transgression of the Law; to the end that the will of men
may thereby the better be disposed to obedience."
Right To Punish Whence Derived
Before I inferre any thing from this definition, there is a question
to be answered, of much importance; which is, by what door the Right,
or Authority of Punishing in any case, came in. For by that which has
been said before, no man is supposed bound by Covenant, not to resist
violence; and consequently it cannot be intended, that he gave any right
to another to lay violent hands upon his person. In the making of a
Common-wealth, every man giveth away the right of defending another;
but not of defending himselfe. Also he obligeth himselfe,
to assist him that hath the Soveraignty, in the Punishing of another;
but of himselfe not. But to covenant to assist the Soveraign,
in doing hurt to another, unlesse he that so covenanteth have
a right to doe it himselfe, is not to give him a Right to Punish.
It is manifest therefore that the Right which the Common-wealth
(that is, he, or they that represent it) hath to Punish,
is not grounded on any concession, or gift of the Subjects.
But I have also shewed formerly, that before the Institution
of Common-wealth, every man had a right to every thing, and to do
whatsoever he thought necessary to his own preservation; subduing,
hurting, or killing any man in order thereunto. And this is the
foundation of that right of Punishing, which is exercised in
every Common-wealth. For the Subjects did not give the Soveraign
that right; but onely in laying down theirs, strengthned him to use
his own, as he should think fit, for the preservation of them all:
so that it was not given, but left to him, and to him onely;
and (excepting the limits set him by naturall Law) as entire,
as in the condition of meer Nature, and of warre of every one
against his neighbour.
Private Injuries, And Revenges No Punishments
From the definition of Punishment, I inferre, First, that neither
private revenges, nor injuries of private men, can properly
be stiled Punishment; because they proceed not from publique Authority.
Nor Denyall Of Preferment
Secondly, that to be neglected, and unpreferred by the publique favour,
is not a Punishment; because no new evill is thereby on any
man Inflicted; he is onely left in the estate he was in before.
Nor Pain Inflicted Without Publique Hearing
Thirdly, that the evill inflicted by publique Authority, without
precedent publique condemnation, is not to be stiled by the name
of Punishment; but of an hostile act; because the fact for which
a man is Punished, ought first to be Judged by publique Authority,
to be a transgression of the Law.
Nor Pain Inflicted By Usurped Power
Fourthly, that the evill inflicted by usurped power, and Judges
without Authority from the Soveraign, is not Punishment; but an act
of hostility; because the acts of power usurped, have not for Author,
the person condemned; and therefore are not acts of publique Authority.
Nor Pain Inflicted Without Respect To The Future Good
Fifthly, that all evill which is inflicted without intention,
or possibility of disposing the Delinquent, or (by his example)
other men, to obey the Lawes, is not Punishment; but an act of
hostility; because without such an end, no hurt done is contained
under that name.
Naturall Evill Consequences, No Punishments
Sixthly, whereas to certain actions, there be annexed by Nature,
divers hurtfull consequences; as when a man in assaulting another,
is himselfe slain, or wounded; or when he falleth into sicknesse
by the doing of some unlawfull act; such hurt, though in respect of God,
who is the author of Nature, it may be said to be inflicted,
and therefore a Punishment divine; yet it is not contaned in the
name of Punishment in respect of men, because it is not inflicted
by the Authority of man.
Hurt Inflicted, If Lesse Than The Benefit
Of Transgressing, Is Not Punishment
Seventhly, If the harm inflicted be lesse than the benefit,
or contentment that naturally followeth the crime committed,
that harm is not within the definition; and is rather the Price,
or Redemption, than the Punishment of a Crime: Because it is
of the nature of Punishment, to have for end, the disposing of men
to obey the Law; which end (if it be lesse that the benefit
of the transgression) it attaineth not, but worketh a contrary effect.
Where The Punishment Is Annexed To The Law,
A Greater Hurt Is Not Punishment, But Hostility
Eighthly, If a Punishment be determined and prescribed in the Law
it selfe, and after the crime committed, there be a greater
Punishment inflicted, the excesse is not Punishment, but an
act of hostility. For seeing the aym of Punishment is not a revenge,
but terrour; and the terrour of a great Punishment unknown,
is taken away by the declaration of a lesse, the unexpected addition
is no part of the Punishment. But where there is no Punishment
at all determined by the Law, there whatsoever is inflicted,
hath the nature of Punishment. For he that goes about the violation
of a Law, wherein no penalty is determined, expecteth an indeterminate,
that is to say, an arbitrary Punishment.
Hurt Inflicted For A Fact Done
Before The Law, No Punishment
Ninthly, Harme inflicted for a Fact done before there was a Law
that forbad it, is not Punishment, but an act of Hostility:
For before the Law, there is no transgression of the Law: But Punishment
supposeth a fact judged, to have been a transgression of the Law;
Therefore Harme inflicted before the Law made, is not Punishment,
but an act of Hostility.
