No More Learning

For if he should have Authority from his Letters,
to make the members pay what he borroweth, he should have by consequence
the Soveraignty of them; and therefore the grant were either voyd,
as proceeding from Errour, commonly incident to humane Nature, and an
unsufficient signe of the will of the Granter; or if it be avowed
by him, then is the Representer Soveraign, and falleth not under the
present question, which is onely of Bodies subordinate. No member
therefore is obliged to pay the debt so borrowed, but the Representative
himselfe: because he that lendeth it, being a stranger to the Letters,
and to the qualification of the Body, understandeth those onely for
his debtors, that are engaged; and seeing the Representer can ingage
himselfe, and none else, has him onely for Debtor; who must therefore
pay him, out of the common stock (if there be any), or (if there be
none) out of his own estate.

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




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

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




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

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




Protestation Against The Decrees Of Bodies Politique

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




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

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

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




Bodies Politique For Ordering Of Trade

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

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

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

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

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

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

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




A Bodie Politique For Counsel To Be Give To The Soveraign

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




A Regular Private Body, Lawfull, As A Family

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




Private Bodies Regular, But Unlawfull

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




Systemes Irregular, Such As Are Private Leagues

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

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




Secret Cabals

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




Feuds Of Private Families

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




Factions For Government

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

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

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



CHAPTER XXIII. OF THE PUBLIQUE MINISTERS OF SOVERAIGN POWER


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




Publique Minister Who

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




Ministers For The Generall Administration

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




For Speciall Administration, As For Oeconomy

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

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




For Instruction Of The People

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




For Judicature

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

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

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




For Execution

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

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

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




Counsellers Without Other Employment Then To Advise

Are Not Publique Ministers

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



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



The Nourishment Of A Common-wealth Consisteth In The Commodities

Of Sea And Land

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

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

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

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




And The Right Of Distribution Of Them

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




All Private Estates Of Land Proceed Originally

From The Arbitrary Distribution Of The Soveraign

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




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

But Onely Of Another Subject

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




The Publique Is Not To Be Dieted

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




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

On The Soveraign

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




The Laws Of Transferring Property Belong Also To The Soveraign

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




Mony The Bloud Of A Common-wealth

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

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




The Conduits And Way Of Mony To The Publique Use

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




The Children Of A Common-wealth Colonies

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



CHAPTER XXV. OF COUNSELL




Counsell What

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




Differences Between Command And Counsell

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

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

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

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




Exhortation And Dehortation What

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

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

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

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




Differences Of Fit And Unfit Counsellours

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

Secondly, Because the office of a Counsellour, when an action comes
into deliberation, is to make manifest the consequences of it, in such
manner, as he that is Counselled may be truly and evidently informed; he
ought to propound his advise, in such forme of speech, as may make
the truth most evidently appear; that is to say, with as firme
ratiocination, as significant and proper language, and as briefly, as
the evidence will permit. And therefore Rash, And Unevident Inferences;
(such as are fetched onely from Examples, or authority of Books, and are
not arguments of what is good, or evill, but witnesses of fact, or
of opinion,) Obscure, Confused, And Ambiguous Expressions, Also All
Metaphoricall Speeches, Tending To The Stirring Up Of Passion, (because
such reasoning, and such expressions, are usefull onely to deceive, or
to lead him we Counsell towards other ends than his own) Are Repugnant
To The Office Of A Counsellour.
Thirdly, Because the Ability of Counselling proceedeth from Experience,
and long study; and no man is presumed to have experience in all those
things that to the Administration of a great Common-wealth are necessary
to be known, No Man Is Presumed To Be A Good Counsellour, But In Such
Businesse, As He Hath Not Onely Been Much Versed In, But Hath Also
Much Meditated On, And Considered. For seeing the businesse of a
Common-wealth is this, to preserve the people at home, and defend them
against forraign Invasion, we shall find, it requires great knowledge
of the disposition of Man-kind, of the Rights of Government, and of the
nature of Equity, Law, Justice, and Honour, not to be attained without
study; And of the Strength, Commodities, Places, both of their own
Country, and their Neighbours; as also of the inclinations, and designes
of all Nations that may any way annoy them. And this is not attained to,
without much experience. Of which things, not onely the whole summe, but
every one of the particulars requires the age, and observation of a man
in years, and of more than ordinary study. The wit required for Counsel,
as I have said before is Judgement. And the differences of men in that
point come from different education, of some to one kind of study, or
businesse, and of others to another. When for the doing of any thing,
there be Infallible rules, (as in Engines, and Edifices, the rules of
Geometry,) all the experience of the world cannot equall his Counsell,
that has learnt, or found out the Rule. And when there is no such Rule,
he that hath most experience in that particular kind of businesse, has
therein the best Judgement, and is the best Counsellour.

