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 many other occasions besides. For the words do this are the words not only of him that commandeth; but also of him that giveth counsel; and of him that exhorteth; and yet there are but few that see not that these are very different things; or that cannot distinguish between when they when they perceive who it is that speaketh, and to whom the speech is directed, and upon what occasion. But finding those phrases in men's writings, and being not able or not willing to enter into a consideration of the circumstances, they mistake sometimes the precepts of counsellors for the precepts of them that command; and sometimes the contrary; according as it best agreeth with the conclusions they would infer, or the actions they approve. To avoid which mistakes and render to those terms of commanding, counselling, and exhorting, their proper and distinct significations, I define them thus.
Command is where a man saith, "Do this," or "Do not this," without expecting other reason than the will of him that says it. From this it followeth manifestly that he that commandeth pretendeth thereby his own benefit: for the reason of his command is his own will only, and the proper object of every man's will is some good to himself.
Counsel is where a man saith, "Do," or "Do not this," and deduceth his reasons from the benefit that arriveth by it to him to whom he saith it. And from this it is evident that he that giveth counsel pretendeth only (whatsoever he intendeth) the good of him to whom he giveth it.
Therefore between counsel and command, one great difference is that command is directed to a man's own benefit, and counsel to the benefit of another man. And from this ariseth another difference, that a man may be obliged to do what he is commanded; as when he hath covenanted to obey: but he cannot be obliged to do as he is counselled, because the hurt of not following it is his own; or if he should covenant to follow it, then is the counsel turned into the nature of a command. A third difference between them is that no man can pretend a right to be of another man's counsel; because he is not to pretend benefit by it to himself: but to demand right to counsel another argues a will to know his designs, or to gain some other good to himself; which, as I said before, is of every man's will the proper object.
This also is incident to the nature of counsel; that whatsoever it be, he that asketh it cannot in equity accuse or punish it: for to ask counsel of another is to permit him to give such counsel as he shall think best; and consequently, he that giveth counsel to his sovereign (whether a monarch or an assembly) when he asketh it, cannot in equity be punished for it, whether the same be conformable to the opinion of the most, or not, so it be to the proposition in debate. For if the sense of the assembly can be taken notice of, before the debate be ended, they should neither ask nor take any further counsel; for sense of the assembly is the resolution of the debate and end of all deliberation. And generally he that demandeth counsel is author of it, and therefore cannot punish it; and what the sovereign cannot, no man else can. But if one subject giveth counsel to another to do anything contrary to the laws, whether that counsel proceed from evil intention or from ignorance only, it is punishable by the Commonwealth; because ignorance of the law is no good excuse, where every man is bound to take notice of the laws to which he is subject.
Exhortation, and dehortation is counsel, accompanied with signs in him that giveth it of vehement desire to have it followed; or, to say it more briefly, counsel vehemently pressed. For he that exhorteth doth not deduce the consequences of what he adviseth to be done, and tie himself therein to the rigor of true reasoning, but encourages him he counselleth to action: as he that dehorteth deterreth him from it. And therefore they have in their speeches a regard to the common passions and opinions of men, in deducing their reasons; and make use of similitudes, metaphors, examples, and other tools of oratory, to persuade their hearers of the utility, honour, or justice of following their advice.
From whence may be inferred, first, that exhortation and dehortation is directed to the good of him that giveth the counsel, not of him that asketh it, which is contrary to the duty of a counsellor; who, by the definition of counsel, ought to regard, not his own benefit, but his whom he adviseth. And that he directeth his counsel to his own benefit is manifest enough by the long and vehement urging, or by the artificial giving thereof; which being not required of him, and consequently proceeding from his own occasions, is directed principally to his own benefit, and but accidentally to the good of him that is counselled, or not at all.
Secondly, that the use of exhortation and dehortation lieth only where a man is to speak to a multitude, because when the speech is addressed to one, he may interrupt him and examine his reasons more rigorously than can be done in a multitude; which are too many to enter into dispute and dialogue with him that speaketh indifferently to them all at once.
Thirdly, that they that exhort and dehort, where they are required to give counsel, are corrupt counsellors and, as it were, bribed by their own interest. For though the counsel they give be never so good, yet he that gives it is no more a good counsellor than he that giveth a just sentence for a reward is a just judge. But where a man may lawfully command, as a father in his family, or a leader in an army, his exhortations and dehortations are not only lawful, but also necessary and laudable: but when they are no more counsels, but commands; which when they are for execution of sour labour, sometimes necessity, and always humanity, requireth to be sweetened in the delivery by encouragement, and in the tune and phrase of counsel rather than in harsher language of command.
Examples of the difference between command and counsel we may take from the forms of speech that express them in Holy Scripture. "Have no other Gods but me"; "Make to thyself no graven image"; "Take not God's name in vain"; "Sanctify the Sabbath"; "Honour thy parents"; "Kill not"; "Steal not," etc. are commands, because the reason for which we are to obey them is drawn from the will of God our King, whom we are obliged to obey. But these words, "Sell all thou hast; give it to the poor; and follow me," are counsel, because the reason for which we are to do so is drawn from our own benefit, which is this; that we shall have "treasure in Heaven." These words, "Go into the village over against you, and you shall find an ass tied, and her colt; loose her, and bring her to me," are a command; for the reason of their fact is drawn from the will of their master: but these words, "Repent, and be baptized in the name of Jesus," are counsel; because the reason why we should so do tendeth not to any benefit of God Almighty, who shall still be King in what manner soever we rebel, but of ourselves, who have no other means of avoiding the punishment hanging over us for our sins.
As the difference of counsel from command hath been now deduced from the nature of counsel, consisting in a deducing of the benefit or hurt that may arise to him that is to be to be counselled, by the necessary or probable consequences of the action he propoundeth; so may also the differences between apt and inept counsellors be derived from the same. For experience, being but memory of the consequences of like actions formerly observed, and counsel but the speech whereby that experience is made known to another, the virtues and defects of counsel are the same with the virtues and defects intellectual: and to the person of a Commonwealth, his counsellors serve him in the place of memory and mental discourse. But with this resemblance of the Commonwealth to a natural man, there is one dissimilitude joined, of great importance; which is that a natural man receiveth his experience from the natural objects of sense, which work upon him without passion or interest of their own; whereas they that give counsel to the representative person of a Commonwealth may have, and have often, their particular ends and passions that render their counsels always suspected, and many times unfaithful. And therefore we may set down for the first condition of a good counsellor: that his ends and interest be not inconsistent with the ends and interest of him he counselleth.