The Representative Of The Common-wealth Unpunishable
Tenthly, Hurt inflicted on the Representative of the Common-wealth,
is not Punishment, but an act of Hostility: Because it is of
the nature of Punishment, to be inflicted by publique Authority,
which is the Authority only of the Representative it self.
Hurt To Revolted Subjects Is Done By
Right Of War, Not By Way Of Punishment
Lastly, Harme inflicted upon one that is a declared enemy,
fals not under the name of Punishment: Because seeing they were
either never subject to the Law, and therefore cannot transgresse it;
or having been subject to it, and professing to be no longer so,
by consequence deny they can transgresse it, all the Harmes that
can be done them, must be taken as acts of Hostility. But in declared
Hostility, all infliction of evill is lawfull. From whence it followeth,
that if a subject shall by fact, or word, wittingly, and deliberatly
deny the authority of the Representative of the Common-wealth,
(whatsoever penalty hath been formerly ordained for Treason,)
he may lawfully be made to suffer whatsoever the Representative will:
For in denying subjection, he denyes such Punishment as by the Law hath
been ordained; and therefore suffers as an enemy of the Common-wealth;
that is, according to the will of the Representative. For the
Punishments set down in the Law, are to Subjects, not to Enemies;
such as are they, that having been by their own act Subjects,
deliberately revolting, deny the Soveraign Power.
The first, and most generall distribution of Punishments, is into
Divine, and Humane. Of the former I shall have occasion, to speak,
in a more convenient place hereafter.
Humane, are those Punishments that be inflicted by the Commandement
of Man; and are either Corporall, or Pecuniary, or Ignominy,
or Imprisonment, or Exile, or mixt of these.
Corporall Punishment is that, which is inflicted on the body directly,
and according to the intention of him that inflicteth it: such as
are stripes, or wounds, or deprivation of such pleasures of the body,
as were before lawfully enjoyed.
And of these, some be Capitall, some Lesse than Capitall.
Capitall, is the Infliction of Death; and that either simply,
or with torment. Lesse than Capitall, are Stripes, Wounds, Chains,
and any other corporall Paine, not in its own nature mortall.
For if upon the Infliction of a Punishment death follow not in
the Intention of the Inflicter, the Punishment is not be bee
esteemed Capitall, though the harme prove mortall by an accident
not to be foreseen; in which case death is not inflicted, but hastened.
Pecuniary Punishment, is that which consisteth not only in the
deprivation of a Summe of Mony, but also of Lands, or any other
goods which are usually bought and sold for mony. And in case
the Law, that ordaineth such a punishment, be made with design
to gather mony, from such as shall transgresse the same, it is not
properly a Punishment, but the Price of priviledge, and exemption
from the Law, which doth not absolutely forbid the fact, but only
to those that are not able to pay the mony: except where the Law
is Naturall, or part of Religion; for in that case it is not an
exemption from the Law, but a transgression of it. As where a Law
exacteth a Pecuniary mulct, of them that take the name of God in vaine,
the payment of the mulct, is not the price of a dispensation to sweare,
but the Punishment of the transgression of a Law undispensable.
In like manner if the Law impose a Summe of Mony to be payd,
to him that has been Injured; this is but a satisfaction for
the hurt done him; and extinguisheth the accusation of the
party injured, not the crime of the offender.
Ignominy, is the infliction of such Evill, as is made Dishonorable;
or the deprivation of such Good, as is made Honourable by
the Common-wealth. For there be some things Honorable by Nature;
as the effects of Courage, Magnanimity, Strength, Wisdome,
and other abilities of body and mind: Others made Honorable
by the Common-wealth; as Badges, Titles, Offices, or any other
singular marke of the Soveraigns favour. The former, (though they
may faile by nature, or accident,) cannot be taken away by a Law;
and therefore the losse of them is not Punishment. But the later,
may be taken away by the publique authority that made them Honorable,
and are properly Punishments: Such are degrading men condemned,
of their Badges, Titles, and Offices; or declaring them uncapable
of the like in time to come.
Imprisonment, is when a man is by publique Authority deprived
of liberty; and may happen from two divers ends; whereof one is
the safe custody of a man accused; the other is the inflicting
of paine on a man condemned. The former is not Punishment;
because no man is supposed to be Punisht, before he be Judicially heard,
and declared guilty. And therefore whatsoever hurt a man is made
to suffer by bonds, or restraint, before his cause be heard,
over and above that which is necessary to assure his custody,
is against the Law of Nature. But the Later is Punishment,
because Evill, and inflicted by publique Authority, for somewhat
that has by the same Authority been Judged a Transgression of the Law.
