No More Learning

But if he have no Power to elect his Successor, then there
is some other Man, or Assembly known, which after his decease may elect
a new, or else the Common-wealth dieth, and dissolveth with him, and
returneth to the condition of Warre. If it be known who have the power
to give the Soveraigntie after his death, it is known also that the
Soveraigntie was in them before: For none have right to give that which
they have not right to possesse, and keep to themselves, if they think
good. But if there be none that can give the Soveraigntie, after the
decease of him that was first elected; then has he power, nay he is
obliged by the Law of Nature, to provide, by establishing his Successor,
to keep those that had trusted him with the Government, from relapsing
into the miserable condition of Civill warre. And consequently he was,
when elected, a Soveraign absolute.

Secondly, that King whose power is limited, is not superiour to him, or
them that have the power to limit it; and he that is not superiour, is
not supreme; that is to say not Soveraign. The Soveraignty therefore
was alwaies in that Assembly which had the Right to Limit him; and
by consequence the government not Monarchy, but either Democracy, or
Aristocracy; as of old time in Sparta; where the Kings had a priviledge
to lead their Armies; but the Soveraignty was in the Ephori.

Thirdly, whereas heretofore the Roman People, governed the land of Judea
(for example) by a President; yet was not Judea therefore a Democracy;
because they were not governed by any Assembly, into which, any of
them, had right to enter; nor by an Aristocracy; because they were
not governed by any Assembly, into which, any man could enter by their
Election: but they were governed by one Person, which though as to the
people of Rome was an Assembly of the people, or Democracy; yet as to
the people of Judea, which had no right at all of participating in the
government, was a Monarch. For though where the people are governed
by an Assembly, chosen by themselves out of their own number, the
government is called a Democracy, or Aristocracy; yet when they are
governed by an Assembly, not of their own choosing, 'tis a Monarchy; not
of One man, over another man; but of one people, over another people.




Of The Right Of Succession

Of all these Formes of Government, the matter being mortall, so that not
onely Monarchs, but also whole Assemblies dy, it is necessary for the
conservation of the peace of men, that as there was order taken for
an Artificiall Man, so there be order also taken, for an Artificiall
Eternity of life; without which, men that are governed by an Assembly,
should return into the condition of Warre in every age; and they
that are governed by One man, as soon as their Governour dyeth. This
Artificiall Eternity, is that which men call the Right of Succession.

There is no perfect forme of Government, where the disposing of the
Succession is not in the present Soveraign. For if it be in any other
particular Man, or private Assembly, it is in a person subject, and may
be assumed by the Soveraign at his pleasure; and consequently the Right
is in himselfe. And if it be in no particular man, but left to a new
choyce; then is the Common-wealth dissolved; and the Right is in him
that can get it; contrary to the intention of them that did institute
the Common-wealth, for their perpetuall, and not temporary security.

In a Democracy, the whole Assembly cannot faile, unlesse the Multitude
that are to be governed faile. And therefore questions of the right of
Succession, have in that forme of Government no place at all.

In an Aristocracy, when any of the Assembly dyeth, the election of
another into his room belongeth to the Assembly, as the Soveraign, to
whom belongeth the choosing of all Counsellours, and Officers. For that
which the Representative doth, as Actor, every one of the Subjects doth,
as Author. And though the Soveraign assembly, may give Power to others,
to elect new men, for supply of their Court; yet it is still by their
Authority, that the Election is made; and by the same it may (when the
publique shall require it) be recalled.