Secondly, because the office of a counsellor, when an action comes into deliberation, is to make manifest the consequences of it in such manner as he that is counselled may be truly and evidently informed, he ought to propound his advice in such form of speech as may make the truth most evidently appear; that is to say, with as firm ratiocination, as significant and proper language, and as briefly, as the evidence will permit. And therefore rash and unevident inferences, such as are fetched only from examples, or authority of books, and are not arguments of what is good or evil, but witnesses of fact or of opinion; obscure, confused, and ambiguous expressions; also all metaphorical speeches tending to the stirring up of passion (because such reasoning and such expressions are useful only to deceive or to lead him we counsel towards other ends than his own), are repugnant to the office of a counsellor.
Thirdly, because the ability of counselling proceedeth from experience and long study, and no man is presumed to have experience in all those things that to the administration of a great Commonwealth are necessary to be known, no man is presumed to be a good counsellor but in such business as he hath not only been much versed in, but hath also much meditated on and considered. For seeing the business of a Commonwealth is this; to preserve the people in peace at home, and defend them against foreign invasion; we shall find it requires great knowledge of the disposition of mankind, of the rights of government, and of the nature of equity, law, justice, and honour, not to be attained without study; and of the strength, commodities, places, both of their own country and their neighbours'; as also of the inclinations and designs of all nations that may any way annoy them. And this is not attained to without much experience. Of which things, not only the whole sum, but every one of the particulars requires the age and observation of a man in years, and of more than ordinary study. The wit required for counsel, as I have said before (Chapter VIII), is judgement. And the differences of men in that point come from different education; of some, to one kind of study or business, and of others, to another. When for the doing of anything there be infallible rules (as in engines and edifices, the rules of geometry), all the experience of the world cannot equal his counsel that has learned or found out the rule. And when there is no such rule, he that hath most experience in that particular kind of business has therein the best judgement, and is the best counsellor.
Fourthly, to be able to give counsel to a Commonwealth, in a business that hath reference to another Commonwealth, it is necessary to be acquainted with the intelligences and letters that come from thence, and with all the records of treaties and other transactions of state between them; which none can do but such as the representative shall think fit. By which we may see that they who are not called to counsel can have no good counsel in such cases to obtrude.
Fifthly, supposing the number of counsellors equal, a man is better counselled by hearing them apart than in an assembly; and that for many causes. First, in hearing them apart, you have the advice of every man; but in an assembly many of them deliver their advice with aye or no, or with their hands or feet, not moved by their own sense, but by the eloquence of another, or for fear of displeasing some that have spoken, or the whole by contradiction, or for fear of appearing duller in apprehension than those that have applauded the contrary opinion. Secondly, in an assembly of many there cannot choose but be some interests are contrary to that of the public; and these their interests make passionate, and passion eloquent, and eloquence draws others into the same advice. For the passions of men, which asunder are moderate, as the heat of one brand; in assembly are like many brands that inflame one another (especially when they blow one another with orations) to the setting of the Commonwealth 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 advice he gives, by frequent interruptions and objections; which cannot be done in an assembly, where in every difficult question a man is rather astonied and dazzled with the variety of discourse upon it, than informed of the course he ought to take. Besides, there cannot be an assembly of many, called together for advice, wherein there be not some that have the ambition the ambition to be thought eloquent, and also learned in the politics; and give not their advice with care of the business propounded, but of the applause of their motley orations, made of the diverse colored threads or shreds of thread or shreds of authors; which is an impertinence, at least, that takes away the time of serious consultation, and in the secret way of counselling apart is easily avoided. Fourthly, in deliberations that ought to be kept secret, whereof there be many occasions in public business, the counsels of many, and especially in assemblies, are dangerous; and therefore great assemblies are necessitated to commit such affairs to lesser numbers, and of such persons as are most versed, and in whose fidelity they have most confidence.
To conclude, who is there that so far approves far approves the taking of counsel from a great assembly of counsellors, that wisheth for, or would accept of their pains, when there is a question of marrying his children, disposing of his lands, governing his household, or managing his private estate, especially if there be amongst them such as wish not his prosperity? A man that doth his business by the help of many prudent counsellors, with every one consulting apart in his proper element, does it best; as he that useth able seconds at tennis play, placed in their proper stations. He does next best that useth his own judgement only; as he that has no second at all. But he that is carried up and down to his business in a framed counsel, which cannot move but by the plurality of consenting opinions, the execution whereof is commonly, out of envy or interest, retarded by the part dissenting, does it worst of all, and like one that is carried to the ball, though by good players, yet in a wheelbarrow, or other frame, heavy of itself, and retarded by the also by the inconcurrent judgements and endeavours of them that drive it; and so much the more, as they be more that set their hands to it; and most of all, when there is one or more amongst them that desire to have him lose. And though it be true that many eyes see more than one, yet it is not to be understood of many counsellors, but then only when the final resolution is in one in one man. Otherwise, because many eyes see the same thing in diverse lines, and are apt to look asquint towards their private benefit; they that desire not to miss their mark, though they look about with two eyes, yet they never aim but with one: and therefore no great popular Commonwealth was ever kept up, but either by a foreign enemy that united them; or by the reputation of some one eminent man amongst them; or by the secret counsel of a few; or by the mutual fear of equal factions; and not by the open consultations of the assembly. And as for very little Commonwealths, be they popular or monarchical, there is no human wisdom can uphold them longer than the jealousy lasteth of their potent neighbours.
BY civil laws, I understand the laws that men are therefore bound to observe, because they are members, not of this or that Commonwealth in particular, but of a Commonwealth. For the knowledge of particular laws belongeth to them that profess the study of the laws of their several countries; but the knowledge of civil law in general, to any man. The ancient law of Rome was called their civil law, from the word civitas, which signifies a Commonwealth: and those countries which, having been under the Roman Empire and governed by that law, retain still such part thereof as they think fit, call that part the civil law to distinguish it from the rest of their own civil laws. But that is not it I intend to speak of here; my design being not to show what is law here and there, but what is law; as Plato, Aristotle, Cicero, and diverse others have done, without taking upon them the profession of the study of the law.
