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.

CHAP. XXVII. Of CRIMES, EXCUSES, and EXTENUATIONS.

A Sin, is not only a Transgression of a Law, but also anyContempt of the Legislator. For such Contempt, is a breach of all his Laws at once. And therefore may consist, not only in the Commission of a Fact, or in the Speaking of Words by the Laws forbidden, or in the Omission of what the Law commandeth, but also in the Intention, or purpose to transgress. For the purpose to break the Law, is some degree of Contempt of him, to whom it belongeth to see it executed. To be delighted in the Imagination only, of being possessed of another man's goods, servants, or wife, without any intention to take them from him by force, or fraud, is no breach of the Law, that saith, Thou shalt not covet: nor is the pleasure a man may have in imagining, or dreaming of the death of him, from whose life he expecteth nothing but damage, and displeasure, a Sin; but the resolving to put some Act in execution, that tendeth thereto. For to be pleased in the fiction of that, which would please a man if it were real, is a Passion so adherent to the Nature both of man, and every other living creature, as to make it a Sin, were to make Sin of being a man. The consideration of this, has made me think them too severe, both to themselves, and others, that maintain, that the First motions of the mind, (though checked with the fear of God) be Sins. But I confess it is safer to err on that hand, than on the other.

A CRIME, is a sin, consisting in the Committing (by Deed, orWord) of that which the Law forbiddeth, or the Omission of what it hath commanded. So that every Crime is a sin; but not every sin a Crime. To intend to steal, or kill, is a sin, though it never appear in Word, or Fact: for God that seeth the thoughts of man, can lay it to his charge: but till it appear by some thing done, or said, by which the intention may be argued by a human Judge, it hath not the name of Crime: which distinction the Greeks observed, in the word ἁμάρτημα, and ἔγκλημα, or αἰτία; whereof the former, (which is translated Sin,) signifieth any swerving from the Law whatsoever; but the two later, (which are translated Crime,) signify that sin only, whereof one man may accuse another. But of Intentions, which never appear by any outward act, there is no place for human accusation. In like manner the Latins by Peccatum, which is Sin, signify all manner of deviation from the Law; but by Crimen, (which word they derive from Cerno, which signifies to perceive,) they mean only such sins, as may be made appear before a Judge; and therefore are not mere Intentions.

From this relation of Sin to the Law, and of Crime to the Civil Law, may be inferred, First, that where Law ceaseth, Sin ceaseth. But because the Law of Nature is eternal, Violation of Covenants, Ingratitude, Arrogance, and all Facts contrary to any Moral virtue, can never cease to be Sin. Secondly, that the Civil Law ceasing, Crimes cease: for there being no other Law remaining, but that of Nature, there is no place for Accusation; every man being his own Judge, and accused only by his own Conscience, and cleared by the Uprightness of his own Intention. When therefore his Intention is Right, his fact is no Sin: if otherwise, his fact is Sin; but not Crime. Thirdly, That when the Sovereign Power ceaseth, Crime also ceaseth: for where there is no such Power, there is no protection to be had from the Law; and therefore every one may protect himself by his own power: for no man in the Institution of Sovereign Power can be supposed to give away the Right of preserving his own body; for the safety whereof all Sovereignty was ordained. But this is to be understood only of those, that have not themselves contributed to the taking away of the Power that protected them: for that was a Crime from the beginning.

The source of every Crime, is some defect of the Understanding;or some error in Reasoning; or some sudden force of the Passions. Defect in the Understanding, is Ignorance; in Reasoning, Erroneous Opinion. Again, Ignorance is of three sorts; of the Law, and of the Sovereign, and of the Penalty. Ignorance of the Law of Nature Excuseth no man; because every man that hath attained to the use of Reason, is supposed to know, he ought not to do to another, what he would not have done to himself. Therefore into what place soever a man shall come, if he do any thing contrary to that Law, it is a Crime. If a man come from the Indies hither, and persuade men here to receive a new Religion, or teach them any thing that tendeth to disobedience of the Laws of this Country, though he be never so well persuaded of the truth of what he teacheth, he commits a Crime, and may be justly punished for the same, not only because his doctrine is false, but also because he does that which he would not approve in another, namely, that coming from hence, he should endeavour to alter the Religion there. But ignorance of the Civil Law, shall Excuse a man in a strange Country, till it be declared to him; because, till then no Civil Law is binding.

In the like manner, if the Civil Law of a man's own Country, be not so sufficiently declared, as he may know it if he will; nor the Action against the Law of Nature; the Ignorance is a good Excuse: In other cases Ignorance of the Civil Law, Excuseth not.

Ignorance of the Sovereign Power, in the place of a man's ordinaryresidence, Excuseth him not; because he ought to take notice of the Power, by which he hath been protected there.

