CHAP. XXI. Of the LIBERTY of Subjects.

LIBERTY, or FREEDOM, signifieth (properly) the absenceof Opposition; (by Opposition, I mean external Impediments of motion;) and may be applied no less to Irrational, and Inanimate creatures, than to Rational. For whatsoever is so tied, or environed, as it cannot move, but within a certain space, which space is determined by the opposition of some external body, we say it hath not Liberty to go further. And so of all living creatures, whilst they are imprisoned, or restrained, with walls, or chains; and of the water whilst it is kept in by banks, or vessels, that otherwise would spread it self into a larger space, we use to say, they are not at Liberty, to move in such manner, as without those external impediments they would. But when the impediment of motion, is in the constitution of the thing it self, we use not to say, it wants the Liberty; but the Power to move; as when a stone lieth still, or a man is fastened to his bed by sickness.

And according to this proper, and generally received meaningof the word, A FREE-MAN, is he, that in those things, which by his strength and wit he is able to do, is not hindered to do what he has a will to. But when the words Free, and Liberty, are applied to any thing but Bodies, they are abused; for that which is not subject to Motion, is not subject to Impediment: And therefore, when 'tis said (for example) The way is Free, no Liberty of the way is signified, but of those that walk in it without stop. And when we say a Gift is Free, there is not meant any Liberty of the Gift, but of the Giver, that was not bound by any law, or Covenant to give it. So when we speak Freely, it is not the Liberty of voice, or pronunciation, but of the man, whom no law hath obliged to speak otherwise than he did. Lastly, from the use of the word Free-will, no Liberty can be inferred of the will, desire, or inclination, but the Liberty of the man; which consisteth in this, that he finds no stop, in doing what he has the will, desire, or inclination to do.

Fear, and Liberty are consistent; as when a man throweth hisgoods into the Sea for fear the ship should sink, he doth it nevertheless very willingly, and may refuse to do it if he will: It is therefore the action, of one that was free: so a man sometimes pays his debt, only for fear of Imprisonment, which because no body hindered him from detaining, was the action of a man at liberty. And generally all actions which men do in Common-wealths, for fear of the law, are actions, which the doers had liberty to omit.

Liberty, and Necessity are Consistent: As in the water, that hathnot only liberty, but a necessity of descending by the Channel; so likewise in the Actions which men voluntarily do: which, because they proceed from their will, proceed from liberty; and yet, because every act of man's will, and every desire, and inclination proceedeth from some cause, and that from another cause, in a continual chain, (whose first link is in the hand of God the first of all causes,) proceed from necessity. So that to him that could see the connexion of those causes, the necessity of all men's voluntary actions, would appear manifest. And therefore God, that seeth, and disposeth all things, seeth also that the liberty of man in doing what he will, is accompanied with the necessity of doing that which God will, & no more, nor less. For though men may do many things, which God does not command, nor is therefore Author of them; yet they can have no passion, nor appetite to any thing, of which appetite Gods will is not the cause. And did not his will assure the necessity of man's will, and consequently of all that on man's will dependeth, the liberty of men would be a contradiction, and impediment to the omnipotence and liberty of God. And this shall suffice, (as to the matter in hand) of that natural liberty, which only is properly called liberty.

But as men, for the attaining of peace, and conservation of themselvesthereby, have made an Artificial Man, which we call a Common-wealth; so also have they made Artificial Chains, called Civil Laws, which they themselves, by mutual covenants, have fastened at one end, to the lips of that Man, or Assembly, to whom they have given the Sovereign Power; and at the other end to their own Ears. These Bonds in their own nature but weak, may nevertheless be made to hold, by the danger, though not by the difficulty of breaking them.

In relation to these Bonds only it is, that I am to speak now, ofthe Liberty of Subjects. For seeing there is no Common-wealth in the world, wherein there be Rules enough set down, for the regulating of all the actions, and words of men, (as being a thing impossible:) it followeth necessarily, that in all kinds of actions, by the laws pretermitted, men have the Liberty, of doing what their own reasons shall suggest, for the most profitable to themselves. For if we take Liberty in the proper sense, for corporal Liberty; that is to say, freedom from chains, and prison, it were very absurd for men to clamor as they do, for the Liberty they so manifestly enjoy. Again, if we take Liberty, for an exemption from Laws, it is no less absurd, for men to demand as they do, that Liberty, by which all other men may be masters of their lives. And yet as absurd as it is, this is it they demand; not knowing that the Laws are of no power to protect them, without a Sword in the hands of a man, or men, to cause those laws to be put in execution. The Liberty of a Subject, lieth therefore only in those things, which in regulating their actions, the Sovereign hath pretermitted: such as is the Liberty to buy, and sell, and otherwise contract with one another; to choose their own abode, their own diet, their own trade of life, and institute their children as they themselves think fit; & the like.

Nevertheless we are not to understand, that by such Liberty, the Sovereign Power of life, and death, is either abolished, or limited. For it has been already shown, that nothing the Sovereign Representative can do to a Subject, on what pretence soever, can properly be called Injustice, or Injury; because every Subject is Author of every act the Sovereign doth; so that he never wanteth Right to any thing, otherwise, than as he himself is the Subject of God, and bound thereby to observe the laws of Nature. And therefore it may, and doth often happen in Common-wealths, that a Subject may be put to death, by the command of the Sovereign Power; and yet neither do the other wrong: As when Jeptha caused his daughter to be sacrificed: In which, and the like cases, he that so dieth, had Liberty to do the action, for which he is nevertheless, without Injury put to death. And the same holdeth also in a Sovereign Prince, that putteth to death an Innocent Subject. For though the action be against the law of Nature, as being contrary to Equity, (as was the killing of Uriah, by David;) yet it was not an Injury to Uriah; but to God. Not to Uriah, because the right to do what he pleased, was given him by Uriah himself: And yet to God, because David was Gods Subject; and prohibited all Iniquity by the law of Nature. Which distinction, David himself, when he repented the fact, evidently confirmed, saying, To thee only have I sinned. In the same manner, the people of Athens, when they banished the most potent of their Common-wealth for ten years, thought they committed no Injustice; and yet they never questioned what crime he had done; but what hurt he would do: Nay they commanded the banishment of they knew not whom; and every Citizen bringing his Oystershell into the market place, written with the name of him he desired should be banished, without actual accusing him, sometimes banished an Aristides, for his reputation of Justice; And sometimes a scurrilous Jester, as Hyperbolus, to make a Jest of it. And yet a man cannot say, the Sovereign People of Athens wanted right to banish them; or an Athenian the Liberty to Jest, or to be Just.

The Liberty, whereof there is so frequent, and honourable mention,in the Histories, and Philosophy of the Ancient Greeks, and Romans, and in the writings, and discourse of those that from them have received all their learning in the Politics, is not the Liberty of Particular men; but the Liberty of the Common-wealth: which is the same with that, which every man then should have, if there were no Civil Laws, nor Common-wealth at all. And the effects of it also be the same. For as amongst masterless men, there is perpetual war, of every man against his neighbour; no inheritance, to transmit to the Son, nor to expect from the Father; no propriety of Goods, or Lands; no security; but a full and absolute Liberty in every Particular man: So in States, and Common-wealths not dependent on one another, every Common-wealth, (not every man) has an absolute Liberty, to do what it shall judge (that is to say, what that Man, or Assembly that representeth it, shall judge) most conducing to their benefit. But withal, they live in the condition of a perpetual war, and upon the confines of battle, with their frontiers armed, and canons planted against their neighbours round about. The Athenians, and Romans were free; that is, free Common-wealths: not that any particular men had the Liberty to resist their own Representative; but that their Representative had the Liberty to resist, or invade other people. There is written on the Turrets of the city of Luca in great characters at this day, the word LIBERTAS; yet no man can thence infer, that a particular man has more Liberty, or Immunity from the service of the Commonwealth there, than in Constantinople. Whether a Commonwealth be Monarchical, or Popular, the Freedom is still the same.

But it is an easy thing, for men to be deceived, by the specious name of Liberty; and for want of Judgement to distinguish, mistake that for their Private Inheritance, and Birth right, which is the right of the Public only. And when the same error is confirmed by the authority of men in reputation for their writings in this subject, it is no wonder if it produce sedition, and change of Government. In these western parts of the world, we are made to receive our opinions concerning the Institution, and Rights of Common-wealths, from Aristotle, Cicero, and other men, Greeks and Romans, that living under Popular States, derived those Rights, not from the Principles of Nature, but transcribed them into their books, out of the Practise of their own Common-wealths, which were Popular; as the Grammarians describe the Rules of Language, out of the Practise of the time; or the Rules of Poetry, out of the Poems of Homer and Virgil. And because the Athenians were taught, (to keep them from desire of changing their Government,) that they were Freemen, and all that lived under Monarchy were slaves; therefore Aristotle puts it down in his Politics, (lib. 6. cap. 2.) In democracy, Liberty is to be supposed: for 'tis commonly held, that no man is Free in any other Government. And as Aristotle; so Cicero, and other Writers have grounded their Civil doctrine, on the opinions of the Romans, who were taught to hate Monarchy, at first, by them that having deposed their Sovereign, shared amongst them the Sovereignty of Rome; and afterwards by their Successors. And by reading of these Greek, and Latin Authors, men from their childhood have gotten a habit (under a false show of Liberty,) of favouring tumults, and of licentious controlling the actions of their Sovereigns; and again of controlling those controllers, with the effusion of so much blood; as I think I may truly say, there was never any thing so dearly bought, as these Western parts have bought the learning of the Greek and Latin tongues.