And first it is manifest that law in general is not counsel, but command; nor a command of any man to any man, but only of him whose command is addressed to one formerly obliged to obey him. And as for civil law, it addeth only the name of the person commanding, which is persona civitatis, the person of the Commonwealth.
Which considered, I define civil law in this manner. Civil law is to every subject those rules which the Commonwealth 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 that is contrary and what is not contrary to the rule.
In which definition there is nothing that is that is not at first sight
evident. For every man seeth that some laws are addressed to all the subjects in
general; some to particular provinces; some to particular vocations; and some to
particular men; and are therefore laws to every of those to whom the command is
directed, and to none else. As also, that laws are the rules of just and unjust,
nothing being reputed unjust that is not contrary to some law. Likewise, that
none can make laws but the Commonwealth, because our subjection is to the
Commonwealth 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.
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 whatever men are to take knowledge of for law, not upon other men's words, but every one from his own reason, must be such as is agreeable to the reason of all men; which no law can be, but the law of nature. The laws of nature therefore need not any publishing nor proclamation; as being contained in this one sentence, approved by all the world, Do not that to another which thou thinkest unreasonable to be done by another to thyself.
Secondly, if it be a law that obliges only some condition of men, or one particular man, and be not written, nor published by word, then also it is a law of nature, and known by the same arguments and signs that distinguish those in such a condition from other subjects. For whatsoever law is not written, or some way published by him that makes it law, can be known no way but by the reason of him that is to obey it; and is therefore also a law not only civil, but natural. For example, if the sovereign employ a public minister, without written instructions what to do, he is obliged to take for instructions the dictates of reason: as if he make a judge, the judge is to take notice that his sentence ought to be according to the reason of his sovereign, which being always understood to be equity, he is bound to it by the law of nature: or if an ambassador, he is, in all things not contained in his written instructions, to take for instruction that which reason dictates to be most conducing to his sovereign's interest; and so of all other ministers of the sovereignty, public and private. All which instructions of natural reason may be comprehended under one name of fidelity, which is a branch of natural justice.
The law of nature excepted, it belonged to the essence of all other laws to be made known to every man that shall be obliged to obey them, either by word, or writing, or some other act known to proceed from the sovereign authority. For the will of another cannot be understood but by his own word, or act, or by conjecture taken from his scope and purpose; which in the person of the Commonwealth is to be supposed always consonant to equity and reason. And in ancient time, before letters were in common use, the laws were many times put into verse; that the rude people, taking pleasure in singing or reciting them, might the more easily retain them in memory. And for the same reason Solomon adviseth a man to bind the Ten Commandments upon his ten fingers. [Proverbs, 7. 3] And for the Law which Moses gave to the people of Israel at the renewing of the Covenant, 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 doors of their houses; [Deuteronomy, 11. 19] and to assemble the people, man, woman, and child, to hear it read. [Ibid., 31. 12]
Nor is it enough the law be written and published, but also that there be manifest signs that it proceedeth from the will of the sovereign. For private men, when they have, or think they have, force enough to secure their unjust designs, and convoy them safely to their ambitious ends, may publish for laws what they please, without or against the legislative authority. There is therefore requisite, not only a declaration of the law, but also sufficient signs of the author and authority. The author or legislator is supposed in every Commonwealth to be evident, because he is the sovereign, who, having been constituted by the consent of every one, is supposed by every one to be sufficiently known. And though the ignorance and security of men be such, for the most part, as that when the memory of the first constitution of their Commonwealth is worn out, they do not consider by whose power they use to be defended against their enemies, and to have their industry protected, and to be righted when injury is done them; yet because no man that considers can make question of it, no excuse can be derived from the ignorance of where the sovereignty is placed. And it is a dictate of natural reason, and consequently an evident law of nature, that no man ought to weaken that power the protection whereof he hath himself demanded or wittingly received against others. Therefore of who is sovereign, no man, but by his own fault (whatsoever evil men suggest), can make any doubt. The difficulty cocsisteth in the evidence of the authority derived from him; the removing whereof dependeth on the knowledge of the public registers, public counsels, public ministers, and public seals; by which all laws are sufficiently verified; verified, I say, not authorized: for the verification is but the testimony and record; not the authority of the law, which consisteth in the command of the sovereign only.
If therefore a man have a question of injury, depending on the law of nature; that is to say, on common equity; the sentence of the judge, that by commission hath authority to take cognizance of such causes, is a sufficient verification of the law of nature in that individual case. For though the advice of one that professeth the study of the law be useful for the avoiding of contention, yet it is but advice: it is the judge must tell men what is law, upon the hearing of the controversy.
But when the question is of injury, or crime, upon a written law, every man by recourse to the registers by himself or others may, if he will, be sufficiently informed, before he do such injury, or commit the crime, whether it be an injury or not; nay, he ought to do so: for when a man doubts whether the act he goeth about be just or unjust, and may inform himself if he will, the doing is unlawful. In like manner, he that supposeth himself injured, in a case determined by the written law, which he may by himself or others see and consider; if he complain before he consults with the law, he does unjustly, and bewrayeth a disposition rather to vex other men than to demand his own right.
If the question be of obedience to a public officer, to have seen his commission with the public seal, and heard it read, or to have had the means to be informed of it, if a man would, is a sufficient verification of his authority. For every man is obliged to do his best endeavour to inform himself of all written laws that may concern his own future actions.
The legislator known, and the laws either by writing or by the light of nature sufficiently published, there wanteth yet another very material circumstance to make them obligatory. For it is not the letter, but the intendment, or meaning; that is to say, the authentic interpretation of the law (which is the sense of the legislator), in which the nature of the law consisteth; and therefore the interpretation of all laws dependeth on the authority sovereign; and the interpreters can be none but those which the sovereign, to whom only the subject oweth obedience, shall appoint. For else, by the craft of an interpreter, the law may be made to bear a sense contrary to that of the sovereign, by which means the interpreter becomes the legislator.