Ignorance of the Penalty, where the Law is declared, Excusethno man: For in breaking the Law, which without a fear of penalty to follow, were not a Law, but vain words, he undergoeth the penalty, though he know not what it is; because, whosoever voluntarily doth any action, accepteth all the known consequences of it; but Punishment is a known consequence of the violation of the Laws, in every Common-wealth; which punishment, if it be determined already by the Law, he is subject to that; if not, then is he subject to Arbitrary punishment. For it is reason, that he which does Injury, without other limitation than that of his own Will, should suffer punishment without other limitation, than that of his Will whose Law is thereby violated.

But when a penalty, is either annexed to the Crime in the Law itself, or hath been usually inflicted in the like cases; there the Delinquent is Excused from a greater penalty. For the punishment foreknown, if not great enough to deter men from the action, is an invitement to it: because when men compare the benefit of their Injustice, with the harm of their punishment, by necessity of Nature they choose that which appeareth best for themselves: and therefore when they are punished more than the Law had formerly determined, or more than others were punished for the same Crime; it is the Law that tempted, and deceiveth them.

No Law, made after a Fact done, can make it a Crime: because ifthe Fact be against the Law of Nature, the Law was before the Fact; and a Positive Law cannot be taken notice of, before it be made; and therefore cannot be Obligatory. But when the Law that forbiddeth a Fact, is made before the Fact be done; yet he that doth the Fact, is liable to the Penalty ordained after, in case no lesser Penalty were made known before, neither by Writing, nor by Example, for the reason immediately before alleged.

From defect in Reasoning, (that is to say, from Error,) men areprone to violate the Laws, three ways. First, by Presumption of false Principles: as when men from having observed how in all places, and in all ages, unjust Actions have been authorised, by the force, and victories of those who have committed them; and that potent men, breaking through the Cob-web Laws of their Country, the weaker sort, and those that have failed in their Enterprises, have been esteemed the only Criminals; have thereupon taken for Principles, and grounds of their Reasoning, That Justice is but a vain word: That whatsoever a man can get by his own Industry, and hazard, is his own: That the Practice of all Nations cannot be unjust: That Examples of former times are good Arguments of doing the like again; and many more of that kind: Which being granted, no Act in it self can be a Crime, but must be made so (not by the Law, but) by the success of them that commit it; and the same Fact be virtuous, or vicious, as Fortune pleaseth; so that what Marius makes a Crime, Sylla shall make meritorious, and Caesar (the same Laws standing) turnagain into a Crime, to the perpetual disturbance of the Peace of the Common-wealth.

Secondly, by false Teachers, that either mis-interpret the Law of Nature, making it thereby repugnant to the Law Civil; or by teaching for Laws, such Doctrines of their own, or Traditions offormer times, as are inconsistent with the duty of a Subject.

Thirdly, by Erroneous Inferences from True Principles; which happens commonly to men that are hasty, and precipitate in concluding, and resolving what to do; such as are they, that have both a great opinion of their own understanding, and believe that things of this nature require not time and study, but only common experience, and a good natural wit; whereof no man thinks himself unprovided: whereas the knowledge, of Right and Wrong, which is no less difficult, there is no man will pretend to, without great and long study. And of those defects in Reasoning, there is none that can Excuse (though some of them may Extenuate) a Crime, in any man, that pretendeth to the administration of his own private business; much less in them that undertake a public charge; because they pretend to the Reason, upon the want whereof they would ground their Excuse.

Of the Passions that most frequently are the causes of Crime, one,is Vain-glory, or a foolish over-rating of their own worth; as if difference of worth, were an effect of their wit, or riches, or blood, or some other natural quality, not depending on the Will of those that have the Sovereign Authority. From whence proceedeth a Presumption that the punishments ordained by the Laws, and extended generally to all Subjects, ought not to be inflicted on them, with the same rigour they are inflicted on poor, obscure, and simple men, comprehended under the name of the Vulgar.

Therefore it happeneth commonly, that such as value themselvesby the greatness of their wealth, adventure on Crimes, upon hope of escaping punishment, by corrupting public Justice, or obtaining Pardon by Money, or other rewards.

And that such as have multitude of Potent Kindred; and popularmen, that have gained reputation amongst the Multitude, take courage to violate the Laws, from a hope of oppressing the Power, to whom it belongeth to put them in execution.

And that such as have a great, and false opinion of their ownWisdom, take upon them to reprehend the actions, and call in question the Authority of them that govern, and so to unsettle the Laws with their public discourse, as that nothing shall be a Crime, but what their own designs require should be so. It happeneth also to the same men, to be prone to all such Crimes, as consist in Craft, and in deceiving of their Neighbours; because they think their designs are too subtle to be perceived. These I say are effects of a false presumption of their own Wisdom. For of them that are the first movers in the disturbance of Common-wealth, (which can never happen without a Civil War,) very few are left alive long enough, to see their new Designs established: so that the benefit of their Crimes, redoundeth to Posterity, and such as would least have wished it: which argues they were not so wise, as they thought they were. And those that deceive upon hope of not being observed, do commonly deceive themselves, (the darkness in which they believe they lye hidden, being nothing else but their own blindness;) and are no wiser than Children, that think all hid, by hiding their own eyes.