Under this word Imprisonment, I comprehend all restraint of motion,
caused by an externall obstacle, be it a House, which is called
by the generall name of a Prison; or an Iland, as when men are
said to be confined to it; or a place where men are set to worke,
as in old time men have been condemned to Quarries, and in these
times to Gallies; or be it a Chaine, or any other such impediment.
Exile, (Banishment) is when a man is for a crime, condemned
to depart out of the dominion of the Common-wealth, or out of
a certaine part thereof; and during a prefixed time, or for ever,
not to return into it: and seemeth not in its own nature,
without other circumstances, to be a Punishment; but rather an escape,
or a publique commandement to avoid Punishment by flight.
And Cicero sayes, there was never any such Punishment ordained
in the City of Rome; but cals it a refuge of men in danger.
For if a man banished, be neverthelesse permitted to enjoy his Goods,
and the Revenue of his Lands, the meer change of ayr is no punishment;
nor does it tend to that benefit of the Common-wealth, for which
all Punishments are ordained, (that is to say, to the forming
of mens wils to the observation of the Law;) but many times to
the dammage of the Common-wealth. For a Banished man, is a lawfull
enemy of the Common-wealth that banished him; as being no more
a Member of the same. But if he be withall deprived of his Lands,
or Goods, then the Punishment lyeth not in the Exile, but is to be
reckoned amongst Punishments Pecuniary.
The Punishment Of Innocent Subjects
Is Contrary To The Law Of Nature
All Punishments of Innocent subjects, be they great or little,
are against the Law of Nature; For Punishment is only of
Transgression of the Law, and therefore there can be no Punishment
of the Innocent. It is therefore a violation, First, of that Law
of Nature, which forbiddeth all men, in their Revenges, to look at
any thing but some future good: For there can arrive no good to the
Common-wealth, by Punishing the Innocent. Secondly, of that, which
forbiddeth Ingratitude: For seeing all Soveraign Power, is originally
given by the consent of every one of the Subjects, to the end
they should as long as they are obedient, be protected thereby;
the Punishment of the Innocent, is a rendring of Evill for Good.
And thirdly, of the Law that commandeth Equity; that is to say,
an equall distribution of Justice; which in Punishing the Innocent
is not observed.
But The Harme Done To Innocents In War, Not So
But the Infliction of what evill soever, on an Innocent man,
that is not a Subject, if it be for the benefit of the Common-wealth,
and without violation of any former Covenant, is no breach of the
Law of Nature. For all men that are not Subjects, are either Enemies,
or else they have ceased from being so, by some precedent covenants.
But against Enemies, whom the Common-wealth judgeth capable to
do them hurt, it is lawfull by the originall Right of Nature
to make warre; wherein the Sword Judgeth not, nor doth the Victor
make distinction of Nocent and Innocent, as to the time past;
nor has other respect of mercy, than as it conduceth to the good
of his own People. And upon this ground it is, that also in Subjects,
who deliberatly deny the Authority of the Common-wealth established,
the vengeance is lawfully extended, not onely to the Fathers,
but also to the third and fourth generation not yet in being,
and consequently innocent of the fact, for which they are afflicted:
because the nature of this offence, consisteth in the renouncing
of subjection; which is a relapse into the condition of warre,
commonly called Rebellion; and they that so offend, suffer not
as Subjects, but as Enemies. For Rebellion, is but warre renewed.
Reward, Is Either Salary, Or Grace
REWARD, is either of Gift, or by Contract. When by Contract,
it is called Salary, and Wages; which is benefit due for service
performed, or promised. When of Gift, it is benefit proceeding
from the Grace of them that bestow it, to encourage, or enable
men to do them service. And therefore when the Soveraign of
a Common-wealth appointeth a Salary to any publique Office,
he that receiveth it, is bound in Justice to performe his office;
otherwise, he is bound onely in honour, to acknowledgement,
and an endeavour of requitall. For though men have no lawfull remedy,
when they be commanded to quit their private businesse, to serve
the publique, without Reward, or Salary; yet they are not bound thereto,
by the Law of Nature, nor by the institution of the Common-wealth,
unlesse the service cannot otherwise be done; because it is supposed
the Soveraign may make use of all their means, insomuch as the most
common Souldier, may demand the wages of his warrefare, as a debt.
Benefits Bestowed For Fear, Are Not Rewards
The benefits which a Soveraign bestoweth on a Subject, for fear
of some power, and ability he hath to do hurt to the Common-wealth,
are not properly Rewards; for they are not Salaryes; because
there is in this case no contract supposed, every man being obliged
already not to do the Common-wealth disservice: nor are they Graces;
because they be extorted by feare, which ought not to be incident
to the Soveraign Power: but are rather Sacrifices, which the Soveraign
(considered in his naturall person, and not in the person of
the Common-wealth) makes, for the appeasing the discontent of him he
thinks more potent than himselfe; and encourage not to obedience, but on
the contrary, to the continuance, and increasing of further extortion.
