Chapter: CHAPTER XXII. OF SYSTEMES SUBJECT, POLITICALL, AND PRIVATE





The Divers Sorts Of Systemes Of People

Having spoken of the Generation, Forme, and Power of a Common-wealth, I
am in order to speak next of the parts thereof. And first of Systemes,
which resemble the similar parts, or Muscles of a Body naturall. By
SYSTEMES; I understand any numbers of men joyned in one Interest, or one
Businesse. Of which, some are Regular, and some Irregular. Regular are
those, where one Man, or Assembly of men, is constituted Representative
of the whole number. All other are Irregular.

Of Regular, some are Absolute, and Independent, subject to none but
their own Representative: such are only Common-wealths; Of which I have
spoken already in the 5. last preceding chapters. Others are Dependent;
that is to say, Subordinate to some Soveraign Power, to which every one,
as also their Representative is Subject.

Of Systemes subordinate, some are Politicall, and some Private.
Politicall (otherwise Called Bodies Politique, and Persons In Law,)
are those, which are made by authority from the Soveraign Power of the
Common-wealth. Private, are those, which are constituted by Subjects
amongst themselves, or by authoritie from a stranger. For no authority
derived from forraign power, within the Dominion of another, is Publique
there, but Private.

And of Private Systemes, some are Lawfull; some Unlawfull: Lawfull, are
those which are allowed by the Common-wealth: all other are Unlawfull.
Irregular Systemes, are those which having no Representative,
consist only in concourse of People; which if not forbidden by the
Common-wealth, nor made on evill designe, (such as are conflux of People
to markets, or shews, or any other harmelesse end,) are Lawfull. But
when the Intention is evill, or (if the number be considerable) unknown,
they are Unlawfull.




In All Bodies Politique The Power Of The Representative Is Limited

In Bodies Politique, the power of the Representative is alwaies Limited:
And that which prescribeth the limits thereof, is the Power Soveraign.
For Power Unlimited, is absolute Soveraignty. And the Soveraign, in
every Commonwealth, is the absolute Representative of all the Subjects;
and therefore no other, can be Representative of any part of them,
but so far forth, as he shall give leave; And to give leave to a Body
Politique of Subjects, to have an absolute Representative to all
intents and purposes, were to abandon the Government of so much of the
Commonwealth, and to divide the Dominion, contrary to their Peace and
Defence, which the Soveraign cannot be understood to doe, by any Grant,
that does not plainly, and directly discharge them of their subjection.
For consequences of words, are not the signes of his will, when other
consequences are signes of the contrary; but rather signes of errour,
and misreckoning; to which all mankind is too prone.

The bounds of that Power, which is given to the Representative of a
Bodie Politique, are to be taken notice of, from two things. One is
their Writt, or Letters from the Soveraign: the other is the Law of the
Common-wealth.




By Letters Patents

For though in the Institution or Acquisition of a Common-wealth,
which is independent, there needs no Writing, because the Power of the
Representative has there no other bounds, but such as are set out by
the unwritten Law of Nature; yet in subordinate bodies, there are such
diversities of Limitation necessary, concerning their businesses, times,
and places, as can neither be remembred without Letters, nor taken
notice of, unlesse such Letters be Patent, that they may be read to
them, and withall sealed, or testified, with the Seales, or other
permanent signes of the Authority Soveraign.




And The Lawes

And because such Limitation is not alwaies easie, or perhaps possible
to be described in writing; the ordinary Lawes, common to all Subjects,
must determine, that the Representative may lawfully do, in all Cases,
where the Letters themselves are silent. And therefore




When The Representative Is One Man, His Unwarranted Acts His Own Onely

In a Body Politique, if the Representative be one man, whatsoever he
does in the Person of the Body, which is not warranted in his Letters,
nor by the Lawes, is his own act, and not the act of the Body, nor of
any other Member thereof besides himselfe: Because further than his
Letters, or the Lawes limit, he representeth no mans person, but his
own. But what he does according to these, is the act of every one: For
of the Act of the Soveraign every one is Author, because he is their
Representative unlimited; and the act of him that recedes not from the
Letters of the Soveraign, is the act of the Soveraign, and therefore
every member of the Body is Author of it.




When It Is An Assembly, It Is The Act Of Them That Assented Onely

But if the Representative be an Assembly, whatsoever that Assembly shall
Decree, not warranted by their Letters, or the Lawes, is the act of the
Assembly, or Body Politique, and the act of every one by whose Vote the
Decree was made; but not the act of any man that being present Voted to
the contrary; nor of any man absent, unlesse he Voted it by procuration.
It is the act of the Assembly, because Voted by the major part; and if
it be a crime, the Assembly may be punished, as farre-forth as it is
capable, as by dissolution, or forfeiture of their Letters (which is to
such artificiall, and fictitious Bodies, capitall,) or (if the
Assembly have a Common stock, wherein none of the Innocent Members have
propriety,) by pecuniary Mulct. For from corporall penalties Nature hath
exempted all Bodies Politique. But they that gave not their Vote, are
therefore Innocent, because the Assembly cannot Represent any man in
things unwarranted by their Letters, and consequently are not involved
in their Votes.

When The Representative Is One Man, If He Borrow Mony, Or Owe It, By
Contract; He Is Lyable Onely, The Members Not If the person of the Body
Politique being in one man, borrow mony of a stranger, that is, of one
that is not of the same Body, (for no Letters need limit borrowing,
seeing it is left to mens own inclinations to limit lending) the debt is
the Representatives. For if he should have Authority from his Letters,
to make the members pay what he borroweth, he should have by consequence
the Soveraignty of them; and therefore the grant were either voyd,
as proceeding from Errour, commonly incident to humane Nature, and an
unsufficient signe of the will of the Granter; or if it be avowed
by him, then is the Representer Soveraign, and falleth not under the
present question, which is onely of Bodies subordinate. No member
therefore is obliged to pay the debt so borrowed, but the Representative
himselfe: because he that lendeth it, being a stranger to the Letters,
and to the qualification of the Body, understandeth those onely for
his debtors, that are engaged; and seeing the Representer can ingage
himselfe, and none else, has him onely for Debtor; who must therefore
pay him, out of the common stock (if there be any), or (if there be
none) out of his own estate.

If he come into debt by Contract, or Mulct, the case is the same.




When It Is An Assembly, They Onely Are Liable That Have Assented

But when the Representative is an Assembly, and the debt to a stranger;
all they, and onely they are responsible for the debt, that gave their
votes to the borrowing of it, or to the Contract that made it due, or to
the fact for which the Mulct was imposed; because every one of those in
voting did engage himselfe for the payment: For he that is author of
the borrowing, is obliged to the payment, even of the whole debt, though
when payd by any one, he be discharged.




If The Debt Be To One Of The Assembly, The Body Onely Is Obliged

But if the debt be to one of the Assembly, the Assembly onely is obliged
to the payment, out of their common stock (if they have any:) For having
liberty of Vote, if he Vote the Mony, shall be borrowed, he Votes it
shall be payd; If he Vote it shall not be borrowed, or be absent, yet
because in lending, he voteth the borrowing, he contradicteth his former
Vote, and is obliged by the later, and becomes both borrower and lender,
and consequently cannot demand payment from any particular man, but
from the common Treasure onely; which fayling he hath no remedy, nor
complaint, but against himselfe, that being privy to the acts of
the Assembly, and their means to pay, and not being enforced, did
neverthelesse through his own folly lend his mony.




Protestation Against The Decrees Of Bodies Politique

Sometimes Lawful; But Against Soveraign Power Never It is manifest by
this, that in Bodies Politique subordinate, and subject to a Soveraign
Power, it is sometimes not onely lawfull, but expedient, for a
particular man to make open protestation against the decrees of the
Representative Assembly, and cause their dissent to be Registred, or to
take witnesse of it; because otherwise they may be obliged to pay debts
contracted, and be responsible for crimes committed by other men: But in
a Soveraign Assembly, that liberty is taken away, both because he that
protesteth there, denies their Soveraignty; and also because whatsoever
is commanded by the Soveraign Power, is as to the Subject (though not
so alwayes in the sight of God) justified by the Command; for of such
command every Subject is the Author.




Bodies Politique For Government Of A Province, Colony, Or Town

The variety of Bodies Politique, is almost infinite; for they are
not onely distinguished by the severall affaires, for which they are
constituted, wherein there is an unspeakable diversitie; but also by the
times, places, and numbers, subject to many limitations. And as to their
affaires, some are ordained for Government; As first, the Government
of a Province may be committed to an Assembly of men, wherein all
resolutions shall depend on the Votes of the major part; and then this
Assembly is a Body Politique, and their power limited by Commission.
This word Province signifies a charge, or care of businesse, which he
whose businesse it is, committeth to another man, to be administred for,
and under him; and therefore when in one Common-wealth there be divers
Countries, that have their Lawes distinct one from another, or are farre
distant in place, the Administration of the Government being committed
to divers persons, those Countries where the Soveraign is not resident,
but governs by Commission, are called Provinces. But of the government
of a Province, by an Assembly residing in the Province it selfe, there
be few examples. The Romans who had the Soveraignty of many Provinces;
yet governed them alwaies by Presidents, and Praetors; and not by
Assemblies, as they governed the City of Rome, and Territories adjacent.
In like manner, when there were Colonies sent from England, to Plant
Virginia, and Sommer-Ilands; though the government of them here, were
committed to Assemblies in London, yet did those Assemblies never
commit the Government under them to any Assembly there; but did to each
Plantation send one Governour; For though every man, where he can be
present by Nature, desires to participate of government; yet where
they cannot be present, they are by Nature also enclined, to commit the
Government of their common Interest rather to a Monarchicall, then a
Popular form of Government: which is also evident in those men that have
great private estates; who when they are unwilling to take the paines of
administring the businesse that belongs to them, choose rather to trust
one Servant, than a Assembly either of their friends or servants.
But howsoever it be in fact, yet we may suppose the Government of a
Province, or Colony committed to an Assembly: and when it is, that which
in this place I have to say, is this; that whatsoever debt is by that
Assembly contracted; or whatsoever unlawfull Act is decreed, is the Act
onely of those that assented, and not of any that dissented, or were
absent, for the reasons before alledged. Also that an Assembly residing
out of the bounds of that Colony whereof they have the government,
cannot execute any power over the persons, or goods of any of the
Colonie, to seize on them for debt, or other duty, in any place
without the Colony it selfe, as having no Jurisdiction, nor Authoritie
elsewhere, but are left to the remedie, which the Law of the place
alloweth them. And though the Assembly have right, to impose a Mulct
upon any of their members, that shall break the Lawes they make; yet
out of the Colonie it selfe, they have no right to execute the same.
And that which is said here, of the Rights of an Assembly, for the
government of a Province, or a Colony, is appliable also to an Assembly
for the Government of a Town, or University, or a College, or a Church,
or for any other Government over the persons of men.

And generally, in all Bodies Politique, if any particular member
conceive himself Injured by the Body it self, the Cognisance of his
cause belongeth to the Soveraign, and those the Soveraign hath ordained
for Judges in such causes, or shall ordaine for that particular cause;
and not to the Body it self. For the whole Body is in this case his
fellow subject, which in a Soveraign Assembly, is otherwise: for there,
if the Soveraign be not Judge, though in his own cause, there can be no
Judge at all.




Bodies Politique For Ordering Of Trade

In a Bodie Politique, for the well ordering of forraigne Traffique, the
most commodious Representative is an Assembly of all the members; that
is to say, such a one, as every one that adventureth his mony, may be
present at all the Deliberations, and Resolutions of the Body, if they
will themselves. For proof whereof, we are to consider the end, for
which men that are Merchants, and may buy and sell, export, and import
their Merchandise, according to their own discretions, doe neverthelesse
bind themselves up in one Corporation. It is true, there be few
Merchants, that with the Merchandise they buy at home, can fraight a
Ship, to export it; or with that they buy abroad, to bring it home; and
have therefore need to joyn together in one Society; where every man
may either participate of the gaine, according to the proportion of his
adventure; or take his own; and sell what he transports, or imports, at
such prices as he thinks fit. But this is no Body Politique, there being
no Common Representative to oblige them to any other Law, than that
which is common to all other subjects. The End of their Incorporating,
is to make their gaine the greater; which is done two wayes; by sole
buying, and sole selling, both at home, and abroad. So that to grant
to a Company of Merchants to be a Corporation, or Body Politique, is to
grant them a double Monopoly, whereof one is to be sole buyers; another
to be sole sellers. For when there is a Company incorporate for any
particular forraign Country, they only export the Commodities vendible
in that Country; which is sole buying at home, and sole selling abroad.
For at home there is but one buyer, and abroad but one that selleth:
both which is gainfull to the Merchant, because thereby they buy at home
at lower, and sell abroad at higher rates: And abroad there is but one
buyer of forraign Merchandise, and but one that sels them at home; both
which againe are gainfull to the adventurers.

Of this double Monopoly one part is disadvantageous to the people at
home, the other to forraigners. For at home by their sole exportation
they set what price they please on the husbandry and handy-works of
the people; and by the sole importation, what price they please on all
forraign commodities the people have need of; both which are ill for the
people. On the contrary, by the sole selling of the native commodities
abroad, and sole buying the forraign commodities upon the place,
they raise the price of those, and abate the price of these, to
the disadvantage of the forraigner: For where but one selleth, the
Merchandise is the dearer; and where but one buyeth the cheaper: Such
Corporations therefore are no other then Monopolies; though they would
be very profitable for a Common-wealth, if being bound up into one body
in forraigne Markets they were at liberty at home, every man to buy, and
sell at what price he could.

The end then of these Bodies of Merchants, being not a Common benefit
to the whole Body, (which have in this case no common stock, but what
is deducted out of the particular adventures, for building, buying,
victualling and manning of Ships,) but the particular gaine of
every adventurer, it is reason that every one be acquainted with the
employment of his own; that is, that every one be of the Assembly, that
shall have the power to order the same; and be acquainted with their
accounts. And therefore the Representative of such a Body must be
an Assembly, where every member of the Body may be present at the
consultations, if he will.

If a Body Politique of Merchants, contract a debt to a stranger by the
act of their Representative Assembly, every Member is lyable by himself
for the whole. For a stranger can take no notice of their private Lawes,
but considereth them as so many particular men, obliged every one to the
whole payment, till payment made by one dischargeth all the rest: But if
the debt be to one of the Company, the creditor is debter for the whole
to himself, and cannot therefore demand his debt, but only from the
common stock, if there be any.

If the Common-wealth impose a Tax upon the Body, it is understood to be
layd upon every member proportionably to his particular adventure in the
Company. For there is in this case no other common stock, but what is
made of their particular adventures.

If a Mulct be layd upon the Body for some unlawfull act, they only are
lyable by whose votes the act was decreed, or by whose assistance it was
executed; for in none of the rest is there any other crime but being
of the Body; which if a crime, (because the Body was ordeyned by the
authority of the Common-wealth,) is not his.

If one of the Members be indebted to the Body, he may be sued by the
Body; but his goods cannot be taken, nor his person imprisoned by the
authority of the Body; but only by Authority of the Common-wealth:
for if they can doe it by their own Authority, they can by their own
Authority give judgement that the debt is due, which is as much as to be
Judge in their own Cause.