To come now to the particulars of the true Liberty of a Subject;that is to say, what are the things, which though commanded by the Sovereign, he may nevertheless, without Injustice, refuse to do; we are to consider, what Rights we pass away, when we make a Common-wealth; or (which is all one,) what Liberty we deny our selves, by owning all the Actions (without exception) of the Man, or Assembly we make our Sovereign. For in the act of our Submission, consisteth both our Obligation, and our Liberty; which must therefore be inferred by arguments taken from thence; there being no Obligation on any man, which ariseth not from some Act of his own; for all men equally, are by Nature Free. And because such arguments, must either be drawn from the express words, I Authorise all his Actions, or from the Intention of him that submitteth himself to his Power, (which Intention is to be understood by the End for which he so submitteth;) The Obligation, and Liberty of the Subject, is to be derived, either from those Words, (or others equivalent;) or else from the End of the Institution of Sovereignty; namely, the Peace of the Subjects within themselves, and their Defence against a common Enemy,

First therefore, seeing Sovereignty by Institution, is by Covenantof every one to every one; and Sovereignty by Acquisition, by Covenants of the Vanquished to the Victor, or Child to the Parent; It is manifest, that every Subject has Liberty in all those things, the right whereof cannot by Covenant be transferred. I have shown before in the 14th Chapter, that Covenants, not to defend a man's own body, are void. Therefore,

If the Sovereign command a man (though justly condemned,) tokill, wound, or maim himself; or not to resist those that assault him; or to abstain from the use of food, air, medicine, or any other thing, without which he cannot live; yet hath that man the Liberty to disobey.

If a man be interrogated by the Sovereign, or his Authority, concerning a crime done by himself, he is not bound (without assurance of Pardon) to confess it; because no man (as I have shown in the same Chapter) can be obliged by Covenant to accuse himself.

Again, the Consent of a Subject to Sovereign Power, is contained in these words, I Authorise, or take upon me, all his actions; in which there is no restriction at all, of his own former natural Liberty: For by allowing him to kill me, I am not bound to kill my self when he commands me. 'Tis one thing to say, Kill me, or my fellow, if you please; another thing to say, I will kill my self, or my fellow. It followeth therefore, that

No man is bound by the words themselves, either to kill himself, or any other man; And consequently, that the Obligation a man may sometimes have, upon the Command of the Sovereign to execute any dangerous, or dishonourable Office, dependeth not on the Words of our Submission; but on the Intention; which is to be understood by the End thereof. When therefore our refusal to obey, frustrates the End for which the Sovereignty was ordained; then there is no Liberty to refuse: otherwise there is.

Upon this ground, a man that is commanded as a Soldier to fightagainst the enemy, though his Sovereign have Right enough to punish his refusal with death, may nevertheless in many cases refuse, without Injustice; as when he substituteth a sufficient Soldier in his place: for in this case he deserteth not the service of the Commonwealth. And there is allowance to be made for natural timorousness, not only to women, (of whom no such dangerous duty is expected,) but also to men of feminine courage. When Armies fight, there is on one side, or both, a running away; yet when they do it not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonourably. For the same reason, to avoid battle, is not Injustice, but Cowardice. But he that enrolleth himself a Soldier, or taketh imprest money, taketh away the excuse of a timorous nature; and is obliged, not only to go to the battle, but also not to run from it, without his Captains leave. And when the Defence of the Common-wealth, requireth at once the help of all that are able to bear Arms, every one is obliged; because otherwise the Institution of the Common-wealth, which they have not the purpose, or courage to preserve, was in vain.

To resist the Sword of the Common-wealth, in defence of another man, guilty, or innocent, no man hath Liberty; because such Liberty, takes away from the Sovereign, the means of Protecting us; and is therefore destructive of the very essence of Government. But in case a great many men together, have already resisted the Sovereign Power unjustly, or committed some Capital crime, for which every one of them expecteth death, whether have they not the Liberty then to join together, and assist, and defend one another? Certainly they have: For they but defend their lives, which the Guilty man may as well do, as the Innocent. There was indeed injustice in the first breach of their duty; Their bearing of Arms subsequent to it, though it be to maintain what they have done, is no new unjust act. And if it be only to defend their persons, it is not unjust at all. But the offer of pardon taketh from them, to whom it is offered, the plea of self-defence, and maketh their perseverance in assisting, or defending the rest, unlawful.

As for other Liberties, they depend on the Silence of the Law. Incases where the Sovereign has prescribed no rule, there the Subject hath the Liberty to do, or forbear, according to his own discretion. And therefore such Liberty is in some places more, and in some less; and in some times more, in other times less, according as they that have the Sovereignty shall think most convenient. As for Example, there was a time, when in England a man might enter in to his own Land, (and dispossess such as wrongfully possessed it,) by force. But in after-times, that Liberty of Forcible Entry, was taken away by a Statute made (by the King) in Parliament. And in some places of the world, men have the Liberty of many wives: in other places, such Liberty is not allowed.

If a Subject have a controversy with his Sovereign, of debt, or of right of possession of lands or goods, or concerning any service required at his hands, or concerning any penalty, corporal, or pecuniary, grounded on a precedent Law; he hath the same Liberty to sue for his right, as if it were against a Subject; and before such Judges, as are appointed by the Sovereign. For seeing the Sovereign demandeth by force of a former Law, and not by virtue of his Power; he declareth thereby, that he requireth no more, than shall appear to be due by that Law. The suit therefore is not contrary to the will of the Sovereign; and consequently the Subject hath the Liberty to demand the hearing of his Cause; and sentence, according to that Law. But if he demand, or take any thing by pretence of his Power; there lieth, in that case, no action of Law: for all that is done by him in Virtue of his Power, is done by the Authority of every Subject, and consequently, he that brings an action against the Sovereign, brings it against himself.

If a Monarch, or Sovereign Assembly, grant a Liberty to all, or any of his Subjects, which Grant standing, he is disabled to provide for their safety, the Grant is void; unless he directly renounce, or transfer the Sovereignty to another. For in that he might openly, (if it had been his will,) and in plain terms, have renounced, or transferred it, and did not; it is to be understood it was not his will; but that the Grant proceeded from ignorance of the repugnancy between such a Liberty and the Sovereign Power: and therefore the Sovereignty is still retained; and consequently all those Powers, which are necessary to the exercising thereof; such as are the Power of War, and Peace, of Judicature, of appointing Officers, and Counsellors, of levying Money, and the rest named in the 18th Chapter.

The Obligation of Subjects to the Sovereign, is understood tolast as long, and no longer, than the power lasteth, by which he is able to protect them. For the right men have by Nature to protect themselves, when none else can protect them, can by no Covenant be relinquished. The Sovereignty is the Soul of the Common-wealth; which once departed from the Body, the members do no more receive their motion from it. The end of Obedience is Protection; which, wheresoever a man seeth it, either in his own, or in another's sword, Nature applieth his obedience to it, and his endeavour to maintain it. And though Sovereignty, in the intention of them that make it, be immortal; yet is it in its own nature, not only subject to violent death, by foreign war; but also through the ignorance, and passions of men, it hath in it, from the very institution, many seeds of a natural mortality, by Intestine Discord.

If a Subject be taken prisoner in war; or his person, or his meansof life be within the Guards of the enemy, and hath his life and corporal Liberty given him, on condition to be Subject to the Victor, he hath Liberty to accept the condition; and having accepted it, is the subject of him that took him; because he had no other way to preserve himself. The case is the same, if he be detained on the same terms, in a foreign country. But if a man be held in prison, or bonds, or is not trusted with the liberty of his body; he cannot be understood to be bound by Covenant to subjection; and therefore may, if he can, make his escape by any means whatsoever.

If a Monarch shall relinquish the Sovereignty, both for himself,and his heirs; His Subjects return to the absolute Liberty of Nature; because, though Nature may declare who are his Sons, and who are the nearest of his Kin; yet it dependeth on his own will, (as hath been said in the precedent chapter,) who shall be his Heir. If therefore he will have no Heir, there is no Sovereignty, nor Subjection. The case is the same, if he die without known Kindred, and without declaration of his Heir. For then there can no Heir be known, and consequently no Subjection be due.

If the Sovereign Banish his Subject; during the Banishment, he isnot Subject. But he that is sent on a message, or hath leave to travel, is still Subject; but it is, by Contract between Sovereigns, not by virtue of the covenant of Subjection. For whosoever entreth into another's dominion, is Subject to all the Laws thereof; unless he have a privilege by the amity of the Sovereigns, or by special licence.

If a Monarch subdued by war, render himself Subject to the Victor;his Subjects are delivered from their former obligation, and become obliged to the Victor. But if he be held prisoner, or have not the liberty of his own Body; he is not understood to have given away the Right of Sovereignty; and therefore his Subjects are obliged to yield obedience to the Magistrates formerly placed, governing not in their own name, but in his. For, his Right remaining, the question is only of the Administration; that is to say, of the Magistrates and Officers; which, if he have not means to name, he is supposed to approve those, which he himself had formerly appointed.

CHAP. XXII. Of SYSTEMS Subject, Political, and Private.