The Present Monarch Hath Right To Dispose Of The Succession The greatest
difficultie about the right of Succession, is in Monarchy: And the
difficulty ariseth from this, that at first sight, it is not manifest
who is to appoint the Successor; nor many times, who it is whom he
hath appointed. For in both these cases, there is required a more exact
ratiocination, than every man is accustomed to use. As to the question,
who shall appoint the Successor, of a Monarch that hath the Soveraign
Authority; that is to say, (for Elective Kings and Princes have not the
Soveraign Power in propriety, but in use only,) we are to consider, that
either he that is in possession, has right to dispose of the Succession,
or else that right is again in the dissolved Multitude. For the death
of him that hath the Soveraign power in propriety, leaves the Multitude
without any Soveraign at all; that is, without any Representative in
whom they should be united, and be capable of doing any one action at
all: And therefore they are incapable of Election of any new Monarch;
every man having equall right to submit himselfe to such as he thinks
best able to protect him, or if he can, protect himselfe by his owne
sword; which is a returne to Confusion, and to the condition of a War of
every man against every man, contrary to the end for which Monarchy had
its first Institution. Therfore it is manifest, that by the Institution
of Monarchy, the disposing of the Successor, is alwaies left to the
Judgment and Will of the present Possessor.

And for the question (which may arise sometimes) who it is that the
Monarch in possession, hath designed to the succession and inheritance
of his power; it is determined by his expresse Words, and Testament; or
by other tacite signes sufficient.




Succession Passeth By Expresse Words;

By expresse Words, or Testament, when it is declared by him in his life
time, viva voce, or by Writing; as the first Emperours of Rome declared
who should be their Heires. For the word Heire does not of it selfe
imply the Children, or nearest Kindred of a man; but whomsoever a man
shall any way declare, he would have to succeed him in his Estate.
If therefore a Monarch declare expresly, that such a man shall be his
Heire, either by Word or Writing, then is that man immediately after the
decease of his Predecessor, Invested in the right of being Monarch.




Or, By Not Controlling A Custome;

But where Testament, and expresse Words are wanting, other naturall
signes of the Will are to be followed: whereof the one is Custome. And
therefore where the Custome is, that the next of Kindred absolutely
succeedeth, there also the next of Kindred hath right to the Succession;
for that, if the will of him that was in posession had been otherwise,
he might easily have declared the same in his life time. And likewise
where the Custome is, that the next of the Male Kindred succeedeth,
there also the right of Succession is in the next of the Kindred Male,
for the same reason. And so it is if the Custome were to advance the
Female. For whatsoever Custome a man may by a word controule, and does
not, it is a naturall signe he would have that Custome stand.




Or, By Presumption Of Naturall Affection

But where neither Custome, nor Testament hath preceded, there it is
to be understood, First, that a Monarchs will is, that the government
remain Monarchicall; because he hath approved that government in
himselfe. Secondly, that a Child of his own, Male, or Female, be
preferred before any other; because men are presumed to be more enclined
by nature, to advance their own children, than the children of other
men; and of their own, rather a Male than a Female; because men, are
naturally fitter than women, for actions of labour and danger. Thirdly,
where his own Issue faileth, rather a Brother than a stranger; and so
still the neerer in bloud, rather than the more remote, because it is
alwayes presumed that the neerer of kin, is the neerer in affection; and
'tis evident that a man receives alwayes, by reflexion, the most honour
from the greatnesse of his neerest kindred.




To Dispose Of The Succession, Though To A King Of Another Nation,

Not Unlawfull

But if it be lawfull for a Monarch to dispose of the Succession by words
of Contract, or Testament, men may perhaps object a great inconvenience:
for he may sell, or give his Right of governing to a stranger; which,
because strangers (that is, men not used to live under the same
government, not speaking the same language) do commonly undervalue one
another, may turn to the oppression of his Subjects; which is indeed
a great inconvenience; but it proceedeth not necessarily from the
subjection to a strangers government, but from the unskilfulnesse of the
Governours, ignorant of the true rules of Politiques. And therefore
the Romans when they had subdued many Nations, to make their Government
digestible, were wont to take away that grievance, as much as they
thought necessary, by giving sometimes to whole Nations, and sometimes
to Principall men of every Nation they conquered, not onely the
Privileges, but also the Name of Romans; and took many of them into the
Senate, and Offices of charge, even in the Roman City. And this was it
our most wise King, King James, aymed at, in endeavouring the Union of
his two Realms of England and Scotland. Which if he could have obtained,
had in all likelihood prevented the Civill warres, which make both those
Kingdomes at this present, miserable. It is not therefore any injury to
the people, for a Monarch to dispose of the Succession by Will; though
by the fault of many Princes, it hath been sometimes found inconvenient.
Of the lawfulnesse of it, this also is an argument, that whatsoever
inconvenience can arrive by giving a Kingdome to a stranger, may arrive
also by so marrying with strangers, as the Right of Succession may
descend upon them: yet this by all men is accounted lawfull.



