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.

CHAP. XXIX. Of those things that Weaken, or tend to the DISSOLUTION of a Common-wealth.

Though nothing can be immortal, which mortals make;yet, if men had the use of reason they pretend to, their Common-wealths might be secured, at least, from perishing by internal diseases. For by the nature of their Institution, they are designed to live, as long as Man-kind, or as the Laws of Nature, or as Justice it self, which gives them life. Therefore when they come to be dissolved, not by external violence, but intestine disorder, the fault is not in men, as they are the Matter; but as they are the Makers, and orderers of them. For men, as they become at last weary of irregular jostling, and hewing one another, and desire with all their hearts, to conform themselves into one firm and lasting edifice; so for want, both of the art of making fit Laws, to square their actions by, and also of humility, and patience, to suffer the rude and cumbersome points of their present greatness to be taken off, they cannot without the help of a very able Architect, be compiled, into any other than a crazy building, such as hardly lasting out their own time, must assuredly fall upon the heads of their posterity.

Amongst the Infirmities therefore of a Common-wealth, I will reckon in the first place, those that arise from an Imperfect Institution, and resemble the diseases of a natural body, which proceed from a Defectuous Procreation.

Of which, this is one, That a man to obtain a Kingdom, is sometimes content with less Power, than to the Peace, and defence of the Common-wealth is necessarily required. From whence it cometh to pass, that when the exercise of the Power laid by, is for the public safety to be resumed, it hath the resemblance of an unjust act; which disposeth great numbers of men (when occasion is presented) to rebel; In the same manner as the bodies of children, gotten by diseased parents, are subject either to untimely death, or to purge the ill quality, derived from their vicious conception, by breaking out into boils and scabs. And when Kings deny themselves some such necessary Power, it is not always (though sometimes) out of ignorance of what is necessary to the office they undertake; but many times out of a hope to recover the same again at their pleasure: Wherein they reason not well; because such as will hold them to their promises, shall be maintained against them by foreign Commonwealths; who in order to the good of their own Subjects let slip few occasions to weaken the estate of their Neighbours. So was Thomas Becket Archbishop of Canterbury, supported against Henry the Second, by the Pope; the subjection of Ecclesiastics to the Commonwealth, having been dispensed with by William the Conqueror at his reception, when he took an Oath, not to infringe the liberty of the Church. And so were the Barons, whose power was by William Rufus (to have their help in transferring the Succession from his Elder brother, to himself,) increased to a degree, inconsistent with the Sovereign Power, maintained in their Rebellion against King John, by the French.

Nor does this happen in Monarchy only. For whereas the stile of the ancient Roman Common-wealth, was, The Senate, and People of Rome; neither Senate, nor People pretended to the whole Power; which first caused the seditions, of Tiberius Gracchus, Caius Gracchus, Lucius Saturninus, and others; and afterwards the wars between the Senate and the People, under Marius and Sylla; and again under Pompey and Caesar, to the Extinction of their Democraty, and the setting up of Monarchy.

The people of Athens bound themselves but from one only Action; which was, that no man on pain of death should propound the renewing of the war for the Island of Salamis; And yet thereby, if Solon had not caused to be given out he was mad, and afterwards in gesture and habit of a mad-man, and in verse, propounded it to the People that flocked about him, they had had an enemy perpetually in readiness, even at the gates of their City; such damage, or shifts, are all Common-wealths forced to, that have their Power never so little limited.

In the second place, I observe the Diseases of a Common-wealth,that proceed from the poison of seditious doctrines; whereof one is, That every private man is Judge of Good and Evil actions. This is true in the condition of mere Nature, where there are no Civil Laws; and also under Civil Government, in such cases as are not determined by the Law. But otherwise, it is manifest, that the measure of Good and Evil actions, is the Civil Law; and the Judge the Legislator, who is always Representative of the Commonwealth. From this false doctrine, men are disposed to debate with themselves, and dispute the commands of the Common-wealth; and afterwards to obey, or disobey them, as in their private judgements they shall think fit. Whereby the Common-wealth is distracted and Weakened.