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

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

Of Systems subordinate, some are Political, and some Private. Political (otherwise Called Bodies Politic, and Persons in Law,) are those, which are made by authority from the Sovereign Power of the Common-wealth. Private, are those, which are constituted by Subjects amongst themselves, or by authority from a stranger. For no authority derived from foreign power, within the Dominion of another, is Public there, but Private.

And of Private Systems, some are Lawful; some Unlawful: Lawful, are those which are allowed by the Common-wealth: all other are Unlawful. Irregular Systems, are those which having no Representative, consist only in concourse of People; which if not forbidden by the Common-wealth, nor made on evil design, (such as are conflux of People to markets, or shows, or any other harmless end,) are Lawful. But when the Intention is evil, or (if the number be considerable) unknown, they are Unlawful.

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

The bounds of that Power, which is given to the Representative of a Body Politic, are to be taken notice of, from two things. One is their Writ, or Letters from the Sovereign: the other is the Law of the Common-wealth.

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 remembered without Letters, nor taken notice of, unless such Letters be Patent, that they may be read to them, and withal sealed, or testified, with the Seals, or other permanent signs of the Authority Sovereign.

And because such Limitation is not always easy, or perhaps possibleto be described in writing; the ordinary Laws, common to all Subjects, must determine, what the Representative may lawfully do, in all Cases, where the Letters themselves are silent. And therefore

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

But if the Representative be an Assembly; whatsoever that Assemblyshall Decree, not warranted by their Letters, or the Laws, is the act of the Assembly, or Body Politic, and the act of every one by whose Vote the Decree was made; but not the act of any man that being present Voted to the contrary; nor of any man absent, unless he Voted it by 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 far-forth as it is capable, as by dissolution, or forfeiture of their Letters, (which is to such artificial, and fictitious Bodies, capital,) or (if the Assembly have a Common stock, wherein none of the Innocent Members have propriety,) by pecuniary Mulct. For from corporal penalties Nature hath exempted all Bodies Politic. But they that gave not their Vote, are therefore Innocent, because the Assembly cannot Represent any man in things unwarranted by their Letters, and consequently are involved in their Votes.

If the person of the Body Politic being in one man, borrowmoney of a stranger, that is, of one that is not of the same Body, (for no Letters need limit borrowing, seeing it is left to men's own inclinations to limit lending) the debt is the Representatives. For if he should have Authority from his Letters, to make the members pay what he borroweth, he should have by consequence the Sovereignty of them; and therefore the grant were either void, as proceeding from Error, commonly incident to human Nature, and an unsufficient sign of the will of the Granter; or if it be avowed by him, then is the Representer Sovereign, and falleth not under the present question, which is only of Bodies subordinate. No member therefore is obliged to pay the debt so borrowed, but the Representative himself: because he that lendeth it, being a stranger to the Letters, and to the qualification of the Body, understandeth those only for his debtors, that are engaged; and seeing the Representer can engage himself, and none else, has him only 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.

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

But if the debt be to one of the Assembly, the Assembly only isobliged to the payment, out of their common stock (if they have any:) For having liberty of Vote, if he Vote the Money, shall be borrowed, he Votes it shall be paid; If he Vote if 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 only; which failing he hath no remedy, nor complaint, but against himself, that being privy to the acts of the Assembly, and to their means to pay, and not being enforced, did nevertheless through his own folly lend his money.

It is manifest by this, that in Bodies Politic subordinate, andsubject to a Sovereign Power, it is sometimes not only lawful, but expedient, for a particular man to make open protestation against the decrees of the Representative Assembly, and cause their dissent to be Registered, or to take witness of it; because otherwise they may be obliged to pay debts contracted, and be responsible for crimes committed by other men: But in a Sovereign Assembly, that liberty is taken away, both because he that protesteth there, denies their Sovereignty; and also because whatsoever is commanded by the Sovereign Power, is as to the Subject (though not so always in the sight of God) justified by the Command; for of such command everySubject is the Author.

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

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

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

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

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

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

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

If a Mulct be laid upon the Body for some unlawful act, they only are liable by whose votes the act was decreed, or by whose assistance it was executed; for in none of the rest is there any other crime but being of the Body; which if a crime, (because the Body was ordained by the authority of the 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 do it by their own Authority, they can by their own Authority give judgement that the debt is due, which is as much as to be Judge in their own Cause.

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

Private Bodies Regular, and Lawful, are those that are constitutedwithout Letters, or other written Authority, saving the Laws common to all other Subjects. And because they be united in one Person Representative, they are held for Regular; such as are all Families, in which the Father, or Master ordereth the whole Family. For he obligeth his Children, and Servants, as far as the Law permitteth, though not further, because none of them are bound to obedience in those actions, which the Law hath forbidden to be done. In all other actions, during the time they are under domestic government, they are subject to their Fathers, and Masters, as to their immediate Sovereigns. For the Father, and Master being before the Institution of Common-wealth, absolute Sovereigns 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 Unlawful, are those that unite themselvesinto one person Representative, without any public Authority at all; such as are the Corporations of Beggars, Thieves and Gipsies, the better to order their trade of begging, and stealing; and the Corporations of men, that by Authority from any foreign Person, unite themselves in another's Dominion, for the easier propagation of Doctrines, and for making a party, against the Power of the Common-wealth.

Irregular Systems, in their nature, but Leagues, or sometimesmere concourse of people, without union to any particular design, not by obligation of one to another, but proceeding only from a similitude of wills and inclinations, become Lawful, or Unlawful, according to the lawfulness, or unlawfulness of every particular man's design therein: And his design is to be understood by the occasion.

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

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

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

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

Concourse of people, is an Irregular System, the lawfulness, or unlawfulness, whereof dependeth on the occasion, and on the number of them that are assembled. If the occasion be lawful, and manifest, the Concourse is lawful; as the usual meeting of men at Church, or at a public Show, in usual numbers: for if the numbers be extraordinarily great, the occasion is not evident; and consequently he that cannot render a particular and good account of his being amongst them, is to be judged conscious of an unlawful, and tumultuous design. It may be lawful for a thousand men, to join in a Petition to be delivered to a Judge, or Magistrate; yet if a thousand men come to present it, it is a tumultuous Assembly; because there needs but one or two for that purpose. But in such cases as these, it is not a set number that makes the Assembly Unlawful, but such a number, as the present Officers are not able to suppress, and bring to Justice.

When an unusual number of men, assemble against a man whom they accuse; the Assembly is an Unlawful tumult; because they may deliver their accusation to the Magistrate by a few, or by one man. Such was the case of St. Paul at Ephesus; where Demetrius, and a great number of other men, brought two of Pauls companions before the Magistrate, saying with one Voice, Great is Diana of the Ephesians; which was their way of demanding Justice against them for teaching the people such doctrine, as was against their Religion, and Trade. The occasion here, considering the Laws of that People, was just; yet was their Assembly Judged Unlawful, and the Magistrate reprehended them for it, in these words, If Demetrius and the other 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 days sedition, because, there is no cause by which any man can render any reason of this Concourse of People. Where he calleth an Assembly, whereof men can give no just account, a Sedition, and such as they could not answer for. And this is all I shall say concerning Systems, and Assemblies of People, which may be compared (as I said,) to the Similar parts of man's Body; such as be Lawful, to the Muscles; such as are Unlawful, to Wens, Biles, and Apostemes, engendered by the unnatural conflux of evil humours.

CHAP. XXIII. Of the PUBLIC MINISTERS of Sovereign Power.

IN the last Chapter I have spoken of the Similar parts of a Common-wealth: In this I shall speak of the parts Organical, which are Public Ministers.

A PUBLIC MINISTER, is he, that by the Sovereign,(whether a Monarch, or an Assembly,) is employed in any affairs, with Authority to represent in that employment, the Person of the Common-wealth. And whereas every man, or assembly that hath Sovereignty, representeth two Persons, or (as the more common phrase is) has two Capacities, one Natural, and another Politic, (as a Monarch, hath the person not only of the Common-wealth, but also of a man; and a Sovereign Assembly hath the Person not only of the Common-wealth, but also of the Assembly); they that be servants to them in their natural Capacity, are not Public Ministers; but those only that serve them in the Administration of the Public business. And therefore neither Ushers, nor Sergeants, nor other Officers that 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 household of a Monarch, are Public Ministers in a Monarchy.

Of Public Ministers, some have charge committed to them ofa general Administration, either of the whole Dominion, or of a part thereof. Of the whole, as to a Protector, or Regent, may be committed by the Predecessor of an Infant King, during his minority, the whole Administration of his Kingdom. In which case, every Subject is so far obliged to obedience, as the Ordinances he shall make, and the commands he shall give be in the Kings name, and not inconsistent with his Sovereign Power. Of a part, or Province; as when either a Monarch, or a Sovereign Assembly, shall give the general charge thereof to a Governor, Lieutenant, Prefect or Vice-Roy: And in this case also, every one of that Province, is obliged to all he shall do in the name of the Sovereign, and that not incompatible with the Sovereigns Right. For such Protectors, Vice-Roys, and Governors, have no other right, but what depends on the Sovereigns Will; and no Commission that can be given them, can be interpreted for a Declaration of the will to transfer the Sovereignty, without express and perspicuous words to that purpose. And this kind of Public Ministers resembleth the Nerves, and Tendons that move the several limbs of a body natural.