And generally all vain-glorious men, (unless they be withal timorous,) are subject to Anger; as being more prone than others to interpret for contempt, the ordinary liberty of conversation: And there are few Crimes that may not be produced by Anger.

As for the Passions, of Hate, Lust, Ambition, and Covetousness, what Crimes they are apt to produce, is so obvious to every man's experience and understanding, as there needeth nothing to be said of them, saving that they are infirmities, so annexed to the nature, both of man, and all other living creatures, as that their effects cannot be hindered, but by extraordinary use of Reason, or a constant severity in punishing them. For in those things men hate, they find a continual, and unavoidable molestation; whereby either a man's patience must be everlasting, or he must be eased by removing the power of that which molesteth him: The former is difficult; the later is many times impossible, without some violation of the Law. Ambition, and Covetousness are Passions also that are perpetually incumbent, and pressing; whereas Reason is not perpetually present, to resist them: and therefore whensoever the hope of impunity appears, their effects proceed. And for Lust, what it wants in the lasting, it hath in the vehemence, which sufficeth to weigh down the apprehension of all easy, or uncertain punishments.

Of all Passions, that which inclineth men least to break the Laws,is Fear. Nay, (excepting some generous natures,) it is the only thing, (when there is apparence of profit, or pleasure by breaking the Laws,) that makes men keep them. And yet in many cases a Crime may be committed through Fear.

For not every Fear justifies the Action it produceth, but the fear only of corporeal hurt, which we call Bodily Fear, and from which a man cannot see how to be delivered, but by the action. A man is assaulted, fears present death, from which he sees not how to escape, but by wounding him that assaulteth him; If he wound him to death, this is no Crime; because no man is supposed at the making of a Common-wealth, to have abandoned the defence of his life, or limbs, where the Law cannot arrive time enough to his assistance. But to kill a man, because from his actions, or his threatenings, I may argue he will kill me when he can, (seeing I have time, and means to demand protection, from the Sovereign Power,) is a Crime. Again, a man receives words of disgrace, or some little injuries (for which they that made the Laws, had assigned no punishment, nor thought it worthy of a man that hath the use of Reason, to take notice of,) and is afraid, unless he revenge it, he shall fall into contempt, and consequently be obnoxious to the like injuries from others; and to avoid this, breaks the Law, and protects himself for the future, by the terror of his private revenge. This is a Crime: For the hurt is not Corporeal, but Fantastical, and (though in this corner of the world, made sensible by a custom not many years since begun, amongst young and vain men,) so light, as a gallant man, and one that is assured of his own courage, cannot take notice of. Also a man may stand in fear of Spirits, either through his own superstition, or through too much credit given to other men, that tell him of strange Dreams and Visions; and thereby be made believe they will hurt him, for doing, or omitting divers things, which nevertheless, to do, or omit, is contrary to the Laws; And that which is so done, or omitted, is not to be Excused by this fear; but is a Crime. For (as I have shown before in the second Chapter) Dreams be naturally but the fancies remaining in sleep, after the impressions our Senses had formerly received waking; and when men are by any accident unassured they have slept, seem to be real Visions; and therefore he that presumes to break the Law upon his own, or another's Dream, or pretended Vision, or upon other Fancy of the power of Invisible Spirits, than is permitted by the Common-wealth, leaveth the Law of Nature, which is a certain offence, and followeth the imagery of his own, or another private man's brain, which he can never know whether it signifieth any thing, or nothing, nor whether he that tells his Dream, say true, or lye; which if every private man should have leave to do, (as they must by the Law of Nature, if any one have it) there could no Law be made to hold, and so all Common-wealth would be dissolved.

From these different sources of Crimes, it appears already, thatall Crimes are not (as the Stoics of old time maintained) of the same allay. There is place, not only for EXCUSE, by which that which seemed a Crime, is proved to be none at all; but also for EXTENUATION, by which the Crime, that seemed great, is made less. For though all Crimes do equally deserve the name of Injustice, as all deviation from a strait line is equally crookedness, which the Stoics rightly observed; yet it does not follow that all Crimes are equally unjust, no more than that all crooked lines are equally crooked; which the Stoics not observing, held it as great a Crime, to kill a Hen, against the Law, as to kill ones Father.

That which totally Excuseth a Fact, and takes away from it thenature of a Crime, can be none but that, which at the same time, taketh away the obligation of the Law. For the fact committed once against the Law, if he that committed it be obliged to the Law, can be no other than a Crime.

The want of means to know the Law, totally Excuseth: For the Law whereof a man has no means to inform himself, is not obligatory. But the want of diligence to enquire, shall not be considered as a want of means; Nor shall any man, that pretendeth to reason enough for the Government of his own affairs, be supposed to want means to know the Laws of Nature; because they are known by the reason he pretends to: only Children, and Madmen are Excused from offences against the Law Natural.

Where a man is captive, or in the power of the enemy, (and he is then in the power of the enemy, when his person, or his means of living, is so,) if it be without his own fault, the Obligation of the Law ceaseth; because he must obey the enemy, or die; and consequently such obedience is no Crime: for no man is obliged (when the protection of the Law faileth,) not to protect himself, by the best means he can.