All laws, written and unwritten, have need of interpretation. The unwritten law of nature, though it be easy to such as without partiality and passion make use of their natural reason, and therefore leaves the violators thereof without excuse; yet considering there be very few, perhaps none, that in some cases are not blinded by self-love, or some other passion, it is now become of all laws the most obscure, and has consequently the greatest need of able interpreters. The written laws, if laws, if they be short, are easily misinterpreted, for the diverse significations of a word or two; if long, they be more obscure by the diverse significations of many words: in so much as no written law, delivered in few or many words, can be well understood without a perfect understanding of the final causes for which the law was made; the knowledge of which final causes is in the legislator. To him therefore there cannot be any knot in the law insoluble, either by finding out the ends to undo it by, or else by making what ends he will (as Alexander did with his sword in the Gordian knot) by the legislative power; which no other interpreter can do.
The interpretation of the laws of nature in a Commonwealth dependeth not on the books of moral philosophy. The authority of writers, without the authority of the Commonwealth, maketh not their opinions law, be they never so true. That which I have written in this treatise concerning the moral virtues, and of their necessity for the procuring and maintaining peace, though it be evident truth, is not therefore presently law, but because in all Commonwealths in the world it is part of the civil law. For though it be naturally reasonable, yet it is by the sovereign power that it is law: otherwise, it were a great error to call the laws of nature unwritten law; whereof we see so many volumes published, and in them so many contradictions of one another and of themselves.
The interpretation of the law of nature is the sentence of the judge constituted by the sovereign authority to hear and determine such controversies as depend thereon, and consisteth in the application of the law to the present case. For in the act of judicature the judge doth no more but consider whether the demand of the party be consonant to natural reason and equity; and the sentence he giveth is therefore the interpretation of the law of nature; which interpretation is authentic, not because it is his private sentence, but because he giveth it by authority of the sovereign, whereby it becomes the sovereign's sentence; which is law for that time to the parties pleading.
But because there is no judge subordinate, nor sovereign, but may err in a judgement equity; if afterward in another like case he find it more consonant to equity to give a contrary sentence, he is obliged to do it. No man's error becomes his own law, nor obliges him to persist in it. Neither, for the same reason, becomes it a law to other judges, though sworn to follow it. For though a wrong sentence given by authority of the sovereign, if he know and allow it, in such laws as are mutable, be a constitution of a new law in cases in which every little circumstance is the same; yet in laws immutable, such as are the laws of nature, they are no laws to the same or other judges in the like cases for ever after. Princes succeed one another; and one judge passeth, another cometh; nay, heaven and earth shall pass; but not one tittle of the law of nature shall pass; for it is the eternal law of God. Therefore all the sentences of precedent judges that have ever been cannot all together make a law contrary to natural equity. Nor any examples of former judges can warrant an unreasonable sentence, or discharge the present judge of the trouble of studying what is equity (in the case he is to judge) from the principles of his own natural reason. For example sake, it is against the law of nature to punish the innocent; and innocent is he that acquitteth himself judicially and is acknowledged for innocent by the judge. Put the case now that a man is accused of a capital crime, and seeing the power and malice of some enemy, and the frequent corruption and partiality of judges, runneth away for fear of the event, and afterwards is taken and brought to a legal trial, and maketh it sufficiently appear he was not guilty of the crime, and being thereof acquitted is nevertheless condemned to lose his goods; this is a manifest condemnation of the innocent. I say therefore that there is no place in the world where this can be an interpretation of a law of nature, or be made a law by the sentences of precedent judges that had done the same. For he that judged it first judged unjustly; and no injustice can be a pattern of judgement to succeeding judges. A written law may forbid innocent men to fly, and they may be punished for flying: but that flying for fear of injury should be taken for presumption of guilt, after a man is already absolved of the crime judicially, is contrary to the nature of a presumption, which hath no place after judgement given. Yet this is set down by a great lawyer for the common law of England: "If a man," saith he, "that is innocent be accused of felony, and for fear flyeth for the same; albeit he judicially acquitteth himself of the felony; yet if it be found that he fled for the felony, he shall, notwithstanding his innocency, forfeit all his goods, chattels, debts, and duties. For as to the forfeiture of them, the law will admit no proof against the presumption in law, grounded upon his flight." Here you see an innocent man, judicially acquitted, notwithstanding his innocency (when no written law forbade him to fly) after his acquittal, upon a presumption in law, condemned to lose all the goods he hath. If the law ground upon his flight a presumption of the fact, which was capital, the sentence ought to have been capital: the presumption were not of the fact, for what then ought he to lose his goods? This therefore is no law of England; nor is the condemnation grounded upon a presumption of law, but upon the presumption of the judges. It is also against law to say that no proof shall be admitted against a presumption of law. For all judges, sovereign and subordinate, if they refuse to hear proof, refuse to do justice: for though the sentence be just, yet the judges that condemn, without hearing the proofs offered, are unjust judges; and their presumption is but prejudice; which no man ought to bring with him to the seat of justice whatsoever precedent judgements or examples he shall pretend to follow. There be other things of this nature, wherein men's judgements have been perverted by trusting to precedents: but this is enough to show that though the sentence of the judge be a law to the party pleading, yet it is no law any judge that shall succeed him in that office.
In like manner, when question is of the meaning of written laws, he is not the interpreter of them that writeth a commentary upon them. For commentaries are commonly more subject to cavil than the text, and therefore need other commentaries; and so there will be no end of such interpretation. And therefore unless there be an interpreter authorized by the sovereign, from which the subordinate judges are not to recede, the interpreter can be no other than the ordinary judges, in the same manner as they are in cases of the unwritten law; and their sentences are to be taken by them that plead for laws in that particular case, but not to bind other judges in like cases to give like judgements. For a judge may err in the interpretation even of written laws; but no error of a subordinate judge can change the law, which is the general sentence of the sovereign.