Others have special Administration; that is to say, charges ofsome special business, either at home, or abroad: As at home, First, for the Economy of a Common-wealth, They that have Authority concerning the Treasure, as Tributes, Impositions, Rents, Fines, or whatsoever public revenue, to collect, receive, issue, or take the Accounts thereof, are Public Ministers: Ministers, because they serve the Person Representative, and can do nothing against his Command, nor without his Authority: Public, because they serve him in his. Political Capacity.

Secondly, they that have Authority concerning the Militia; to have the custody of Arms, Forts, Ports; to Levy, Pay, or Conduct Soldiers; or to provide for any necessary thing for the use of war, either by Land or Sea, are public Ministers. But a Soldier without Command, though he fight for the 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.

They also that have authority to teach, or to enable others toteach the people their duty to the Sovereign Power, and instruct them in the knowledge of what is just, and unjust, thereby to render them more apt to live in godliness, and in peace amongst themselves, and resist the public enemy, are Public Ministers: Ministers, in that they do it not by their own Authority, but by another's; and Public, because they do it (or should do it) by no Authority, but that of the Sovereign. The Monarch, or the Sovereign Assembly only hath immediate Authority from God, to teach and instruct the people; and no man but the Sovereign, receiveth his power Dei gratiâ simply; that is to say, from the favour of none but God: All other, receive theirs from the favour and providence of God, and their Sovereigns; as in a Monarchy Dei gratiâ & Regis; or Dei providentiâ & voluntate Regis.

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

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

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

Public Ministers are also all those, that have Authority fromthe Sovereign, to procure the Execution of Judgements given; to publish the Sovereigns Commands; to suppress Tumults; to apprehend, and imprison Malefactors; and other acts tending to the conservation of the Peace. For every act they do by such Authority, is the act of the Common-wealth; and their service, answerable to that of the Hands, in a Body natural.

Public Ministers abroad, are those that represent the Person of their own Sovereign, to foreign States. Such are Ambassadors, Messengers, Agents, and Heralds, sent by public Authority, and on public Business.

But such as are sent by Authority only of some private party of a troubled State, though they be received, are neither Public, nor Private Ministers of the 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 the Authority be Public; yet because the business is Private, and belonging to him in his natural capacity; is a Private person. Also if a man be sent into another Country, secretly to explore their counsels, and strength; though both the Authority, and the Business be Public; yet because there is none to take notice of any Person in him, but his own; he is but a Private Minister; but yet a Minister of the Common-wealth; and may be compared to an Eye in the Body natural. And those that are appointed to receive the Petitions or other informations of the People, and are as it were the public Ear, are Public Ministers, and represent their Sovereign in that office.

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

CHAP. XXIV. Of the NUTRITION, and PROCREATION of a Common-wealth.

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

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

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

This Matter, commonly called Commodities, is partly Native, and partly Foreign: Native, that which is to be had within the Territory of the Common-wealth: Foreign, 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 needful for the maintenance, and motion of the whole Body; and few that produce not something more than necessary; the superfluous commodities to be had within, become no more superfluous, but supply these wants at home, by importation of that which may be had abroad, either by Exchange, or by just War, or by Labour: for a man's Labour also, is a commodity exchangeable for benefit, as well as any other thing: And there have been Common-wealths that having no more Territory, than hath served them for habitation, have nevertheless, not only maintained, but also increased their Power, partly by the labour of trading from one place to another, and partly by selling the Manufactures, whereof the Materials were brought in from other places.

The Distribution of the Materials of this Nourishment, is the constitutionof Mine, and Thine, and His; that is to say, in one word Propriety; and belongeth in all kinds of Common-wealth to the Sovereign Power. For where there is no Common-wealth, there is (as hath been already shown) a perpetual war 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 public pleading, attributeth all Propriety to the Law Civil, Let the Civil Law, saith he, be once abandoned, or but negligently guarded, (not to say oppressed,) and there is nothing, that any man can be sure to receive from his Ancestor, or leave to his Children. And again; Take away the Civil Law, and no man knows what is his own, and what another man's. Seeing therefore the Introduction of Propriety is an effect of Common-wealth; which can do nothing but by the Person that Represents it, it is the act only of the Sovereign; and consisteth in the Laws, which none can make that have not the Sovereign Power. And this they well knew of old, who called that Νόμος, (that is to say, Distribution,) which we call Law; and defined Justice, by distributing to every man his own.

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

From whence we may collect, that the Propriety which a subject hath in his lands, consisteth in a right to exclude all other subjects from the use of them; and not to exclude their Sovereign, be it an Assembly, or a Monarch. For seeing the Sovereign, that is to say, the 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 void. It is true, that a Sovereign Monarch, or the greater part of a Sovereign Assembly, may ordain the doing of many things in pursuit of their Passions, contrary to their own consciences, which is a breach of trust, and of the Law of Nature; but this is not enough to authorise any subject, either to make war upon, or so much as to accuse of Injustice, or any way to speak evil of their Sovereign; because they have authorised all his actions, and in bestowing the Sovereign Power, made them their own. But in what cases the Commands of Sovereigns are contrary to Equity, and the Law of Nature, is to be consideredhereafter in another place.

In the Distribution of land, the Common-wealth it self, may be conceived to have a portion, and possess, and improve the same by their Representative; and that such portion may be made sufficient, to sustain the whole expense to the common Peace, and defence necessarily required: Which were very true, if there could be any Representative conceived free from human passions, and infirmities. But the nature of men being as it is, the setting forth of Public Land, or of any certain Revenue for the Common-wealth, is in vain; and tendeth to the dissolution of Government, and to the condition of mere Nature, and War, as soon as ever the Sovereign Power falleth into the hands of a Monarch, or of an Assembly, that are either too negligent of money, or too hazardous in engaging the public stock, into a long, or costly war. Commonwealths can endure no Diet: For seeing their expense is not limited by their own appetite, but by external Accidents, and the appetites of their neighbours, the Public Riches cannot be limited by other limits, than those which the emergent occasions shall require. And whereas in England, there were by the Conqueror, divers Lands reserved to his own use, (besides Forests, 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 Public, but in his Natural capacity: For he, and his Successors did for all that, lay Arbitrary Taxes on all Subjects Land, when they judged it necessary. Or if those public Lands, and Services, were ordained as a sufficient maintenance of the Common-wealth, it was contrary to the scope of the Institution; being (as it appeared by those ensuing Taxes) insufficient, and (as it appears by the late small Revenue of the Crown) Subject to Alienation, and Diminution. It is therefore in vain, to assign a portion to the Common-wealth; which may sell, or give it away; and does sell, and give it away when tis done by their Representative.

As the Distribution of Lands at home; so also to assign in whatplaces, and for what commodities, the Subject shall traffic abroad, belongeth to the Sovereign. For if it did belong to private persons to use their own discretion therein, some of them would be drawn for gain, both to furnish the enemy with means to hurt the Common-wealth, and hurt it themselves, by importing such things, as pleasing men's appetites, be nevertheless noxious, or at least unprofitable to them. And therefore it belongeth to the Commonwealth, (that is, to the Sovereign only,) to approve, or disapprove both of the places, and matter of foreign Traffic.

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

By Concoction, I understand the reducing of all commodities,which are not presently consumed, but reserved for Nourishment in time to come, to some thing of equal value, and withal so portable, as not to hinder the motion of men from place to place; to the end a man may have in what place soever, such Nourishment as the place affordeth. And this is nothing else but Gold, and Silver, and Money. For Gold and Silver, being (as it happens) almost in all Countries of the world highly valued, is a commodious measure of the value of all things else between Nations; and Money (of what matter soever coined by the Sovereign of a 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 natural Blood is in like manner made of the fruits of the Earth; and circulating, nourisheth by the way, every Member of the Body of Man.

And because Silver and Gold, have their value from the matter it self; they have first this privilege, 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 Money, may easily be enhanced, or abased. Secondly, they have the privilege to make Common-wealths move, and stretch out their arms, when need is, into foreign Countries; and supply, not only private Subjects that travel, but also whole Armies with Provision. But that Coin, which is not considerable for the Matter, but for the Stamp of the place, being unable to endure change of air, hath its effect at home only; where also it is subject to the change of Laws, and thereby to have the value diminished, to the prejudice many times of those that have it.

The Conduits, and Ways by which it is conveyed to the Publicuse, are of two sorts; One, that Conveyeth it to the Public Coffers; The other, that Issueth the same out again for public payments. Of the first sort, are Collectors, Receivers, and Treasurers; of the second are the Treasurers again, and the Officers appointed for payment of several public or private Ministers. And in this also, the Artificial Man maintains his resemblance with the Natural; whose Veins receiving the Blood from the several Parts of of the Body, carry it to the Heart; where being made Vital, the Heart by the Arteries sends it out again, to enliven, and enable for motion all the Members of the same.

The Procreation, or Children of a Common-wealth, are thosewe call Plantations, or Colonies; which are numbers of men sent out from the Common-wealth, under a Conductor, or Governor, to inhabit a Foreign Country, either formerly void of Inhabitants, or made void then, by war. And when a Colony is settled, they are either a Common-wealth of themselves, discharged of their subjection to their Sovereign that sent them, (as hath been done by many Common-wealths of ancient time,) in which case the Common-wealth from which they went, was called their Metropolis, or Mother, and requires no more of them, than Fathers require of the Children, whom they emancipate, and make free from their domestic government, which is Honour, and Friendship; or else they remain united to their Metropolis, as were the Colonies of the people of Rome; and then they are no 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 Sovereign authorised them to Plant.