CHAPTER XX. OF DOMINION PATERNALL AND DESPOTICALL


A Common-wealth by Acquisition, is that, where the Soveraign Power is
acquired by Force; And it is acquired by force, when men singly, or
many together by plurality of voyces, for fear of death, or bonds, do
authorise all the actions of that Man, or Assembly, that hath their
lives and liberty in his Power.




Wherein Different From A Common-wealth By Institution

And this kind of Dominion, or Soveraignty, differeth from Soveraignty by
Institution, onely in this, That men who choose their Soveraign, do it
for fear of one another, and not of him whom they Institute: But in this
case, they subject themselves, to him they are afraid of. In both cases
they do it for fear: which is to be noted by them, that hold all such
Covenants, as proceed from fear of death, or violence, voyd: which if
it were true, no man, in any kind of Common-wealth, could be obliged
to Obedience. It is true, that in a Common-wealth once Instituted, or
acquired, Promises proceeding from fear of death, or violence, are no
Covenants, nor obliging, when the thing promised is contrary to the
Lawes; But the reason is not, because it was made upon fear, but because
he that promiseth, hath no right in the thing promised. Also, when he
may lawfully performe, and doth not, it is not the Invalidity of
the Covenant, that absolveth him, but the Sentence of the Soveraign.
Otherwise, whensoever a man lawfully promiseth, he unlawfully breaketh:
But when the Soveraign, who is the Actor, acquitteth him, then he is
acquitted by him that exorted the promise, as by the Author of such
absolution.




The Rights Of Soveraignty The Same In Both

But the Rights, and Consequences of Soveraignty, are the same in both.
His Power cannot, without his consent, be Transferred to another: He
cannot Forfeit it: He cannot be Accused by any of his Subjects, of
Injury: He cannot be Punished by them: He is Judge of what is necessary
for Peace; and Judge of Doctrines: He is Sole Legislator; and Supreme
Judge of Controversies; and of the Times, and Occasions of Warre,
and Peace: to him it belongeth to choose Magistrates, Counsellours,
Commanders, and all other Officers, and Ministers; and to determine of
Rewards, and punishments, Honour, and Order. The reasons whereof, are
the same which are alledged in the precedent Chapter, for the same
Rights, and Consequences of Soveraignty by Institution.




Dominion Paternall How Attained Not By Generation, But By Contract

Dominion is acquired two wayes; By Generation, and by Conquest. The
right of Dominion by Generation, is that, which the Parent hath over
his Children; and is called PATERNALL. And is not so derived from the
Generation, as if therefore the Parent had Dominion over his Child
because he begat him; but from the Childs Consent, either expresse, or
by other sufficient arguments declared. For as to the Generation, God
hath ordained to man a helper; and there be alwayes two that are equally
Parents: the Dominion therefore over the Child, should belong equally to
both; and he be equally subject to both, which is impossible; for no man
can obey two Masters. And whereas some have attributed the Dominion to
the Man onely, as being of the more excellent Sex; they misreckon in it.
For there is not always that difference of strength or prudence between
the man and the woman, as that the right can be determined without War.
In Common-wealths, this controversie is decided by the Civill Law: and
for the most part, (but not alwayes) the sentence is in favour of the
Father; because for the most part Common-wealths have been erected by
the Fathers, not by the Mothers of families. But the question lyeth
now in the state of meer Nature; where there are supposed no lawes
of Matrimony; no lawes for the Education of Children; but the Law of
Nature, and the naturall inclination of the Sexes, one to another, and
to their children. In this condition of meer Nature, either the Parents
between themselves dispose of the dominion over the Child by Contract;
or do not dispose thereof at all. If they dispose thereof, the right
passeth according to the Contract. We find in History that the Amazons
Contracted with the Men of the neighbouring Countries, to whom they had
recourse for issue, that the issue Male should be sent back, but the
Female remain with themselves: so that the dominion of the Females was
in the Mother.