If a man by the terror of present death, be compelled to do a fact against the Law, he is totally Excused; because no Law can oblige a man to abandon his own preservation. And supposing such a Law were obligatory; yet a man would reason thus, If I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained; Nature therefore compels him to the fact.

When a man is destitute of food, or other thing necessary for his life, and cannot preserve himself any other way, but by some fact against the Law; as if in a great famine he take the food by force, or stealth, which he cannot obtain for money, nor charity; or in defence of his life, snatch away another man's Sword, he is totally Excused, for the reason next before alleged.

Again, Facts done against the Law, by the authority of another;are by that authority Excused against the Author; because no man ought to accuse his own fact in another, that is but his instrument: but it is not Excused against a third person thereby injured; because in the violation of the Law, both the Author, and Actor are Criminals. From hence it followeth that when that Man, or Assembly, that hath the Sovereign Power, commandeth a man to do that which is contrary to a former Law, the doing of it is totally Excused: For he ought not to condemn it himself, because he is the Author; and what cannot justly be condemned by the Sovereign, cannot justly be punished by any other. Besides, when the Sovereign commandeth any thing to be done against his own former Law, the Command, as to that particular fact, is an abrogation of the Law.

If that Man, or Assembly, that hath the Sovereign Power, disclaim any Right essential to the Sovereignty, whereby there accrueth to the Subject, any liberty inconsistent with the Sovereign Power, that is to say, with the very being of a Common-wealth, if the Subject shall refuse to obey the Command in any thing, contrary to the liberty granted, this is nevertheless a Sin, and contrary to the duty of the Subject: for he ought to take notice of what is inconsistent with the Sovereignty, because it was erected by his own consent, and for his own defence; and that such liberty as is inconsistent with it, was granted through ignorance of the evil consequence thereof. But if he not only disobey, but also resist a public Minister in the execution of it, then it is a Crime; because he might have been righted, (without any breach of the Peace,) upon complaint.

The Degrees of Crime are taken on divers Scales, and measured, First, by the malignity of the Source, or Cause: Secondly, by the contagion of the Example: Thirdly, by the mischief of the Effect; and Fourthly, by the concurrence of Times, Places, and Persons.

The same Fact done against the Law, if it proceed from Presumptionof strength, riches, or friends to resist those that are to execute the Law, is a greater Crime, than if it proceed from hope of not being discovered, or of escape by flight: For Presumption of impunity by force, is a Root, from whence springeth, at all times, and upon all temptations, a contempt of all Laws; whereas in the later case, the apprehension of danger, that makes a man fly, renders him more obedient for the future. A Crime which we know to be so, is greater than the same Crime proceeding from a false persuasion that it is lawful: For he that committeth it against his own conscience, presumeth on his force, or other power, which encourages him to commit the same again: but he that doth it by error, after the error shown him, is conformable to the Law.

He, whose error proceeds from the authority of a Teacher, oran Interpreter of the Law publicly authorised, is not so faulty, as he whose error proceedeth from a peremptory pursuit of his own principles, and reasoning: For what is taught by one that teacheth by public Authority, the Common-wealth teacheth, and hath a resemblance of Law, till the same Authority controlleth it; and in all Crimes that contain not in them a denial of the Sovereign Power, nor are against an evident Law, Excuseth totally: whereas he that groundeth his actions, on his private Judgement, ought according to the rectitude, or error thereof, to stand, or fall.

The same Fact, if it have been constantly punished in other men, isa greater Crime, than if there have been many precedent Examples of impunity. For those Examples, are so many hopes of Impunity, given by the Sovereign himself: And because he which furnishes a man with such a hope, and presumption of mercy, as encourageth him to offend, hath his part in the offence; he cannot reasonably charge the offender with the whole.

A Crime arising from a sudden Passion, is not so great, as when thesame ariseth from long meditation: For in the former case there is a place for Extenuation, in the common infirmity of human nature: but he that doth it with premeditation, has used circumspection, and cast his eye, on the Law, on the punishment, and on the consequence thereof to human society; all which in committing the Crime, he hath contemned, and postposed to his own appetite. But there is no suddenness of Passion sufficient for a total Excuse: For all the time between the first knowing of the Law, and the Commission of the Fact, shall be taken for a time of deliberation; because he ought by meditation of the Law, to rectify the irregularity of his Passions.

Where the Law is publicly, and with assiduity, before all the people read, and interpreted; a fact done against it, is a greater Crime, than where men are left without such instruction, to enquire of it with difficulty, uncertainty, and interruption of their Callings, and be informed by private men: for in this case, part of the fault is discharged upon common infirmity; but in the former, there is apparent negligence, which is not without some contempt of the Sovereign Power.