CHAP. XXV. Of COUNSEL.

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

COMMAND is, where a man saith, Do this, or Do not this, withoutexpecting other reason than the Will of him that says it. From this it followeth manifestly, that he that Commandeth, pretendeth thereby his own Benefit: For the reason of his Command is his own Will only, and the proper object of every man's Will, is some Good to himself.

COUNSEL, is where a man saith, Do, or Do not this, and deduceth his reasons from the benefit that arriveth by it to him to whom he saith it. And from this it is evident, that he that giveth Counsel, pretendeth only (whatsoever he intendeth) the good of him, to whom he giveth it.

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

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

EXHORTATION, and DEHORTATION, is Counsel, accompaniedwith signs in him that giveth it, of vehement desire to have it followed; or to say it more briefly, Counsel vehemently pressed. For he that Exhorteth, doth not deduce the consequences of what he adviseth to be done, and tie himself therein to the 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 tools of Oratory, to persuade 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 Counsel, not of him that asketh it, which is contrary to the duty of a Counsellor; who (by the definition of Counsel) ought to regard, not his own benefit, but his whom he adviseth. And that he directeth his Counsel to his own benefit, is manifest enough, by the long and vehement urging, or by the artificial giving thereof; which being not required of him, and consequently proceeding from his own occasions, is directed principally to his own benefit, and but accidentarily to the good of him that is Counselled, or not at all.

Secondly; that the use of Exhortation and Dehortation lieth only, where a man is to speak to a Multitude; because when the Speech is addressed to one, he may interrupt him, and examine his reasons more rigorously, than can be done in a Multitude; which are too many to enter into Dispute, and Dialogue with him that speaketh indifferently to them all at once.

Thirdly, that they that Exhort and Dehort, where they are required to give Counsel, are corrupt Counsellors, and as it were bribed by their own interest. For though the Counsel they give be never so good; yet he that gives it, is no more a good Counsellor, than he that giveth a Just Sentence for a reward, is a Just Judge. But where a man may lawfully Command, as a Father in his Family, or a Leader in an Army, his Exhortations and Dehortations, are not only lawful, but also necessary, and laudable: But then they are no more Counsels, but Commands; which when they are for Execution of sour labour; sometimes necessity, and always humanity requireth to be sweetened in the delivery, by encouragement, and in the tune and phrase of Counsel, rather than in harsher language of Command.

Examples of the difference between Command and Counsel, we may take from the forms of Speech that express them in Holy Scripture. Have no other Gods but me; Make to thy self no graven Image; Take not Gods name in vain; Sanctify the Sabbath; Honour thy Parents; Kill not; Steal 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 poor; and follow me, are Counsel; because the reason for which we are to do so, is drawn from our own benefit; which is this, that we shall have Treasure in heaven. These words, Go into the Village over against you, and you shall find an Ass tied, and her Colt; loose her, and bring her to me, are a Command: for the reason of their fact is drawn from the will of their Master: but these words, Repent, and be Baptized in the Name of Jesus, are Counsel; because the reason why we should so do, tendeth not to any benefit of God Almighty, who shall still be King in what manner soever we rebel; but of our selves, who have no other means of avoiding the punishment hanging over us for our sins.

As the difference of Counsel from Command, hath been now deduced from the nature of Counsel, consisting in a deducing of the benefit, or hurt that may arise to him that is to be Counselled, by the necessary or probable consequences of the action he propoundeth; so may also the differences between apt, and inept Counsellors be derived from the same. For Experience, being but Memory of the consequences of like actions formerly observed, and Counsel but the Speech whereby that experience is made known to another; the Virtues, and Defects of Counsel, are the same with the Virtues, and Defects Intellectual: And to the Person of a Common-wealth, his Counsellors serve him in the place of Memory, and Mental Discourse. But with this resemblance of the Common-wealth, to a natural man, there is one dissimilitude joined, of great importance; which is, that a natural man receiveth his experience, from the natural objects of sense, which work upon him without passion, or interest of their own; whereas they that give Counsel to the Representative person of a Common-wealth, may have, and have often their particular ends, and passions, that render their Counsels always suspected, and many times unfaithful. And therefore we may set down for the first condition of a good Counsellor, That his Ends, and Interest, be not inconsistent with the Ends and Interest of him he Counselleth.

Secondly, Because the office of a Counsellor, when an action comes into deliberation, is to make manifest the consequences of it, in such manner, as he that is Counselled may be truly and evidently informed; he ought to propound his advise, in such form of speech, as may make the truth most evidently appear; that is to say, with as firm ratiocination, as significant and proper language, and as briefly, as the evidence will permit. And therefore rash, and unevident Inferences; (such as are fetched only from Examples, or authority of Books, and are not arguments of what is good, or evil, but witnesses of fact, or of opinion.) obscure, confused, and ambiguous Expressions, also all metaphorical Speeches, tending to the stirring up of Passion, (because such reasoning, and such expressions, are useful only to deceive, or to lead him we Counsel towards other ends than his own) are repugnant to the Office of a Counsellor.

Thirdly, Because the Ability of Counselling proceedeth from Experience, and long study; and no man is presumed to have experience in all those things that to the Administration of a great Common-wealth are necessary to be known, No man is presumed to be a good Counsellor, but in such Business, as he hath not only been much versed in, but hath also much meditated on, and considered. For seeing the business of a Common-wealth is this, to preserve the people in Peace at home, and defend them against foreign Invasion, we shall find, it requires great knowledge of the disposition of 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 designs of all Nations that may any way annoy them. And this is not attained to, without much experience. Of which things, not only the whole sum, but every one of the particulars requires the age, and observation of a man in years, and of more than ordinary study. The wit required for Counsel, as I have said before (Chap. 8.) is Judgement. And the differences of men in that point come from different education, of some to one kind of study, or business, and of others to another. When for the doing of any thing, there be Infallible rules, (as in Engines, and Edifices, the rules of Geometry,) all the experience of the world cannot equal his Counsel, that has learnt, or found out the Rule. And when there is no such Rule, he that hath most experience in that particular kind of business, has therein the best Judgement, and is the best Counsellor.

Fourthly, to be able to give Counsel to a Common-wealth, in a business 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 do, but such as the Representative shall think fit. By which we may see, that they who are not called to Counsel, can have no good Counsel in such cases to obtrude.

Fifthly, Supposing the number of Counsellors equal, a man is better Counselled by hearing them apart, than in an Assembly; and that for many causes. First, in hearing them apart, you have the advice of every man; but in an Assembly many of them deliver their 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 fear of displeasing some that have spoken, or the whole Assembly, by contradiction; or for fear of appearing duller in apprehension, than those that have applauded the contrary opinion. Secondly, in an Assembly of many, there cannot choose but be some whose interests are contrary to that of the Public; and these their Interests make passionate, and Passion eloquent, and Eloquence draws others into the same advice. For the Passions of men, which asunder are moderate, as the heat of one brand; in Assembly are like many brands, that inflame one another, (especially when they blow one another with Orations) to the setting of the 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 dazzled with the variety of discourse upon it, than informed of the course he ought to take. Besides, there cannot be an Assembly of many, called together for advice, wherein there be not some, that have the ambition to be thought eloquent, and also learned in the Politics; and give not their advice with care of the business propounded, but of the applause of their motley orations, made of the divers colored threads, or shreds of Authors; which is an Impertinence at least, that takes away the time of serious Consultation, and in the secret way of Counselling apart, is easily avoided. Fourthly, in Deliberations that ought to be kept secret, (whereof there be many occasions in Public Business,) the Counsels of many, and especially in Assemblies, are dangerous; And therefore great Assemblies are necessitated to commit such affairs to lesser numbers, and of such persons as are most versed, and in whose fidelity they have most confidence.

To conclude, who is there that so far approves the taking of Counsel from a great Assembly of Counsellors, that wisheth for, or would accept of their pains, when there is a question of marrying his Children, disposing of his Lands, governing his Household, or managing his private Estate, especially if there be amongst them such as wish not his prosperity? A man that doth his business by the help of many and prudent Counsellors, with every one consulting apart in his proper element, does it best, as he that useth able Seconds at Tennis play, placed in their proper stations. He does next best, that useth his own Judgement only; as he that has no Second at all. But he that is carried up and down to his business in a framed Counsel, which cannot move but by the plurality of consenting opinions, the execution whereof is commonly (out of envy, or interest) retarded by the part dissenting, does it worst of all, and like one that is carried to the ball, though by good Players, yet in a Wheel-barrow, 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 eyes see more than one; yet it is not to be understood of many Counsellors; but then only, when the final Resolution is in one man. Otherwise, because many eyes see the same thing in divers lines, and are apt to look asquint towards their private benefit; they that desire not to miss their mark, though they look about with two eyes, yet they never aim but with one; And therefore no great Popular Common-wealth was ever kept up; but either by a foreign Enemy that united them; or by the reputation of some one eminent Man amongst them; or by the secret Counsel of a few; or by the mutual fear of equal factions; and not by the open Consultations of the Assembly. And as for very little Commonwealths, be they Popular, or Monarchical, there is no human wisdom can uphold them, longer than the Jealousy lasteth of their potent Neighbours.

CHAP. XXVI. Of CIVIL LAWS.