Or Education;

If there be no Contract, the Dominion is in the Mother. For in the
condition of Meer Nature, where there are no Matrimoniall lawes, it
cannot be known who is the Father, unlesse it be declared by the Mother:
and therefore the right of Dominion over the Child dependeth on her
will, and is consequently hers. Again, seeing the Infant is first in the
power of the Mother; so as she may either nourish, or expose it, if she
nourish it, it oweth its life to the Mother; and is therefore obliged to
obey her, rather than any other; and by consequence the Dominion over
it is hers. But if she expose it, and another find, and nourish it, the
Dominion is in him that nourisheth it. For it ought to obey him by whom
it is preserved; because preservation of life being the end, for which
one man becomes subject to another, every man is supposed to promise
obedience, to him, in whose power it is to save, or destroy him.




Or Precedent Subjection Of One Of The Parents To The Other

If the Mother be the Fathers subject, the Child, is in the Fathers
power: and if the Father be the Mothers subject, (as when a Soveraign
Queen marrieth one of her subjects,) the Child is subject to the Mother;
because the Father also is her subject.

If a man and a woman, Monarches of two severall Kingdomes, have a Child,
and contract concerning who shall have the Dominion of him, the Right of
the Dominion passeth by the Contract. If they contract not, the Dominion
followeth the Dominion of the place of his residence. For the Soveraign
of each Country hath Dominion over all that reside therein.

He that hath the Dominion over the Child, hath Dominion also over their
Childrens Children. For he that hath Dominion over the person of a man,
hath Dominion over all that is his; without which, Dominion were but a
Title, without the effect.




The Right Of Succession Followeth The Rules Of The Rights Of Possession

The Right of Succession to Paternall dominion, proceedeth in the same
manner, as doth the Right of Succession to Monarchy; of which I have
already sufficiently spoken in the precedent chapter.




Despoticall Dominion, How Attained

Dominion acquired by Conquest, or Victory in war, is that which some
Writers call DESPOTICALL, from Despotes, which signifieth a Lord, or
Master; and is the Dominion of the Master over his Servant. And this
Dominion is then acquired to the Victor, when the Vanquished, to avoyd
the present stroke of death, covenanteth either in expresse words, or by
other sufficient signes of the Will, that so long as his life, and
the liberty of his body is allowed him, the Victor shall have the use
thereof, at his pleasure. And after such Covenant made, the Vanquished
is a SERVANT, and not before: for by the word Servant (whether it be
derived from Servire, to Serve, or from Servare, to Save, which I leave
to Grammarians to dispute) is not meant a Captive, which is kept in
prison, or bonds, till the owner of him that took him, or bought him
of one that did, shall consider what to do with him: (for such men,
(commonly called Slaves,) have no obligation at all; but may break their
bonds, or the prison; and kill, or carry away captive their Master,
justly:) but one, that being taken, hath corporall liberty allowed him;
and upon promise not to run away, nor to do violence to his Master, is
trusted by him.




Not By The Victory, But By The Consent Of The Vanquished

It is not therefore the Victory, that giveth the right of Dominion over
the Vanquished, but his own Covenant. Nor is he obliged because he is
Conquered; that is to say, beaten, and taken, or put to flight; but
because he commeth in, and submitteth to the Victor; Nor is the Victor
obliged by an enemies rendring himselfe, (without promise of life,) to
spare him for this his yeelding to discretion; which obliges not the
Victor longer, than in his own discretion hee shall think fit.

And that men do, when they demand (as it is now called) Quarter, (which
the Greeks called Zogria, taking alive,) is to evade the present fury of
the Victor, by Submission, and to compound for their life, with Ransome,
or Service: and therefore he that hath Quarter, hath not his life given,
but deferred till farther deliberation; For it is not an yeelding on
condition of life, but to discretion. And then onely is his life in
security, and his service due, when the Victor hath trusted him with his
corporall liberty. For Slaves that work in Prisons, or Fetters, do it
not of duty, but to avoyd the cruelty of their task-masters.