In written laws men use to make a difference between the letter and the sentence of the law: and when by the letter is meant whatsoever can be gathered from the bare words, it is well distinguished. For the significations of almost all are either in themselves, or in the metaphorical use of them, ambiguous; and may be drawn in argument to make many senses; but there is only one sense of the law. But if by the letter be meant the literal sense, then the letter and the sentence or intention of the law is all one. For the literal sense is that which the legislator intended should by the letter of the law be signified. Now the intention of the legislator is always supposed to be equity: for it were a great contumely for a judge to think otherwise of the sovereign. He ought therefore, if the word of the law do not fully authorize a reasonable sentence, to supply it with the law of nature; or if the case be difficult, to respite judgement till he have received more ample authority. For example, a written law ordaineth that he which is thrust out of his house by force shall be restored by force. It happens that a man by negligence leaves his house empty, and returning is kept out by force, in which case there is no special law ordained. It is evident that this case is contained in the same law; for else there is no remedy for him at all, which is to be supposed against the intention of the legislator. Again, the word of the law commandeth to judge according to the evidence. A man is accused falsely of a fact which the judge himself saw done by another, and not by him that is accused. In this case neither shall the letter of the law be followed to the condemnation of the innocent, nor shall the judge give sentence against the evidence of the witnesses, because the letter of the law is to the contrary; but procure of the sovereign that another be made judge, and himself witness. So that the incommodity that follows the bare words of a written law may lead him to the intention of the law, whereby to interpret the same the better; though no incommodity can warrant a sentence against the law. For every judge of right and wrong is not judge of what is commodious or incommodious to the Commonwealth.
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 laws. For a judge, as he ought to take notice of the fact from none but the witnesses, so also he ought to take notice of the law from nothing but the statutes and constitutions of the sovereign, alleged in the pleading, or declared to him by some that have authority from the sovereign power to declare them; and need not take care beforehand what he shall judge; for it shall be given him what he shall say concerning the fact, by witnesses; and what he shall say in point of law, from those that shall in their pleadings show it, and by authority interpret it upon the place. The Lords of Parliament in England were judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the laws, and fewer had made profession of them; and though they consulted with lawyers that were appointed to be present there for that purpose, yet they alone had the authority of giving sentence. In like manner, in the ordinary trials of right, twelve men of the common people are the judges and give sentence, not only of the fact, but of the right; and pronounce simply for the complainant or for the defendant; that is to say, are judges not only of the fact, but also of the right; and in a question of crime, not only determine whether done or not done, but also whether it be murder, homicide, felony, assault, and the like, which are determinations of law: but because they are not supposed to know the law of themselves, there is one that hath authority to inform them of it in the particular case they are to judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unless it be made appear they did it against their consciences, or had been corrupted by reward.
The things that make a good judge or good interpreter of the laws are, first, a right understanding of that principal law of nature called equity; which, depending not on the reading of other men's writings, but on the goodness of a man's own natural reason and meditation, is presumed to be in those most that had most leisure, and had the most inclination to meditate thereon. Secondly, contempt of unnecessary riches and preferments. Thirdly, to be able in judgement to divest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, patience to hear, diligent attention in hearing, and memory to retain, digest, and apply what he hath heard.
The difference and division of the laws has been made in diverse manners,
according to the different methods of those men that have written of them. For
it is a thing that dependeth on nature, but on the scope of the writer, and is
subservient to every man's proper method. In the Institutions of Justinian, we
find seven sorts of civil laws:
Another division of laws is into natural and positive. Natural are those which have been laws from all eternity, and are called not only natural, but also moral laws, consisting in the moral virtues; as justice, equity, and all habits of the mind that conduce to peace and charity, of which I have already spoken in the fourteenth and fifteenth Chapters.
Positive are those which have not been from eternity, but have been made laws by the will of those that have had the sovereign power over others, and are either written or made known to men by some other argument of the will of their legislator.
Again, of positive laws some are human, some divine: and of human positive laws, some are distributive, some penal. Distributive are those that determine the rights of the subjects, declaring to every man what it is by which he acquireth and holdeth a propriety in lands or goods, and a right or liberty of action: and these speak to all the subjects. Penal are those which declare what penalty shall be inflicted on those that violate the law; and speak to the ministers and officers ordained for execution. For though every one ought to be informed of the punishments ordained beforehand for their transgression; nevertheless the command is not addressed to the delinquent (who cannot be supposed will faithfully punish himself), but to public ministers appointed to see the penalty executed. And these penal laws are for the most part written together with the laws distributive, and are sometimes called judgements. For all laws are general judgements, or sentences of the legislator; as also every particular judgement is a law to him whose case is judged.
Divine positive laws (for natural laws, being eternal and universal, are all divine) are those which, being the commandments of God, not from all eternity, nor universally addressed to all men, but only to a certain people or to certain persons, are declared for such by those whom God hath authorized to declare them. But this authority of man to declare what be these positive of God, how can it be known? God may command a man, by a supernatural way, to deliver laws to other men. But because it is of the essence of law that he who is to be obliged be assured of the authority of him that declareth it, which we cannot naturally take notice to be from God, how can a man without supernatural revelations be assured of the revelation received by the declarer? And how can he be bound to obey bound to obey them? For the first question, how a man can be assured of the revelation of another without a revelation particularly to himself, it is evidently impossible: for though a man may be induced to believe such revelation, from the miracles they see him do, or from seeing the extraordinary sanctity of his life, or from seeing the extraordinary wisdom, or extraordinary felicity of his actions, all which are marks of God's extraordinary favour; yet they are not assured evidences of special revelation. Miracles are marvellous works; but that which is marvellous to one may not be so to another. Sanctity may be feigned; and the visible felicities of this world are most often the work of God by natural and ordinary causes. And therefore no man can infallibly know by natural reason that another has had a supernatural revelation of God's will but only a belief; every one, as the signs thereof shall appear greater or lesser, a firmer or a weaker belief.