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

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

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



CHAPTER XXVI. OF CIVILL LAWES




Civill Law what

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

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

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

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




The Soveraign Is Legislator

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




And Not Subject To Civill Law

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




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

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




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

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




Provinciall Lawes Are Not Made By Custome, But By The Soveraign Power

5. If the Soveraign of one Common-wealth, subdue a people that have
lived under other written Lawes, and afterwards govern them by the
same Lawes, by which they were governed before; yet those Lawes are the
Civill Lawes of the Victor, and not of the Vanquished Common-wealth, For
the Legislator is he, not by whose authority the Lawes were first made,
but by whose authority they now continue to be Lawes. And therefore
where there be divers Provinces, within the Dominion of a Common-wealth,
and in those Provinces diversity of Lawes, which commonly are called the
Customes of each severall Province, we are not to understand that such
Customes have their Force, onely from Length of Time; but that they were
antiently Lawes written, or otherwise made known, for the Constitutions,
and Statutes of their Soveraigns; and are now Lawes, not by vertue of
the Praescription of time, but by the Constitutions of their present
Soveraigns. But if an unwritten Law, in all the Provinces of a Dominion,
shall be generally observed, and no iniquity appear in the use thereof;
that law can be no other but a Law of Nature, equally obliging all
man-kind.




Some Foolish Opinions Of Lawyers Concerning The Making Of Lawes

6. Seeing then all Lawes, written, and unwritten, have their Authority,
and force, from the Will of the Common-wealth; that is to say, from the
Will of the Representative; which in a Monarchy is the Monarch, and
in other Common-wealths the Soveraign Assembly; a man may wonder from
whence proceed such opinions, as are found in the Books of Lawyers of
eminence in severall Common-wealths, directly, or by consequence making
the Legislative Power depend on private men, or subordinate Judges.
As for example, "That the Common Law, hath no Controuler but the
Parlament;" which is true onely where a Parlament has the Soveraign
Power, and cannot be assembled, nor dissolved, but by their own
discretion. For if there be a right in any else to dissolve them, there
is a right also to controule them, and consequently to controule their
controulings. And if there be no such right, then the Controuler of
Lawes is not Parlamentum, but Rex In Parlamento. And where a Parlament
is Soveraign, if it should assemble never so many, or so wise men, from
the Countries subject to them, for whatsoever cause; yet there is no man
will believe, that such an Assembly hath thereby acquired to themselves
a Legislative Power. Item, that the two arms of a Common-wealth,
are Force, and Justice; The First Whereof Is In The King; The Other
Deposited In The Hands Of The Parlament. As if a Common-wealth could
consist, where the Force were in any hand, which Justice had not the
Authority to command and govern.

7. That Law can never be against Reason, our Lawyers are agreed; and
that not the Letter,(that is, every construction of it,) but that which
is according to the Intention of the Legislator, is the Law. And it is
true: but the doubt is, of whose Reason it is, that shall be received
for Law. It is not meant of any private Reason; for then there would be
as much contradiction in the Lawes, as there is in the Schooles; nor yet
(as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib. 2. Ch. 6
fol 97. b),) an Artificiall Perfection of Reason, Gotten By Long Study,
Observation, And Experience, (as his was. ) For it is possible long study
may encrease, and confirm erroneous Sentences: and where men build on
false grounds, the more they build, the greater is the ruine; and of
those that study, and observe with equall time, and diligence, the
reasons and resolutions are, and must remain discordant: and therefore
it is not that Juris Prudentia, or wisedome of subordinate Judges;
but the Reason of this our Artificiall Man the Common-wealth, and
his Command, that maketh Law: And the Common-wealth being in
their Representative but one Person, there cannot easily arise any
contradiction in the Lawes; and when there doth, the same Reason is
able, by interpretation, or alteration, to take it away. In all Courts
of Justice, the Soveraign (which is the Person of the Common-wealth,)
is he that Judgeth: The subordinate Judge, ought to have regard to the
reason, which moved his Soveraign to make such Law, that his Sentence
may be according thereunto; which then is his Soveraigns Sentence;
otherwise it is his own, and an unjust one.