The Master of the Servant, is Master also of all he hath; and may exact
the use thereof; that is to say, of his goods, of his labour, of his
servants, and of his children, as often as he shall think fit. For he
holdeth his life of his Master, by the covenant of obedience; that is,
of owning, and authorising whatsoever the Master shall do. And in case
the Master, if he refuse, kill him, or cast him into bonds, or otherwise
punish him for his disobedience, he is himselfe the author of the same;
and cannot accuse him of injury.

In summe the Rights and Consequences of both Paternall and Despoticall
Dominion, are the very same with those of a Soveraign by Institution;
and for the same reasons: which reasons are set down in the precedent
chapter. So that for a man that is Monarch of divers Nations, whereof he
hath, in one the Soveraignty by Institution of the people assembled, and
in another by Conquest, that is by the Submission of each particular,
to avoyd death or bonds; to demand of one Nation more than of the other,
from the title of Conquest, as being a Conquered Nation, is an act of
ignorance of the Rights of Soveraignty. For the Soveraign is absolute
over both alike; or else there is no Soveraignty at all; and so every
man may Lawfully protect himselfe, if he can, with his own sword, which
is the condition of war.




Difference Between A Family And A Kingdom

By this it appears, that a great Family if it be not part of some
Common-wealth, is of it self, as to the Rights of Soveraignty, a little
Monarchy; whether that Family consist of a man and his children; or of
a man and his servants; or of a man, and his children, and servants
together: wherein the Father of Master is the Soveraign. But yet a
Family is not properly a Common-wealth; unlesse it be of that power by
its own number, or by other opportunities, as not to be subdued without
the hazard of war. For where a number of men are manifestly too weak to
defend themselves united, every one may use his own reason in time of
danger, to save his own life, either by flight, or by submission to
the enemy, as hee shall think best; in the same manner as a very small
company of souldiers, surprised by an army, may cast down their armes,
and demand quarter, or run away, rather than be put to the sword. And
thus much shall suffice; concerning what I find by speculation, and
deduction, of Soveraign Rights, from the nature, need, and designes
of men, in erecting of Commonwealths, and putting themselves under
Monarchs, or Assemblies, entrusted with power enough for their
protection.