Those facts which the Law expressly condemneth, but the Lawmakerby other manifest signs of his will tacitly approveth, are less Crimes, than the same facts, condemned both by the Law, and Lawmaker. For seeing the will of the Law-maker is a Law, there appear in this case two contradictory Laws; which would totally Excuse, if men were bound to take notice of the Sovereigns approbation, by other arguments, than are expressed by his command. But because there are punishments consequent, not only to the transgression of his Law, but also to the observing of it, he is in part a cause of the transgression, and therefore cannot reasonably impute the whole Crime to the Delinquent. For example, the Law condemneth Duels; the punishment is made capital: On the contrary part, he that refuseth Duel, is subject to contempt and scorn, without remedy; and sometimes by the Sovereign himself thought unworthy to have any charge, or preferment in War: If thereupon he accept Duel, considering all men lawfully endeavour to obtain the good opinion of them that have the Sovereign Power, he ought not in reason to be rigorously punished; seeing part of the fault may be discharged on the punisher: which I say, not as wishing liberty of private revenges, or any other kind of disobedience; but a care in Governors, not to countenance any thing obliquely, which directly they forbid. The examples of Princes, to those that see them, are, and ever have been, more potent to govern their actions, than the Laws themselves. And thought it be our duty to do, not what they do, but what they say; yet will that duty never be performed, till it please God to give men an extraordinary, and supernatural grace to follow that Precept.

Again, if we compare Crimes by the mischief of their Effects,First, the same fact, when it redounds to the damage of many, is greater, than when it redounds to the hurt of few. And therefore, when a fact hurteth, not only in the present, but also, (by example) in the future, it is a greater Crime, than if it hurt only in the present: for the former, is a fertile Crime, and multiplies to the hurt of many; the later is barren. To maintain doctrines contrary to the Religion established in the Common-wealth, is a greater fault, in an authorised Preacher, than in a private person: So also is it, to live profanely, incontinently, or do any irreligious act whatsoever. Likewise in a Professor of the Law, to maintain any point, or do any act, that tendeth to the weakening of the Sovereign Power, is a greater Crime, than in another man: Also in a man that hath such reputation for wisdom, as that his counsels are followed, or his actions imitated by many, his fact against the Law, is a greater Crime, than the same fact in another: For such men not only commit Crime, but teach it for Law to all other men. And generally all Crimes are the greater, by the scandal they give; that is to say, by becoming stumbling-blocks to the weak, that look not so much upon the way they go in, as upon the light that other men carry before them.

Also Facts of hostility against the present state of the Commonwealth,are greater Crimes, than the same acts done to private men: For the damage extends it self to all: Such are the betraying of the strengths, or revealing of the secrets of the Common-wealth to an Enemy; also all attempts upon the Representative of the Commonwealth, be it a Monarch, or an Assembly; and all endeavours by word, or deed to diminish the Authority of the same, either in the present time, or in succession: which Crimes the Latins understand by Crimina laesae Majestatis, and consist in design, or act, contrary to a Fundamental Law.

Likewise those Crimes, which render Judgements of no effect, aregreater Crimes, than Injuries done to one, or a few persons; as to receive money to give False judgement, or testimony, is a greater Crime, than otherwise to deceive a man of the like, or a greater sum; because not only he has wrong, that falls by such judgements; but all Judgements are rendered useless, and occasion ministered to force, and private revenges.

Also Robbery, and Depeculation of the Public treasure, or Revenues,is a greater Crime, than the robbing, or defrauding of a Private man; because to rob the public, is to rob many at once.

Also the Counterfeit usurpation of public Ministry, the Counterfeitingof public Seals, or public Coin, than counterfeiting of a private man's person, or his seal; because the fraud thereof, extendeth to the damage of many.

Of facts against the Law, done to private men, the greater Crime,is that, where the damage in the common opinion of men, is most sensible. And therefore

To kill against the Law, is a greater Crime, than any other injury, life preserved.

And to kill with Torment, greater, than simply to kill.

And Mutilation of a limb, greater, than the spoiling a man of his goods.

And the spoiling a man of his goods, by Terror of death, or wounds, than by clandestine surreption.

And by clandestine Surreption, than by consent fraudulently obtained.

And the violation of chastity by Force, greater, than by flattery.

And of a woman Married, than of a woman not married.

For all these things are commonly so valued; though some men are more, and some less sensible of the same offence. But the Law regardeth not the particular, but the general inclination of mankind.

And therefore the offence men take, from contumely, in words, or gesture, when they produce no other harm, than the present grief of him that is reproached, hath been neglected in the Laws of the Greeks, Romans, and other both ancient, and modern Commonwealths; supposing the true cause of such grief to consist, not in the contumely, (which takes no hold upon men conscious of their own virtue,) but in the Pusillanimity of him that is offended by it.

Also a Crime against a private man, is much aggravated by the person, time, and place. For to kill ones Parent, is a greater Crime, than to kill another: for the Parent ought to have the honour of a Sovereign, (though he have surrendered his Power to the Civil Law,) because he had it originally by Nature. And to Rob a poor man, is a greater Crime, than to rob a rich man; because 'tis to the poor a more sensible damage.