Law Made, If Not Also Made Known, Is No Law

8. From this, that the Law is a Command, and a Command consisteth in
declaration, or manifestation of the will of him that commandeth, by
voyce, writing, or some other sufficient argument of the same, we may
understand, that the Command of the Common-wealth, is Law onely to
those, that have means to take notice of it. Over naturall fooles,
children, or mad-men there is no Law, no more than over brute beasts;
nor are they capable of the title of just, or unjust; because they had
never power to make any covenant, or to understand the consequences
thereof; and consequently never took upon them to authorise the
actions of any Soveraign, as they must do that make to themselves a
Common-wealth. And as those from whom Nature, or Accident hath taken
away the notice of all Lawes in generall; so also every man, from whom
any accident, not proceeding from his own default, hath taken away the
means to take notice of any particular Law, is excused, if he observe it
not; And to speak properly, that Law is no Law to him. It is therefore
necessary, to consider in this place, what arguments, and signes be
sufficient for the knowledge of what is the Law; that is to say, what is
the will of the Soveraign, as well in Monarchies, as in other formes of
government.




Unwritten Lawes Are All Of Them Lawes Of Nature

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

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

The Law of Nature excepted, it belongeth to the essence of all other
Lawes, to be made known, to every man that shall be obliged to obey
them, either by word, or writing, or some other act, known to proceed
from the Soveraign Authority. For the will of another, cannot be
understood, but by his own word, or act, or by conjecture taken from his
scope and purpose; which in the person of the Common-wealth, is to be
supposed alwaies consonant to Equity and Reason. And in antient time,
before letters were in common use, the Lawes were many times put into
verse; that the rude people taking pleasure in singing, or reciting
them, might the more easily reteine them in memory. And for the same
reason Solomon adviseth a man, to bind the ten Commandements (Prov. 7.
3) upon his ten fingers. And for the Law which Moses gave to the people
of Israel at the renewing of the Covenant, (Deut. 11. 19) he biddeth
them to teach it their Children, by discoursing of it both at home, and
upon the way; at going to bed, and at rising from bed; and to write
it upon the posts, and dores of their houses; and (Deut. 31. 12) to
assemble the people, man, woman, and child, to heare it read.




Nothing Is Law Where The Legislator Cannot Be Known

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




Difference Between Verifying And Authorising

Verifyed, I say, not Authorised: for the Verification, is but the
Testimony and Record; not the Authority of the law; which consisteth in
the Command of the Soveraign only.




The Law Verifyed By The Subordinate Judge

If therefore a man have a question of Injury, depending on the Law of
Nature; that is to say, on common Equity; the Sentence of the Judge,
that by Commission hath Authority to take cognisance of such causes, is
a sufficient Verification of the Law of Nature in that individuall case.
For though the advice of one that professeth the study of the Law, be
usefull for the avoyding of contention; yet it is but advice; tis the
Judge must tell men what is Law, upon the hearing of the Controversy.




By The Publique Registers

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




By Letters Patent, And Publique Seale

If the question be of Obedience to a publique Officer; To have seen his
Commission, with the Publique Seale, and heard it read; or to have
had the means to be informed of it, if a man would, is a sufficient
Verification of his Authority. For every man is obliged to doe his best
endeavour, to informe himself of all written Lawes, that may concerne
his own future actions.




The Interpretation Of The Law Dependeth On The Soveraign Power

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




All Lawes Need Interpretation

All Laws, written, and unwritten, have need of Interpretation.
The unwritten Law of Nature, though it be easy to such, as without
partiality, and passion, make use of their naturall reason, and
therefore leaves the violators thereof without excuse; yet considering
there be very few, perhaps none, that in some cases are not blinded by
self love, or some other passion, it is now become of all Laws the most
obscure; and has consequently the greatest need of able Interpreters.
The written Laws, if they be short, are easily mis-interpreted, from the
divers significations of a word, or two; if long, they be more obscure
by the diverse significations of many words: in so much as no written
Law, delivered in few, or many words, can be well understood, without a
perfect understanding of the finall causes, for which the Law was
made; the knowledge of which finall causes is in the Legislator. To him
therefore there can not be any knot in the Law, insoluble; either by
finding out the ends, to undoe it by; or else by making what ends he
will, (as Alexander did with his sword in the Gordian knot,) by the
Legislative power; which no other Interpreter can doe.