The Right Of Monarchy From Scripture

Let us now consider what the Scripture teacheth in the same point. To
Moses, the children of Israel say thus. (Exod. 20. 19) "Speak thou to
us, and we will heare thee; but let not God speak to us, lest we dye. "
This is absolute obedience to Moses. Concerning the Right of Kings, God
himself by the mouth of Samuel, saith, (1 Sam. 8. 11, 12, &c. ) "This
shall be the Right of the King you will have to reigne over you. He
shall take your sons, and set them to drive his Chariots, and to be his
horsemen, and to run before his chariots; and gather in his harvest; and
to make his engines of War, and Instruments of his chariots; and shall
take your daughters to make perfumes, to be his Cookes, and Bakers. He
shall take your fields, your vine-yards, and your olive-yards, and give
them to his servants. He shall take the tyth of your corne and wine, and
give it to the men of his chamber, and to his other servants. He shall
take your man-servants, and your maid-servants, and the choice of your
youth, and employ them in his businesse. He shall take the tyth of your
flocks; and you shall be his servants. " This is absolute power, and
summed up in the last words, "you shall be his servants. " Againe, when
the people heard what power their King was to have, yet they consented
thereto, and say thus, (Verse. 19 &c. ) "We will be as all other nations,
and our King shall judge our causes, and goe before us, to conduct our
wars. " Here is confirmed the Right that Soveraigns have, both to the
Militia, and to all Judicature; in which is conteined as absolute power,
as one man can possibly transferre to another. Again, the prayer of
King Salomon to God, was this. (1 Kings 3. 9) "Give to thy servant
understanding, to judge thy people, and to discerne between Good and
Evill. " It belongeth therefore to the Soveraigne to bee Judge, and
to praescribe the Rules of Discerning Good and Evill; which Rules are
Lawes; and therefore in him is the Legislative Power. Saul sought
the life of David; yet when it was in his power to slay Saul, and his
Servants would have done it, David forbad them, saying (1 Sam. 24. 9)
"God forbid I should do such an act against my Lord, the anoynted of
God. " For obedience of servants St. Paul saith, (Coll. 3. 20) "Servants
obey your masters in All things," and, (Verse. 22) "Children obey your
Parents in All things. " There is simple obedience in those that are
subject to Paternall, or Despoticall Dominion. Again, (Math. 23. 2,3)
"The Scribes and Pharisees sit in Moses chayre and therefore All that
they shall bid you observe, that observe and do. " There again is simple
obedience. And St. Paul, (Tit. 3. 2) "Warn them that they subject
themselves to Princes, and to those that are in Authority, & obey
them. " This obedience is also simple. Lastly, our Saviour himselfe
acknowledges, that men ought to pay such taxes as are by Kings imposed,
where he sayes, "Give to Caesar that which is Caesars;" and payed such
taxes himselfe. And that the Kings word, is sufficient to take any thing
from any subject, when there is need; and that the King is Judge of that
need: For he himselfe, as King of the Jewes, commanded his Disciples to
take the Asse, and Asses Colt to carry him into Jerusalem, saying, (Mat.
21. 2,3) "Go into the Village over against you, and you shall find a
shee Asse tyed, and her Colt with her, unty them, and bring them to me.
And if any man ask you, what you mean by it, Say the Lord hath need
of them: And they will let them go. " They will not ask whether his
necessity be a sufficient title; nor whether he be judge of that
necessity; but acquiesce in the will of the Lord.

To these places may be added also that of Genesis, (Gen. 3. 5) "You
shall be as Gods, knowing Good and Evill. " and verse 11. "Who told thee
that thou wast naked? hast thou eaten of the tree, of which I commanded
thee thou shouldest not eat? " For the Cognisance of Judicature of Good
and Evill, being forbidden by the name of the fruit of the tree of
Knowledge, as a triall of Adams obedience; The Divell to enflame the
Ambition of the woman, to whom that fruit already seemed beautifull,
told her that by tasting it, they should be as Gods, knowing Good and
Evill. Whereupon having both eaten, they did indeed take upon them
Gods office, which is Judicature of Good and Evill; but acquired no new
ability to distinguish between them aright. And whereas it is sayd, that
having eaten, they saw they were naked; no man hath so interpreted that
place, as if they had formerly blind, as saw not their own skins: the
meaning is plain, that it was then they first judged their nakednesse
(wherein it was Gods will to create them) to be uncomely; and by being
ashamed, did tacitely censure God himselfe. And thereupon God saith,
"Hast thou eaten, &c. " as if he should say, doest thou that owest me
obedience, take upon thee to judge of my Commandements? Whereby it is
cleerly, (though Allegorically,) signified, that the Commands of
them that have the right to command, are not by their Subjects to be
censured, nor disputed.




Soveraign Power Ought In All Common-wealths To Be Absolute

So it appeareth plainly, to my understanding, both from Reason, and
Scripture, that the Soveraign Power, whether placed in One Man, as in
Monarchy, or in one Assembly of men, as in Popular, and Aristocraticall
Common-wealths, is as great, as possibly men can be imagined to make
it. And though of so unlimited a Power, men may fancy many evill
consequences, yet the consequences of the want of it, which is
perpetuall warre of every man against his neighbour, are much worse. The
condition of man in this life shall never be without Inconveniences; but
there happeneth in no Common-wealth any great Inconvenience, but what
proceeds from the Subjects disobedience, and breach of those Covenants,
from which the Common-wealth had its being. And whosoever thinking
Soveraign Power too great, will seek to make it lesse; must subject
himselfe, to the Power, that can limit it; that is to say, to a greater.