BY CIVIL LAWS, I understand the Laws, thatmen 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 Laws belongeth to them, that profess the study of the Laws of their several Countries; but the knowledge of Civil Law in general. to any man. The ancient Law of Rome was called their Civil Law, from the word Civitas, which signifies a Common-wealth: And those Countries, which having been under the Roman Empire, and governed by that Law, retain still such part thereof as they think fit, call that part the Civil Law, to distinguish it from the rest of their own Civil Laws. But that is not it I intend to speak of here; my design being not to show what is Law here, and there; but what is Law; as Plato, Aristotle, Cicero, and divers others have done, without taking upon them the profession of the study of the Law.

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

Which considered, I define Civil Law in this manner. 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, 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 Laws are addressed to all the Subjects in general; some to particular Provinces; some to particular Vocations; and some to particular Men; and are therefore Laws, to every of those to whom the Command is directed; and to none else. As also, that Laws are the Rules of Just, and Unjust; nothing being reputed Unjust, that is not contrary to some Law. Likewise, that none can make Laws but the 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.

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

2 The Sovereign of a Common-wealth, be it an Assembly, orone Man, is not Subject to the Civil Laws. For having power to make, and repeal Laws, he may when he pleaseth, free himself from that subjection, by repealing those Laws that trouble him, and making of new; and consequently he was free before. For he is free, that can be free when he will: Nor is it possible for any person to be bound to himself; because he that can bind, can release; and therefore he that is bound to himself only, is not bound.

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

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

5. If the Sovereign of one Common-wealth, subdue a Peoplethat have lived under other written Laws, and afterwards govern them by the same Laws, by which they were governed before; yet those Laws are the Civil Laws of the Victor, and not of the Vanquished Common-wealth. For the Legislator is he, not by whose authority the Laws were first made, but by whose authority they now continue to be Laws. And therefore where there be divers Provinces, within the Dominion of a Common-wealth, and in those Provinces diversity of Laws, which commonly are called the Customs of each several Province, we are not to understand that such Customs have their force, only from Length of Time; but that they were anciently Laws written, or otherwise made known, for the Constitutions, and Statutes of their Sovereigns; and are now Laws, not by virtue of the Prescription of time, but by the Constitutions of their present Sovereigns. But if an unwritten Law, in all the Provinces of a Dominion, shall be generally observed, and no iniquity appear in the use thereof; that Law can be no other but a Law of Nature, equally obliging all man-kind.

6. Seeing then all Laws, 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 Sovereign Assembly; a man may wonder from whence proceed such opinions, as are found in the Books of Lawyers of eminence in several Commonwealths, directly, or by consequence making the Legislative Power depend on private men, or subordinate Judges. As for example, That the Common Law, hath no Controller but the Parliament; which is true only where a Parliament has the Sovereign Power, and cannot be assembled, nor dissolved, but by their own discretion. For if there be a right in any else to dissolve them, there is a right also to control them, and consequently to control their controllings. And if there be no such right, then the Controller of Laws is not Parlamentum, but Rex in Parlamento. And were a Parliament is Sovereign, if it should assemble never so many, or so wise men, from the Countries subject to them, for whatsoever cause; yet there is no man will believe, that such an Assembly hath thereby acquired to themselves a Legislative Power. Item, that the two arms of a Common-wealth, are Force, and Justice; the first whereof is in the King; the other deposited in the hands of the Parliament. As if a Commonwealth could consist, where the Force were in any hand, which Justice had not the Authority to command and govern.

7. That Law can never be against Reason, our Lawyers are agreed; and that not the Letter, (that is, every construction of it,) but that which is according to the Intention of the Legislator, is the Law. And it is true: but the doubt is, of whose Reason it is, that shall be received for Law. It is not meant of any private Reason; for then there would be as much contradiction in the Laws, as there is in the Schools; nor yet, (as Sr. Ed. Coke makes it,) an Artificial perfection of Reason, gotten by long study, observation, and experience, (as his was.) For it is possible long study may increase, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruin: and of those that study, and observe with equal time, and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that Juris prudentia, or wisdom of subordinate Judges; but the Reason of this our Artificial Man the 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 Laws; and when there doth, the same Reason is able, by interpretation, or alteration, to take it away. In all Courts of Justice, the Sovereign (which is the Person of the Commonwealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Sovereign to make such Law, that his Sentence may be according thereunto; which then is his Sovereigns Sentence; otherwise it is his own, and an unjust one.

8. From this, that the Law is a Command, and a Command consistethin declaration, or manifestation of the will of him that commandeth, by voice, writing, or some other sufficient argument of the same, we may understand, that the Command of the Commonwealth, is Law only to those, that have means to take notice of it. Over natural fools, children, or 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 Sovereign, 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 Laws in general; so also every man, from whom any accident, not proceeding from his own default, hath taken away the means to take notice of any particular Law, is excused, if he observe it not; And to speak properly, that Law is no Law to him. It is therefore necessary, to consider in this place, what arguments, and signs be sufficient for the knowledge of what is the Law; that is to say, what is the will of the Sovereign, as well in Monarchies, as in other forms of government.

And first, if it be a Law that obliges all the Subjects without exception,and is not written, nor otherwise published in such places as they may take notice thereof, it is a Law of Nature. For whatsoever men are to take knowledge of for Law, not upon other men's words, but every one from his own reason, must be such as is agreeable to the reason of all men; which no Law can be, but the Law of Nature. The Laws of Nature therefore need not any publishing, nor Proclamation; as being contained in this one Sentence, approved by all the world, Do not that to another, which thou thinkest unreasonable to be done by another to thy self.

Secondly, if it be a Law that obliges only some condition of men, or one particular man, and be not written, nor published by word, then also it is a Law of Nature; and known by the same arguments, and signs, that distinguish those in such a condition, from other Subjects. For whatsoever Law is not written, or some way published by him that makes it Law, can be known no way, but by the reason of him that is to obey it; and is therefore also a Law not only Civil, but Natural. For Example, if the Sovereign employ a Public Minister, without written Instructions what to do; he is obliged to take for Instructions the Dictates of Reason; As if he make a Judge, The Judge is to take notice, that his Sentence ought to be according to the reason of his Sovereign, which being always understood to be Equity, he is bound to it by the Law of Nature: Or if an Ambassador, he is (in all things not contained in his written Instructions) to take for Instruction that which Reason dictates to be most conducing to his Sovereigns interest; and so of all other Ministers of the Sovereignty, public and private. All which Instructions of natural Reason may be comprehended under one name of Fidelity; which is a branch of natural Justice.

The Law of Nature excepted, it belongeth to the essence of all other Laws, to be made known, to every man that shall be obliged to obey them, either by word, or writing, or some other act, known to proceed from the Sovereign Authority. For the will of another, cannot be understood, but by his own word, or act, or by conjecture taken from his scope and purpose; which in the person of the Common-wealth, is to be supposed always consonant to Equity and Reason. And in ancient time, before letters were in common use, the Laws were many times put into verse; that the rude people taking pleasure in singing, or reciting them, might the more easily retain them in memory. And for the same reason Solomon adviseth a man, to bind the ten Commandmentsupon his ten fingers. And for the Law which Moses gave to the people of Israel at the renewing of the Covenant, he biddeth them to teach it theirChildren, by discoursing of it both at home, and upon the way; at going to bed, and at rising from bed; and to write it upon the posts, and doors of their houses; andto assemble the people, man, woman, and child, to hear it read.

Nor is it enough the Law be written, and published; but also that there be manifest signs, that it proceedeth from the will of the Sovereign.For private men, when they have, or think they have force enough to secure their unjust designs, and convoy them safely to their ambitious ends, may publish for Laws what they please, without, or against the Legislative Authority. There is therefore requisite, not only a Declaration of the Law, but also sufficient signs of the Author, and Authority. The Author, or Legislator is supposed in every Common-wealth to be evident, because he is the Sovereign, who having been Constituted by the consent of every one, is supposed by every one to be sufficiently known. And though the ignorance, and security of men be such, for the most part, as that when the memory of the first Constitution of their Common-wealth is worn out, they do not consider, by whose power they use to be defended against their enemies, and to have their industry protected, and to be righted when injury is done them; yet because no man that considers, can make question of it, no excuse can be derived from the ignorance of where the Sovereignty is placed. And it is a Dictate of Natural Reason, and consequently an evident Law of Nature, that no man ought to weaken that power, the protection whereof he hath himself demanded, or wittingly received against others. Therefore of who is Sovereign, no man, but by his own fault, (whatsoever evil men suggest,) can make any doubt. The difficulty consisteth in the evidence of the Authority derived from him; The removing whereof, dependeth on the knowledge of the public Registers, public Counsels, public Ministers, and public Seals; by which all Laws are sufficiently verified; Verified,I say, not Authorised: for the Verification, is but the Testimony and Record; not the Authority of the Law; which consisteth in the Command of the Sovereign only.

If therefore a man have a question of Injury, depending on theLaw 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 individual case. For though the advice of one that professeth the study of the Law, be useful for the avoiding of contention; yet it is but advice: tis the Judge must tell men what is Law, upon the hearing of the Controversy.