The Authenticall Interpretation Of Law Is Not That Of Writers

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




The Interpreter Of The Law Is The Judge Giving Sentence Viva Voce

In Every Particular Case

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




The Sentence Of A Judge, Does Not Bind Him, Or Another Judge

To Give Like Sentence In Like Cases Ever After

But because there is no Judge Subordinate, nor Soveraign, but may erre
in a Judgement of Equity; if afterward in another like case he find it
more consonant to Equity to give a contrary Sentence, he is obliged to
doe it. No mans error becomes his own Law; nor obliges him to persist
in it. Neither (for the same reason) becomes it a Law to other Judges,
though sworn to follow it. For though a wrong Sentence given by
authority of the Soveraign, if he know and allow it, in such Lawes as
are mutable, be a constitution of a new Law, in cases, in which every
little circumstance is the same; yet in Lawes immutable, such as are the
Lawes of Nature, they are no Lawes to the same, or other Judges, in the
like cases for ever after. Princes succeed one another; and one Judge
passeth, another commeth; nay, Heaven and Earth shall passe; but not one
title of the Law of Nature shall passe; for it is the Eternall Law of
God. Therefore all the Sentences of precedent Judges that have ever
been, cannot all together make a Law contrary to naturall Equity: Nor
any Examples of former Judges, can warrant an unreasonable Sentence, or
discharge the present Judge of the trouble of studying what is Equity
(in the case he is to Judge,) from the principles of his own naturall
reason. For example sake, 'Tis against the Law of Nature, To Punish The
Innocent; and Innocent is he that acquitteth himselfe Judicially, and is
acknowledged for Innocent by the Judge. Put the case now, that a man is
accused of a capitall crime, and seeing the powers and malice of some
enemy, and the frequent corruption and partiality of Judges, runneth
away for feare of the event, and afterwards is taken, and brought to a
legall triall, and maketh it sufficiently appear, he was not guilty of
the crime, and being thereof acquitted, is neverthelesse condemned to
lose his goods; this is a manifest condemnation of the Innocent. I say
therefore, that there is no place in the world, where this can be an
interpretation of a Law of Nature, or be made a Law by the Sentences of
precedent Judges, that had done the same. For he that judged it first,
judged unjustly; and no Injustice can be a pattern of Judgement to
succeeding Judges. A written Law may forbid innocent men to fly, and
they may be punished for flying: But that flying for feare of injury,
should be taken for presumption of guilt, after a man is already
absolved of the crime Judicially, is contrary to the nature of a
Presumption, which hath no place after Judgement given. Yet this is set
down by a great Lawyer for the common Law of England. "If a man," saith
he, "that is Innocent, be accused of Felony, and for feare flyeth for
the same; albeit he judicially acquitteth himselfe of the Felony; yet
if it be found that he fled for the Felony, he shall notwithstanding his
Innocency, Forfeit all his goods, chattels, debts, and duties. For as
to the Forfeiture of them, the Law will admit no proofe against the
Presumption in Law, grounded upon his flight. " Here you see, An Innocent
Man, Judicially Acquitted, Notwithstanding His Innocency, (when no
written Law forbad him to fly) after his acquitall, Upon A Presumption
In Law, condemned to lose all the goods he hath. If the Law ground upon
his flight a Presumption of the fact, (which was Capitall,) the Sentence
ought to have been Capitall: if the presumption were not of the Fact,
for what then ought he to lose his goods? This therefore is no Law of
England; nor is the condemnation grounded upon a Presumption of Law, but
upon the Presumption of the Judges. It is also against Law, to say
that no Proofe shall be admitted against a Presumption of Law. For
all Judges, Soveraign and subordinate, if they refuse to heare Proofe,
refuse to do Justice: for though the Sentence be Just, yet the Judges
that condemn without hearing the Proofes offered, are Unjust Judges; and
their Presumption is but Prejudice; which no man ought to bring with him
to the Seat of Justice, whatsoever precedent judgements, or examples he
shall pretend to follow. There be other things of this nature, wherein
mens Judgements have been perverted, by trusting to Precedents: but this
is enough to shew, that though the Sentence of the Judge, be a Law to
the party pleading, yet it is no Law to any Judge, that shall succeed
him in that Office.