Salaries Certain And Casuall
And whereas some Salaries are certain, and proceed from the
publique Treasure; and others uncertain, and casuall, proceeding
from the execution of the Office for which the Salary is ordained;
the later is in some cases hurtfull to the Common-wealth;
as in the case of Judicature. For where the benefit of the Judges,
and Ministers of a Court of Justice, ariseth for the multitude of
Causes that are brought to their cognisance, there must needs follow
two Inconveniences: One, is the nourishing of sutes; for the more sutes,
the greater benefit: and another that depends on that, which is
contention about Jurisdiction; each Court drawing to it selfe,
as many Causes as it can. But in offices of Execution there are
not those Inconveniences; because their employment cannot be
encreased by any endeavour of their own. And thus much shall
suffice for the nature of Punishment, and Reward; which are,
as it were, the Nerves and Tendons, that move the limbes and
joynts of a Common-wealth.
Hitherto I have set forth the nature of Man, (whose Pride and
other Passions have compelled him to submit himselfe to Government;)
together with the great power of his Governour, whom I compared
to Leviathan, taking that comparison out of the two last verses
of the one and fortieth of Job; where God having set forth
the great power of Leviathan, called him King of the Proud.
"There is nothing," saith he, "on earth, to be compared with him.
He is made so as not be afraid. Hee seeth every high thing below him;
and is King of all the children of pride." But because he is mortall,
and subject to decay, as all other Earthly creatures are; and because
there is that in heaven, (though not on earth) that he should stand
in fear of, and whose Lawes he ought to obey; I shall in the next
following Chapters speak of his Diseases, and the causes of his
Mortality; and of what Lawes of Nature he is bound to obey.
OF THOSE THINGS THAT WEAKEN, OR TEND TO THE DISSOLUTION OF A COMMON-WEALTH
Dissolution Of Common-wealths Proceedeth
From Their Imperfect Institution
Though nothing can be immortall, which mortals make; yet, if men had
the use of reason they pretend to, their Common-wealths might be secured,
at least, from perishing by internall diseases. For by the nature
of their Institution, they are designed to live, as long as Man-kind,
or as the Lawes of Nature, or as Justice it selfe, which gives them life.
Therefore when they come to be dissolved, not by externall violence,
but intestine disorder, the fault is not in men, as they are the Matter;
but as they are the Makers, and orderers of them. For men, as they
become at last weary of irregular justling, and hewing one another,
and desire with all their hearts, to conforme themselves into one firme
and lasting edifice; so for want, both of the art of making fit Laws,
to square their actions by, and also of humility, and patience,
to suffer the rude and combersome points of their present greatnesse
to be taken off, they cannot without the help of a very able Architect,
be compiled, into any other than a crasie building, such as hardly
lasting out their own time, must assuredly fall upon the heads
of their posterity.
Amongst the Infirmities therefore of a Common-wealth, I will reckon
in the first place, those that arise from an Imperfect Institution,
and resemble the diseases of a naturall body, which proceed from
a Defectuous Procreation.
Want Of Absolute Power
Of which, this is one, "That a man to obtain a Kingdome, is sometimes
content with lesse Power, than to the Peace, and defence of the
Common-wealth is necessarily required." From whence it commeth to passe,
that when the exercise of the Power layd by, is for the publique safety
to be resumed, it hath the resemblance of as unjust act; which disposeth
great numbers of men (when occasion is presented) to rebell;
In the same manner as the bodies of children, gotten by diseased parents,
are subject either to untimely death, or to purge the ill quality,
derived from their vicious conception, by breaking out into
biles and scabbs. And when Kings deny themselves some such
necessary Power, it is not alwayes (though sometimes) out of
ignorance of what is necessary to the office they undertake;
but many times out of a hope to recover the same again at their pleasure:
Wherein they reason not well; because such as will hold them
to their promises, shall be maintained against them by forraign
Common-wealths; who in order to the good of their own Subjects
let slip few occasions to Weaken the estate of their Neighbours.
So was Thomas Beckett Archbishop of Canterbury, supported against
Henry the Second, by the Pope; the subjection of Ecclesiastiques
to the Common-wealth, having been dispensed with by William
the Conqueror at his reception, when he took an Oath, not to
infringe the liberty of the Church. And so were the Barons,
whose power was by William Rufus (to have their help in transferring
the Succession from his Elder brother, to himselfe,) encreased
to a degree, inconsistent with the Soveraign Power, maintained in
their Rebellion against King John, by the French. Nor does this happen
in Monarchy onely. For whereas the stile of the antient Roman
Common-wealth, was, The Senate, and People of Rome; neither Senate,
nor People pretended to the whole Power; which first caused
the seditions, of Tiberius Gracchus, Caius Gracchus, Lucius Saturnius,
and others; and afterwards the warres between the Senate and the People,
under Marius and Sylla; and again under Pompey and Caesar,
to the Extinction of their Democraty, and the setting up of Monarchy.