A Bodie Politique For Counsel To Be Give To The Soveraign

These Bodies made for the government of Men, or of Traffique, be either
perpetuall, or for a time prescribed by writing. But there be Bodies
also whose times are limited, and that only by the nature of their
businesse. For example, if a Soveraign Monarch, or a Soveraign Assembly,
shall think fit to give command to the towns, and other severall parts
of their territory, to send to him their Deputies, to enforme him of the
condition, and necessities of the Subjects, or to advise with him for
the making of good Lawes, or for any other cause, as with one Person
representing the whole Country, such Deputies, having a place and time
of meeting assigned them, are there, and at that time, a Body Politique,
representing every Subject of that Dominion; but it is onely for such
matters as shall be propounded unto them by that Man, or Assembly, that
by the Soveraign Authority sent for them; and when it shall be declared
that nothing more shall be propounded, nor debated by them, the Body is
dissolved. For if they were the absolute Representative of the people,
then were it the Soveraign Assembly; and so there would be two Soveraign
Assemblies, or two Soveraigns, over the same people; which cannot
consist with their Peace. And therefore where there is once a
Soveraignty, there can be no absolute Representation of the people, but
by it. And for the limits of how farre such a Body shall represent the
whole People, they are set forth in the Writing by which they were sent
for. For the People cannot choose their Deputies to other intent, than
is in the Writing directed to them from their Soveraign expressed.




A Regular Private Body, Lawfull, As A Family

Private Bodies Regular, and Lawfull, are those that are constituted
without Letters, or other written Authority, saving the Lawes common
to all other Subjects. And because they be united in one Person
Representative, they are held for Regular; such as are all Families, in
which the Father, or Master ordereth the whole Family. For he obligeth
his Children, and Servants, as farre as the Law permitteth, though not
further, because none of them are bound to obedience in those actions,
which the Law hath forbidden to be done. In all other actions, during
the time they are under domestique government, they are subject to their
Fathers, and Masters, as to their immediate Soveraigns. For the Father,
and Master being before the Institution of Common-wealth, absolute
Soveraigns in their own Families, they lose afterward no more of their
Authority, than the Law of the Common-wealth taketh from them.




Private Bodies Regular, But Unlawfull

Private Bodies Regular, but Unlawfull, are those that unite themselves
into one person Representative, without any publique Authority at all;
such as are the Corporations of Beggars, Theeves and Gipsies, the better
to order their trade of begging, and stealing; and the Corporations of
men, that by Authority from any forraign Person, unite themselves in
anothers Dominion, for easier propagation of Doctrines, and for making a
party, against the Power of the Common-wealth.




Systemes Irregular, Such As Are Private Leagues

Irregular Systemes, in their nature, but Leagues, or sometimes meer
concourse of people, without union to any particular designe, not by
obligation of one to another, but proceeding onely from a similitude of
wills and inclinations, become Lawfull, or Unlawfull, according to the
lawfulnesse, or unlawfulnesse of every particular mans design therein:
And his designe is to be understood by the occasion.

The Leagues of Subjects, (because Leagues are commonly made for mutuall
defence,) are in a Common-wealth (which is no more than a League of
all the Subjects together) for the most part unnecessary, and savour of
unlawfull designe; and are for that cause Unlawfull, and go commonly by
the name of factions, or Conspiracies. For a League being a connexion of
men by Covenants, if there be no power given to any one Man or Assembly,
(as in the condition of meer Nature) to compell them to performance,
is so long onely valid, as there ariseth no just cause of distrust: and
therefore Leagues between Common-wealths, over whom there is no humane
Power established, to keep them all in awe, are not onely lawfull, but
also profitable for the time they last. But Leagues of the Subjects of
one and the same Common-wealth, where every one may obtain his right
by means of the Soveraign Power, are unnecessary to the maintaining of
Peace and Justice, and (in case the designe of them be evill, or Unknown
to the Common-wealth) unlawfull. For all uniting of strength by private
men, is, if for evill intent, unjust; if for intent unknown, dangerous
to the Publique, and unjustly concealed.




Secret Cabals

If the Soveraign Power be in a great Assembly, and a number of men,
part of the Assembly, without authority, consult a part, to contrive
the guidance of the rest; This is a Faction, or Conspiracy unlawfull,
as being a fraudulent seducing of the Assembly for their particular
interest. But if he, whose private interest is to be debated, and
judged in the Assembly, make as many friends as he can; in him it is
no Injustice; because in this case he is no part of the Assembly. And
though he hire such friends with mony, (unlesse there be an expresse Law
against it,) yet it is not Injustice. For sometimes, (as mens manners
are,) Justice cannot be had without mony; and every man may think his
own cause just, till it be heard, and judged.




Feuds Of Private Families

In all Common-wealths, if a private man entertain more servants, than
the government of his estate, and lawfull employment he has for them
requires, it is Faction, and unlawfull. For having the protection of the
Common-wealth, he needeth not the defence of private force. And whereas
in Nations not throughly civilized, severall numerous Families have
lived in continuall hostility, and invaded one another with private
force; yet it is evident enough, that they have done unjustly; or else
that they had no Common-wealth.




Factions For Government

And as Factions for Kindred, so also Factions for Government of
Religion, as of Papists, Protestants, &c. or of State, as Patricians,
and Plebeians of old time in Rome, and of Aristocraticalls and
Democraticalls of old time in Greece, are unjust, as being contrary to
the peace and safety of the people, and a taking of the Sword out of the
hand of the Soveraign.

Concourse of people, is an Irregular Systeme, the lawfulnesse, or
unlawfulnesse, whereof dependeth on the occasion, and on the number of
them that are assembled. If the occasion be lawfull, and manifest, the
Concourse is lawfull; as the usuall meeting of men at Church, or at a
publique Shew, in usuall numbers: for if the numbers be extraordinarily
great, the occasion is not evident; and consequently he that cannot
render a particular and good account of his being amongst them, is to
be judged conscious of an unlawfull, and tumultuous designe. It may be
lawfull for a thousand men, to joyn in a Petition to be delivered to a
Judge, or Magistrate; yet if a thousand men come to present it, it is
a tumultuous Assembly; because there needs but one or two for that
purpose. But in such cases as these, it is not a set number that makes
the Assembly Unlawfull, but such a number, as the present Officers are
not able to suppresse, and bring to Justice.

When an unusuall number of men, assemble against a man whom they accuse;
the Assembly is an Unlawfull tumult; because they may deliver their
accusation to the Magistrate by a few, or by one man. Such was the case
of St. Paul at Ephesus; where Demetrius, and a great number of other
men, brought two of Pauls companions before the Magistrate, saying with
one Voyce, "Great is Diana of the Ephesians;" which was their way of
demanding Justice against them for teaching the people such doctrine,
as was against their Religion, and Trade. The occasion here, considering
the Lawes of that People, was just; yet was their Assembly Judged
Unlawfull, and the Magistrate reprehended them for it, in these
words,(Acts 19. 40) "If Demetrius and the other work-men can accuse any
man, of any thing, there be Pleas, and Deputies, let them accuse one
another. And if you have any other thing to demand, your case may
be judged in an Assembly Lawfully called. For we are in danger to be
accused for this dayes sedition, because, there is no cause by which any
man can render any reason of this Concourse of People." Where he calleth
an Assembly, whereof men can give no just account, a Sedition, and such
as they could not answer for. And this is all I shall say concerning
Systemes, and Assemblyes of People, which may be compared (as I said,)
to the Similar parts of mans Body; such as be Lawfull, to the Muscles;
such as are Unlawfull, to Wens, Biles, and Apostemes, engendred by the
unnaturall conflux of evill humours.




CHAPTER XXIII. OF THE PUBLIQUE MINISTERS OF SOVERAIGN POWER



In the last Chapter I have spoken of the Similar parts of a
Common-wealth; In this I shall speak of the parts Organicall, which are
Publique Ministers.




Publique Minister Who

A PUBLIQUE MINISTER, is he, that by the Soveraign, (whether a Monarch,
or an Assembly,) is employed in any affaires, with Authority to
represent in that employment, the Person of the Common-wealth. And
whereas every man, or assembly that hath Soveraignty, representeth
two Persons, or (as the more common phrase is) has two Capacities, one
Naturall, and another Politique, (as a Monarch, hath the person not
onely of the Common-wealth, but also of a man; and a Soveraign Assembly
hath the Person not onely of the Common-wealth, but also of the
Assembly); they that be servants to them in their naturall Capacity,
are not Publique Ministers; but those onely that serve them in the
Administration of the Publique businesse. And therefore neither Ushers,
nor Sergeants, nor other Officers that waite on the Assembly, for
no other purpose, but for the commodity of the men assembled, in an
Aristocracy, or Democracy; nor Stewards, Chamberlains, Cofferers, or any
other Officers of the houshold of a Monarch, are Publique Ministers in a
Monarchy.




Ministers For The Generall Administration

Of Publique Ministers, some have charge committed to them of a general
Administration, either of the whole Dominion, or of a part thereof.
Of the whole, as to a Protector, or Regent, may bee committed by
the Predecessor of an Infant King, during his minority, the whole
Administration of his Kingdome. In which case, every Subject is so far
obliged to obedience, as the Ordinances he shall make, and the commands
he shall give be in the Kings name, and not inconsistent with his
Soveraigne Power. Of a Part, or Province; as when either a Monarch, or
a Soveraign Assembly, shall give the generall charge thereof to a
Governour, Lieutenant, Praefect, or Vice-Roy: And in this case also,
every one of that Province, is obliged to all he shall doe in the name
of the Soveraign, and that not incompatible with the Soveraigns Right.
For such Protectors, Vice-Roys, and Governours, have no other right, but
what depends on the Soveraigns Will; and no Commission that can be given
them, can be interpreted for a Declaration of the will to transferre the
Soveraignty, without expresse and perspicuous words to that purpose. And
this kind of Publique Ministers resembleth the Nerves, and Tendons that
move the severall limbs of a body naturall.




For Speciall Administration, As For Oeconomy

Others have speciall Administration; that is to say, charges of some
speciall businesse, either at home, or abroad: As at home, First, for
the Oeconomy of a Common-wealth, They that have Authority concerning the
Treasure, as Tributes, Impositions, Rents, Fines, or whatsoever publique
revenue, to collect, receive, issue, or take the Accounts thereof,
are Publique Ministers: Ministers, because they serve the Person
Representative, and can doe nothing against his Command, nor without his
Authority: Publique, because they serve him in his Politicall Capacity.

Secondly, they that have Authority concerning the Militia; to have the
custody of Armes, Forts, Ports; to Levy, Pay, or Conduct Souldiers; or
to provide for any necessary thing for the use of war, either by Land or
Sea, are publique Ministers. But a Souldier without Command, though he
fight for the Common-wealth, does not therefore represent the Person of
it; because there is none to represent it to. For every one that hath
command, represents it to them only whom he commandeth.




For Instruction Of The People

They also that have authority to teach, or to enable others to teach
the people their duty to the Soveraign Power, and instruct them in the
knowledge of what is just, and unjust, thereby to render them more apt
to live in godlinesse, and in peace among themselves, and resist the
publique enemy, are Publique Ministers: Ministers, in that they doe it
not by their own Authority, but by anothers; and Publique, because they
doe it (or should doe it) by no Authority, but that of the Soveraign.
The Monarch, or the Soveraign Assembly only hath immediate Authority
from God, to teach and instruct the people; and no man but the
Soveraign, receiveth his power Dei Gratia simply; that is to say, from
the favour of none but God: All other, receive theirs from the favour
and providence of God, and their Soveraigns; as in a Monarchy Dei Gratia
& Regis; or Dei Providentia & Voluntate Regis.




For Judicature

They also to whom Jurisdiction is given, are Publique Ministers. For in
their Seats of Justice they represent the person of the Soveraign; and
their Sentence, is his Sentence; For (as hath been before declared) all
Judicature is essentially annexed to the Soveraignty; and therefore all
other Judges are but Ministers of him, or them that have the Soveraign
Power. And as Controversies are of two sorts, namely of Fact, and of
Law; so are judgements, some of Fact, some of Law: And consequently in
the same controversie, there may be two Judges, one of Fact, another of
Law.

And in both these controversies, there may arise a controversie between
the party Judged, and the Judge; which because they be both Subjects to
the Soveraign, ought in Equity to be Judged by men agreed on by consent
of both; for no man can be Judge in his own cause. But the Soveraign
is already agreed on for Judge by them both, and is therefore either to
heare the Cause, and determine it himself, or appoint for Judge such as
they shall both agree on. And this agreement is then understood to be
made between them divers wayes; as first, if the Defendant be allowed
to except against such of his Judges, whose interest maketh him suspect
them, (for as to the Complaynant he hath already chosen his own Judge,)
those which he excepteth not against, are Judges he himself agrees on.
Secondly, if he appeale to any other Judge, he can appeale no further;
for his appeale is his choice. Thirdly, if he appeale to the Soveraign
himself, and he by himself, or by Delegates which the parties shall
agree on, give Sentence; that Sentence is finall: for the Defendant is
Judged by his own Judges, that is to say, by himself.

These properties of just and rationall Judicature considered, I cannot
forbeare to observe the excellent constitution of the Courts of Justice,
established both for Common, and also for Publique Pleas in England. By
Common Pleas, I meane those, where both the Complaynant and Defendant
are Subjects: and by Publique, (which are also called Pleas of the
Crown) those, where the Complaynant is the Soveraign. For whereas there
were two orders of men, whereof one was Lords, the other Commons; The
Lords had this Priviledge, to have for Judges in all Capitall crimes,
none but Lords; and of them, as many as would be present; which being
ever acknowledged as a Priviledge of favour, their Judges were none but
such as they had themselves desired. And in all controversies, every
Subject (as also in civill controversies the Lords) had for Judges, men
of the Country where the matter in controversie lay; against which he
might make his exceptions, till at last Twelve men without exception
being agreed on, they were Judged by those twelve. So that having
his own Judges, there could be nothing alledged by the party, why the
sentence should not be finall, These publique persons, with Authority
from the Soveraign Power, either to Instruct, or Judge the people,
are such members of the Common-wealth, as may fitly be compared to the
organs of Voice in a Body naturall.




For Execution

Publique Ministers are also all those, that have Authority from the
Soveraign, to procure the Execution of Judgements given; to publish the
Soveraigns Commands; to suppresse Tumults; to apprehend, and imprison
Malefactors; and other acts tending to the conservation of the
Peace. For every act they doe by such Authority, is the act of the
Common-wealth; and their service, answerable to that of the Hands, in a
Bodie naturall.

Publique Ministers abroad, are those that represent the Person of their
own Soveraign, to forraign States. Such are Ambassadors, Messengers,
Agents, and Heralds, sent by publique Authoritie, and on publique
Businesse.

But such as are sent by Authoritie only of some private partie of a
troubled State, though they be received, are neither Publique, nor
Private Ministers of the Common-wealth; because none of their actions
have the Common-wealth for Author. Likewise, an Ambassador sent from a
Prince, to congratulate, condole, or to assist at a solemnity, though
Authority be Publique; yet because the businesse is Private, and
belonging to him in his naturall capacity; is a Private person. Also if
a man be sent into another Country, secretly to explore their counsels,
and strength; though both the Authority, and the Businesse be Publique;
yet because there is none to take notice of any Person in him, but
his own; he is but a Private Minister; but yet a Minister of the
Common-wealth; and may be compared to an Eye in the Body naturall. And
those that are appointed to receive the Petitions or other informations
of the People, and are as it were the publique Eare, are Publique
Ministers, and represent their Soveraign in that office.