And a Crime committed in the Time, or Place appointed for Devotion, is greater, than if committed at another time or place: for it proceeds from a greater contempt of the Law.

Many other cases of Aggravation, and Extenuation might be added: but by these I have set down, it is obvious to every man, to take the altitude of any other Crime proposed.

Lastly, because in almost all Crimes there is an Injury done, notonly to some Private men, but also to the Common-wealth; the same Crime, when the accusation is in the name of the Commonwealth, is called Public Crime; and when in the name of a Private man, a Private Crime; And the Pleas according thereunto called Public, Judicia Publica, Pleas of the Crown; or Private Pleas. As in an Accusation of Murder, if the accuser be a Private man, the plea is a Private plea; if the accuser be the Sovereign, the plea is a Public plea.

CHAP. XXVIII. Of PUNISHMENTS, and REWARDS.

APUNISHMENT, is an Evil inflicted by public Authority, on him that hath done, or omitted that which is Judged by the same Authority to be a Transgression of the Law; to the end that the will of men may thereby the better be disposed to obedience.

Before I infer any thing from this definition, there is a questionto be answered, of much importance; which is, by what door the Right, or Authority of Punishing in any case, came in. For by that which has been said before, no man is supposed bound by Covenant, not to resist violence; and consequently it cannot be intended, that he gave any right to another to lay violent hands upon his person. In the making of a Common-wealth, every man giveth away the right of defending another; but not of defending himself. Also he obligeth himself, to assist him that hath the Sovereignty, in the Punishing of another; but of himself not. But to covenant to assist the Sovereign, in doing hurt to another, unless he that so covenanteth have a right to do it himself, is not to give him a Right to Punish. It is manifest therefore that the Right which the Common-wealth (that is, he, or they that represent it) hath to Punish, is not grounded on any concession, or gift of the Subjects. But I have also showed formerly, that before the Institution of Common-wealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of Punishing, which is exercised in every Common-wealth. For the Subjects did not give the Sovereign that right; but only in laying down theirs, strengthened him to use his own, as he should think fit, for the preservation of them all: so that it was not given, but left to him, and to him only; and (excepting the limits set him by natural Law) as entire, as in the condition of mere Nature, and of war of every one against his neighbour.

From the definition of Punishment, I infer, First, that neitherprivate revenges, nor injuries of private men, can properly be styled Punishment; because they proceed not from public Authority.

Secondly, that to be neglected, and unpreferred by the publicfavour, is not a Punishment; because no new evil is thereby on any man Inflicted; he is only left in the estate he was in before.

Thirdly, that the evil inflicted by public Authority, withoutprecedent public condemnation, is not to be styled by the name of Punishment; but of an hostile act; because the fact for which a man is Punished, ought first to be Judged by public Authority, to be a transgression of the Law.

Fourthly, that the evil inflicted by usurped power, and Judgeswithout Authority from the Sovereign, is not Punishment; but an act of hostility; because the acts of power usurped, have not for Author, the person condemned; and therefore are not acts of public Authority.

Fifthly, that all evil which is inflicted without intention, or possibilityof disposing the Delinquent, or (by his example) other men, to obey the Laws, is not Punishment; but an act of hostility; because without such an end, no hurt done is contained under that name.

Sixthly, whereas to certain actions, there be annexed by Nature,divers hurtful consequences; as when a man in assaulting another, is himself slain, or wounded; or when he falleth into sickness by the doing of some unlawful act; such hurt, though in respect of God, who is the author of Nature, it may be said to be inflicted, and therefore a Punishment divine; yet it is not contained in the name of Punishment in respect of men, because it is not inflicted by the Authority of man.

Seventhly, If the harm inflicted be less than the benefit, or contentmentthat naturally followeth the crime committed, that harm is not within the definition; and is rather the Price, or Redemption, than the Punishment of a Crime: Because it is of the nature of Punishment, to have for end, the disposing of men to obey the Law; which end (if it be less than the benefit of the transgression) it attaineth not, but worketh a contrary effect.

Eighthly, If a Punishment be determined and prescribed in the Law it self, and after the crime committed, there be a greater Punishment inflicted, the excess is not Punishment, but an act of hostility. For seeing the aim of Punishment is not a revenge, but terror; and the terror of a great Punishment unknown, is taken away by the declaration of a less, the unexpected addition is no part of the Punishment. But where there is no Punishment at all determined by the Law, there whatsoever is inflicted, hath the nature of Punishment. For he that goes about the violation of a Law, wherein no penalty is determined, expecteth an indeterminate, that is to say, an arbitrary Punishment.

Ninthly, Harm inflicted for a Fact done before there was a Lawthat forbad it, is not Punishment, but an act of Hostility: For before the Law, there is no transgression of the Law: But Punishment supposeth a fact judged, to have been a transgression of the Law; Therefore Harm inflicted before the Law made, is not Punishment, but an act of Hostility.

Tenthly, Hurt inflicted on the Representative of the Commonwealth,is not Punishment, but an act of Hostility: Because it is of the nature of Punishment, to be inflicted by public Authority, which is the Authority only of the Representative it self.