Another doctrine repugnant to Civil Society, is, that whatsoever a man does against his Conscience, is Sin; and it dependeth on the presumption of making himself judge of Good and Evil. For a man's Conscience, and his Judgement is the same thing; and as the Judgement, so also the Conscience may be erroneous. Therefore, thought he that is subject to no Civil Law, sinneth in all he does against his Conscience, because he has no other rule to follow but his own reason; yet it is not so with him that lives in a Common-wealth; because the Law is the public Conscience, by which he hath already undertaken to be guided. Otherwise in such diversity, as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power, farther than it shall seem good in his own eyes.

It hath been also commonly taught, That Faith and Sanctity, are not to be attained by Study and Reason, but by supernatural Inspiration, or Infusion. which granted, I see not why any man should render a reason of his Faith; or why every Christian should not be also a Prophet; or why any man should take the Law of his Country, rather than his own Inspiration, for the rule of his action. And thus we fall again into the fault of taking upon us to Judge of Good and Evil; or to make Judges of it, such private men as pretend to be supernaturally Inspired, to the Dissolution of all Civil Government. Faith comes by hearing, and hearing by those accidents, which guide us into the presence of them that speak to us; which accidents are all contrived by God Almighty; and yet are not supernatural, but only, for the great number of them that concur to every effect, unobservable. Faith, and Sanctity, are indeed not very frequent; but yet they are not Miracles, but brought to pass by education, discipline, correction, and other natural ways, by which God worketh them in his elect, at such time as he thinketh fit. And these three opinions, pernicious to Peace and Government, have in this part of the world, proceeded chiefly from the tongues, and pens of unlearned Divines; who joining the words of Holy Scripture together, otherwise than is agreeable to reason, do what they can, to make men think, that Sanctity and Natural Reason, cannot stand together.

A fourth opinion, repugnant to the nature of a Common-wealth,is this, That he that hath the Sovereign Power, is subject to the Civil Laws. It is true, that Sovereigns are all subject to the Laws of Nature; because such laws be Divine, and cannot by any man, or Common-wealth be abrogated. But to those Laws which the Sovereign himself, that is, which the Common-wealth maketh, he is not subject. For to be subject to Laws, is to be subject to the Commonwealth, that is to the Sovereign Representative, that is to himself; which is not subjection, but freedom from the Laws. Which error, because it setteth the Laws above the Sovereign, setteth also a Judge above him, and a Power to punish him; which is to make a new Sovereign; and again for the same reason a third, to punish the second; and so continually without end, to the Confusion, and Dissolution of the Common-wealth.

A Fifth doctrine, that tendeth to the Dissolution of a Commonwealth,is, That every private man has an absolute Propriety in his Goods; such, as excludeth the Right of the Sovereign. Every man has indeed a Propriety that excludes the Right of every other Subject: And he has it only from the Sovereign Power; without the protection whereof, every other man should have equal Right to the same. But if the Right of the Sovereign also be excluded, he cannot perform the office they have put him into; which is, to defend them both from foreign enemies, and from the injuries of one another; and consequently there is no longer a Common-wealth.

And if the Propriety of Subjects, exclude not the Right of the Sovereign Representative to their Goods; much less to their offices of Judicature, or Execution, in which they Represent the Sovereign himself.

There is a Sixth doctrine, plainly, and directly against the essenceof a Common-wealth; and 'tis this, That the Sovereign Power may be divided. For what is it to divide the Power of a Common-wealth, but to Dissolve it; for Powers divided mutually destroy each other. And for these doctrines, men are chiefly beholding to some of those, that making profession of the Laws, endeavour to make them depend upon their own learning, and not upon the Legislative Power.