But for the second, how he can be bound to obey them, it is not so hard. For if the law declared be not against the law of nature, which is undoubtedly God's law, and he undertake to obey it, he is bound by his own act; bound I say to obey it, but not bound to believe it: for men's belief, and interior cogitations, are not subject to the commands, but only to the operation of God, ordinary or extraordinary. Faith of supernatural law is not a fulfilling, but only an assenting to the same; and not a duty that we exhibit to God, but a gift which God freely giveth to whom He pleaseth; as also unbelief is not a breach of any of His laws, but a rejection of them all, except the laws natural. But this that I say will be made yet clearer by, the examples and testimonies concerning this point in Holy Scripture. The covenant God made with Abraham in a supernatural manner was thus, "This is the covenant which thou shalt observe between me and thee and thy seed after thee." [Genesis, 17. 10] Abraham's seed had not this revelation, nor were yet in being; yet they are a party to the covenant, and bound to obey what Abraham should declare to them for God's law; which they could not be but in virtue of the obedience they owed to their parents, who (if they be subject to no other earthly power, as here in the case of Abraham) have sovereign power over their children and servants. Again, where God saith to Abraham, "In thee shall all nations of the earth be blessed: for I know thou wilt command thy children and thy house after thee to keep the way of the Lord, and to observe righteousness and judgement," it is manifest the obedience of his family, who had no revelation, depended on their former obligation to obey their sovereign. At Mount Sinai Moses only went up to God; the people were forbidden to approach on pain of death; yet were they bound to obey all that Moses declared to them for God's law. Upon what ground, but on this submission of their own, "Speak thou to us, and we will hear thee; but let not God speak to us, lest we die"? By which two places it sufficiently appeareth that in a Commonwealth a subject that has no certain and assured revelation particularly to himself concerning the will of God is to obey for such the command of the Commonwealth: for if men were at liberty to take for God's commandments their own dreams and fancies, or the dreams and fancies of private men, scarce two men would agree upon what is God's commandment; and yet in respect of them every man would despise the commandments of the Commonwealth. I conclude, therefore, that in all things not contrary to the moral law (that is to say, to the law of nature), all subjects are bound to obey that for divine law which is declared to be so by the laws of the Commonwealth. Which also is evident to any man's reason; for whatsoever is not against the law of nature may be made law in the name of them that have the sovereign power; there is no reason men should be the less obliged by it when it is propounded in the name of God. Besides, there is no place in the world where men are permitted to pretend other commandments of God than are declared for such by the Commonwealth. Christian states punish those that revolt from Christian religion; and all other states, those that set up any religion by them forbidden. For in whatsoever is not regulated by the Commonwealth, it is equity (which is the law of nature, and therefore an eternal law of God) that every man equally enjoy his liberty.
There is also another distinction of laws into fundamental and not fundamental: but I could never see in any author what a fundamental law signifieth. Nevertheless one may very reasonably distinguish laws in that manner.
For a fundamental law in every Commonwealth is that which, being taken away, the Commonwealth faileth and is utterly dissolved, as a building whose foundation is destroyed. And therefore a fundamental law is that by which subjects are bound to uphold whatsoever power is given to the sovereign, whether a monarch or a sovereign assembly, without which the Commonwealth cannot stand; such as is the power of war and peace, of judicature, of election of officers, and of doing whatsoever he shall think necessary for the public good. Not fundamental is that, the abrogating whereof draweth not with it the dissolution of the Commonwealth; such as are the laws concerning controversies between subject and subject. Thus much of the division of laws.
I find the words lex civilis and jus civile, that is to say, and law and right civil, promiscuously used for the same thing, even in the most learned authors; which nevertheless ought not to be so. For right is liberty, namely that liberty which the civil law leaves us: but civil law is an obligation, and takes from us the liberty which the law of nature gave us. Nature gave a right to every man to secure himself by his own strength, and to invade a suspected neighbour by way of prevention: but the civil law takes away that liberty, in all cases where the protection of the law may be safely stayed for. Insomuch as lex and jus are as different as obligation and liberty.
Likewise laws and charters are taken promiscuously for the same thing. Yet charters are donations of the sovereign; and not laws, but exemptions from law. The phrase of a law is jubeo, injungo; I command and enjoin: the phrase of a charter is dedi, concessi; I have given, I have granted: but what is given or granted to a man is not forced upon him by a law. A law may be made to bind all the subjects of a Commonwealth: a liberty or charter is only to one man or some one part of the people. For to say all the people of a Commonwealth have liberty in any case whatsoever is to say that, in such case, there hath been no law made; or else, having been made, is now abrogated.
A sin is not only a transgression of a law, but also any contempt of the legislator. For such contempt is a breach of all his laws at once, and therefore may consist, not only in the commission of a fact, or in the speaking of words by the laws forbidden, or in the omission of what the law commandeth, but also in the intention or purpose to transgress. For the purpose to break the law is some degree of contempt of him to whom it belonged to see it executed. To be delighted in the imagination only of being possessed of another man's goods, servants, or wife, without any intention to take them from him by force or fraud, is no breach of the law, that saith, "Thou shalt not covet": nor is the pleasure a man may have in imagining or dreaming of the death of him from whose life he expecteth nothing but damage and displeasure, a sin; but the resolving to put some act in execution that tendeth thereto. For to be pleased in the fiction of that which would please a man if it were real is a passion so adherent to the nature both of man and every other living creature, as to make it a sin were to make sin of being a man. Th consideration of this has made me think them too severe, both to themselves and others, that maintain that the first motions of the mind, though checked with the fear of God, be sins. But I confess it is safer to err on that hand than on the other.
A crime is a sin consisting in the committing by deed or word of that which the law forbiddeth, or the omission of what it hath commanded. So that every crime is a sin; but not every sin a crime. To intend to steal or kill is a sin, though it never appear in word or fact: for God that seeth the thought of man can lay it to his charge: but till it appear by something done, or said, by which the intention may be argued by a human judge, it hath not the name of crime: which distinction the Greeks observed in the word amartema and egklema or aitia; whereof the former (which is translated sin) signifieth any swerving from the law whatsoever; but the two latter (which are translated crime) signify that sin only whereof one man may accuse another. But of intentions, which never appear by any outward act, there is no place for human accusation. In like manner the Latins by peccatum, which is sin, signify all manner of deviation from the law; but by crimen (which word they derive from cerno, which signifies to perceive) they mean only such sins as may be made appear before a judge, and therefore are not mere intentions.
From this relation of sin to the law, and of crime to the civil law, may be inferred, first, that where law ceaseth, sin ceaseth. But because the law of nature is eternal, violation of covenants, ingratitude, arrogance, and all facts contrary to any moral virtue can never cease to be sin. Secondly, that the civil law ceasing, crimes cease: for there being no other law remaining but that of nature, there is no place for accusation; every man being his own judge, and accused only by his own conscience, and cleared by the uprightness of his own intention. When therefore his intention is right, his fact is no sin; if otherwise, his fact is sin, but not crime. Thirdly, that when the sovereign power ceaseth, crime also ceaseth: for where there is no such power, there is no protection to be had from the law; and therefore every one may protect himself by his own power: for no man in the institution of sovereign power can be supposed to give away the right of preserving his own body, for the safety whereof all sovereignty was ordained. But this is to be understood only of those that have not themselves contributed to the taking away of the power that protected them: for that was a crime from the beginning.