Counsellers Without Other Employment Then To Advise

Are Not Publique Ministers

Neither a Counsellor, nor a Councell of State, if we consider it with
no Authority of Judicature or Command, but only of giving Advice to
the Soveraign when it is required, or of offering it when it is not
required, is a Publique Person. For the Advice is addressed to the
Soveraign only, whose person cannot in his own presence, be represented
to him, by another. But a Body of Counsellors, are never without some
other Authority, either of Judicature, or of immediate Administration:
As in a Monarchy, they represent the Monarch, in delivering his Commands
to the Publique Ministers: In a Democracy, the Councell, or Senate
propounds the Result of their deliberations to the people, as a
Councell; but when they appoint Judges, or heare Causes, or give
Audience to Ambassadors, it is in the quality of a Minister of the
People: And in an Aristocracy the Councell of State is the Soveraign
Assembly it self; and gives counsell to none but themselves.




CHAPTER XXIV. OF THE NUTRITION, AND PROCREATION OF A COMMON-WEALTH




The Nourishment Of A Common-wealth Consisteth In The Commodities

Of Sea And Land

The NUTRITION of a Common-wealth consisteth, in the Plenty, and
Distribution of Materials conducing to Life: In Concoction, or
Preparation; and (when concocted) in the Conveyance of it, by convenient
conduits, to the Publique use.

As for the Plenty of Matter, it is a thing limited by Nature, to those
commodities, which from (the two breasts of our common Mother) Land,
and Sea, God usually either freely giveth, or for labour selleth to
man-kind.

For the Matter of this Nutriment, consisting in Animals, Vegetals, and
Minerals, God hath freely layd them before us, in or neer to the face of
the Earth; so as there needeth no more but the labour, and industry
of receiving them. Insomuch as Plenty dependeth (next to Gods favour)
meerly on the labour and industry of men.

This Matter, commonly called Commodities, is partly Native, and partly
Forraign: Native, that which is to be had within the Territory of
the Common-wealth; Forraign, that which is imported from without. And
because there is no Territory under the Dominion of one Common-wealth,
(except it be of very vast extent,) that produceth all things needfull
for the maintenance, and motion of the whole Body; and few that produce
not something more than necessary; the superfluous commodities to be had
within, become no more superfluous, but supply these wants at home, by
importation of that which may be had abroad, either by Exchange, or
by just Warre, or by Labour: for a mans Labour also, is a commodity
exchangeable for benefit, as well as any other thing: And there have
been Common-wealths that having no more Territory, than hath served
them for habitation, have neverthelesse, not onely maintained, but also
encreased their Power, partly by the labour of trading from one place to
another, and partly by selling the Manifactures, whereof the Materials
were brought in from other places.




And The Right Of Distribution Of Them

The Distribution of the Materials of this Nourishment, is the
constitution of Mine, and Thine, and His, that is to say, in one word
Propriety; and belongeth in all kinds of Common-wealth to the Soveraign
Power. For where there is no Common-wealth, there is, (as hath been
already shewn) a perpetuall warre of every man against his neighbour;
And therefore every thing is his that getteth it, and keepeth it by
force; which is neither Propriety nor Community; but Uncertainty. Which
is so evident, that even Cicero, (a passionate defender of Liberty,) in
a publique pleading, attributeth all Propriety to the Law Civil, "Let
the Civill Law," saith he, "be once abandoned, or but negligently
guarded, (not to say oppressed,) and there is nothing, that any man can
be sure to receive from his Ancestor, or leave to his Children." And
again; "Take away the Civill Law, and no man knows what is his own, and
what another mans." Seeing therefore the Introduction of Propriety is
an effect of Common-wealth; which can do nothing but by the Person that
Represents it, it is the act onely of the Soveraign; and consisteth in
the Lawes, which none can make that have not the Soveraign Power. And
this they well knew of old, who called that Nomos, (that is to say,
Distribution,) which we call Law; and defined Justice, by distributing
to every man his own.




All Private Estates Of Land Proceed Originally

From The Arbitrary Distribution Of The Soveraign

In this Distribution, the First Law, is for Division of the Land it
selfe: wherein the Soveraign assigneth to every man a portion, according
as he, and not according as any Subject, or any number of them, shall
judge agreeable to Equity, and the Common Good. The Children of Israel,
were a Common-wealth in the Wildernesse; but wanted the commodities
of the Earth, till they were masters of the Land of Promise; which
afterward was divided amongst them, not by their own discretion, but
by the discretion of Eleazar the Priest, and Joshua their Generall: who
when there were twelve Tribes, making them thirteen by subdivision of
the Tribe of Joseph; made neverthelesse but twelve portions of the Land;
and ordained for the Tribe of Levi no land; but assigned them the Tenth
part of the whole fruits; which division was therefore Arbitrary. And
though a People comming into possession of a land by warre, do not
alwaies exterminate the antient Inhabitants, (as did the Jewes,) but
leave to many, or most, or all of them their Estates; yet it is manifest
they hold them afterwards, as of the Victors distribution; as the people
of England held all theirs of William the Conquerour.




Propriety Of A Subject Excludes Not The Dominion Of The Soveraign,

But Onely Of Another Subject

From whence we may collect, that the Propriety which a subject hath in
his lands, consisteth in a right to exclude all other subjects from the
use of them; and not to exclude their Soveraign, be it an Assembly, or
a Monarch. For seeing the Soveraign, that is to say, the Common-wealth
(whose Person he representeth,) is understood to do nothing but in order
to the common Peace and Security, this Distribution of lands, is to be
understood as done in order to the same: And consequently, whatsoever
Distribution he shall make in prejudice thereof, is contrary to the
will of every subject, that committed his Peace, and safety to his
discretion, and conscience; and therefore by the will of every one of
them, is to be reputed voyd. It is true, that a Soveraign Monarch, or
the greater part of a Soveraign Assembly, may ordain the doing of many
things in pursuit of their Passions, contrary to their own consciences,
which is a breach of trust, and of the Law of Nature; but this is not
enough to authorise any subject, either to make warre upon, or so much
as to accuse of Injustice, or any way to speak evill of their Soveraign;
because they have authorised all his actions, and in bestowing the
Soveraign Power, made them their own. But in what cases the Commands
of Soveraigns are contrary to Equity, and the Law of Nature, is to be
considered hereafter in another place.




The Publique Is Not To Be Dieted

In the Distribution of land, the Common-wealth it selfe, may be
conceived to have a portion, and possesse, and improve the same by
their Representative; and that such portion may be made sufficient, to
susteine the whole expence to the common Peace, and defence necessarily
required: Which were very true, if there could be any Representative
conceived free from humane passions, and infirmities. But the nature
of men being as it is, the setting forth of Publique Land, or of any
certaine Revenue for the Common-wealth, is in vaine; and tendeth to the
dissolution of Government, and to the condition of meere Nature, and
War, assoon as ever the Soveraign Power falleth into the hands of a
Monarch, or of an Assembly, that are either too negligent of mony, or
too hazardous in engaging the publique stock, into a long, or costly
war. Common-wealths can endure no Diet: For seeing their expence is
not limited by their own appetite, but by externall Accidents, and the
appetites of their neighbours, the Publique Riches cannot be limited by
other limits, than those which the emergent occasions shall require. And
whereas in England, there were by the Conquerour, divers Lands
reserved to his own use, (besides Forrests, and Chases, either for his
recreation, or for preservation of Woods,) and divers services reserved
on the Land he gave his Subjects; yet it seems they were not reserved
for his Maintenance in his Publique, but in his Naturall capacity: For
he, and his Successors did for all that, lay Arbitrary Taxes on all
Subjects land, when they judged it necessary. Or if those publique
Lands, and Services, were ordained as a sufficient maintenance of the
Common-wealth, it was contrary to the scope of the Institution; being
(as it appeared by those ensuing Taxes) insufficient, and (as it
appeares by the late Revenue of the Crown) Subject to Alienation,
and Diminution. It is therefore in vaine, to assign a portion to the
Common-wealth; which may sell, or give it away; and does sell, and give
it away when tis done by their Representative.




The Places And Matter Of Traffique Depend, As Their Distribution,

On The Soveraign

As the Distribution of Lands at home; so also to assigne in what places,
and for what commodities, the Subject shall traffique abroad, belongeth
to the Soveraign. For if it did belong to private persons to use their
own discretion therein, some of them would bee drawn for gaine, both
to furnish the enemy with means to hurt the Common-wealth, and hurt it
themselves, by importing such things, as pleasing mens appetites, be
neverthelesse noxious, or at least unprofitable to them. And therefore
it belongeth to the Common-wealth, (that is, to the Soveraign only,)
to approve, or disapprove both of the places, and matter of forraign
Traffique.




The Laws Of Transferring Property Belong Also To The Soveraign

Further, seeing it is not enough to the Sustentation of a Common-wealth,
that every man have a propriety in a portion of Land, or in some few
commodities, or a naturall property in some usefull art, and there is no
art in the world, but is necessary either for the being, or well being
almost of every particular man; it is necessary, that men distribute
that which they can spare, and transferre their propriety therein,
mutually one to another, by exchange, and mutuall contract. And
therefore it belongeth to the Common-wealth, (that is to say, to the
Soveraign,) to appoint in what manner, all kinds of contract between
Subjects, (as buying, selling, exchanging, borrowing, lending, letting,
and taking to hire,) are to bee made; and by what words, and signes they
shall be understood for valid. And for the Matter, and Distribution of
the Nourishment, to the severall Members of the Common-wealth, thus much
(considering the modell of the whole worke) is sufficient.




Mony The Bloud Of A Common-wealth

By Concoction, I understand the reducing of all commodities, which are
not presently consumed, but reserved for Nourishment in time to come, to
some thing of equal value, and withall so portably, as not to hinder
the motion of men from place to place; to the end a man may have in
what place soever, such Nourishment as the place affordeth. And this is
nothing else but Gold, and Silver, and Mony. For Gold and Silver, being
(as it happens) almost in all Countries of the world highly valued, is a
commodious measure for the value of all things else between Nations; and
Mony (of what matter soever coyned by the Soveraign of a Common-wealth,)
is a sufficient measure of the value of all things else, between the
Subjects of that Common-wealth. By the means of which measures, all
commodities, Moveable, and Immoveable, are made to accompany a man, to
all places of his resort, within and without the place of his
ordinary residence; and the same passeth from Man to Man, within the
Common-wealth; and goes round about, Nourishing (as it passeth)
every part thereof; In so much as this Concoction, is as it were the
Sanguification of the Common-wealth: For naturall Bloud is in like
manner made of the fruits of the Earth; and circulating, nourisheth by
the way, every Member of the Body of Man.

And because Silver and Gold, have their value from the matter it self;
they have first this priviledge, that the value of them cannot be
altered by the power of one, nor of a few Common-wealths; as being a
common measure of the commodities of all places. But base Mony, may
easily be enhanced, or abased. Secondly, they have the priviledge to
make Common-wealths, move, and stretch out their armes, when need is,
into forraign Countries; and supply, not only private Subjects that
travell, but also whole Armies with provision. But that Coyne, which is
not considerable for the Matter, but for the Stamp of the place, being
unable to endure change of ayr, hath its effect at home only; where
also it is subject to the change of Laws, and thereby to have the value
diminished, to the prejudice many times of those that have it.




The Conduits And Way Of Mony To The Publique Use

The Conduits, and Wayes by which it is conveyed to the Publique use, are
of two sorts; One, that Conveyeth it to the Publique Coffers; The other,
that Issueth the same out againe for publique payments. Of the first
sort, are Collectors, Receivers, and Treasurers; of the second are the
Treasurers againe, and the Officers appointed for payment of severall
publique or private Ministers. And in this also, the Artificiall Man
maintains his resemblance with the Naturall; whose Veins receiving the
Bloud from the severall Parts of the Body, carry it to the Heart; where
being made Vitall, the Heart by the Arteries sends it out again, to
enliven, and enable for motion all the Members of the same.




The Children Of A Common-wealth Colonies

The Procreation, or Children of a Common-wealth, are those we call
Plantations, or Colonies; which are numbers of men sent out from the
Common-wealth, under a Conductor, or Governour, to inhabit a Forraign
Country, either formerly voyd of Inhabitants, or made voyd then, by
warre. And when a Colony is setled, they are either a Common-wealth of
themselves, discharged of their subjection to their Soveraign that sent
them, (as hath been done by many Common-wealths of antient time,) in
which case the Common-wealth from which they went was called their
Metropolis, or Mother, and requires no more of them, then Fathers
require of the Children, whom they emancipate, and make free from their
domestique government, which is Honour, and Friendship; or else they
remain united to their Metropolis, as were the Colonies of the people of
Rome; and then they are no Common-wealths themselves, but Provinces, and
parts of the Common-wealth that sent them. So that the Right of Colonies
(saving Honour, and League with their Metropolis,) dependeth wholly on
their Licence, or Letters, by which their Soveraign authorised them to
Plant.




CHAPTER XXV. OF COUNSELL





Counsell What

How fallacious it is to judge of the nature of things, by the ordinary
and inconstant use of words, appeareth in nothing more, than in the
confusion of Counsels, and Commands, arising from the Imperative manner
of speaking in them both, and in many other occasions besides. For the
words "Doe this," are the words not onely of him that Commandeth; but
also of him that giveth Counsell; and of him that Exhorteth; and yet
there are but few, that see not, that these are very different things;
or that cannot distinguish between them, when they perceive who it
is that speaketh, and to whom the Speech is directed, and upon what
occasion. But finding those phrases in mens writings, and being not
able, or not willing to enter into a consideration of the circumstances,
they mistake sometimes the Precepts of Counsellours, for the Precepts
of them that command; and sometimes the contrary; according as it best
agreeth with the conclusions they would inferre, or the actions
they approve. To avoyd which mistakes, and render to those termes
of Commanding, Counselling, and Exhorting, their proper and distinct
significations, I define them thus.




Differences Between Command And Counsell

COMMAND is, where a man saith, "Doe this," or "Doe this not," without
expecting other reason than the Will of him that sayes it. From this it
followeth manifestly, that he that Commandeth, pretendeth thereby his
own Benefit: For the reason of his Command is his own Will onely, and
the proper object of every mans Will, is some Good to himselfe.

COUNSELL, is where a man saith, "Doe" or "Doe not this," and deduceth
his own reasons from the benefit that arriveth by it to him to whom he
saith it. And from this it is evident, that he that giveth Counsell,
pretendeth onely (whatsoever he intendeth) the good of him, to whom he
giveth it.

Therefore between Counsell and Command, one great difference is, that
Command is directed to a mans own benefit; and Counsell to the benefit
of another man. And from this ariseth another difference, that a man
may be obliged to do what he is Commanded; as when he hath covenanted
to obey: But he cannot be obliged to do as he is Counselled, because the
hurt of not following it, is his own; or if he should covenant to follow
it, then is the Counsell turned into the nature of a Command. A third
difference between them is, that no man can pretend a right to be of
another mans Counsell; because he is not to pretend benefit by it to
himselfe; but to demand right to Counsell another, argues a will to know
his designes, or to gain some other Good to himselfe; which (as I said
before) is of every mans will the proper object.

This also is incident to the nature of Counsell; that whatsoever it be,
he that asketh it, cannot in equity accuse, or punish it: For to ask
Counsell of another, is to permit him to give such Counsell as he shall
think best; And consequently, he that giveth counsell to his Soveraign,
(whether a Monarch, or an Assembly) when he asketh it, cannot in equity
be punished for it, whether the same be conformable to the opinion of
the most, or not, so it be to the Proposition in debate. For if the
sense of the Assembly can be taken notice of, before the Debate be
ended, they should neither ask, nor take any further Counsell; For the
Sense of the Assembly, is the Resolution of the Debate, and End of all
Deliberation. And generally he that demandeth Counsell, is Author of it;
and therefore cannot punish it; and what the Soveraign cannot, no man
else can. But if one Subject giveth Counsell to another, to do any
thing contrary to the Lawes, whether that Counsell proceed from
evill intention, or from ignorance onely, it is punishable by the
Common-wealth; because ignorance of the Law, is no good excuse, where
every man is bound to take notice of the Lawes to which he is subject.