And as False Doctrine, so also often-times the Example of differentGovernment in a neighbouring Nation, disposeth men to alteration of the form already settled. So the people of the Jews were stirred up to reject God, and to call upon the Prophet Samuel, for a King after the manner of the Nations: So also the lesser Cities of Greece, were continually disturbed, with seditions of the Aristocratical, and Democratical factions; one part of almost every Common-wealth, desiring to imitate the Lacedaemonians; the other, the Athenians. And I doubt not, but many men, have been contented to see the late troubles in England, out of an imitation of the Low Countries; supposing there needed no more to grow rich, than to change, as they had done, the form of their Government. For the constitution of man's nature, is of it self subject to desire novelty: When therefore they are provoked to the same, by the neighbourhood also of those that have been enriched by it, it is almost impossible for them, not to be content with those that solicit them to change; and love the first beginnings, though they be grieved with the continuance of disorder; like hot bloods, that having gotten the itch, tear themselves with their own nails, till they can endure the smart no longer.

And as to Rebellion in particular against Monarchy; one of themost frequent causes of it, is the Reading of the books of Policy, and Histories of the ancient Greeks, and Romans; from which, young men, and all others that are unprovided of the Antidote of solid Reason, receiving a strong, and delightful impression, of the great exploits of war, achieved by the Conductors of their Armies, receive withal a pleasing Idea, of all they have done besides; and imagine their great prosperity, not to have proceeded from the emulation of particular men, but from the virtue of their popular form of government: Not considering the frequent Seditions, and Civil wars, produced by the imperfection of their Policy. From the reading, I say, of such books, men have undertaken to kill their Kings, because the Greek and Latin writers, in their books, and discourses of Policy, make it lawful, and laudable, for any man so to do; provided before he do it, he call him Tyrant. For they say not Regicide, that is, killing of a King, but Tyrannicide, that is, killing of a Tyrant is lawful. From the same books, they that live under a Monarch conceive an opinion, that the Subjects in a Popular Common-wealth enjoy Liberty; but that in a Monarchy they are all Slaves. I say, they that live under a Monarchy conceive such an opinion; not they that live under a Popular Government: for they find no such matter. In sum, I cannot imagine, how any thing can be more prejudicial to a Monarchy, than the allowing of such books to be publicly read, without present applying such correctives of discreet Masters, as are fit to take away their Venom: Which Venom I will not doubt to compare to the biting of a mad Dog, which is a disease the Physicians call Hydrophobia, or fear of Water. For as he that is so bitten, has a continual torment of thirst, and yet abhorreth water; and is in such an estate, as if the poison endeavoured to convert him into a Dog: So when a Monarchy is once bitten to the quick, by those Democratical writers, that continually snarl at that estate; it wanteth nothing more than a strong Monarch, which nevertheless out of a certain Tyrannophobia, or fear of being strongly governed, when they have him, they abhor.