The people of Athens bound themselves but from one onely Action;
which was, that no man on pain of death should propound the
renewing of the warre for the Island of Salamis; And yet thereby,
if Solon had not caused to be given out he was mad, and afterwards
in gesture and habit of a mad-man, and in verse, propounded it
to the People that flocked about him, they had had an enemy
perpetually in readinesse, even at the gates of their Citie;
such dammage, or shifts, are all Common-wealths forced to,
that have their Power never so little limited.
Private Judgement Of Good and Evill
In the second place, I observe the Diseases of a Common-wealth,
that proceed from the poyson of seditious doctrines; whereof one is,
"That every private man is Judge of Good and Evill actions."
This is true in the condition of meer Nature, where there are no
Civill Lawes; and also under Civill Government, in such cases as are not
determined by the Law. But otherwise, it is manifest, that the measure
of Good and Evill actions, is the Civill Law; and the Judge the
Legislator, who is alwayes Representative of the Common-wealth.
From this false doctrine, men are disposed to debate with themselves,
and dispute the commands of the Common-wealth; and afterwards to obey,
or disobey them, as in their private judgements they shall think fit.
Whereby the Common-wealth is distracted and Weakened.
Another doctrine repugnant to Civill Society, is, that "Whatsoever a man
does against his Conscience, is Sinne;" and it dependeth on
the presumption of making himself judge of Good and Evill.
For a mans Conscience, and his Judgement is the same thing;
and as the Judgement, so also the Conscience may be erroneous.
Therefore, though he that is subject to no Civill Law, sinneth in all
he does against his Conscience, because he has no other rule
to follow but his own reason; yet it is not so with him that lives
in a Common-wealth; because the Law is the publique Conscience,
by which he hath already undertaken to be guided. Otherwise in
such diversity, as there is of private Consciences, which are but
private opinions, the Common-wealth must needs be distracted,
and no man dare to obey the Soveraign Power, farther than it
shall seem good in his own eyes.
Pretence Of Inspiration
It hath been also commonly taught, "That Faith and Sanctity,
are not to be attained by Study and Reason, but by supernaturall
Inspiration, or Infusion," which granted, I see not why any man
should render a reason of his Faith; or why every Christian should not
be also a Prophet; or why any man should take the Law of his Country,
rather than his own Inspiration, for the rule of his action.
And thus wee fall again into the fault of taking upon us to
Judge of Good and Evill; or to make Judges of it, such private men
as pretend to be supernaturally Inspired, to the Dissolution of
all Civill Government. Faith comes by hearing, and hearing by
those accidents, which guide us into the presence of them that
speak to us; which accidents are all contrived by God Almighty;
and yet are not supernaturall, but onely, for the great number
of them that concurre to every effect, unobservable. Faith, and
Sanctity, are indeed not very frequent; but yet they are not Miracles,
but brought to passe by education, discipline, correction, and other
naturall wayes, by which God worketh them in his elect, as such time
as he thinketh fit. And these three opinions, pernicious to Peace
and Government, have in this part of the world, proceeded chiefly
from the tongues, and pens of unlearned Divines; who joyning the
words of Holy Scripture together, otherwise than is agreeable to reason,
do what they can, to make men think, that Sanctity and Naturall Reason,
cannot stand together.
Subjecting The Soveraign Power To Civill Lawes
A fourth opinion, repugnant to the nature of a Common-wealth, is this,
"That he that hath the Soveraign Power, is subject to the Civill Lawes."
It is true, that Soveraigns are all subjects to the Lawes of Nature;
because such lawes be Divine, and cannot by any man, or Common-wealth
be abrogated. But to those Lawes which the Soveraign himselfe,
that is, which the Common-wealth maketh, he is not subject.
For to be subject to Lawes, is to be subject to the Common-wealth,
that is to the Soveraign Representative, that is to himselfe;
which is not subjection, but freedome from the Lawes. Which errour,
because it setteth the Lawes above the Soveraign, setteth also a
Judge above him, and a Power to punish him; which is to make
a new Soveraign; and again for the same reason a third, to punish
the second; and so continually without end, to the Confusion,
and Dissolution of the Common-wealth.
Attributing Of Absolute Propriety To The Subjects
A Fifth doctrine, that tendeth to the Dissolution of a Common-wealth, is,
"That every private man has an absolute Propriety in his Goods; such,
as excludeth the Right of the Soveraign." Every man has indeed
a Propriety that excludes the Right of every other Subject:
And he has it onely from the Soveraign Power; without the protection
whereof, every other man should have equall Right to the same.