Exhortation And Dehortation What

EXHORTATION, and DEHORTATION, is Counsell, accompanied with signes in
him that giveth it, of vehement desire to have it followed; or to say it
more briefly, Counsell Vehemently Pressed. For he that Exhorteth, doth
not deduce the consequences of what he adviseth to be done, and tye
himselfe therein to the rigour of true reasoning; but encourages him he
Counselleth, to Action: As he that Dehorteth, deterreth him from it. And
therefore they have in their speeches, a regard to the common Passions,
and opinions of men, in deducing their reasons; and make use of
Similitudes, Metaphors, Examples, and other tooles of Oratory, to
perswade their Hearers of the Utility, Honour, or Justice of following
their advise.

From whence may be inferred, First, that Exhortation and Dehortation,
is directed to the Good of him that giveth the Counsell, not of him that
asketh it, which is contrary to the duty of a Counsellour; who (by the
definition of Counsell) ought to regard, not his own benefits, but his
whom he adviseth. And that he directeth his Counsell to his own
benefit, is manifest enough, by the long and vehement urging, or by
the artificial giving thereof; which being not required of him, and
consequently proceeding from his own occasions, is directed principally
to his own benefit, and but accidentarily to the good of him that is
Counselled, or not at all.

Secondly, that the use of Exhortation and Dehortation lyeth onely, where
a man is to speak to a Multitude; because when the Speech is addressed
to one, he may interrupt him, and examine his reasons more rigorously,
than can be done in a Multitude; which are too many to enter into
Dispute, and Dialogue with him that speaketh indifferently to them
all at once. Thirdly, that they that Exhort and Dehort, where they are
required to give Counsell, are corrupt Counsellours, and as it were
bribed by their own interest. For though the Counsell they give be never
so good; yet he that gives it, is no more a good Counsellour, than he
that giveth a Just Sentence for a reward, is a just Judge. But where a
man may lawfully Command, as a Father in his Family, or a Leader in an
Army, his Exhortations and Dehortations, are not onely lawfull, but
also necessary, and laudable: But then they are no more Counsells, but
Commands; which when they are for Execution of soure labour; sometimes
necessity, and alwayes humanity requireth to be sweetned in the
delivery, by encouragement, and in the tune and phrase of Counsell,
rather then in harsher language of Command.

Examples of the difference between Command and Counsell, we may take
from the formes of Speech that expresse them in Holy Scripture. "Have no
other Gods but me; Make to thy selfe no graven Image; Take not Gods name
in vain; Sanctifie the Sabbath; Honour thy Parents; Kill not; Steale
not," &c. are Commands; because the reason for which we are to obey
them, is drawn from the will of God our King, whom we are obliged to
obey. But these words, "Sell all thou hast; give it to the poore; and
follow me," are Counsell; because the reason for which we are to do
so, is drawn from our own benefit; which is this, that we shall have
"Treasure in Heaven." These words, "Go into the village over against
you, and you shall find an Asse tyed, and her Colt; loose her, and bring
her to me," are a Command: for the reason of their fact is drawn from
the will of their Master: but these words, "Repent, and be Baptized in
the Name of Jesus," are Counsell; because the reason why we should so
do, tendeth not to any benefit of God Almighty, who shall still be King
in what manner soever we rebell; but of our selves, who have no other
means of avoyding the punishment hanging over us for our sins.




Differences Of Fit And Unfit Counsellours

As the difference of Counsell from Command, hath been now deduced from
the nature of Counsell, consisting in a deducing of the benefit, or
hurt that may arise to him that is to be Counselled, by the necessary
or probable consequences of the action he propoundeth; so may also the
differences between apt, and inept counsellours be derived from the
same. For Experience, being but Memory of the consequences of like
actions formerly observed, and Counsell but the Speech whereby that
experience is made known to another; the Vertues, and Defects of
Counsell, are the same with the Vertues, and Defects Intellectuall:
And to the Person of a Common-wealth, his Counsellours serve him in the
place of Memory, and Mentall Discourse. But with this resemblance of the
Common-wealth, to a naturall man, there is one dissimilitude joyned,
of great importance; which is, that a naturall man receiveth his
experience, from the naturall objects of sense, which work upon him
without passion, or interest of their own; whereas they that give
Counsell to the Representative person of a Common-wealth, may have,
and have often their particular ends, and passions, that render their
Counsells alwayes suspected, and many times unfaithfull. And therefore
we may set down for the first condition of a good Counsellour, That His
Ends, And Interest, Be Not Inconsistent With The Ends And Interest Of
Him He Counselleth.

Secondly, Because the office of a Counsellour, when an action comes
into deliberation, is to make manifest the consequences of it, in such
manner, as he that is Counselled may be truly and evidently informed; he
ought to propound his advise, in such forme of speech, as may make
the truth most evidently appear; that is to say, with as firme
ratiocination, as significant and proper language, and as briefly, as
the evidence will permit. And therefore Rash, And Unevident Inferences;
(such as are fetched onely from Examples, or authority of Books, and are
not arguments of what is good, or evill, but witnesses of fact, or
of opinion,) Obscure, Confused, And Ambiguous Expressions, Also All
Metaphoricall Speeches, Tending To The Stirring Up Of Passion, (because
such reasoning, and such expressions, are usefull onely to deceive, or
to lead him we Counsell towards other ends than his own) Are Repugnant
To The Office Of A Counsellour.

Thirdly, Because the Ability of Counselling proceedeth from Experience,
and long study; and no man is presumed to have experience in all those
things that to the Administration of a great Common-wealth are necessary
to be known, No Man Is Presumed To Be A Good Counsellour, But In Such
Businesse, As He Hath Not Onely Been Much Versed In, But Hath Also
Much Meditated On, And Considered. For seeing the businesse of a
Common-wealth is this, to preserve the people at home, and defend them
against forraign Invasion, we shall find, it requires great knowledge
of the disposition of Man-kind, of the Rights of Government, and of the
nature of Equity, Law, Justice, and Honour, not to be attained without
study; And of the Strength, Commodities, Places, both of their own
Country, and their Neighbours; as also of the inclinations, and designes
of all Nations that may any way annoy them. And this is not attained to,
without much experience. Of which things, not onely the whole summe, but
every one of the particulars requires the age, and observation of a man
in years, and of more than ordinary study. The wit required for Counsel,
as I have said before is Judgement. And the differences of men in that
point come from different education, of some to one kind of study, or
businesse, and of others to another. When for the doing of any thing,
there be Infallible rules, (as in Engines, and Edifices, the rules of
Geometry,) all the experience of the world cannot equall his Counsell,
that has learnt, or found out the Rule. And when there is no such Rule,
he that hath most experience in that particular kind of businesse, has
therein the best Judgement, and is the best Counsellour.

Fourthly, to be able to give Counsell to a Common-wealth, in a businesse
that hath reference to another Common-wealth, It Is Necessary To Be
Acquainted With The Intelligences, And Letters That Come From Thence,
And With All The Records Of Treaties, And Other Transactions Of State
Between Them; which none can doe, but such as the Representative
shall think fit. By which we may see, that they who are not called to
Counsell, can have no good Counsell in such cases to obtrude.

Fifthly, Supposing the number of Counsellors equall, a man is better
Counselled by hearing them apart, then in an Assembly; and that for many
causes. First, in hearing them apart, you have the advice of every man;
but in an Assembly may of them deliver their advise with I, or No, or
with their hands, or feet, not moved by their own sense, but by the
eloquence of another, or for feare of displeasing some that have spoken,
or the whole Assembly, by contradiction; or for feare of appearing
duller in apprehension, than those that have applauded the contrary
opinion. Secondly, in an Assembly of many, there cannot choose but be
some whose interests are contrary to that of the Publique; and these
their Interests make passionate, and Passion eloquent, and Eloquence
drawes others into the same advice. For the Passions of men, which
asunder are moderate, as the heat of one brand; in Assembly are like
many brands, that enflame one another, (especially when they blow one
another with Orations) to the setting of the Common-wealth on fire,
under pretence of Counselling it. Thirdly, in hearing every man apart,
one may examine (when there is need) the truth, or probability of
his reasons, and of the grounds of the advise he gives, by frequent
interruptions, and objections; which cannot be done in an Assembly,
where (in every difficult question) a man is rather astonied, and dazled
with the variety of discourse upon it, than informed of the course he
ought to take. Besides, there cannot be an Assembly of many, called
together for advice, wherein there be not some, that have the ambition
to be thought eloquent, and also learned in the Politiques; and give not
their advice with care of the businesse propounded, but of the applause
of their motly orations, made of the divers colored threds, or shreds of
Authors; which is an Impertinence at least, that takes away the time
of serious Consultation, and in the secret way of Counselling apart, is
easily avoided. Fourthly, in Deliberations that ought to be kept secret,
(whereof there be many occasions in Publique Businesse,) the Counsells
of many, and especially in Assemblies, are dangerous; And therefore
great Assemblies are necessitated to commit such affaires to lesser
numbers, and of such persons as are most versed, and in whose fidelity
they have most confidence.

To conclude, who is there that so far approves the taking of Counsell
from a great Assembly of Counsellours, that wisheth for, or would accept
of their pains, when there is a question of marrying his Children,
disposing of his Lands, governing his Household, or managing his
private Estate, especially if there be amongst them such as wish not
his prosperity? A man that doth his businesse by the help of many and
prudent Counsellours, with every one consulting apart in his proper
element, does it best, as he that useth able Seconds at Tennis play,
placed in their proper stations. He does next best, that useth his own
Judgement only; as he that has no Second at all. But he that is carried
up and down to his businesse in a framed Counsell, which cannot move
but by the plurality of consenting opinions, the execution whereof is
commonly (out of envy, or interest) retarded by the part dissenting,
does it worst of all, and like one that is carried to the ball, though
by good Players, yet in a Wheele-barrough, or other frame, heavy of it
self, and retarded also by the inconcurrent judgements, and endeavours
of them that drive it; and so much the more, as they be more that set
their hands to it; and most of all, when there is one, or more amongst
them, that desire to have him lose. And though it be true, that many eys
see more then one; yet it is not to be understood of many Counsellours;
but then only, when the finall Resolution is in one man. Otherwise,
because many eyes see the same thing in divers lines, and are apt to
look asquint towards their private benefit; they that desire not to
misse their marke, though they look about with two eyes, yet they never
ayme but with one; And therefore no great Popular Common-wealth was
ever kept up; but either by a forraign Enemy that united them; or by
the reputation of some one eminent Man amongst them; or by the secret
Counsell of a few; or by the mutuall feare of equall factions; and
not by the open Consultations of the Assembly. And as for very little
Common-wealths, be they Popular, or Monarchicall, there is no humane
wisdome can uphold them, longer then the Jealousy lasteth of their
potent Neighbours.




CHAPTER XXVI. OF CIVILL LAWES





Civill Law what

By CIVILL LAWES, I understand the Lawes, that men are therefore bound to
observe, because they are Members, not of this, or that Common-wealth
in particular, but of a Common-wealth. For the knowledge of particular
Lawes belongeth to them, that professe the study of the Lawes of their
severall Countries; but the knowledge of Civill Law in generall, to any
man. The antient Law of Rome was called their Civil Law, from the word
Civitas, which signifies a Common-wealth; And those Countries, which
having been under the Roman Empire, and governed by that Law, retaine
still such part thereof as they think fit, call that part the Civill
Law, to distinguish it from the rest of their own Civill Lawes. But that
is not it I intend to speak of here; my designe being not to shew what
is Law here, and there; but what is Law; as Plato, Aristotle, Cicero,
and divers others have done, without taking upon them the profession of
the study of the Law.

And first it manifest, that Law in generall, is not Counsell, but
Command; nor a Command of any man to any man; but only of him, whose
Command is addressed to one formerly obliged to obey him. And as for
Civill Law, it addeth only the name of the person Commanding, which is
Persona Civitatis, the Person of the Common-wealth.

Which considered, I define Civill Law in this Manner. "CIVILL LAW, Is to
every Subject, those Rules, which the Common-wealth hath Commanded him,
by Word, Writing, or other sufficient Sign of the Will, to make use
of, for the Distinction of Right, and Wrong; that is to say, of what is
contrary, and what is not contrary to the Rule."

In which definition, there is nothing that is not at first sight
evident. For every man seeth, that some Lawes are addressed to all the
Subjects in generall; some to particular Provinces; some to particular
Vocations; and some to particular Men; and are therefore Lawes, to every
of those to whom the Command is directed; and to none else. As also,
that Lawes are the Rules of Just, and Unjust; nothing being reputed
Unjust, that is not contrary to some Law. Likewise, that none can
make Lawes but the Common-wealth; because our Subjection is to the
Common-wealth only: and that Commands, are to be signified by sufficient
Signs; because a man knows not otherwise how to obey them. And
therefore, whatsoever can from this definition by necessary consequence
be deduced, ought to be acknowledged for truth. Now I deduce from it
this that followeth.




The Soveraign Is Legislator

1. The Legislator in all Common-wealths, is only the Soveraign, be he
one Man, as in a Monarchy, or one Assembly of men, as in a Democracy,
or Aristocracy. For the Legislator, is he that maketh the Law. And the
Common-wealth only, praescribes, and commandeth the observation of those
rules, which we call Law: Therefore the Common-wealth is the Legislator.
But the Common-wealth is no Person, nor has capacity to doe any thing,
but by the Representative, (that is, the Soveraign;) and therefore the
Soveraign is the sole Legislator. For the same reason, none can abrogate
a Law made, but the Soveraign; because a Law is not abrogated, but by
another Law, that forbiddeth it to be put in execution.




And Not Subject To Civill Law

2. The Soveraign of a Common-wealth, be it an Assembly, or one Man, is
not subject to the Civill Lawes. For having power to make, and repeale
Lawes, he may when he pleaseth, free himselfe from that subjection,
by repealing those Lawes that trouble him, and making of new; and
consequently he was free before. For he is free, that can be free when
he will: Nor is it possible for any person to be bound to himselfe;
because he that can bind, can release; and therefore he that is bound to
himselfe onely, is not bound.




Use, A Law Not By Vertue Of Time, But Of The Soveraigns Consent

3. When long Use obtaineth the authority of a Law, it is not the
Length of Time that maketh the Authority, but the Will of the Soveraign
signified by his silence, (for Silence is sometimes an argument of
Consent;) and it is no longer Law, then the Soveraign shall be silent
therein. And therefore if the Soveraign shall have a question of Right
grounded, not upon his present Will, but upon the Lawes formerly
made; the Length of Time shal bring no prejudice to his Right; but the
question shal be judged by Equity. For many unjust Actions, and unjust
Sentences, go uncontrolled a longer time, than any man can remember.
And our Lawyers account no Customes Law, but such as are reasonable, and
that evill Customes are to be abolished; But the Judgement of what is
reasonable, and of what is to be abolished, belongeth to him that maketh
the Law, which is the Soveraign Assembly, or Monarch.