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




The Difference Between The Letter And Sentence Of The Law

In written Lawes, men use to make a difference between the Letter, and
the Sentence of the Law: And when by the Letter, is meant whatsoever
can be gathered from the bare words, 'tis well distinguished. For the
significations of almost all words, are either in themselves, or in the
metaphoricall use of them, ambiguous; and may be drawn in argument, to
make many senses; but there is onely one sense of the Law. But if by the
Letter, be meant the Literall sense, then the Letter, and the Sentence
or intention of the Law, is all one. For the literall sense is that,
which the Legislator is alwayes supposed to be Equity: For it were a
great contumely for a Judge to think otherwise of the Soveraigne.
He ought therefore, if the Word of the Law doe not fully authorise a
reasonable Sentence, to supply it with the Law of Nature; or if the
case be difficult, to respit Judgement till he have received more ample
authority. For Example, a written Law ordaineth, that he which is thrust
out of his house by force, shall be restored by force: It happens that
a man by negligence leaves his house empty, and returning is kept out by
force, in which case there is no speciall Law ordained. It is evident,
that this case is contained in the same Law: for else there is no remedy
for him at all; which is to be supposed against the Intention of the
Legislator. Again, the word of the Law, commandeth to Judge according
to the Evidence: A man is accused falsly of a fact, which the Judge saw
himself done by another; and not by him that is accused. In this case
neither shall the Letter of the Law be followed to the condemnation of
the Innocent, nor shall the Judge give Sentence against the evidence
of the Witnesses; because the Letter of the Law is to the contrary:
but procure of the Soveraign that another be made Judge, and himselfe
Witnesse. So that the incommodity that follows the bare words of a
written Law, may lead him to the Intention of the Law, whereby to
interpret the same the better; though no Incommodity can warrant a
Sentence against the Law. For every Judge of Right, and Wrong, is not
Judge of what is Commodious, or Incommodious to the Common-wealth.




The Abilities Required In A Judge

The abilities required in a good Interpreter of the Law, that is to say,
in a good Judge, are not the same with those of an Advocate; namely the
study of the Lawes. For a Judge, as he ought to take notice of the Fact,
from none but the Witnesses; so also he ought to take notice of the
Law, from nothing but the Statutes, and Constitutions of the Soveraign,
alledged in the pleading, or declared to him by some that have authority
from the Soveraign Power to declare them; and need not take care
before-hand, what hee shall Judge; for it shall bee given him what hee
shall say concerning the Fact, by Witnesses; and what hee shall say in
point of Law, from those that shall in their pleadings shew it, and by
authority interpret it upon the place. The Lords of Parlament in England
were Judges, and most difficult causes have been heard and determined
by them; yet few of them were much versed in the study of the Lawes,
and fewer had made profession of them: and though they consulted with
Lawyers, that were appointed to be present there for that purpose; yet
they alone had the authority of giving Sentence. In like manner, in
the ordinary trialls of Right, Twelve men of the common People, are the
Judges, and give Sentence, not onely of the Fact, but of the Right; and
pronounce simply for the Complaynant, or for the Defendant; that is to
say, are Judges not onely of the Fact, but also of the Right: and in a
question of crime, not onely determine whether done, or not done; but
also whether it be Murder, Homicide, Felony, Assault, and the like,
which are determinations of Law: but because they are not supposed to
know the Law of themselves, there is one that hath Authority to enforme
them of it, in the particular case they are to Judge of. But yet if they
judge not according to that he tells them, they are not subject thereby
to any penalty; unlesse it be made appear, they did it against their
consciences, or had been corrupted by reward. The things that make
a good Judge, or good Interpreter of the Lawes, are, first A Right
Understanding of that principall Law of Nature called Equity; which
depending not on the reading of other mens Writings, but on the
goodnesse of a mans own naturall Reason, and Meditation, is presumed
to be in those most, that have had most leisure, and had the most
inclination to meditate thereon. Secondly, Contempt Of Unnecessary
Riches, and Preferments. Thirdly, To Be Able In Judgement To Devest
Himselfe Of All Feare, Anger, Hatred, Love, And Compassion. Fourthly,
and lastly, Patience To Heare; Diligent Attention In Hearing; And Memory
To Retain, Digest And Apply What He Hath Heard.




Divisions Of Law

The difference and division of the Lawes, has been made in divers
manners, according to the different methods, of those men that have
written of them. For it is a thing that dependeth not on Nature, but on
the scope of the Writer; and is subservient to every mans proper method.
In the Institutions of Justinian, we find seven sorts of Civill Lawes.

1. The Edicts, Constitutions, and Epistles Of The Prince, that is, of
the Emperour; because the whole power of the people was in him. Like
these, are the Proclamations of the Kings of England.

2. The Decrees Of The Whole People Of Rome (comprehending the Senate,)
when they were put to the Question by the Senate. These were Lawes, at
first, by the vertue of the Soveraign Power residing in the people; and
such of them as by the Emperours were not abrogated, remained Lawes by
the Authority Imperiall. For all Lawes that bind, are understood to be
Lawes by his authority that has power to repeale them. Somewhat like to
these Lawes, are the Acts of Parliament in England.

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

4. Senatus Consulta, the Orders Of The Senate; because when the people
of Rome grew so numerous, as it was inconvenient to assemble them; it
was thought fit by the Emperour, that men should Consult the Senate in
stead of the people: And these have some resemblance with the Acts of
Counsell.

5.