As there have been Doctors, that hold there be three Souls in a man; so there be also that think there may be more Souls, (that is, more Sovereigns,) than one, in a Common-wealth; and set up a Supremacy against the Sovereignty, Canons against Laws; and a Ghostly Authority against the Civil; working on men's minds, with words and distinctions, that of themselves signify nothing, but bewray (by their obscurity) that there walketh (as some think invisibly) another Kingdom, as it were a Kingdom of Fairies, in the dark. Now seeing it is manifest, that the Civil Power, and the Power of the Commonwealth is the same thing; and that Supremacy, and the Power of making (anons, and granting Faculties, implieth a Common-wealth; it followeth, that where one is Sovereign, another Supreme; where one can make Laws, and another make Canons; there must needs be two Common-wealths, of one & the same Subjects; which is a Kingdom divided in it self, and cannot stand. For notwithstanding the insignificant distinction of Temporal, and Ghostly, they are still two Kingdoms, and every Subject is subject to two Masters. For seeing the Ghostly Power challengeth the Right to declare what is Sin, it challengeth by consequence to declare what is Law, (Sin being nothing but the transgression of the Law;) and again, the Civil Power challenging to declare what is Law, every Subject must obey two Masters, who both will have their Commands be observed as Law; which is impossible. Or, if it be but one Kingdom, either the Civil, which is the Power of the Common-wealth, must be subordinate to the Ghostly, and then there is no Sovereignty but the Ghostly; or the Ghostly must be subordinate to the Temporal, and then there is no Supremacy but the Temporal. When therefore these two Powers oppose one another, the Common-wealth cannot but be in great danger of Civil war, and Dissolution. For the Civil Authority being more visible, and standing in the clearer light of natural reason cannot choose but draw to it in all times a very considerable part of the people: And the Spiritual, though it stand in the darkness of School distinctions, and hard words; yet because the fear of Darkness, and Ghosts, is greater than other fears, cannot want a party sufficient to Trouble, and sometimes to Destroy a Commonwealth. And this is a Disease which not unfitly may be compared to the Epilepsy, or Falling-sickness (which the Jews took to be one kind of possession by Spirits) in the Body Natural. For as in this Disease, there is an unnatural spirit, or wind in the head that obstructeth the roots of the Nerves, and moving them violently, taketh away the motion which naturally they should have from the power of the Soul in the Brain, and thereby causeth violent, and irregular motions (which men call Convulsions) in the parts; insomuch as he that is seized therewith, falleth down sometimes into the water, and sometimes into the fire, as a man deprived of his senses; so also in the Body Politic, when the Spiritual power, moveth the Members of a Common-wealth, by the terror of punishments, and hope of rewards (which are the Nerves of it,) otherwise than by the Civil Power (which is the Soul of the Common-wealth) they ought to be moved; and by strange, and hard words suffocates their understanding, it must needs thereby Distract the people, and either Overwhelm the Common-wealth with Oppression, or cast it into the Fire of a Civil war.

Sometimes also in the merely Civil government, there be morethan one Soul: As when the Power of levying money, (which is the Nutritive faculty,) has depended on a general Assembly; the Power of conduct and command, (which is the Motive faculty,) on one man; and the Power of making Laws, (which is the Rational faculty,) on the accidental consent, not only of those two, but also of a third; This endangereth the Common-wealth, sometimes for want of consent to good Laws; but most often for want of such Nourishment, as is necessary to Life, and Motion. For although few perceive, that such government, is not government, but division of the Common-wealth into three Factions, and call it mixed Monarchy; yet the truth is, that it is not one independent Common-wealth, but three independent Factions; nor one Representative Person, but three. In the Kingdom of God, there may be three Persons independent, without breach of unity in God that Reigneth; but where men Reign, that be subject to diversity of opinions, it cannot be so. And therefore if the King bear the person of the People, and the general Assembly bear also the person of the People, and another Assembly bear the person of a Part of the people, they are not one Person, nor one Sovereign, but three Persons, and three Sovereigns.

To what Disease in the Natural Body of man, I may exactly compare this irregularity of a Common-wealth, I know not. But I have seen a man, that had another man growing out of his side, with an head, arms, breast; and stomach, of his own: If he had had another man growing out of his other side, the comparison might then have been exact.