But if the Right of the Soveraign also be excluded, he cannot
performe the office they have put him into; which is, to defend them
both from forraign enemies, and from the injuries of one another;
and consequently there is no longer a Common-wealth.
And if the Propriety of Subjects, exclude not the Right of
the Soveraign Representative to their Goods; much lesse to
their offices of Judicature, or Execution, in which they
Represent the Soveraign himselfe.
Dividing Of The Soveraign Power
There is a Sixth doctrine, plainly, and directly against the
essence of a Common-wealth; and 'tis this, "That the Soveraign
Power may be divided." For what is it to divide the Power of
a Common-wealth, but to Dissolve it; for Powers divided mutually
destroy each other. And for these doctrines, men are chiefly
beholding to some of those, that making profession of the Lawes,
endeavour to make them depend upon their own learning, and not
upon the Legislative Power.
Imitation Of Neighbour Nations
And as False Doctrine, so also often-times the Example of different
Government in a neighbouring Nation, disposeth men to alteration
of the forme already setled. So the people of the Jewes were
stirred up to reject God, and to call upon the Prophet Samuel,
for a King after the manner of the Nations; So also the lesser
Cities of Greece, were continually disturbed, with seditions
of the Aristocraticall, and Democraticall factions; one part of
almost every Common-wealth, desiring to imitate the Lacedaemonians;
the other, the Athenians. And I doubt not, but many men, have been
contented to see the late troubles in England, out of an imitation
of the Low Countries; supposing there needed no more to grow rich,
than to change, as they had done, the forme of their Government.
For the constitution of mans nature, is of it selfe subject to
desire novelty: When therefore they are provoked to the same,
by the neighbourhood also of those that have been enriched by it,
it is almost impossible for them, not to be content with those
that solicite them to change; and love the first beginnings,
though they be grieved with the continuance of disorder; like hot blouds,
that having gotten the itch, tear themselves with their own nayles,
till they can endure the smart no longer.
Imitation Of The Greeks, And Romans
And as to Rebellion in particular against Monarchy; one of the most
frequent causes of it, is the Reading of the books of Policy,
and Histories of the antient Greeks, and Romans; from which,
young men, and all others that are unprovided of the Antidote
of solid Reason, receiving a strong, and delightfull impression,
of the great exploits of warre, atchieved by the Conductors of
their Armies, receive withall a pleasing Idea, of all they have
done besides; and imagine their great prosperity, not to have
proceeded from the aemulation of particular men, but from the
vertue of their popular form of government: Not considering the
frequent Seditions, and Civill Warres, produced by the imperfection
of their Policy. From the reading, I say, of such books,
men have undertaken to kill their Kings, because the Greek and
Latine writers, in their books, and discourses of Policy, make
it lawfull, and laudable, for any man so to do; provided before he do it,
he call him Tyrant. For they say not Regicide, that is, killing of
a King, but Tyrannicide, that is, killing of a Tyrant is lawfull.
From the same books, they that live under a Monarch conceive an opinion,
that the Subjects in a Popular Common-wealth enjoy Liberty; but that
in a Monarchy they are all Slaves. I say, they that live under a
Monarchy conceive such an opinion; not they that live under
a Popular Government; for they find no such matter. In summe,
I cannot imagine, how anything can be more prejudiciall to a Monarchy,
than the allowing of such books to be publikely read, without present
applying such correctives of discreet Masters, as are fit to take away
their Venime; Which Venime I will not doubt to compare to the biting
of a mad Dogge, which is a disease the Physicians call Hydrophobia,
or Fear Of Water. For as he that is so bitten, has a continuall
torment of thirst, and yet abhorreth water; and is in such an estate,
as if the poyson endeavoured to convert him into a Dogge: So when a
Monarchy is once bitten to the quick, by those Democraticall writers,
that continually snarle at that estate; it wanteth nothing more
than a strong Monarch, which neverthelesse out of a certain
Tyrannophobia, or feare of being strongly governed, when they have him,
As here have been Doctors, that hold there be three Soules in a man;
so there be also that think there may be more Soules, (that is,
more Soveraigns,) than one, in a Common-wealth; and set up a Supremacy
against the Soveraignty; Canons against Lawes; and a Ghostly Authority
against the Civill; working on mens minds, with words and distinctions,
that of themselves signifie nothing, but bewray (by their obscurity)
that there walketh (as some think invisibly) another Kingdome,
as it were a Kingdome of Fayries, in the dark. Now seeing it is manifest,
that the Civill Power, and the Power of the Common-wealth is the
same thing; and that Supremacy, and the Power of making Canons,
and granting Faculties, implyeth a Common-wealth; it followeth,
that where one is Soveraign, another Supreme; where one can make Lawes,
and another make Canons; there must needs be two Common-wealths,
of one & the same Subjects; which is a Kingdome divided in it selfe,
and cannot stand. For notwithstanding the insignificant distinction
of Temporall, and Ghostly, they are still two Kingdomes, and every
Subject is subject to two Masters. For seeing the Ghostly Power
challengeth the Right to declare what is Sinne it challengeth