The source of every crime is some defect of the understanding, or some error in reasoning, or some sudden force of the passions. Defect in the understanding is ignorance; in reasoning, erroneous opinion. Again, ignorance is of three sorts; of the law, and of the sovereign, and of the penalty. Ignorance of the law of nature excuseth no man, because every man that hath attained to the use of reason is supposed to know he ought not to do to another what he would not have done to himself. Therefore into what place soever a man shall come, if he do anything contrary to that law, it is a crime. If a man come from the Indies hither, and persuade men here to receive a new religion, or teach them anything that tendeth to disobedience of the laws of this country, though he be never so well persuaded of the truth of what he teacheth, he commits a crime, and may be justly punished for the same, not only because his doctrine is false, but also because he does that which he would not approve in another; namely, that coming from hence, he should endeavour to alter the religion there. But ignorance of the civil law shall excuse a man in a strange country till it be declared to him, because till then no civil law is binding.
In the like manner, if the civil law of a man's own country be not so sufficiently declared as he may know it if he will; nor the action against the law of nature; the ignorance is a good excuse: in other cases ignorance of the civil law excuseth not.
Ignorance of the sovereign power the place of a man's ordinary residence excuseth him not, because he ought to take notice of the power by which he hath been protected there.
Ignorance of the penalty, where the law is declared, excuseth no man: for in breaking the law, which without a fear of penalty to follow were not a law, but vain words, he undergoeth the penalty, though he know not what it is; because whosoever voluntarily doth any action, accepteth all the known consequences of it; but punishment is a known consequence of the violation of the laws in every Commonwealth; which punishment, if it be determined already by the law, he is subject to that; if not, then is he subject to arbitrary punishment. For it is reason that he which does injury, without other limitation than that of his own will, should suffer punishment without other limitation than that of his will whose law is thereby violated.
But when a penalty is either annexed to the crime in the law itself, or hath been usually inflicted in the like cases, there the delinquent is excused from a greater penalty. For the punishment foreknown, if not great enough to deter men from the action, is an invitement to it: because when men compare the benefit of their injustice with the harm of their punishment, by necessity of nature they choose that which appeareth best for themselves: and therefore when they are punished more than the law had formerly determined, or more than others were punished for the same crime, it is the law that tempted and deceiveth them.
No law made after a fact done can make it a crime: because if the fact be against the law of nature, the law was before the fact; and a positive law cannot be taken notice of before it be made, and therefore cannot be obligatory. But when the law that forbiddeth a fact is made before the fact be done, yet he that doth the fact is liable to the penalty ordained after, in case no lesser penalty were made known before, neither by writing nor by example, for the reason immediately before alleged.
From defect in reasoning (that is to say, from error), men are prone to violate the laws three ways. First, by presumption of false principles: as when men, from having observed how in all places and in all ages unjust actions have been authorised by the force and victories of those who have committed them; and that, potent men breaking through the cobweb laws of their country, the weaker sort and those that have failed in their enterprises have been esteemed the only criminals; have thereupon taken for principles and grounds of their reasoning that justice is but a vain word: that whatsoever a man can get by his own industry and hazard is his own: that the practice of all nations cannot be unjust: that examples of former times are good arguments of doing the like again; and many more of that kind: which being granted, no act in itself can be a crime, but must be made so, not by the law, but by the success of them that commit it; and the same fact be virtuous or vicious fortune pleaseth; so that what Marius makes a crime, Sylla shall make meritorious, and Caesar (the same laws standing) turn again into a crime, to the perpetual disturbance of the peace of the Commonwealth.
Secondly, by false teachers that either misinterpret the law of nature, making it thereby repugnant to the law civil, or by teaching for laws such doctrines of their own, or traditions of former times, as are inconsistent with the duty of a subject.
Thirdly, by erroneous inferences from true principles; which happens commonly to men that are hasty and precipitate in concluding and resolving what to do; such as are they that have both a great opinion of their own understanding and believe that things of this nature require not time and study, but only common experience and a good natural wit, whereof no man thinks himself unprovided: whereas the knowledge of right and wrong, which is no less difficult, there is no man will pretend to without great and long study. And of those defects in reasoning, there is none that can excuse, though some of them may extenuate, a crime in any man that pretendeth to the administration of his own private business; much less in them that undertake a public charge, because they pretend to the reason upon the want whereof they would ground their excuse.
Of the passions that most frequently are the causes of crime, one is vainglory, or a foolish overrating of their own worth; as if difference of worth were an effect of their wit, or riches, or blood, or some other natural quality, not depending on the will of those that have the sovereign authority. From whence proceedeth a presumption that the punishments ordained by the laws, and extended generally to all subjects, ought not to be inflicted on them with the same rigor they are inflicted on poor, obscure, and simple men, comprehended under the name of the vulgar.
Therefore it happeneth commonly that such as value themselves by the greatness of their wealth adventure on crimes, upon hope of escaping punishment by corrupting public justice, or obtaining pardon by money or other rewards.
And that such as have multitude of potent kindred, and popular men that have gained reputation amongst the multitude, take courage to violate the laws from a hope of oppressing the power to whom it belonged to put them in execution.
And that such as have a great and false opinion of their own wisdom take upon them to reprehend the actions and call in question the authority of them that govern, and so to unsettle the laws with their public discourse, as that nothing shall be a crime but what their own designs require should be so. It happeneth also to the same men to be prone to all such crimes as consist in craft, and in deceiving of their neighbours; because they think their designs are too subtle to be perceived. These I say are effects of a false presumption of their own wisdom. For of them that are the first movers in the disturbance of Commonwealth (which can never happen without a civil war), very few are left alive long enough to see their new designs established: so that the benefit of their crimes redoundeth to posterity and such as would least have wished it: which argues they were not so wise as they thought they were. And those that deceive upon hope of not being observed do commonly deceive themselves, the darkness in which they believe they lie hidden being nothing else but their own blindness, and are no wiser than children that think all hid by hiding their own eyes.
And generally all vainglorious men, unless they be withal timorous, are subject to anger; as being more prone than others to interpret for contempt the ordinary liberty of conversation: and there are few crimes that may not be produced by anger.