The Law Of Nature, And The Civill Law Contain Each Other

4. The Law of Nature, and the Civill Law, contain each other, and are
of equall extent. For the Lawes of Nature, which consist in Equity,
Justice, Gratitude, and other morall Vertues on these depending, in the
condition of meer Nature (as I have said before in the end of the 15th
Chapter,) are not properly Lawes, but qualities that dispose men to
peace, and to obedience. When a Common-wealth is once settled, then are
they actually Lawes, and not before; as being then the commands of the
Common-wealth; and therefore also Civill Lawes: for it is the Soveraign
Power that obliges men to obey them. For in the differences of private
men, to declare, what is Equity, what is Justice, and what is morall
Vertue, and to make them binding, there is need of the Ordinances of
Soveraign Power, and Punishments to be ordained for such as shall break
them; which Ordinances are therefore part of the Civill Law. The Law of
Nature therefore is a part of the Civill Law in all Common-wealths of
the world. Reciprocally also, the Civill Law is a part of the Dictates
of Nature. For Justice, that is to say, Performance of Covenant, and
giving to every man his own, is a Dictate of the Law of Nature. But
every subject in a Common-wealth, hath covenanted to obey the Civill
Law, (either one with another, as when they assemble to make a common
Representative, or with the Representative it selfe one by one, when
subdued by the Sword they promise obedience, that they may receive
life;) And therefore Obedience to the Civill Law is part also of the
Law of Nature. Civill, and Naturall Law are not different kinds, but
different parts of Law; whereof one part being written, is called
Civill, the other unwritten, Naturall. But the Right of Nature, that
is, the naturall Liberty of man, may by the Civill Law be abridged,
and restrained: nay, the end of making Lawes, is no other, but such
Restraint; without the which there cannot possibly be any Peace. And Law
was brought into the world for nothing else, but to limit the naturall
liberty of particular men, in such manner, as they might not hurt, but
assist one another, and joyn together against 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.




CHAPTER XXVII. OF CRIMES, EXCUSES, AND EXTENUATIONS




Sinne What

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 Friends

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.




Wisedome

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.




Totall Excuses

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,) upon complaint.

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.




Praemeditation, Aggravateth

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.




Laesae Majestas

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.




Depeculation

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.




Counterfeiting Authority

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, life
preserved.

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.




CHAPTER XXVIII. 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.




Punishments Corporall

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.




Capitall

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

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

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

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.




CHAPTER XXIX. OF THOSE THINGS THAT WEAKEN, OR TEND TO THE DISSOLUTION OF A COMMON-WEALTH



Dissolution Of Common-wealths Proceedeth From 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.




Erroneous Conscience

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,
they abhorre.

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.




Mixt Government

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.




Popular Men

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.




CHAPTER XXX. 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.




Against The Duty Of A Soveraign To Relinquish Any Essentiall Right

of Soveraignty Or Not To See The People Taught The Grounds Of Them

And because, if the essentiall Rights of Soveraignty (specified before
in the eighteenth Chapter) be taken away, the Common-wealth is thereby
dissolved, and every man returneth into the condition, and calamity of a
warre with every other man, (which is the greatest evill that can happen
in this life;) it is the Office of the Soveraign, to maintain those
Rights entire; and consequently against his duty, First, to transferre
to another, or to lay from himselfe any of them. For he that deserteth
the Means, deserteth the Ends; and he deserteth the Means, that being
the Soveraign, acknowledgeth himselfe subject to the Civill Lawes; and
renounceth the Power of Supreme Judicature; or of making Warre, or
Peace by his own Authority; or of Judging of the Necessities of the
Common-wealth; or of levying Mony, and Souldiers, when, and as much as
in his own conscience he shall judge necessary; or of making Officers,
and Ministers both of Warre, and Peace; or of appointing Teachers, and
examining what Doctrines are conformable, or contrary to the Defence,
Peace, and Good of the people. Secondly, it is against his duty, to let
the people be ignorant, or mis-in-formed of the grounds, and reasons
of those his essentiall Rights; because thereby men are easie to be
seduced, and drawn to resist him, when the Common-wealth shall require
their use and exercise.

And the grounds of these Rights, have the rather need to be diligently,
and truly taught; because they cannot be maintained by any Civill Law,
or terrour of legal punishment. For a Civill Law, that shall forbid
Rebellion, (and such is all resistance to the essentiall Rights of
Soveraignty,) is not (as a Civill Law) any obligation, but by vertue
onely of the Law of Nature, that forbiddeth the violation of Faith;
which naturall obligation if men know not, they cannot know the Right of
any Law the Soveraign maketh. And for the Punishment, they take it
but for an act of Hostility; which when they think they have strength
enough, they will endeavour by acts of Hostility, to avoyd.




Objection Of Those That Say There Are No Principles Of Reason For

Absolute Soveraignty

As I have heard some say, that Justice is but a word, without substance;
and that whatsoever a man can by force, or art, acquire to himselfe,
(not onely in the condition of warre, but also in a Common-wealth,) is
his own, which I have already shewed to be false: So there be also
that maintain, that there are no grounds, nor Principles of Reason, to
sustain those essentiall Rights, which make Soveraignty absolute. For
if there were, they would have been found out in some place, or other;
whereas we see, there has not hitherto been any Common-wealth, where
those Rights have been acknowledged, or challenged. Wherein they argue
as ill, as if the Savage people of America, should deny there were any
grounds, or Principles of Reason, so to build a house, as to last as
long as the materials, because they never yet saw any so well built.
Time, and Industry, produce every day new knowledge. And as the art
of well building, is derived from Principles of Reason, observed by
industrious men, that had long studied the nature of materials, and
the divers effects of figure, and proportion, long after mankind
began (though poorly) to build: So, long time after men have begun to
constitute Common-wealths, imperfect, and apt to relapse into disorder,
there may, Principles of Reason be found out, by industrious meditation,
to make use of them, or be neglected by them, or not, concerneth my
particular interest, at this day, very little. But supposing that
these of mine are not such Principles of Reason; yet I am sure they are
Principles from Authority of Scripture; as I shall make it appear, when
I shall come to speak of the Kingdome of God, (administred by Moses,)
over the Jewes, his peculiar people by Covenant.




Objection From The Incapacity Of The Vulgar

But they say again, that though the Principles be right, yet Common
people are not of capacity enough to be made to understand them. I
should be glad, that the Rich, and Potent Subjects of a Kingdome, or
those that are accounted the most Learned, were no lesse incapable than
they. But all men know, that the obstructions to this kind of doctrine,
proceed not so much from the difficulty of the matter, as from the
interest of them that are to learn. Potent men, digest hardly any thing
that setteth up a Power to bridle their affections; and Learned men,
any thing that discovereth their errours, and thereby lesseneth their
Authority: whereas the Common-peoples minds, unlesse they be tainted
with dependance on the Potent, or scribbled over with the opinions
of their Doctors, are like clean paper, fit to receive whatsoever by
Publique Authority shall be imprinted in them. Shall whole Nations be
brought to Acquiesce in the great Mysteries of Christian Religion, which
are above Reason; and millions of men be made believe, that the same
Body may be in innumerable places, at one and the same time, which
is against Reason; and shall not men be able, by their teaching, and
preaching, protected by the Law, to make that received, which is so
consonant to Reason, that any unprejudicated man, needs no more to learn
it, than to hear it? I conclude therefore, that in the instruction
of the people in the Essentiall Rights (which are the Naturall, and
Fundamentall Lawes) of Soveraignty, there is no difficulty, (whilest a
Soveraign has his Power entire,) but what proceeds from his own fault,
or the fault of those whom he trusteth in the administration of the
Common-wealth; and consequently, it is his Duty, to cause them so to be
instructed; and not onely his Duty, but his Benefit also, and Security,
against the danger that may arrive to himselfe in his naturall Person,
from Rebellion.




Subjects Are To Be Taught, Not To Affect Change Of Government

And (to descend to particulars) the People are to be taught, First, that
they ought not to be in love with any forme of Government they see
in their neighbour Nations, more than with their own, nor (whatsoever
present prosperity they behold in Nations that are otherwise governed
than they,) to desire change. For the prosperity of a People ruled by
an Aristocraticall, or Democraticall assembly, commeth not from
Aristocracy, nor from Democracy, but from the Obedience, and Concord of
the Subjects; nor do the people flourish in a Monarchy, because one man
has the right to rule them, but because they obey him. Take away in
any kind of State, the Obedience, (and consequently the Concord of the
People,) and they shall not onely not flourish, but in short time be
dissolved. And they that go about by disobedience, to doe no more than
reforme the Common-wealth, shall find they do thereby destroy it; like
the foolish daughters of Peleus (in the fable;) which desiring to renew
the youth of their decrepit Father, did by the Counsell of Medea, cut
him in pieces, and boyle him, together with strange herbs, but made not
of him a new man. This desire of change, is like the breach of the first
of Gods Commandements: For there God says, Non Habebis Deos Alienos;
Thou shalt not have the Gods of other Nations; and in another place
concerning Kings, that they are Gods.




Nor Adhere (Against The Soveraign) To Popular Men

Secondly, they are to be taught, that they ought not to be led with
admiration of the vertue of any of their fellow Subjects, how
high soever he stand, nor how conspicuously soever he shine in the
Common-wealth; nor of any Assembly, (except the Soveraign Assembly,)
so as to deferre to them any obedience, or honour, appropriate to the
Soveraign onely, whom (in their particular stations) they represent; nor
to receive any influence from them, but such as is conveighed by them
from the Soveraign Authority. For that Soveraign, cannot be imagined to
love his People as he ought, that is not Jealous of them, but suffers
them by the flattery of Popular men, to be seduced from their loyalty,
as they have often been, not onely secretly, but openly, so as to
proclaime Marriage with them In Facie Ecclesiae by Preachers; and by
publishing the same in the open streets: which may fitly be compared to
the violation of the second of the ten Commandements.



Nor To Dispute The Soveraign Power

Thirdly, in consequence to this, they ought to be informed, how great
fault it is, to speak evill of the Soveraign Representative, (whether
One man, or an Assembly of men;) or to argue and dispute his Power, or
any way to use his Name irreverently, whereby he may be brought into
Contempt with his People, and their Obedience (in which the safety
of the Common-wealth consisteth) slackened. Which doctrine the third
Commandement by resemblance pointeth to.




And To Have Dayes Set Apart To Learn Their Duty

Fourthly, seeing people cannot be taught this, nor when 'tis taught,
remember it, nor after one generation past, so much as know in whom the
Soveraign Power is placed, without setting a part from their ordinary
labour, some certain times, in which they may attend those that are
appointed to instruct them; It is necessary that some such times be
determined, wherein they may assemble together, and (after prayers and
praises given to God, the Soveraign of Soveraigns) hear those their
Duties told them, and the Positive Lawes, such as generally concern them
all, read and expounded, and be put in mind of the Authority that maketh
them Lawes. To this end had the Jewes every seventh day, a Sabbath, in
which the Law was read and expounded; and in the solemnity whereof they
were put in mind, that their King was God; that having created the world
in six days, he rested the seventh day; and by their resting on it from
their labour, that that God was their King, which redeemed them from
their servile, and painfull labour in Egypt, and gave them a time, after
they had rejoyced in God, to take joy also in themselves, by lawfull
recreation. So that the first Table of the Commandements, is spent all,
in setting down the summe of Gods absolute Power; not onely as God,
but as King by pact, (in peculiar) of the Jewes; and may therefore give
light, to those that have the Soveraign Power conferred on them by the
consent of men, to see what doctrine they Ought to teach their Subjects.




And To Honour Their Parents

And because the first instruction of Children, dependeth on the care
of their Parents; it is necessary that they should be obedient to them,
whilest they are under their tuition; and not onely so, but that also
afterwards (as gratitude requireth,) they acknowledge the benefit of
their education, by externall signes of honour. To which end they are
to be taught, that originally the Father of every man was also his
Soveraign Lord, with power over him of life and death; and that the
Fathers of families, when by instituting a Common-wealth, they resigned
that absolute Power, yet it was never intended, they should lose the
honour due unto them for their education. For to relinquish such right,
was not necessary to the Institution of Soveraign Power; nor would there
be any reason, why any man should desire to have children, or take the
care to nourish, and instruct them, if they were afterwards to have no
other benefit from them, than from other men. And this accordeth with
the fifth Commandement.




And To Avoyd Doing Of Injury:

Again, every Soveraign Ought to cause Justice to be taught, which
(consisting in taking from no man what is his) is as much as to say, to
cause men to be taught not to deprive their Neighbour, by violence,
or fraud, of any thing which by the Soveraign Authority is theirs. Of
things held in propriety, those that are dearest to a man are his own
life, & limbs; and in the next degree, (in most men,) those that
concern conjugall affection; and after them riches and means of living.
Therefore the People are to be taught, to abstain from violence to
one anothers person, by private revenges; from violation of conjugall
honour; and from forcibly rapine, and fraudulent surreption of one
anothers goods. For which purpose also it is necessary they be shewed
the evill consequences of false Judgement, by corruption either of
Judges or Witnesses, whereby the distinction of propriety is taken away,
and Justice becomes of no effect: all which things are intimated in the
sixth, seventh, eighth, and ninth Commandements.




And To Do All This Sincerely From The Heart

Lastly, they are to be taught, that not onely the unjust facts, but the
designes and intentions to do them, (though by accident hindred,) are
Injustice; which consisteth in the pravity of the will, as well as in
the irregularity of the act. And this is the intention of the tenth
Commandement, and the summe of the Second Table; which is reduced all to
this one Commandement of mutuall Charity, "Thou shalt love thy neighbour
as thy selfe:" as the summe of the first Table is reduced to "the love
of God;" whom they had then newly received as their King.




The Use Of Universities

As for the Means, and Conduits, by which the people may receive this
Instruction, wee are to search, by what means so may Opinions,
contrary to the peace of Man-kind, upon weak and false Principles, have
neverthelesse been so deeply rooted in them. I mean those, which I have
in the precedent Chapter specified: as That men shall Judge of what is
lawfull and unlawfull, not by the Law it selfe, but by their own
private Judgements; That Subjects sinne in obeying the Commands of the
Common-wealth, unlesse they themselves have first judged them to be
lawfull: That their Propriety in their riches is such, as to exclude the
Dominion, which the Common-wealth hath over the same: That it is lawfull
for Subjects to kill such, as they call Tyrants: That the Soveraign
Power may be divided, and the like; which come to be instilled into
the People by this means. They whom necessity, or covetousnesse keepeth
attent on their trades, and labour; and they, on the other side, whom
superfluity, or sloth carrieth after their sensuall pleasures, (which
two sorts of men take up the greatest part of Man-kind,) being diverted
from the deep meditation, which the learning of truth, not onely in the
matter of Naturall Justice, but also of all other Sciences necessarily
requireth, receive the Notions of their duty, chiefly from Divines
in the Pulpit, and partly from such of their Neighbours, or familiar
acquaintance, as having the Faculty of discoursing readily, and
plausibly, seem wiser and better learned in cases of Law, and
Conscience, than themselves. And the Divines, and such others as make
shew of Learning, derive their knowledge from the Universities, and from
the Schooles of Law, or from the Books, which by men eminent in
those Schooles, and Universities have been published. It is therefore
manifest, that the Instruction of the people, dependeth wholly, on the
right teaching of Youth in the Universities. But are not (may some men
say) the Universities of England learned enough already to do that? or
is it you will undertake to teach the Universities? Hard questions. Yet
to the first, I doubt not to answer; that till towards the later end of
Henry the Eighth, the Power of the Pope, was alwayes upheld against the
Power of the Common-wealth, principally by the Universities; and that
the doctrines maintained by so many Preachers, against the Soveraign
Power of the King, and by so many Lawyers, and others, that had their
education there, is a sufficient argument, that though the Universities
were not authors of those false doctrines, yet they knew not how to
plant the true. For in such a contradiction of Opinions, it is most
certain, that they have not been sufficiently instructed; and 'tis no
wonder, if they yet retain a relish of that subtile liquor, wherewith
they were first seasoned, against the Civill Authority. But to the later
question, it is not fit, nor needfull for me to say either I, or No: for
any man that sees what I am doing, may easily perceive what I think.