by consequence to declare what is Law, (Sinne being nothing but
the transgression of the Law;) and again, the Civill Power
challenging to declare what is Law, every Subject must obey
two Masters, who bothe will have their Commands be observed as Law;
which is impossible. Or, if it be but one Kingdome, either the Civill,
which is the Power of the Common-wealth, must be subordinate to
the Ghostly; or the Ghostly must be subordinate to the Temporall
and then there is no Supremacy but the Temporall. When therefore
these two Powers oppose one another, the Common-wealth cannot but
be in great danger of Civill warre, and Dissolution. For the Civill
Authority being more visible, and standing in the cleerer light
of naturall reason cannot choose but draw to it in all times
a very considerable part of the people: And the Spirituall,
though it stand in the darknesse of Schoole distinctions,
and hard words; yet because the fear of Darknesse, and Ghosts,
is greater than other fears, cannot want a party sufficient to Trouble,
and sometimes to Destroy a Common-wealth. And this is a Disease
which not unfitly may be compared to the Epilepsie, or Falling-sicknesse
(which the Jewes took to be one kind of possession by Spirits)
in the Body Naturall. For as in this Disease, there is an
unnaturall spirit, or wind in the head that obstructeth the roots
of the Nerves, and moving them violently, taketh away the motion
which naturally they should have from the power of the Soule
in the Brain, and thereby causeth violent, and irregular motions
(which men call Convulsions) in the parts; insomuch as he that
is seized therewith, falleth down sometimes into the water,
and sometimes into the fire, as a man deprived of his senses;
so also in the Body Politique, when the Spirituall power,
moveth the Members of a Common-wealth, by the terrour of punishments,
and hope of rewards (which are the Nerves of it,) otherwise than
by the Civill Power (which is the Soule of the Common-wealth)
they ought to be moved; and by strange, and hard words suffocates
the people, and either Overwhelm the Common-wealth with Oppression,
or cast it into the Fire of a Civill warre.
Sometimes also in the meerly Civill government, there be more
than one Soule: As when the Power of levying mony, (which is the
Nutritive faculty,) has depended on a generall Assembly; the Power
of conduct and command, (which is the Motive Faculty,) on one man;
and the Power of making Lawes, (which is the Rationall faculty,)
on the accidentall consent, not onely of those two, but also of a third;
This endangereth the Common-wealth, somtimes for want of consent
to good Lawes; but most often for want of such Nourishment, as is
necessary to Life, and Motion. For although few perceive, that such
government, is not government, but division of the Common-wealth
into three Factions, and call it mixt Monarchy; yet the truth is,
that it is not one independent Common-wealth, but three independent
Factions; nor one Representative Person, but three. In the Kingdome
of God, there may be three Persons independent, without breach of unity
in God that Reigneth; but where men Reigne, that be subject to diversity
of opinions, it cannot be so. And therefore if the King bear
the person of the People, and the generall Assembly bear also
the person of the People, and another assembly bear the person
of a Part of the people, they are not one Person, nor one Soveraign,
but three Persons, and three Soveraigns.
To what Disease in the Naturall Body of man, I may exactly compare
this irregularity of a Common-wealth, I know not. But I have seen
a man, that had another man growing out of his side, with an head,
armes, breast, and stomach, of his own: If he had had another man
growing out of his other side, the comparison might then have been exact.
Want Of Mony
Hitherto I have named such Diseases of a Common-wealth, as are
of the greatest, and most present danger. There be other, not so great;
which neverthelesse are not unfit to be observed. As first, the
difficulty of raising Mony, for the necessary uses of the Common-wealth;
especially in the approach of warre. This difficulty ariseth from
the opinion, that every Subject hath of a Propriety in his lands
and goods, exclusive of the Soveraigns Right to the use of the same.
From whence it commeth to passe, that the Soveraign Power,
which foreseeth the necessities and dangers of the Common-wealth,
(finding the passage of mony to the publique Treasure obstructed,
by the tenacity of the people,) whereas it ought to extend it selfe,
to encounter, and prevent such dangers in their beginnings,
contracteth it selfe as long as it can, and when it cannot longer,
struggles with the people by strategems of Law, to obtain little summes,
which not sufficing, he is fain at last violently to open the way
for present supply, or Perish; and being put often to these extremities,
at last reduceth the people to their due temper; or else the
Common-wealth must perish. Insomuch as we may compare this Distemper
very aptly to an Ague; wherein, the fleshy parts being congealed,
or by venomous matter obstructed; the Veins which by their naturall
course empty themselves into the Heart, are not (as they ought to be)
supplyed from the Arteries, whereby there succeedeth at first
a cold contraction, and trembling of the limbes; and afterwards a hot,
and strong endeavour of the Heart, to force a passage for the Bloud;
and before it can do that, contenteth it selfe with the small
refreshments of such things as coole of a time, till (if Nature be
strong enough) it break at last the contumacy of the parts obstructed,
and dissipateth the venome into sweat; or (if Nature be too weak)
the Patient dyeth.