The greatest objection is, that of the Practise; when men ask, where,
and when, such Power has by Subjects been acknowledged. But one may
ask them again, when, or where has there been a Kingdome long free from
Sedition and Civill Warre. In those Nations, whose Common-wealths have
been long-lived, and not been destroyed, but by forraign warre, the
Subjects never did dispute of the Soveraign Power. But howsoever, an
argument for the Practise of men, that have not sifted to the bottom,
and with exact reason weighed the causes, and nature of Common-wealths,
and suffer daily those miseries, that proceed from the ignorance
thereof, is invalid. For though in all places of the world, men should
lay the foundation of their houses on the sand, it could not thence be
inferred, that so it ought to be. The skill of making, and maintaining
Common-wealths, consisteth in certain Rules, as doth Arithmetique and
Geometry; not (as Tennis-play) on Practise onely: which Rules, neither
poor men have the leisure, nor men that have had the leisure, have
hitherto had the curiosity, or the method to find out.



CHAPTER XXI. OF THE LIBERTY OF SUBJECTS




Liberty What

Liberty, or FREEDOME, signifieth (properly) the absence of Opposition;
(by Opposition, I mean externall Impediments of motion;) and may
be applyed no lesse to Irrational, and Inanimate creatures, than to
Rationall. For whatsoever is so tyed, or environed, as it cannot move,
but within a certain space, which space is determined by the opposition
of some externall body, we say it hath not Liberty to go further. And
so of all living creatures, whilest they are imprisoned, or restrained,
with walls, or chayns; and of the water whilest it is kept in by banks,
or vessels, that otherwise would spread it selfe into a larger space, we
use to say, they are not at Liberty, to move in such manner, as without
those externall impediments they would. But when the impediment of
motion, is in the constitution of the thing it selfe, we use not to
say, it wants the Liberty; but the Power to move; as when a stone lyeth
still, or a man is fastned to his bed by sicknesse.




What It Is To Be Free

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




Feare And Liberty Consistent

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




Liberty And Necessity Consistent

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




Artificiall Bonds, Or Covenants

But as men, for the atteyning of peace, and conservation of themselves
thereby, have made an Artificiall Man, which we call a Common-wealth; so
also have they made Artificiall Chains, called Civill Lawes, which they
themselves, by mutuall covenants, have fastned at one end, to the lips
of that Man, or Assembly, to whom they have given the Soveraigne Power;
and at the other end to their own Ears. These Bonds in their own nature
but weak, may neverthelesse be made to hold, by the danger, though not
by the difficulty of breaking them.




Liberty Of Subjects Consisteth In Liberty From Covenants

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




Liberty Of The Subject Consistent With Unlimited Power Of The Soveraign

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




The Liberty Which Writers Praise, Is The Liberty Of Soveraigns;

Not Of Private Men

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

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




Liberty Of The Subject How To Be Measured

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




Subjects Have Liberty To Defend Their Own Bodies,

Even Against Them That Lawfully Invade Them

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




Are Not Bound To Hurt Themselves;

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

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

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

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




Nor To Warfare, Unless They Voluntarily Undertake It

Upon this ground, a man that is commanded as a Souldier to fight against
the enemy, though his Soveraign have Right enough to punish his refusall
with death, may neverthelesse in many cases refuse, without Injustice;
as when he substituteth a sufficient Souldier in his place: for in this
case he deserteth not the service of the Common-wealth. And there is
allowance to be made for naturall timorousnesse, not onely to women, (of
whom no such dangerous duty is expected,) but also to men of feminine
courage. When Armies fight, there is on one side, or both, a running
away; yet when they do it not out of trechery, but fear, they are not
esteemed to do it unjustly, but dishonourably. For the same reason, to
avoyd battell, is not Injustice, but Cowardise. But he that inrowleth
himselfe a Souldier, or taketh imprest mony, taketh away the excuse of
a timorous nature; and is obliged, not onely to go to the battell,
but also not to run from it, without his Captaines leave. And when the
Defence of the Common-wealth, requireth at once the help of all that
are able to bear Arms, every one is obliged; because otherwise the
Institution of the Common-wealth, which they have not the purpose, or
courage to preserve, was in vain.