The safety of the People, requireth further, from him, or them that have
the Soveraign Power, that Justice be equally administred to all degrees
of People; that is, that as well the rich, and mighty, as poor and
obscure persons, may be righted of the injuries done them; so as the
great, may have no greater hope of impunity, when they doe violence,
dishonour, or any Injury to the meaner sort, than when one of these,
does the like to one of them: For in this consisteth Equity; to which,
as being a Precept of the Law of Nature, a Soveraign is as much subject,
as any of the meanest of his People. All breaches of the Law, are
offences against the Common-wealth: but there be some, that are also
against private Persons. Those that concern the Common-wealth onely, may
without breach of Equity be pardoned; for every man may pardon what is
done against himselfe, according to his own discretion. But an offence
against a private man, cannot in Equity be pardoned, without the consent
of him that is injured; or reasonable satisfaction.

The Inequality of Subjects, proceedeth from the Acts of Soveraign Power;
and therefore has no more place in the presence of the Soveraign; that
is to say, in a Court of Justice, then the Inequality between Kings,
and their Subjects, in the presence of the King of Kings. The honour of
great Persons, is to be valued for their beneficence, and the aydes
they give to men of inferiour rank, or not at all. And the violences,
oppressions, and injuries they do, are not extenuated, but aggravated by
the greatnesse of their persons; because they have least need to commit
them. The consequences of this partiality towards the great, proceed in
this manner. Impunity maketh Insolence; Insolence Hatred; and Hatred,
an Endeavour to pull down all oppressing and contumelious greatnesse,
though with the ruine of the Common-wealth.




Equall Taxes

To Equall Justice, appertaineth also the Equall imposition of Taxes;
the equality whereof dependeth not on the Equality of riches, but on the
Equality of the debt, that every man oweth to the Common-wealth for his
defence. It is not enough, for a man to labour for the maintenance
of his life; but also to fight, (if need be,) for the securing of his
labour. They must either do as the Jewes did after their return from
captivity, in re-edifying the Temple, build with one hand, and hold the
Sword in the other; or else they must hire others to fight for them. For
the Impositions that are layd on the People by the Soveraign Power, are
nothing else but the Wages, due to them that hold the publique Sword,
to defend private men in the exercise of severall Trades, and Callings.
Seeing then the benefit that every one receiveth thereby, is the
enjoyment of life, which is equally dear to poor, and rich; the debt
which a poor man oweth them that defend his life, is the same which a
rich man oweth for the defence of his; saving that the rich, who have
the service of the poor, may be debtors not onely for their own persons,
but for many more. Which considered, the Equality of Imposition,
consisteth rather in the Equality of that which is consumed, than of the
riches of the persons that consume the same. For what reason is there,
that he which laboureth much, and sparing the fruits of his labour,
consumeth little, should be more charged, then he that living idlely,
getteth little, and spendeth all he gets; seeing the one hath no
more protection from the Common-wealth, then the other? But when the
Impositions, are layd upon those things which men consume, every man
payeth Equally for what he useth: Nor is the Common-wealth defrauded, by
the luxurious waste of private men.




Publique Charity

And whereas many men, by accident unevitable, become unable to maintain
themselves by their labour; they ought not to be left to the Charity
of private persons; but to be provided for, (as far-forth as the
necessities of Nature require,) by the Lawes of the Common-wealth. For
as it is Uncharitablenesse in any man, to neglect the impotent; so it
is in the Soveraign of a Common-wealth, to expose them to the hazard of
such uncertain Charity.




Prevention Of Idlenesse

But for such as have strong bodies, the case is otherwise: they are to
be forced to work; and to avoyd the excuse of not finding employment,
there ought to be such Lawes, as may encourage all manner of Arts; as
Navigation, Agriculture, Fishing, and all manner of Manifacture that
requires labour. The multitude of poor, and yet strong people still
encreasing, they are to be transplanted into Countries not sufficiently
inhabited: where neverthelesse, they are not to exterminate those they
find there; but constrain them to inhabit closer together, and not range
a great deal of ground, to snatch what they find; but to court each
little Plot with art and labour, to give them their sustenance in due
season. And when all the world is overchargd with Inhabitants, then the
last remedy of all is Warre; which provideth for every man, by Victory,
or Death.




Good Lawes What

To the care of the Soveraign, belongeth the making of Good Lawes. But
what is a good Law? By a Good Law, I mean not a Just Law: for no Law can
be Unjust. The Law is made by the Soveraign Power, and all that is done
by such Power, is warranted, and owned by every one of the people; and
that which every man will have so, no man can say is unjust. It is in
the Lawes of a Common-wealth, as in the Lawes of Gaming: whatsoever
the Gamesters all agree on, is Injustice to none of them. A good Law
is that, which is Needfull, for the Good Of The People, and withall
Perspicuous.




Such As Are Necessary

For the use of Lawes, (which are but Rules Authorised) is not to bind
the People from all Voluntary actions; but to direct and keep them in
such a motion, as not to hurt themselves by their own impetuous desires,
rashnesse, or indiscretion, as Hedges are set, not to stop Travellers,
but to keep them in the way. And therefore a Law that is not Needfull,
having not the true End of a Law, is not Good. A Law may be conceived to
be Good, when it is for the benefit of the Soveraign; though it be
not Necessary for the People; but it is not so. For the good of the
Soveraign and People, cannot be separated. It is a weak Soveraign, that
has weak Subjects; and a weak People, whose Soveraign wanteth Power to
rule them at his will. Unnecessary Lawes are not good Lawes; but trapps
for Mony: which where the right of Soveraign Power is acknowledged, are
superfluous; and where it is not acknowledged, unsufficient to defend
the People.




Such As Are Perspicuous

The Perspicuity, consisteth not so much in the words of the Law it
selfe, as in a Declaration of the Causes, and Motives, for which it was
made. That is it, that shewes us the meaning of the Legislator, and the
meaning of the Legislator known, the Law is more easily understood
by few, than many words. For all words, are subject to ambiguity;
and therefore multiplication of words in the body of the Law, is
multiplication of ambiguity: Besides it seems to imply, (by too much
diligence,) that whosoever can evade the words, is without the compasse
of the Law. And this is a cause of many unnecessary Processes. For when
I consider how short were the Lawes of antient times; and how they
grew by degrees still longer; me thinks I see a contention between the
Penners, and Pleaders of the Law; the former seeking to circumscribe
the later; and the later to evade their circumscriptions; and that the
Pleaders have got the Victory. It belongeth therefore to the Office of
a Legislator, (such as is in all Common-wealths the Supreme
Representative, be it one Man, or an Assembly,) to make the reason
Perspicuous, why the Law was made; and the Body of the Law it selfe, as
short, but in as proper, and significant termes, as may be.




Punishments

It belongeth also to the Office of the Soveraign, to make a right
application of Punishments, and Rewards. And seeing the end of punishing
is not revenge, and discharge of choler; but correction, either of the
offender, or of others by his example; the severest Punishments are to
be inflicted for those Crimes, that are of most Danger to the
Publique; such as are those which proceed from malice to the Government
established; those that spring from contempt of Justice; those that
provoke Indignation in the Multitude; and those, which unpunished, seem
Authorised, as when they are committed by Sonnes, Servants, or Favorites
of men in Authority: For Indignation carrieth men, not onely against the
Actors, and Authors of Injustice; but against all Power that is likely
to protect them; as in the case of Tarquin; when for the Insolent act of
one of his Sonnes, he was driven out of Rome, and the Monarchy it selfe
dissolved. But Crimes of Infirmity; such as are those which proceed
from great provocation, from great fear, great need, or from ignorance
whether the Fact be a great Crime, or not, there is place many times for
Lenity, without prejudice to the Common-wealth; and Lenity when there is
such place for it, is required by the Law of Nature. The Punishment of
the Leaders, and teachers in a Commotion; not the poore seduced People,
when they are punished, can profit the Common-wealth by their example.
To be severe to the People, is to punish that ignorance, which may in
great part be imputed to the Soveraign, whose fault it was, they were no
better instructed.




Rewards

In like manner it belongeth to the Office, and Duty of the Soveraign,
to apply his Rewards alwayes so, as there may arise from them benefit
to the Common-wealth: wherein consisteth their Use, and End; and is then
done, when they that have well served the Common-wealth, are with
as little expence of the Common Treasure, as is possible, so well
recompenced, as others thereby may be encouraged, both to serve the same
as faithfully as they can, and to study the arts by which they may be
enabled to do it better. To buy with Mony, or Preferment, from a Popular
ambitious Subject, to be quiet, and desist from making ill impressions
in the mindes of the People, has nothing of the nature of Reward; (which
is ordained not for disservice, but for service past;) nor a signe of
Gratitude, but of Fear: nor does it tend to the Benefit, but to the
Dammage of the Publique. It is a contention with Ambition, like that of
Hercules with the Monster Hydra, which having many heads, for every one
that was vanquished, there grew up three. For in like manner, when the
stubbornnesse of one Popular man, is overcome with Reward, there arise
many more (by the Example) that do the same Mischiefe, in hope of like
Benefit: and as all sorts of Manifacture, so also Malice encreaseth by
being vendible. And though sometimes a Civill warre, may be differred,
by such wayes as that, yet the danger growes still the greater, and the
Publique ruine more assured. It is therefore against the Duty of the
Soveraign, to whom the Publique Safety is committed, to Reward those
that aspire to greatnesse by disturbing the Peace of their Country, and
not rather to oppose the beginnings of such men, with a little danger,
than after a longer time with greater.




Counsellours

Another Businesse of the Soveraign, is to choose good Counsellours;
I mean such, whose advice he is to take in the Government of the
Common-wealth. For this word Counsell, Consilium, corrupted from
Considium, is a large signification, and comprehendeth all Assemblies
of men that sit together, not onely to deliberate what is to be done
hereafter, but also to judge of Facts past, and of Law for the present.
I take it here in the first sense onely: And in this sense, there is no
choyce of Counsell, neither in a Democracy, nor Aristocracy; because the
persons Counselling are members of the person Counselled. The choyce
of Counsellours therefore is to Monarchy; In which, the Soveraign that
endeavoureth not to make choyce of those, that in every kind are the
most able, dischargeth not his Office as he ought to do. The most able
Counsellours, are they that have least hope of benefit by giving evill
Counsell, and most knowledge of those things that conduce to the Peace,
and Defence of the Common-wealth. It is a hard matter to know who
expecteth benefit from publique troubles; but the signes that guide to a
just suspicion, is the soothing of the people in their unreasonable,
or irremediable grievances, by men whose estates are not sufficient to
discharge their accustomed expences, and may easily be observed by any
one whom it concerns to know it. But to know, who has most knowledge of
the Publique affaires, is yet harder; and they that know them, need them
a great deale the lesse. For to know, who knowes the Rules almost of any
Art, is a great degree of the knowledge of the same Art; because no
man can be assured of the truth of anothers Rules, but he that is first
taught to understand them. But the best signes of Knowledge of any
Art, are, much conversing in it, and constant good effects of it. Good
Counsell comes not by Lot, nor by Inheritance; and therefore there is no
more reason to expect good Advice from the rich, or noble, in matter
of State, than in delineating the dimensions of a fortresse; unlesse we
shall think there needs no method in the study of the Politiques, (as
there does in the study of Geometry,) but onely to be lookers on; which
is not so. For the Politiques is the harder study of the two. Whereas
in these parts of Europe, it hath been taken for a Right of certain
persons, to have place in the highest Councell of State by Inheritance;
it is derived from the Conquests of the antient Germans; wherein many
absolute Lords joyning together to conquer other Nations, would not
enter in to the Confederacy, without such Priviledges, as might be
marks of difference in time following, between their Posterity, and the
posterity of their Subjects; which Priviledges being inconsistent with
the Soveraign Power, by the favour of the Soveraign, they may seem to
keep; but contending for them as their Right, they must needs by
degrees let them go, and have at last no further honour, than adhaereth
naturally to their abilities.

And how able soever be the Counsellours in any affaire, the benefit
of their Counsell is greater, when they give every one his Advice, and
reasons of it apart, than when they do it in an Assembly, by way of
Orations; and when they have praemeditated, than when they speak on the
sudden; both because they have more time, to survey the consequences
of action; and are lesse subject to be carried away to contradiction,
through Envy, Emulation, or other Passions arising from the difference
of opinion.

The best Counsell, in those things that concern not other Nations, but
onely the ease, and benefit the Subjects may enjoy, by Lawes that
look onely inward, is to be taken from the generall informations, and
complaints of the people of each Province, who are best acquainted
with their own wants, and ought therefore, when they demand nothing in
derogation of the essentiall Rights of Soveraignty, to be diligently
taken notice of. For without those Essentiall Rights, (as I have often
before said,) the Common-wealth cannot at all subsist.




Commanders

A Commander of an Army in chiefe, if he be not Popular, shall not be
beloved, nor feared as he ought to be by his Army; and consequently
cannot performe that office with good successe. He must therefore be
Industrious, Valiant, Affable, Liberall and Fortunate, that he may gain
an opinion both of sufficiency, and of loving his Souldiers. This is
Popularity, and breeds in the Souldiers both desire, and courage, to
recommend themselves to his favour; and protects the severity of
the Generall, in punishing (when need is) the Mutinous, or negligent
Souldiers. But this love of Souldiers, (if caution be not given of
the Commanders fidelity,) is a dangerous thing to Soveraign Power;
especially when it is in the hands of an Assembly not popular. It
belongeth therefore to the safety of the People, both that they be good
Conductors, and faithfull subjects, to whom the Soveraign Commits his
Armies.

But when the Soveraign himselfe is Popular, that is, reverenced and
beloved of his People, there is no danger at all from the Popularity of
a Subject. For Souldiers are never so generally unjust, as to side with
their Captain; though they love him, against their Soveraign, when they
love not onely his Person, but also his Cause. And therefore those,
who by violence have at any time suppressed the Power of their Lawfull
Soveraign, before they could settle themselves in his place, have been
alwayes put to the trouble of contriving their Titles, to save the
People from the shame of receiving them. To have a known Right to
Soveraign Power, is so popular a quality, as he that has it needs no
more, for his own part, to turn the hearts of his Subjects to him, but
that they see him able absolutely to govern his own Family: Nor, on the
part of his enemies, but a disbanding of their Armies. For the greatest
and most active part of Mankind, has never hetherto been well contented
with the present.

Concerning the Offices of one Soveraign to another, which are
comprehended in that Law, which is commonly called the Law of Nations,
I need not say any thing in this place; because the Law of Nations, and
the Law of Nature, is the same thing. And every Soveraign hath the same
Right, in procuring the safety of his People, that any particular man
can have, in procuring the safety of his own Body. And the same Law,
that dictateth to men that have no Civil Government, what they ought to
do, and what to avoyd in regard of one another, dictateth the same to
Common-wealths, that is, to the Consciences of Soveraign Princes, and
Soveraign Assemblies; there being no Court of Naturall Justice, but
in the Conscience onely; where not Man, but God raigneth; whose Lawes,
(such of them as oblige all Mankind,) in respect of God, as he is the
Author of Nature, are Naturall; and in respect of the same God, as he is
King of Kings, are Lawes. But of the Kingdome of God, as King of Kings,
and as King also of a peculiar People, I shall speak in the rest of this
discourse.