Monopolies And Abuses Of Publicans
Again, there is sometimes in a Common-wealth, a Disease, which resembleth
the Pleurisie; and that is, when the Treasure of the Common-wealth,
flowing out of its due course, is gathered together in too much abundance,
in one, or a few private men, by Monopolies, or by Farmes of the
Publique Revenues; in the same manner as the Blood in a Pleurisie,
getting into the Membrane of the breast, breedeth there an Inflammation,
accompanied with a Fever, and painfull stitches.
Also, the Popularity of a potent Subject, (unlesse the Common-wealth
have very good caution of his fidelity,) is a dangerous Disease;
because the people (which should receive their motion from the
Authority of the Soveraign,) by the flattery, and by the reputation
of an ambitious man, are drawn away from their obedience to the Lawes,
to follow a man, of whose vertues, and designes they have no knowledge.
And this is commonly of more danger in a Popular Government, than in
a Monarchy; as it may easily be made believe, they are the People.
By this means it was, that Julius Caesar, who was set up by the People
against the Senate, having won to himselfe the affections of his Army,
made himselfe Master, both of Senate and People. And this proceeding
of popular, and ambitious men, is plain Rebellion; and may be resembled
to the effects of Witchcraft.
Excessive Greatnesse Of A Town,
Multitude Of Corporations
Another infirmity of a Common-wealth, is the immoderate greatnesse
of a Town, when it is able to furnish out of its own Circuit,
the number, and expence of a great Army: As also the great number
of Corporations; which are as it were many lesser Common-wealths
in the bowels of a greater, like wormes in the entrayles of a naturall man.
Liberty Of Disputing Against Soveraign Power
To which may be added, the Liberty of Disputing against absolute Power,
by pretenders to Politicall Prudence; which though bred for the
most part in the Lees of the people; yet animated by False Doctrines,
are perpetually medling with the Fundamentall Lawes, to the
molestation of the Common-wealth; like the little Wormes, which
Physicians call Ascarides.
We may further adde, the insatiable appetite, or Bulimia,
of enlarging Dominion; with the incurable Wounds thereby many times
received from the enemy; And the Wens, of ununited conquests,
which are many times a burthen, and with lesse danger lost,
than kept; As also the Lethargy of Ease, and Consumption of
Riot and Vain Expence.
Dissolution Of The Common-wealth
Lastly, when in a warre (forraign, or intestine,) the enemies
got a final Victory; so as (the forces of the Common-wealth
keeping the field no longer) there is no farther protection
of Subjects in their loyalty; then is the Common-wealth DISSOLVED,
and every man at liberty to protect himselfe by such courses
as his own discretion shall suggest unto him. For the Soveraign,
is the publique Soule, giving Life and Motion to the Common-wealth;
which expiring, the Members are governed by it no more, than the
Carcasse of a man, by his departed (though Immortal) Soule.
For though the Right of a Soveraign Monarch cannot be extinguished
by the act of another; yet the Obligation of the members may.
For he that wants protection, may seek it anywhere; and when he hath it,
is obliged (without fraudulent pretence of having submitted himselfe
out of fear,) to protect his Protection as long as he is able.
But when the Power of an Assembly is once suppressed, the Right
of the same perisheth utterly; because the Assembly it selfe
is extinct; and consequently, there is no possibility for the
Soveraignty to re-enter.
OF THE OFFICE OF THE SOVERAIGN REPRESENTATIVE
The Procuration Of The Good Of The People
The OFFICE of the Soveraign, (be it a Monarch, or an Assembly,)
consisteth in the end, for which he was trusted with the Soveraign Power,
namely the procuration of the Safety Of The People; to which he is
obliged by the Law of Nature, and to render an account thereof to God,
the Author of that Law, and to none but him. But by Safety here,
is not meant a bare Preservation, but also all other Contentments
of life, which every man by lawfull Industry, without danger,
or hurt to the Common-wealth, shall acquire to himselfe.
By Instruction & Lawes
And this is intended should be done, not by care applyed to Individualls,
further than their protection from injuries, when they shall complain;
but by a generall Providence, contained in publique Instruction,
both of Doctrine, and Example; and in the making, and executing
of good Lawes, to which individuall persons may apply their own cases.