Hitherto I have named such Diseases of a Common-wealth, asare of the greatest, and most present danger. There be other, not so great; which nevertheless are not unfit to be observed. As first, the difficulty of raising Money, for the necessary uses of the Common-wealth; especially in the approach of war. This difficulty ariseth from the opinion, that every Subject hath of a Propriety in his lands and goods, exclusive of the Sovereigns Right to the use of the same. From whence it cometh to pass, that the Sovereign Power, which foreseeth the necessities and dangers of the Commonwealth, (finding the passage of money to the public Treasure obstructed, by the tenacity of the people,) whereas it ought to extend it self, to encounter, and prevent such dangers in their beginnings, contracteth it self as long as it can, and when it cannot longer, struggles with the people by stratagems of Law, to obtain little sums, which not sufficing, he is fain at last violently to open the way for present supply, or Perish; and being put often to these extremities, at last reduceth the people to their due temper; or else the Commonwealth must perish. Insomuch as we may compare this Distemper very aptly to an Ague; wherein, the fleshy parts being congealed, or by venomous matter obstructed; the Veins which by their natural course empty themselves into the Heart, are not (as they ought to be) supplied from the Arteries, whereby there succeedeth at first a cold contraction, and trembling of the limbs; and afterwards a hot, and strong endeavour of the Heart, to force a passage for the Blood; and before it can do that, contenteth it self with the small refreshments of such things as cool for a time, till (if Nature be strong enough) it break at last the contumacy of the parts obstructed, and dissipateth the venom into sweat; or (if Nature be too weak) the Patient dieth.

Again, there is sometimes in a Common-wealth, a Disease, whichresembleth the Pleurisy; and that is, when the Treasure of the Common-wealth, flowing out of its due course, is gathered together in too much abundance, in one, or a few private men, by Monopolies, or by Farms of the Public Revenues; in the same manner as the Blood in a Pleurisy, getting into the Membrane of the breast, breedeth there an Inflammation, accompanied with a Fever, and painful stitches.

Also, the Popularity of a potent Subject, (unless the Commonwealthhave very good caution of his fidelity,) is a dangerous Disease; because the people (which should receive their motion from the Authority of the Sovereign,) by the flattery, and by the reputation of an ambitious man, are drawn away from their obedience to the Laws, to follow a man, of whose virtues, and designs they have no knowledge. And this is commonly of more danger in a Popular Government, than in a Monarchy, because an Army is of so great force, and multitude, as it may easily be made believe, they are the People. By this means it was, that Julius Caesar, who was set up by the People against the Senate, having won to himself the affections of his Army, made himself Master, both of Senate and People. And this proceeding of popular, and ambitious men, is plain Rebellion; and may be resembled to the effects of Witchcraft.

Another infirmity of a Common-wealth, is the immoderategreatness of a Town, when it is able to furnish out of its own Circuit, the number, and expense of a great Army: As also the great number of Corporations; which are as it were many lesser Common-wealths in the bowels of a greater, like worms in the entrails of a natural man. To which may be added, the Liberty of Disputingagainst absolute Power, by pretenders to Political Prudence; which though bred for the most part in the Lees of the people; yet animated by False Doctrines, are perpetually meddling with the Fundamental Laws, to the molestation of the Common-wealth; like the little Worms, which Physicians call Ascarides.

We may further add, the insatiable appetite, or Bulimia, of enlarging Dominion; with the incurable Wounds thereby many times received from the enemy; And the Wens, of ununited conquests, which are many times a burden, and with less danger lost, than kept; As also the Lethargy of Ease, and Consumption of Riot and Vain Expense.

Lastly, when in a war (foreign, or intestine,) the enemies get afinal Victory; so as (the forces of the Common-wealth keeping the field no longer) there is no farther protection of Subjects in their loyalty; then is the Common-wealth DISSOLVED, and every man at liberty to protect himself by such courses as his own discretion shall suggest unto him. For the Sovereign, is the public Soul, giving Life and Motion to the Common-wealth; which expiring, the Members are governed by it no more, than the Carcass of a man, by his departed (though Immortal) Soul. For though the Right of a Sovereign Monarch cannot be extinguished by the act of another; yet the Obligation of the members may. For he that wants protection, may seek it any where; and when he hath it, is obliged (without fraudulent pretence of having submitted himself out of fear,) to protect his Protection as long as he is able. But when the Power of an Assembly is once suppressed, the Right of the same perisheth utterly; because the Assembly it self is extinct; and consequently, there is no possibility for the Sovereignty to re-enter.