CHAPTER XXXI. OF THE KINGDOME OF GOD BY NATURE





The Scope Of The Following Chapters

That the condition of meer Nature, that is to say, of absolute Liberty,
such as is theirs, that neither are Soveraigns, nor Subjects, is
Anarchy, and the condition of Warre: That the Praecepts, by which men
are guided to avoyd that condition, are the Lawes of Nature: That
a Common-wealth, without Soveraign Power, is but a word, without
substance, and cannot stand: That Subjects owe to Soveraigns, simple
Obedience, in all things, wherein their obedience is not repugnant
to the Lawes of God, I have sufficiently proved, in that which I have
already written. There wants onely, for the entire knowledge of Civill
duty, to know what are those Lawes of God. For without that, a man knows
not, when he is commanded any thing by the Civill Power, whether it be
contrary to the Law of God, or not: and so, either by too much civill
obedience, offends the Divine Majesty, or through feare of offending
God, transgresses the commandements of the Common-wealth. To avoyd both
these Rocks, it is necessary to know what are the Lawes Divine. And
seeing the knowledge of all Law, dependeth on the knowledge of the
Soveraign Power; I shall say something in that which followeth, of the
KINGDOME OF GOD.




Who Are Subjects In The Kingdome Of God

"God is King, let the Earth rejoice," saith the Psalmist. (Psal. 96. 1).
And again, "God is King though the Nations be angry; and he that sitteth
on the Cherubins, though the earth be moved." (Psal. 98. 1). Whether
men will or not, they must be subject alwayes to the Divine Power. By
denying the Existence, or Providence of God, men may shake off their
Ease, but not their Yoke. But to call this Power of God, which extendeth
it selfe not onely to Man, but also to Beasts, and Plants, and Bodies
inanimate, by the name of Kingdome, is but a metaphoricall use of
the word. For he onely is properly said to Raigne, that governs his
Subjects, by his Word, and by promise of Rewards to those that obey
it, and by threatning them with Punishment that obey it not. Subjects
therefore in the Kingdome of God, are not Bodies Inanimate, nor
creatures Irrationall; because they understand no Precepts as his: Nor
Atheists; nor they that believe not that God has any care of the actions
of mankind; because they acknowledge no Word for his, nor have hope of
his rewards, or fear of his threatnings. They therefore that believe
there is a God that governeth the world, and hath given Praecepts, and
propounded Rewards, and Punishments to Mankind, are Gods Subjects; all
the rest, are to be understood as Enemies.




A Threefold Word Of God, Reason, Revelation, Prophecy

To rule by Words, requires that such Words be manifestly made known;
for else they are no Lawes: For to the nature of Lawes belongeth a
sufficient, and clear Promulgation, such as may take away the excuse of
Ignorance; which in the Lawes of men is but of one onely kind, and that
is, Proclamation, or Promulgation by the voyce of man. But God
declareth his Lawes three wayes; by the Dictates of Naturall Reason, By
Revelation, and by the Voyce of some Man, to whom by the operation of
Miracles, he procureth credit with the rest. From hence there ariseth
a triple Word of God, Rational, Sensible, and Prophetique: to which
Correspondeth a triple Hearing; Right Reason, Sense Supernaturall, and
Faith. As for Sense Supernaturall, which consisteth in Revelation, or
Inspiration, there have not been any Universall Lawes so given, because
God speaketh not in that manner, but to particular persons, and to
divers men divers things.

A Twofold Kingdome Of God, Naturall And Prophetique From the difference
between the other two kinds of Gods Word, Rationall, and Prophetique,
there may be attributed to God, a two-fold Kingdome, Naturall, and
Prophetique: Naturall, wherein he governeth as many of Mankind as
acknowledge his Providence, by the naturall Dictates of Right Reason;
And Prophetique, wherein having chosen out one peculiar Nation (the
Jewes) for his Subjects, he governed them, and none but them, not onely
by naturall Reason, but by Positive Lawes, which he gave them by the
mouths of his holy Prophets. Of the Naturall Kingdome of God I intend to
speak in this Chapter.

The Right Of Gods Soveraignty Is Derived From His Omnipotence The Right
of Nature, whereby God reigneth over men, and punisheth those that
break his Lawes, is to be derived, not from his Creating them, as if
he required obedience, as of Gratitude for his benefits; but from his
Irresistible Power. I have formerly shewn, how the Soveraign Right
ariseth from Pact: To shew how the same Right may arise from Nature,
requires no more, but to shew in what case it is never taken away.
Seeing all men by Nature had Right to All things, they had Right every
one to reigne over all the rest. But because this Right could not be
obtained by force, it concerned the safety of every one, laying by that
Right, to set up men (with Soveraign Authority) by common consent,
to rule and defend them: whereas if there had been any man of Power
Irresistible; there had been no reason, why he should not by that Power
have ruled, and defended both himselfe, and them, according to his own
discretion. To those therefore whose Power is irresistible, the dominion
of all men adhaereth naturally by their excellence of Power; and
consequently it is from that Power, that the Kingdome over men, and
the Right of afflicting men at his pleasure, belongeth Naturally to God
Almighty; not as Creator, and Gracious; but as Omnipotent. And though
Punishment be due for Sinne onely, because by that word is understood
Affliction for Sinne; yet the Right of Afflicting, is not alwayes
derived from mens Sinne, but from Gods Power.




Sinne Not The Cause Of All Affliction

This question, "Why Evill men often Prosper, and Good men suffer
Adversity," has been much disputed by the Antient, and is the same
with this of ours, "By what Right God dispenseth the Prosperities and
Adversities of this life;" and is of that difficulty, as it hath shaken
the faith, not onely of the Vulgar, but of Philosophers, and which is
more, of the Saints, concerning the Divine Providence. "How Good," saith
David, "is the God of Israel to those that are Upright in Heart; and yet
my feet were almost gone, my treadings had well-nigh slipt; for I was
grieved at the Wicked, when I saw the Ungodly in such Prosperity."
And Job, how earnestly does he expostulate with God, for the many
Afflictions he suffered, notwithstanding his Righteousnesse? This
question in the case of Job, is decided by God himselfe, not by
arguments derived from Job's Sinne, but his own Power. For whereas the
friends of Job drew their arguments from his Affliction to his Sinne,
and he defended himselfe by the conscience of his Innocence, God
himselfe taketh up the matter, and having justified the Affliction by
arguments drawn from his Power, such as this "Where was thou when I
layd the foundations of the earth," and the like, both approved
Job's Innocence, and reproved the Erroneous doctrine of his friends.
Conformable to this doctrine is the sentence of our Saviour, concerning
the man that was born Blind, in these words, "Neither hath this man
sinned, nor his fathers; but that the works of God might be made
manifest in him." And though it be said "That Death entred into the
world by sinne," (by which is meant that if Adam had never sinned, he had
never dyed, that is, never suffered any separation of his soule from his
body,) it follows not thence, that God could not justly have Afflicted
him, though he had not Sinned, as well as he afflicteth other living
creatures, that cannot sinne.




Divine Lawes

Having spoken of the Right of Gods Soveraignty, as grounded onely on
Nature; we are to consider next, what are the Divine Lawes, or Dictates
of Naturall Reason; which Lawes concern either the naturall Duties of
one man to another, or the Honour naturally due to our Divine Soveraign.
The first are the same Lawes of Nature, of which I have spoken already
in the 14. and 15. Chapters of this Treatise; namely, Equity, Justice,
Mercy, Humility, and the rest of the Morall Vertues. It remaineth
therefore that we consider, what Praecepts are dictated to men, by their
Naturall Reason onely, without other word of God, touching the Honour
and Worship of the Divine Majesty.




Honour And Worship What

Honour consisteth in the inward thought, and opinion of the Power, and
Goodnesse of another: and therefore to Honour God, is to think as Highly
of his Power and Goodnesse, as is possible. And of that opinion, the
externall signes appearing in the Words, and Actions of men, are called
Worship; which is one part of that which the Latines understand by the
word Cultus: For Cultus signifieth properly, and constantly, that labour
which a man bestowes on any thing, with a purpose to make benefit by it.
Now those things whereof we make benefit, are either subject to us, and
the profit they yeeld, followeth the labour we bestow upon them, as a
naturall effect; or they are not subject to us, but answer our labour,
according to their own Wills. In the first sense the labour bestowed on
the Earth, is called Culture; and the education of Children a Culture of
their mindes. In the second sense, where mens wills are to be wrought to
our purpose, not by Force, but by Compleasance, it signifieth as much as
Courting, that is, a winning of favour by good offices; as by praises,
by acknowledging their Power, and by whatsoever is pleasing to them from
whom we look for any benefit. And this is properly Worship: in which
sense Publicola, is understood for a Worshipper of the People, and
Cultus Dei, for the Worship of God.




Severall Signes Of Honour

From internall Honour, consisting in the opinion of Power and Goodnesse,
arise three Passions; Love, which hath reference to Goodnesse; and Hope,
and Fear, that relate to Power: And three parts of externall worship;
Praise, Magnifying, and Blessing: The subject of Praise, being
Goodnesse; the subject of Magnifying, and Blessing, being Power, and the
effect thereof Felicity. Praise, and Magnifying are significant both by
Words, and Actions: By Words, when we say a man is Good, or Great:
By Actions, when we thank him for his Bounty, and obey his Power. The
opinion of the Happinesse of another, can onely be expressed by words.




Worship Naturall And Arbitrary

There be some signes of Honour, (both in Attributes and Actions,) that
be Naturally so; as amongst Attributes, Good, Just, Liberall, and the
like; and amongst Actions, Prayers, Thanks, and Obedience. Others are
so by Institution, or Custome of men; and in some times and places are
Honourable; in others Dishonourable; in others Indifferent: such as are
the Gestures in Salutation, Prayer, and Thanksgiving, in different
times and places, differently used. The former is Naturall; the later
Arbitrary Worship.




Worship Commanded And Free

And of Arbitrary Worship, there bee two differences: For sometimes it is
a Commanded, sometimes Voluntary Worship: Commanded, when it is such
as hee requireth, who is Worshipped: Free, when it is such as the
Worshipper thinks fit. When it is Commanded, not the words, or gestures,
but the obedience is the Worship. But when Free, the Worship consists
in the opinion of the beholders: for if to them the words, or actions by
which we intend honour, seem ridiculous, and tending to contumely; they
are not Worship; because a signe is not a signe to him that giveth it,
but to him to whom it is made; that is, to the spectator.




Worship Publique And Private

Again, there is a Publique, and a Private Worship. Publique, is the
Worship that a Common-wealth performeth, as one Person. Private, is that
which a Private person exhibiteth. Publique, in respect of the whole
Common-wealth, is Free; but in respect of Particular men it is not so.
Private, is in secret Free; but in the sight of the multitude, it is
never without some Restraint, either from the Lawes, or from the Opinion
of men; which is contrary to the nature of Liberty.




The End Of Worship

The End of Worship amongst men, is Power. For where a man seeth another
worshipped he supposeth him powerfull, and is the readier to obey him;
which makes his Power greater. But God has no Ends: the worship we do
him, proceeds from our duty, and is directed according to our capacity,
by those rules of Honour, that Reason dictateth to be done by the weak
to the more potent men, in hope of benefit, for fear of dammage, or in
thankfulnesse for good already received from them.




Attributes Of Divine Honour

That we may know what worship of God is taught us by the light of
Nature, I will begin with his Attributes. Where, First, it is manifest,
we ought to attribute to him Existence: For no man can have the will to
honour that, which he thinks not to have any Beeing.

Secondly, that those Philosophers, who sayd the World, or the Soule of
the World was God, spake unworthily of him; and denyed his Existence:
For by God, is understood the cause of the World; and to say the World
is God, is to say there is no cause of it, that is, no God.

Thirdly, to say the World was not Created, but Eternall, (seeing that
which is Eternall has no cause,) is to deny there is a God.

Fourthly, that they who attributing (as they think) Ease to God, take
from him the care of Mankind; take from him his Honour: for it takes
away mens love, and fear of him; which is the root of Honour.

Fifthly, in those things that signifie Greatnesse, and Power; to say he
is Finite, is not to Honour him: For it is not a signe of the Will to
Honour God, to attribute to him lesse than we can; and Finite, is lesse
than we can; because to Finite, it is easie to adde more.

Therefore to attribute Figure to him, is not Honour; for all Figure is
Finite:

Nor to say we conceive, and imagine, or have an Idea of him, in our
mind: for whatsoever we conceive is Finite:

Not to attribute to him Parts, or Totality; which are the Attributes
onely of things Finite:

Nor to say he is this, or that Place: for whatsoever is in Place, is
bounded, and Finite:

Nor that he is Moved, or Resteth: for both these Attributes ascribe to
him Place:

Nor that there be more Gods than one; because it implies them all
Finite: for there cannot be more than one Infinite: Nor to ascribe to
him (unlesse Metaphorically, meaning not the Passion, but the Effect)
Passions that partake of Griefe; as Repentance, Anger, Mercy: or of
Want; as Appetite, Hope, Desire; or of any Passive faculty: For Passion,
is Power limited by somewhat else.

And therefore when we ascribe to God a Will, it is not to be understood,
as that of Man, for a Rationall Appetite; but as the Power, by which he
effecteth every thing.

Likewise when we attribute to him Sight, and other acts of Sense; as
also Knowledge, and Understanding; which in us is nothing else, but
a tumult of the mind, raised by externall things that presse the
organicall parts of mans body: For there is no such thing in God; and
being things that depend on naturall causes, cannot be attributed to
him.

Hee that will attribute to God, nothing but what is warranted by
naturall Reason, must either use such Negative Attributes, as Infinite,
Eternall, Incomprehensible; or Superlatives, as Most High, Most Great,
and the like; or Indefinite, as Good, Just, Holy, Creator; and in such
sense, as if he meant not to declare what he is, (for that were to
circumscribe him within the limits of our Fancy,) but how much wee
admire him, and how ready we would be to obey him; which is a signe of
Humility, and of a Will to honour him as much as we can: For there is
but one Name to signifie our Conception of his Nature, and that is, I
AM: and but one Name of his Relation to us, and that is God; in which is
contained Father, King, and Lord.




Actions That Are Signes Of Divine Honour

Concerning the actions of Divine Worship, it is a most generall Precept
of Reason, that they be signes of the Intention to Honour God; such as
are, First, Prayers: For not the Carvers, when they made Images, were
thought to make them Gods; but the People that Prayed to them.

Secondly, Thanksgiving; which differeth from Prayer in Divine Worship,
no otherwise, than that Prayers precede, and Thanks succeed the benefit;
the end both of the one, and the other, being to acknowledge God, for
Author of all benefits, as well past, as future.

Thirdly, Gifts; that is to say, Sacrifices, and Oblations, (if they be
of the best,) are signes of Honour: for they are Thanksgivings.

Fourthly, Not to swear by any but God, is naturally a signe of Honour:
for it is a confession that God onely knoweth the heart; and that no
mans wit, or strength can protect a man against Gods vengence on the
perjured.

Fifthly, it is a part of Rationall Worship, to speak Considerately
of God; for it argues a Fear of him, and Fear, is a confession of his
Power. Hence followeth, That the name of God is not to be used rashly,
and to no purpose; for that is as much, as in Vain: And it is to
no purpose; unlesse it be by way of Oath, and by order of the
Common-wealth, to make Judgements certain; or between Common-wealths,
to avoyd Warre. And that disputing of Gods nature is contrary to his
Honour: For it is supposed, that in this naturall Kingdome of God, there
is no other way to know any thing, but by naturall Reason; that is, from
the Principles of naturall Science; which are so farre from teaching us
any thing of Gods nature, as they cannot teach us our own nature, nor
the nature of the smallest creature living. And therefore, when men out
of the Principles of naturall Reason, dispute of the Attributes of God,
they but dishonour him: For in the Attributes which we give to God, we
are not to consider the signification of Philosophicall Truth; but the
signification of Pious Intention, to do him the greatest Honour we are
able. From the want of which consideration, have proceeded the volumes
of disputation about the Nature of God, that tend not to his Honour, but
to the honour of our own wits, and learning; and are nothing else but
inconsiderate, and vain abuses of his Sacred Name.