Lastly, Harm inflicted upon one that is a declared enemy, fallsnot under the name of Punishment: Because seeing they were either never subject to the Law, and therefore cannot transgress it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgress it, all the Harms that can be done them, must be taken as acts of Hostility. But in declared Hostility, all infliction of evil is lawful. From whence it followeth, that if a subject shall by fact, or word, wittingly, and deliberately deny the authority of the Representative of the Common-wealth, (whatsoever penalty hath been formerly ordained for Treason,) he may lawfully be made to suffer whatsoever the Representative will: For in denying subjection, he denies such Punishment as by the Law hath been ordained; and therefore suffers as an enemy of the Common-wealth; that is, according to the will of the Representative. For the Punishments set down in the Law, are to Subjects, not to Enemies; such as are they, that having been by their own act Subjects, deliberately revolting, deny the Sovereign Power.

The first, and most general distribution of Punishments, is into Divine, and Humane. Of the former I shall have occasion, to speak, in a more convenient place hereafter.

Humane, are those Punishments that be inflicted by the Commandment of Man; and are either Corporal, or Pecuniary, or Ignominy, or Imprisonment, or Exile, or mixed of these.

Corporal Punishment is that, which is inflicted on the body directly, and according to the intention of him that inflicteth it: such as are stripes, or wounds, or deprivation of such pleasures of the body, as were before lawfully enjoyed.

And of these, some be Capital, some Less than Capital. Capital,is the Infliction of Death; and that either simply, or with torment. Less than Capital, are Stripes, Wounds, Chains, and any other corporal Paine, not in its own nature mortal. For if upon the Infliction of a Punishment death follow not in the intention of the Inflicter, the Punishment is not to be esteemed Capital, though the harm prove mortal by an accident not to be foreseen; in which case death is not inflicted, but hastened.

Pecuniary Punishment, is that which consisteth not only in the deprivation of a Sum of Money, but also of Lands, or any other goods which are usually bought and sold for money. And in case the Law, that ordaineth such a punishment, be made with design to gather money, from such as shall transgress the same, it is not properly a Punishment, but the Price of privilege, and exemption from the Law, which doth not absolutely forbid the fact, but only to those that are not able to pay the money: except where the Law is Natural, or part of Religion; for in that case it is not an exemption from the Law, but a transgression of it. As where a Law exacteth a Pecuniary mulct, of them that take the name of God in vain, the payment of the mulct, is not the price of a dispensation to swear, but the Punishment of the transgression of a Law undispensable. In like manner if the Law impose a Sum of Money to be paid, to him that has been Injured; this is but a satisfaction for the hurt done him; and extinguisheth the accusation of the party injured, not the crime of the offender.

Ignominy, is the infliction of such Evil, as is made Dishonorable;or the deprivation of such Good, as is made Honourable by the Common-wealth. For there be some things Honorable by Nature; as the effects of Courage, Magnanimity, Strength, Wisdom, and other abilities of body and mind: Others made Honorable by the Common-wealth; as Badges, Titles, Offices, or any other singular mark of the Sovereigns favour. The former, (though they may fail by nature, or accident,) cannot be taken away by a Law; and therefore the loss of them is not Punishment. But the later, may be taken away by the public authority that made them Honorable, and are properly Punishments: Such are degrading men condemned, of their Badges, Titles, and Offices; or declaring them uncapable of the like in time to come.

Imprisonment, is when a man is by public Authority deprivedof liberty; and may happen from two divers ends; whereof one is the safe custody of a man accused; the other is the inflicting of paine on a man condemned. The former is not Punishment; because no man is supposed to be Punished, before he be Judicially heard, and declared guilty. And therefore whatsoever hurt a man is made to suffer by bonds, or restraint, before his cause be heard, over and above that which is necessary to assure his custody, is against the Law of Nature. But the later is Punishment, because Evil, and inflicted by public Authority, for somewhat that has by the same Authority been Judged a Transgression of the Law. Under this word Imprisonment, I comprehend all restraint of motion, caused by an external obstacle, be it a House, which is called by the general name of a Prison; or an Island, as when men are said to be confined to it; or a place where men are set to work, as in old time men have been condemned to Quarries, and in these times to Galleys; or be it a Chain, or any other such impediment.

Exile, (Banishment) is when a man is for a crime, condemnedto depart out of the dominion of the Common-wealth, or out of a certain part thereof; and during a prefixed time, or for ever, not to return into it: and seemeth not in its own nature, without other circumstances, to be a Punishment; but rather an escape, or a public commandment to avoid Punishment by flight. And Cicero says, there was never any such Punishment ordained in the City of Rome; but calls it a refuge of men in danger. For if a man banished, be nevertheless permitted to enjoy his Goods, and the Revenue of his Lands, the mere change of air is no Punishment; nor does it tend to that benefit of the Common-wealth, for which all Punishments are ordained, (that is to say, to the forming of men's wills to the observation of the Law;) but many times to the damage of the Common-wealth. For a Banished man, is a lawful enemy of the Common-wealth that banished him; as being no more a Member of the same. But if he be withal deprived of his Lands, or Goods, then the Punishment lieth not in the Exile, but is to be reckoned amongst Punishments Pecuniary.