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




The Greatest Liberty Of Subjects, Dependeth On The Silence Of The Law


As for other Lyberties, they depend on the silence of the Law. In cases
where the Soveraign has prescribed no rule, there the Subject hath
the liberty to do, or forbeare, according to his own discretion. And
therefore such Liberty is in some places more, and in some lesse; and in
some times more, in other times lesse, according as they that have the
Soveraignty shall think most convenient. As for Example, there was
a time, when in England a man might enter in to his own Land,
(and dispossesse such as wrongfully possessed it) by force. But in
after-times, that Liberty of Forcible entry, was taken away by a Statute
made (by the King) in Parliament. And is some places of the world, men
have the Liberty of many wives: in other places, such Liberty is not
allowed.

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

If a Monarch, or Soveraign Assembly, grant a Liberty to all, or any of
his Subjects; which Grant standing, he is disabled to provide for their
safety, the Grant is voyd; unlesse he directly renounce, or transferre
the Soveraignty to another. For in that he might openly, (if it had been
his will,) and in plain termes, have renounced, or transferred it, and
did not; it is to be understood it was not his will; but that the Grant
proceeded from ignorance of the repugnancy between such a Liberty and
the Soveraign Power; and therefore the Soveraignty is still retayned;
and consequently all those Powers, which are necessary to the exercising
thereof; such as are the Power of Warre, and Peace, of Judicature, of
appointing Officers, and Councellours, of levying Mony, and the rest
named in the 18th Chapter.




In What Cases Subjects Absolved Of Their Obedience To Their Soveraign

The Obligation of Subjects to the Soveraign is understood to last as
long, and no longer, than the power lasteth, by which he is able to
protect them. For the right men have by Nature to protect themselves,
when none else can protect them, can by no Covenant be relinquished. The
Soveraignty is the Soule of the Common-wealth; which once departed from
the Body, the members doe no more receive their motion from it. The end
of Obedience is Protection; which, wheresoever a man seeth it, either in
his own, or in anothers sword, Nature applyeth his obedience to it, and
his endeavour to maintaine it. And though Soveraignty, in the intention
of them that make it, be immortall; yet is it in its own nature, not
only subject to violent death, by forreign war; but also through
the ignorance, and passions of men, it hath in it, from the very
institution, many seeds of a naturall mortality, by Intestine Discord.




In Case Of Captivity

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




In Case The Soveraign Cast Off The Government From Himself And Heyrs

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




In Case Of Banishment

If the Soveraign Banish his Subject; during the Banishment, he is not
Subject. But he that is sent on a message, or hath leave to travell, is
still Subject; but it is, by Contract between Soveraigns, not by vertue
of the covenant of Subjection. For whosoever entreth into anothers
dominion, is Subject to all the Lawes thereof; unless he have a
privilege by the amity of the Soveraigns, or by speciall licence.




In Case The Soveraign Render Himself Subject To Another

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



CHAPTER XXII. OF SYSTEMES SUBJECT, POLITICALL, AND PRIVATE




The Divers Sorts Of Systemes Of People

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

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

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

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




In All Bodies Politique The Power Of The Representative Is Limited

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

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




By Letters Patents

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




And The Lawes

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




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

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




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

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

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

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




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

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




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

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




Protestation Against The Decrees Of Bodies Politique

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




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

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

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




Bodies Politique For Ordering Of Trade

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

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

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

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

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

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

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




A Bodie Politique For Counsel To Be Give To The Soveraign

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




A Regular Private Body, Lawfull, As A Family

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




Private Bodies Regular, But Unlawfull

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




Systemes Irregular, Such As Are Private Leagues

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

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




Secret Cabals

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




Feuds Of Private Families

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




Factions For Government

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

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

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



CHAPTER XXIII. OF THE PUBLIQUE MINISTERS OF SOVERAIGN POWER


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




Publique Minister Who

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




Ministers For The Generall Administration

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




For Speciall Administration, As For Oeconomy

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

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




For Instruction Of The People

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




For Judicature

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

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