But when the question is of injury, or crime, upon a written Law;every man by recourse to the Registers, by himself, or others, may (if he will) be sufficiently informed, before he do such injury, or commit the crime, whither it be an injury, or not: Nay he ought to do so: For when a man doubts whether the act he goeth about, be just, or injust; and may inform himself, if he will; the doing is unlawful. In like manner, he that supposeth himself injured, in a case determined by the written Law, which he may by himself, or others see and consider; if he complain before he consults with the Law, he does unjustly, and bewrayeth a disposition rather to vex other men, than to demand his own right.

If the question be of Obedience to a public Officer; To haveseen his Commission, with the Public Seal, and heard it read; or to have had the means to be informed of it, if a man would, is a sufficient Verification of his Authority. For every man is obliged to do his best endeavour, to inform himself of all written Laws, that may concern his own future actions.

The Legislator known; and the Laws, either by writing, or bythe light of Nature, sufficiently published; there wanteth yet another very material circumstance to make them obligatory. For it is not the Letter, but the Intendment, or Meaning; that is to say, the authentic Interpretation of the Law (which is the sense of the Legislator,) in which the nature of the Law consisteth; And therefore the Interpretation of all Laws dependeth on the Authority Sovereign; and the Interpreters can be none but those, which the Sovereign, (to whom only the Subject oweth obedience) shall appoint. For else, by the craft of an Interpreter, the Law may be made to bear a sense, contrary to that of the Sovereign; by which means the Interpreter becomes the Legislator.

All Laws, written, and unwritten, have need of Interpretation.The unwritten Law of Nature, though it be easy to such, as without partiality, and passion, make use of their natural reason, and therefore leaves the violators thereof without excuse; yet considering there be very few, perhaps none, that in some cases are not blinded by self love, or some other passion, it is now become of all Laws the most obscure; and has consequently the greatest need of able Interpreters. The written Laws, if 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 final causes, for which the Law was made; the knowledge of which final 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 undo it by; or else by making what ends he will, (as Alexander did with his sword in the Gordian knot,) by the Legislative power; which no other Interpreter can do.

The Interpretation of the Laws of Nature, in a Commonwealth,dependeth not on the books of Moral Philosophy. The Authority of writers, without the Authority of the Common-wealth, maketh not their opinions Law, be they never so true. That which I have written in this Treatise, concerning the Moral Virtues, and of their necessity, for the procuring, and maintaining peace, though it be evident Truth, is not therefore presently Law; but because in all Common-wealths in the world, it is part of the Civil Law: For though it be naturally reasonable; yet it is by the Sovereign Power that it is Law: Otherwise, it were a great error, to call the Laws of Nature unwritten Law; whereof we see so many volumes published, and in them so many contradictions of one another, and of themselves.

The Interpretation of the Law of Nature, is the Sentence of theJudge constituted by the Sovereign Authority, to hear and determine such controversies, as depend thereon; and consisteth in the application of the Law to the present case. For in the act of Judicature, the Judge doth no more but consider, whither the demand of the party, be consonant to natural reason, and Equity; and the Sentence he giveth, is therefore the Interpretation of the Law of Nature; which Interpretation is Authentic; not because it is his private Sentence; but because he giveth it by Authority of the Sovereign, whereby it becomes the Sovereigns Sentence; which is Law for that time, to the parties pleading.

But because there is no Judge Subordinate, nor Sovereign, but mayerr 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 do it. No man's error becomes his own Law; nor obliges him to persist in it. Neither (for the same reason) becomes it a Law to other Judges, though sworn to follow it. For though a wrong Sentence given by authority of the Sovereign, if he know and allow it, in such Laws as are mutable, be a constitution of a new Law, in cases, in which every little circumstance is the same; yet in Laws immutable, such as are the Laws of Nature, they are no Laws to the same, or other Judges, in the like cases for ever after. Princes succeed one another; and one Judge passeth, another cometh; nay, Heaven and Earth shall pass; but not one title of the Law of Nature shall pass; for it is the Eternal Law of God. Therefore all the Sentences of precedent Judges that have ever been, cannot all together make a Law contrary to natural Equity: Nor any Examples of former Judges, can warrant an unreasonable Sentence, or discharge the present Judge of the trouble of studying what is Equity (in the case he is to Judge,) from the principles of his own natural reason. For example sake, 'Tis against the Law of Nature, To punish the Innocent; and Innocent is he that acquitteth himself Judicially, and is acknowledged for Innocent by the Judge. Put the case now, that a man is accused of a capital crime, and seeing the power and malice of some enemy, and the frequent corruption and partiality of Judges, runneth away for fear of the event, and afterwards is taken, and brought to a legal trial, and maketh it sufficiently appear, he was not guilty of the crime, and being thereof acquitted, is nevertheless condemned to lose his goods; this is a manifest condemnation of the Innocent. I say therefore, that there is no place in the world, where this can be an interpretation of a Law of Nature, or be made a Law by the Sentences of precedent Judges, that had done the same. For he that judged it first, judged unjustly; and no Injustice can be a pattern of Judgement to succeeding Judges. A written Law may forbid innocent men to fly, and they may be punished for flying: But that flying for fear of injury, should be taken for presumption of guilt, after a man is already absolved of the crime Judicially, is contrary to the nature of a Presumption, which hath no place after Judgement given. Yet this is set down by a great Lawyer for the common Law of England. If a man (saith he) that is Innocent, be accused of Felony, and for fear flieth for the same; albeit he judicially acquitteth himself of the Felony; yet if it be found that he fled for the Felony, he shall notwithstanding his Innocency, Forfeit all his goods, chattels, debts, and duties. For as to the Forfeiture of them, the Law will admit no proof against the Presumption in Law, grounded upon his flight. Here you see, An Innocent man, Judicially acquitted, notwithstanding his Innocency, (when no written Law forbad him to fly) after his acquittal, upon a Presumption in Law, condemned to lose all the goods he hath. If the Law ground upon his flight a Presumption of the fact, (which was Capital,) the Sentence ought to have been Capital: 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 Proof shall be admitted against a Presumption of Law. For all Judges, Sovereign and subordinate, if they refuse to hear Proof, refuse to do Justice: for though the Sentence be Just, yet the Judges that condemn without hearing the Proofs offered, are Unjust Judges; and their Presumption is but Prejudice; which no man ought to bring with him to the Seat of Justice, whatsoever precedent judgements, or examples he shall pretend to follow. There be other things of this nature, wherein men's Judgements have been perverted, by trusting to Precedents: but this is enough to show, that though the Sentence of the Judge, be a Law to the party pleading, yet it is no Law to any Judge, that shall succeed him in that Office.

In like manner, when question is of the Meaning of written Laws, he is not the Interpreter of them, that writeth a Commentary upon them. For Commentaries are commonly more subject to cavil, than the Text; and therefore need other Commentaries; and so there will be no end of such Interpretation. And therefore unless there be an Interpreter authorised by the Sovereign, from which the subordinate Judges are not to recede, the Interpreter can be no other than the ordinary Judges, in the same manner, as they are in cases of the unwritten Law; and their Sentences are to be taken by them that plead, for Laws in that particular case; but not to bind other Judges, in like cases to give like judgements. For a Judge may err in the Interpretation even of written Laws; but no error of a subordinate Judge, can change the Law, which is the general Sentence of the Sovereign.

In written Laws, men use to make a difference between the Letter,and the Sentence of the Law: And when by the Letter, is meant whatsoever can be gathered from the bare words, 'tis well distinguished. For the significations of almost all words, are either in themselves, or in the metaphorical use of them, ambiguous; and may be drawn in argument, to make many senses; but there is only one sense of the Law. But if by the Letter, be meant the literal sense, then the Letter, and the Sentence or intention of the Law, is all one. For the literal sense is that, which the Legislator intended, should by the letter of the Law be signified. Now the Intention of the Legislator is always supposed to be Equity: For it were a great contumely for a Judge to think otherwise of the Sovereign. He ought therefore, if the Word of the Law do not fully authorise a reasonable Sentence, to supply it with the Law of Nature; or if the case be difficult, to respite Judgement till he have received more ample authority. For Example, a written Law ordaineth, that he which is thrust out of his house by force, shall be restored by force: It happens that a man by negligence leaves his house empty, and returning is kept out by force, in which case there is no special Law ordained. It is evident, that this case is contained in the same Law: for else there is no remedy for him at all; which is to be supposed against the Intention of the Legislator. Again, the word of the Law, commandeth to Judge according to the Evidence: A man is accused falsely of a fact, which the Judge 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 Sovereign that another be made Judge, and himself Witness. So that the incommodity that follows the bare words of a written Law, may lead him to the Intention of the Law, whereby to interpret the same the better; though no Incommodity can warrant a Sentence against the Law. For every Judge of Right, and Wrong, is not Judge of what is Commodious, or Incommodious to the Common-wealth.

The abilities required in a good Interpreter of the Law, that isto say, in a good Judge, are not the same with those of an Advocate; namely the study of the Laws. For a Judge, as he ought to take notice of the Fact, from none but the Witnesses; so also he ought to take notice of the Law, from nothing but the Statutes, and Constitutions of the Sovereign, alleged in the pleading, or declared to him by some that have authority from the Sovereign Power to declare them; and need not take care before-hand, what he shall Judge; for it shall be given him what he shall say concerning the Fact, by Witnesses; and what he shall say in point of Law, from those that shall in their pleadings show it, and by authority interpret it upon the place. The Lords of Parliament in England were Judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the Laws, and fewer had made profession of them: and though they consulted with Lawyers, that were appointed to be present there for that purpose; yet they alone had the authority of giving Sentence. In like manner, in the ordinary trials of Right, Twelve men of the common People, are the Judges, and give Sentence, not only of the Fact, but of the Right; and pronounce simply for the Complainant, or for the Defendant; that is to say, are Judges not only of the Fact, but also of the Right: and in a question of crime, not only determine whether done, or not done; but also whether it be Murder, Homicide, Felony, Assault, and the like, which are determinations of Law: but because they are not supposed to know the Law of themselves, there is one that hath Authority to inform them of it, in the particular case they are to Judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unless it be made appear, they did it against their consciences, or had been corrupted by reward.