All Punishments of Innocent subjects, be they great or little, areagainst the Law of Nature: For Punishment is only for Transgression of the Law, and therefore there can be no Punishment of the Innocent. It is therefore a violation, First, of that Law of Nature, which forbiddeth all men, in their Revenges, to look at any thing but some future good: For there can arrive no good to the Common-wealth, by Punishing the Innocent. Secondly, of that, which forbiddeth Ingratitude: For seeing all Sovereign Power, is originally given by the consent of every one of the Subjects, to the end they should as long as they are obedient, be protected thereby; the Punishment of the Innocent, is a rendering of Evil for Good. And thirdly, of the Law that commandeth Equity; that is to say, an equal distribution of Justice; which in Punishing the Innocent is not observed.

But the Infliction of what evil soever, on an Innocent man, thatis not a Subject, if it be for the benefit of the Common-wealth, and without violation of any former Covenant, is no breach of the Law of Nature. For all men that are not Subjects, are either Enemies, or else they have ceased from being so, by some precedent covenants. But against Enemies, whom the Common-wealth judgeth capable to do them hurt, it is lawful by the original Right of Nature to make war; wherein the Sword Judgeth not, nor doth the Victor make distinction of Nocent, and Innocent, as to the time past; nor has other respect of mercy, than as it conduceth to the good of hisown People. And upon this ground it is, that also in Subjects, who deliberately deny the Authority of the Common-wealth established, the vengeance is lawfully extended, not only to the Fathers, but also to the third and fourth generation not yet in being, and consequently innocent of the fact, for which they are afflicted: because the nature of this offence, consisteth in the renouncing of subjection; which is a relapse into the condition of war, commonly called Rebellion; and they that so offend, suffer not as Subjects, but as Enemies. For Rebellion, is but war renewed.

REWARD, is either of Gift, or by Contract. When by Contract,it is called Salary, and Wages; which is benefit due for service performed, or promised. When of Gift, it is benefit proceeding from the grace of them that bestow it, to encourage, or enable men to do them service. And therefore when the Sovereign of a Common wealth appointeth a Salary to any public Office, he that receiveth it, is bound in Justice to perform his office; otherwise, he is bound only in honour, to acknowledgement, and an endeavour of requital. For though men have no lawful remedy, when they be commanded to quit their private business, to serve the public, without Reward, or Salary; yet they are not bound thereto, by the Law of Nature, nor by the Institution of the Commonwealth, unless the service cannot otherwise be done; because it is supposed the Sovereign may make use of all their means, insomuch as the most common Soldier, may demand the wages of his warfare, as a debt.

The benefit which a Sovereign bestoweth on a Subject, for fear ofsome power, and ability he hath to do hurt to the Common-wealth, are not properly Rewards; for they are not Salaries; because there is in this case no contract supposed, every man being obliged already not to do the Common-wealth disservice: nor are they Graces; because they be extorted by fear, which ought not to be incident to the Sovereign Power: but are rather Sacrifices, which the Sovereign (considered in his natural person, and not in the person of the Common-wealth) makes, for the appeasing the discontent of him he thinks more potent than himself; and encourage not to obedience, but on the contrary, to the continuance, and increasing of further extortion.

And whereas some Salaries are certain, and proceed from the publicTreasure; and others uncertain, and casual, proceeding from the execution of the Office for which the Salary is ordained; the later is in some cases hurtful to the Common-wealth; as in the case of Judicature. For where the benefit of the Judges, and Ministers of a Court of Justice, ariseth for the multitude of Causes that are brought to their cognisance, there must needs follow two Inconveniences: One, is the nourishing of suits; for the more suits, the greater benefit: and another that depends on that, which is contention about Jurisdiction; each Court drawing to it self, as many Causes as it can. But in offices of Execution there are not those Inconveniences; because their employment cannot be increased by any endeavour of their own. And thus much shall suffice for the nature of Punishment, and Reward; which are, as it were, the Nerves and Tendons, that move the limbs and joints of a Common-wealth.

Hitherto I have set forth the nature of Man, (whose Pride and other Passions have compelled him to submit himself to Government;) together with the great power of his Governor, whom I compared to Leviathan, taking that comparison out of the two last verses of the one and fortieth of Job; where God having set forth the great power of Leviathan, calleth him King of the Proud. There is nothing, saith he, on earth, to be compared with him. He is made so as not to be afraid. He seeth every high thing below him; and is King of all the children of pride. But because he is mortal, and subject to decay, as all other Earthly creatures are; and because there is that in heaven, (though not on earth) that he should stand in fear of, and whose Laws he ought to obey; I shall in the next following Chapters speak of his Diseases, and the causes of his Mortality; and of what Laws of Nature he is bound to obey.