Sixthly, in Prayers, Thanksgivings, Offerings and Sacrifices, it is a
Dictate of naturall Reason, that they be every one in his kind the
best, and most significant of Honour. As for example, that Prayers, and
Thanksgiving, be made in Words and Phrases, not sudden, nor light, nor
Plebeian; but beautifull and well composed; For else we do not God
as much honour as we can. And therefore the Heathens did absurdly, to
worship Images for Gods: But their doing it in Verse, and with Musick,
both of Voyce, and Instruments, was reasonable. Also that the Beasts
they offered in sacrifice, and the Gifts they offered, and their actions
in Worshipping, were full of submission, and commemorative of benefits
received, was according to reason, as proceeding from an intention to
honour him.

Seventhly, Reason directeth not onely to worship God in Secret; but
also, and especially, in Publique, and in the sight of men: For without
that, (that which in honour is most acceptable) the procuring others to
honour him, is lost.

Lastly, Obedience to his Lawes (that is, in this case to the Lawes
of Nature,) is the greatest worship of all. For as Obedience is
more acceptable to God than sacrifice; so also to set light by his
Commandements, is the greatest of all contumelies. And these are the
Lawes of that Divine Worship, which naturall Reason dictateth to private
men.




Publique Worship Consisteth In Uniformity

But seeing a Common-wealth is but one Person, it ought also to exhibite
to God but one Worship; which then it doth, when it commandeth it to be
exhibited by Private men, Publiquely. And this is Publique Worship; the
property whereof, is to be Uniforme: For those actions that are done
differently, by different men, cannot be said to be a Publique Worship.
And therefore, where many sorts of Worship be allowed, proceeding from
the different Religions of Private men, it cannot be said there is any
Publique Worship, nor that the Common-wealth is of any Religion at all.




All Attributes Depend On The Lawes Civill

And because words (and consequently the Attributes of God) have their
signification by agreement, and constitution of men; those Attributes
are to be held significative of Honour, that men intend shall so be; and
whatsoever may be done by the wills of particular men, where there is no
Law but Reason, may be done by the will of the Common-wealth, by Lawes
Civill. And because a Common-wealth hath no Will, nor makes no Lawes,
but those that are made by the Will of him, or them that have the
Soveraign Power; it followeth, that those Attributes which the Soveraign
ordaineth, in the Worship of God, for signes of Honour, ought to be
taken and used for such, by private men in their publique Worship.




Not All Actions

But because not all Actions are signes by Constitution; but some are
Naturally signes of Honour, others of Contumely, these later (which are
those that men are ashamed to do in the sight of them they reverence)
cannot be made by humane power a part of Divine worship; nor the former
(such as are decent, modest, humble Behaviour) ever be separated from
it. But whereas there be an infinite number of Actions, and Gestures, of
an indifferent nature; such of them as the Common-wealth shall ordain to
be Publiquely and Universally in use, as signes of Honour, and part of
Gods Worship, are to be taken and used for such by the Subjects. And
that which is said in the Scripture, "It is better to obey God than
men," hath place in the kingdome of God by Pact, and not by Nature.




Naturall Punishments

Having thus briefly spoken of the Naturall Kingdome of God, and his
Naturall Lawes, I will adde onely to this Chapter a short declaration of
his Naturall Punishments. There is no action of man in this life, that
is not the beginning of so long a chayn of Consequences, as no humane
Providence, is high enough, to give a man a prospect to the end. And
in this Chayn, there are linked together both pleasing and unpleasing
events; in such manner, as he that will do any thing for his pleasure,
must engage himselfe to suffer all the pains annexed to it; and these
pains, are the Naturall Punishments of those actions, which are the
beginning of more Harme that Good. And hereby it comes to passe, that
Intemperance, is naturally punished with Diseases; Rashnesse, with
Mischances; Injustice, with the Violence of Enemies; Pride, with Ruine;
Cowardise, with Oppression; Negligent government of Princes, with
Rebellion; and Rebellion, with Slaughter. For seeing Punishments
are consequent to the breach of Lawes; Naturall Punishments must be
naturally consequent to the breach of the Lawes of Nature; and therfore
follow them as their naturall, not arbitrary effects.




The Conclusion Of The Second Part

And thus farre concerning the Constitution, Nature, and Right of
Soveraigns; and concerning the Duty of Subjects, derived from the
Principles of Naturall Reason. And now, considering how different
this Doctrine is, from the Practise of the greatest part of the world,
especially of these Western parts, that have received their Morall
learning from Rome, and Athens; and how much depth of Morall Philosophy
is required, in them that have the Administration of the Soveraign
Power; I am at the point of believing this my labour, as uselesse,
and the Common-wealth of Plato; For he also is of opinion that it is
impossible for the disorders of State, and change of Governments by
Civill Warre, ever to be taken away, till Soveraigns be Philosophers.
But when I consider again, that the Science of Naturall Justice, is the
onely Science necessary for Soveraigns, and their principall Ministers;
and that they need not be charged with the Sciences Mathematicall, (as
by Plato they are,) further, than by good Lawes to encourage men to
the study of them; and that neither Plato, nor any other Philosopher
hitherto, hath put into order, and sufficiently, or probably proved all
the Theoremes of Morall doctrine, that men may learn thereby, both how
to govern, and how to obey; I recover some hope, that one time or other,
this writing of mine, may fall into the hands of a Soveraign, who will
consider it himselfe, (for it is short, and I think clear,) without the
help of any interested, or envious Interpreter; and by the exercise of
entire Soveraignty, in protecting the Publique teaching of it, convert
this Truth of Speculation, into the Utility of Practice.

 Having laid out the theoretical case for the absolute power of the sovereign, Hobbes devotes the rest of Book II to explaining in more detail how this commonwealth should function. Building upon the metaphor of the Leviathan as an artificial person, Hobbes shows how the commonwealth is organized around different "systems." Systems are groups of individuals joined together by a common interest, such as a town, or the most basic system in a commonwealth, a family. A regular or regulatory system has a representative of all its members, while an irregular system does not. In the "political system" that is the commonwealth, the sovereign is the sole representative and has absolute power, so the representatives of these regulatory systems only have limited power. Such a representative can be a deputy or minister allotted a portion of the sovereign's domain, and is analogous to the nerves and tendons that make up the body. Public ministers, or those appointed by the sovereign, represent the sovereign in these smaller systems, and hence the subjects have a right to obey them accordingly. Public ministers can also serve as representatives of issue-specific systems rather than region specific ones. For example, there may ministers and appointees for the military, the treasury, civics, ambassadors, the judiciary, etc. Just as a body needs nourishment, the commonwealth needs goods and resources to remain functioning and to maintain peace. The distribution of land and resources is decided by the sovereign, not by what subjects may wish for or claim to have had prior to the existence of the commonwealth. After all, property and resources are given meaning only within a commonwealth, since in a state of nature anyone can take anything from another at any time. Only once men give up their right to amass as much land and goods as they see fit through a covenant can one be said to "possess" anything. Other things relating to "nourishment" of the body, like imports and exports, rules regarding commerce and even monetary policy are set by the sovereign in such a way as to maintain the peace and security of the commonwealth. In addition to public ministers, the sovereign can also employ private ministers, namely, counselors or advisors. While the advice these counselors gives the sovereign relates to the public, the sovereign has a right to hear counsel from such people in secret . Indeed, Hobbes argues that secret counsel is a far better type of counsel than one in which the sovereign's advisors testify to him in public, whether that be in front of other advisors or other subjects in general. Given human nature, such public counsel becomes not advice, but exhortation or dehortation, which involve inflaming the passions, using oratorical tricks, and other things done out of the counselor's interest rather than that of the counselee . In fact, Hobbes believes that such public counsel strays so far from proper advice that it is better for the sovereign to act without any counselors than to employ counsel that is not strictly private and secret. The advisors to the sovereign offer him counsel, which are recommendations the sovereign is in no way bound to follow. In contrast to counsel, a command carries with it obligation and duty. Law, in general, is a type of command between two or more men who are obliged to act in accordance with this law. Civil law "is to every Subject, those Rules, which the Common-wealth hath Commanded him, by Word, Writing, or other sufficient Sign of the Will, to make use of, for the Distinction of Right, and Wrong; that is to say, of what is contrary to the Rule." In other words, one is bound by civil laws not because one is a subject of any particular commonwealth, but of a commonwealth in general. While the sovereign may appoint ministers to make laws or judges to enforce them, the sovereign is the ultimate legislator and judge. Following from this, the sovereign, even when the sovereign is an assembly, is not subject to civil laws, since when a covenant was initially made between subjects it established the sovereign as the law. Thus, to say the sovereign is bound to some law is like saying the sovereign is bound to itself, which is nonsense. Additionally, to subject the sovereign to civil laws presupposes another arbitrator or common power. Not only does this lack sense, since the sovereign does not make a covenant with the subjects, this also undermines the authority of the sovereign, and hence undermines its ability to protect its subjects. Since civil laws come about through consensus, namely, through a covenant, it is imperative that the civil laws be known and understood so that they are properly enforced. Still, this does not mean that ignorance of or failure to communicate a law is an excuse for violating it. Civil laws are discoverable and can be known through reason, as civil laws have as their basis the laws of nature, the latter of which need not be published. This is not to say the civil laws and the laws of nature are the same thing, since in a state of nature there is no justice or injustice . The laws of nature are "qualities that dispose men to peace, and obedience. When a Common-wealth is once settled, then they are actually Lawes, and not before." All laws need interpretation, but that authority ultimately rests with the sovereign, not with legal scholars, lawyers, or philosophers. To put the power of interpretation elsewhere would be to undermine the sovereign's authority, and hence, undermine the peace of the commonwealth. This is not to say there can be no judges in a commonwealth. Indeed, laws can be both authorized and verified. The former comes from the sovereign, while the latter comes from judges. Just as ministers and counselors are appointed by the sovereign, so also are judges. According to Hobbes, a good judge is one that has a good understanding of the fundamental laws of nature, has contempt for riches, has an ability to look at things in an unbiased manner, and has both patience and a good memory. In order to enforce the covenant, the sovereign must have the right to punish and reward certain acts. Accordingly, a crime is the act of doing something the law forbids, or failing to do something it commands. Crimes arise from three main sources: 1) a defect in understanding, or ignorance); 2) error in reasoning, or false opinion; and 3) sudden passion. This last source, sudden passion, Hobbes claims is the most common cause of crime. Yet of all of the specific passions that cause men to commit crimes, the passion that least often makes man violate the laws is fear. Fear, after all, is the basis for establishing a commonwealth, and it is the fear of punishment that keeps men acting justly in accordance with laws. When a crime is committed, this meets with a punishment, namely, an evil "inflicted by public authority...to the end that the will of men may thereby be better disposed to obedience." But where does the right to punish come from? After all, doesn't every man have the right to defend himself from harm? When a person establishes a commonwealth this subject lays down his right to do whatever he sees fit for self-preservation - in other words, he lays down the absolute right of nature that drives men to harm each other - thus granting to the sovereign his right to self-preservation. Thus the sovereign attains absolute power to do anything necessary for the self-preservation of the commonwealth; this power includes inflicting punishment on those who commit crimes. Of course a subject could try to avoid punishment by "opting out" of the commonwealth, but this would put them back into the worst of all states, the chaotic state of nature, where laws and justice have no meaning, and the types of "evil" similar to punishments can occur at any time. Additionally, once a subject explicitly denies the authority of the commonwealth, any rules regarding punishment are moot, as these are reserved for subjects only. Hence, a subject that chooses to opt out of a commonwealth not only has to compete with the powers and wills of other humans in the state of nature, but the far stronger power and will of this commonwealth. Continuing his analogy of the commonwealth as a body, Hobbes describes the various defects or "diseases" that make a commonwealth fail. First and foremost among these causes is the failure of the sovereign to rule with absolute power. When the sovereign defers to other bodies or assemblies , this leads to a power struggle, and eventually civil war, when the sovereign must retake some of these powers in order to preserve peace . Seditious doctrines may also infect the body of the commonwealth, and in time weaken it to the point of collapse. Examples of such doctrines are: the judges of what is good and evil, just and unjust, are private subjects rather than public authority; importing or imitating doctrines of other nations; that one does not have to obey a law if it is contrary to one's conscience; and emulating the stories of revolt and regicide of the Greeks and Romans. Additionally, placing religion above civil laws, subjecting the sovereign to civil laws, dividing the sovereign between two monarchs or a monarch and an assembly, and anything that undercuts the absolute authority of the commonwealth infects the body like a disease and serves to weaken it. These are all institutional weaknesses that Hobbes likens to a defect in birth in the body, but lack of proper nourishment can also bring about the collapse of a commonwealth. Namely, a lack of goods and resources, corruption and embezzlement of politicians, or the concentration of power or goods in one specific area of the state. Lastly, a human can be killed by external forces, such as if someone attacks or conquers him. Similarly, war between commonwealths can bring about the failure of the state when a commonwealth is conquered and the former subjects have the choice between returning to the state of nature or joining the commonwealth of their conquerors. Hobbes devotes the penultimate chapter of Book II to the office of the sovereign, and offers advice on how this should function in order to avoid the collapse of the commonwealth. To begin with, the sovereign needs to keep the subject informed of the subject's obligations to the sovereign and the rights the sovereign enjoys. As has been already spelled out, the office of the sovereign exists to "procure the safety of the people," and to weaken the sovereign is thus to weaken the commonwealth as a whole. Subjects should not only be kept informed of their rights and duties, but should also understand the reasons for these, lest they be seduced into disobedience or rebellion. To accomplish this Hobbes advances the idea of civic instruction for all subjects in the commonwealth. In addition to civics, Hobbes says that laws should be applied by the sovereign equally. To do otherwise would be to upset certain segments of the population, and thus to incite factions and infighting. Generally, the sovereign should enforce good laws, that is to say, laws that are necessary for and further the well-being and safety of the populace. Hobbes ends Book II by dealing with the question of whether obedience to the sovereign is compatible with obedience to God. For in the case that a civil law commands one to do something that one believes is contrary to a divine law, which authority is a subject to obey? After all, is one is confronted with the choice of obeying a civil law that will result in eternal damnation, the obvious choice would be to disobey the civil law. Not only do situations like these present moral dilemmas, practically speaking, their possibility undermines the authority of the sovereign. To begin with, before jumping into the question of when one can disobey a civil law due to a divine obligation, one need to know the precisely what the divine laws are. According to Hobbes, divine laws are known to us through three sources: reason, revelation, and prophecy. The first of these are none other than moral philosophy, and are the civic laws we discover through sense and our own natural reason, which Hobbes has already discussed at length. The latter two law outside the bounds of natural reason, as they are known to us either through a supernatural revelation or through a prophet. These will be the focus on Book III, but Hobbes also argues that such divine laws concern both how men should act towards one another, and how men should act towards God. One need not worry about offending God through observing a civic law, since to worshiping God is a strictly internal act. If the sovereign commands you to renounce the existence of God that is only an external renunciation, and one which man can do while still having faith in God and properly worshiping him.