The things that make a good Judge, or good Interpreter of the Laws, are, first, A right understanding of that principal Law of Nature called Equity; which depending not on the reading of other men's Writings, but on the goodness of a man's own natural Reason, and Meditation, is presumed to be in those most, that 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 divest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, Patience to hear; diligent attention in hearing; and memory to retain, digest and apply what he hath heard.

The difference and division of the Laws, has been made in diversmanners, 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 man's proper method. In the Institutions of Justinian, we find seven sorts of Civil Laws. 1. The Edicts, Constitutions, and Epistles of the Prince, that is, of the Emperor; because the whole power of the people was in him. Like these, are the Proclamations of the Kings of England.

2. The Decrees of the whole people of Rome (comprehending the Senate,) when they were put to the Question by the Senate. These were Laws, at first, by the virtue of the Sovereign Power residing in the people; and such of them as by the Emperors were not abrogated, remained Laws by the Authority Imperial. For all Laws that bind, are understood to be Laws by his authority that has power to repeal them. Somewhat like to these Laws, are the Acts of Parliament in England.

3. The Decrees of the Common people (excluding the Senate,) when they were put to the question by the Tribune of the people. For such of them as were not abrogated by the Emperors, remained Laws by the Authority Imperial. Like to these, were the Orders of the House of Commons in England.

4. Senateûs consulta, the Orders of the Senate; because when the people of Rome grew so numerous, as it was inconvenient to assemble them; it was thought fit by the Emperor, that men should Consult the Senate, in stead of the people: And these have some resemblance with the Acts of Counsel.

5. The Edicts of Praetors, and (in some Cases) of the Aediles: such as are the Chief Justices in the Courts of England.

6. Responsa Prudentum; which were the Sentences, and Opinions of those Lawyers, to whom the Emperor gave Authority to interpret the Law, and to give answer to such as in matter of Law demanded their advice; which Answers, the Judges in giving Judgement were obliged by the Constitutions of the Emperor to observe: And should be like the Reports of Cases Judged, if other Judges be by the Law of England bound to observe them. For the Judges of the Common Law of England, are not properly Judges, but Juris Consulti; of whom the Judges, who are either the Lords, or Twelve men of the Country, are in point of Law to ask advice.

7. Also, Unwritten Customs, (which in their own nature are an imitation of Law,) by the tacit consent of the Emperor, in case they be not contrary to the Law of Nature, are very Laws.

Another division of Laws, is into Natural and Positive. Natural are those which have been Laws from all Eternity; and are called not only Natural, but also Moral Laws; consisting in the Moral Virtues, as Justice, Equity, and all habits of the mind that conduce to Peace, and Charity; of which I have already spoken in the fourteenth and fifteenth Chapters.

Positive, are those which have not been from Eternity; but have been made Laws by the Will of those that have had the Sovereign Power over others; and are either written, or made known to men, by some other argument of the Will of their Legislator.

Again, of Positive Laws some are Humane, some Divine: Andof Human positive laws, some are Distributive, some Penal. Distributive are those that determine the Rights of the Subjects, declaring to every man what it is, by which he acquireth and holdeth a propriety in lands, or goods, and a right or liberty of action: and these speak to all the Subjects. Penal are those, which declare, what Penalty shall be inflicted on those that violate the Law; and speak to the Ministers and Officers ordained for execution. For though every one ought to be informed of the Punishments ordained beforehand for their transgression; nevertheless the Command is not addressed to the Delinquent, (who cannot be supposed will faithfully punish himself,) but to public Ministers appointed to see the Penalty executed. And these Penal Laws are for the most part written together with the Laws Distributive; and are sometimes called Judgements. For all Laws are general Judgements, or Sentences of the Legislator; as also every particular Judgement, is a Law to him, whose case is Judged.

Divine Positive Laws (for Natural Laws being Eternal, andUniversal, are all Divine,) are those, which being the Commandments of God, (not from all Eternity, nor universally addressed to all men, but only to a certain people, or to certain persons,) are declared for such, by those whom God hath authorised to declare them. But this Authority of man to declare what be these Positive Laws of God, how can it be known? God may command a man by a supernatural way, to deliver Laws to other men. But because it is of the essence of Law, that he who is to be obliged, be assured of the Authority of him that declareth it, which we cannot naturally take notice to be from God, How can a man without supernatural 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 himself, it is evidently impossible: For though a man may be induced to believe such Revelation, from the Miracles they see him do, or from seeing the Extraordinary sanctity of his life, or from seeing the Extraordinary wisdom, or Extraordinary felicity of his Actions, all which are marks of God extraordinary favour; yet they are not assured evidences of special Revelation. Miracles are Marvellous works: but that which is marvellous to one, may not be so to another. Sanctity may be feigned; and the visible felicities of this world, are most often the work of God by Natural, and ordinary causes. And therefore no man can infallibly know by natural reason, that another has had a supernatural revelation of Gods will; but only a belief; every one (as the signs thereof shall appear greater; or lesser) a firmer, or a weaker belief.

But for the second, how he can be bound to obey them; it is not so hard. For if the Law declared, be not against the Law of Nature (which is undoubtedly 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 men's belief, and interior cogitations, are not subject to the commands, but only to the operation of God, ordinary, or extraordinary. Faith of Supernatural Law, is not a fulfilling, but only an assenting to the same; and not a duty that we exhibit to God, but a gift which God freely giveth to whom he pleaseth; as also Unbelief is not a breach of any of his Laws; but a rejection of them all, except the Laws Natural. But this that I say, will be made yet clearer, by the Examples, and Testimonies concerning this point in holy Scripture. The Covenant God made with Abraham (in a Supernatural manner) was thus, This is the Covenant which thou shalt observe between Me and Thee and thy Seed after thee. 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 virtue of the obedience they owed to their Parents; who (if they be Subject to no other earthly power, as here in the case of Abraham) have Sovereign power over their children, and servants. Again, where God saith to Abraham, In thee shall all Nations of the earth be blessed: For I know thou wilt command thy children, and thy house after thee to keep the way of the Lord, and to observe Righteousness and Judgement, it is manifest, the obedience of his Family, who had no Revelation, depended on their former obligation to obey their Sovereign. At Mount Sinai Moses only went up to God; the people were forbidden to approach on 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 hear thee; but let not God speak to us, lest we die? 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 Commandments, their own dreams, and fancies, or the dreams and fancies of private men; scarce two men would agree upon what is Gods Commandment; and yet in respect of them, every man would despise the Commandments of the Common-wealth. I conclude therefore, that in all things not contrary to the Moral Law, (that is to say, to the Law of Nature,) all Subjects are bound to obey that for divine Law, which is declared to be so, by the Laws of the Common-wealth. Which also is evident to any man's reason; for whatsoever is not against the Law of Nature, may be made Law in the name of them that have the Sovereign power; and there is no reason men should be the less 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 Commandments 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 eternal Law of God) that every man equally enjoy his liberty.

There is also another distinction of Laws, into Fundamental, andnot Fundamental: but I could never see in any Author, what a Fundamental Law signifieth. Nevertheless one may very reasonably distinguish Laws in that manner.

For a Fundamental Law in every Common-wealth is that, whichbeing taken away, the Common-wealth faileth, and is utterly dissolved; as a building whose Foundation is destroyed. And therefore a Fundamental Law is that, by which Subjects are bound to uphold whatsoever power is given to the Sovereign, whether a Monarch, or a Sovereign Assembly, without which the Commonwealth cannot stand; such as is the power of War and Peace, of Judicature, of Election of Officers, and of doing whatsoever he shall think necessary for the Public good. Not Fundamental is that, the abrogating whereof, draweth not with it the dissolution of the Common-Wealth; such as are the Laws concerning Controversies between subject and subject. Thus much of the Division of Laws.

I find the words Lex Civilis, and Jus Civile, that is to say, Law and Right Civil, promiscuously used for the same thing, even in the most learned Authors; which nevertheless ought not to be so. For Right is Liberty, namely that Liberty which the Civil Law leaves us: But Civil Law is an Obligation; and takes from us the Liberty which the Law of Nature gave us. Nature gave a Right to every man to secure himself by his own strength, and to invade a suspected neighbour, by way of prevention: but the Civil Law takes away that Liberty, in all cases where the protection of the Law may be safely stayed for. Insomuch as Lex and Jus, are as different as Obligation and Liberty.

Likewise Laws and Charters are taken promiscuously for thesame thing. Yet Charters are Donations of the Sovereign; and not Laws, but exemptions from Law. The phrase of a Law is Jubeo, Injungo, I Command, and Enjoin: the phrase of a Charter is Dedi, Concessi, I have Given, I have Granted: but what is given or granted, to a man, is not forced upon him, by a Law. A Law may be made to bind All the Subjects of a 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.