As for the passions, of hate, lust, ambition, and covetousness, what crimes they are apt to produce is so obvious to every man's experience and understanding as there needeth nothing to be said of them, saving that they are infirmities, so annexed to the nature, both of man and all other living creatures, as that their effects cannot be hindered but by extraordinary use of reason, or a constant severity in punishing them. For in those things men hate, they find a continual and unavoidable molestation; whereby either a man's patience must be everlasting, or he must be eased by removing the power of that which molesteth him: the former is difficult; the latter is many times impossible without some violation of the law. Ambition and covetousness are passions also that are perpetually incumbent and pressing; whereas reason is not perpetually present to resist them: and therefore whensoever the hope of impunity appears, their effects proceed. And for lust, what it wants in the lasting, it hath in the vehemence, which sufficeth to weigh down the apprehension of all easy or uncertain punishments.
Of all passions, that which inclineth men least to break the laws is fear. Nay, excepting some generous natures, it is the only thing (when there is appearance of profit or pleasure by breaking the laws) that makes men keep them. And yet in many cases a crime may be committed through fear.
For not every fear justifies the action it produceth, but the fear only of corporeal hurt, which we call bodily fear, and from which a man cannot see how to be delivered but by the action. A man is assaulted, fears present death, from which he sees not how to escape but by wounding him that assaulteth him; if he wound him to death, this is no crime, because no man is supposed, at the making of a Commonwealth to have abandoned the defence of his life or limbs, where the law cannot arrive time enough to his assistance. But to kill a man because from his actions or his threatenings I may argue he will kill me when he can (seeing I have time and means to demand protection from the sovereign power) is a crime. Again, a man receives words of disgrace, or some little injuries, for which they that made the laws had assigned no punishment, nor thought it worthy of a man that hath the use of reason to take notice of, and is afraid unless he revenge it he shall fall into contempt, and consequently be obnoxious to the like injuries from others; and to avoid this, breaks the law, and protects himself for the future by the terror of his private revenge. This is a crime: for the hurt is not corporeal, but fantastical, and (though, in this corner of the world, made sensible by a custom not many years since begun, amongst young and vain men) so light as a gallant man, and one that is assured of his own courage, cannot take notice of. Also a man may stand in fear of spirits, either through his own superstition or through too much credit given to other men that tell him of strange dreams and visions; and thereby be made believe they will hurt him for doing or omitting diverse things which, nevertheless, to do or omit is contrary to the laws; and that which is so done, or omitted, is not to be excused by this fear, but is a crime. For, as I have shown before in the second Chapter, dreams be naturally but the fancies remaining in sleep, after the impressions our senses had formerly received waking; and, when men are by any accident unassured they have slept, seem to be real visions; and therefore he that presumes to break the law upon his own or another's dream or pretended vision, or upon other fancy of the power of invisible spirits than is permitted by the Commonwealth, leaveth the law of nature, which is a certain offence, and followeth the imagery of his own or another private man's brain, which he can never know whether it signifieth anything or nothing, nor whether he that tells his dream say true or lie; which if every private man should have leave to do (as they must, by the law of nature, if any one have it), there could no law be made to hold, and so all Commonwealth would be dissolved.
From these different sources of crimes, it appears already that all crimes are not, as the Stoics of old time maintained, of the same alloy. There is place, not only for excuse, by which that which seemed a crime is proved to be none at all; but also for extenuation, by which the crime, that seemed great, is made less. For though all crimes do equally deserve the name of injustice, as all deviation from a straight line is equally crookedness, which the Stoics rightly observed; yet it does not follow that all crimes are equally unjust, no more than that all crooked lines are equally crooked; which the Stoics, not observing, held it as great a crime to kill a hen, against the law, as to kill one's father.
That which totally excuseth a fact, and takes away from it the nature of a crime, can be none but that which, at the same time, taketh away the obligation of the law. For the fact committed once against the law, if he that committed it be obliged to the law, can be no other than a crime.
The want of means to know the law totally excuseth: for the law whereof a man has no means to inform himself is not obligatory. But the want of diligence to enquire shall not be considered as a want of means; nor shall any man that pretendeth to reason enough for the government of his own affairs be supposed to want means to know the laws of nature; because they are known by the reason he pretends to: only children and madmen are excused from offences against the law natural.
Where a man is captive, or in the power of the enemy (and he is then in the power of the enemy when his person, or his means of living, is so), if it be without his own fault, the obligation of the law ceaseth; because he must obey the enemy, or die, and consequently such obedience is no crime: for no man is obliged (when the protection of the law faileth) not to protect himself by the best means he can.
If a man by the terror of present death be compelled to do a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory, yet a man would reason thus: "If I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained." Nature therefore compels him to the fact.
When a man is destitute of food or other thing necessary for his life, and cannot preserve himself any other way but by some fact against the law; as if in a great famine he take the food by force, or stealth, which he cannot obtain for money, nor charity; or in defence of his life, snatch away another man's sword; he is totally excused for the reason next before alleged.
Again, facts done against the law, by the authority of another, are by that authority excused against the author, because no man ought to accuse his own fact in another that is but his instrument: but it is not excused against a third person thereby injured, because in the violation of the law both the author and actor are criminals. From hence it followeth that when that man or assembly that hath the sovereign power commandeth a man to do that which is contrary to a former law, the doing of it is totally excused: for he ought not to condemn it himself, because he is the author; and what cannot justly be condemned by the sovereign cannot justly be punished by any other. Besides, when the sovereign commandeth anything to be done against his own former law, the command, as to that particular fact, is an abrogation of the law.
If that man or assembly that hath the sovereign power disclaim any right essential to the sovereignty, whereby there accrueth to the subject any liberty inconsistent with the sovereign power; that is to say, with the very being of a Commonwealth; if the subject shall refuse to obey the command in anything, contrary to the liberty granted, this is nevertheless a sin, and contrary to the duty of the subject: for he to take notice of what is inconsistent with the sovereignty, because it was erected by his own consent and for his own defence, and that such liberty as is inconsistent with it was granted through ignorance of the evil consequence thereof. But if he not only disobey, but also resist a public minister in the execution of it, then it is a crime, because he might have been righted, without any breach of the peace, upon complaint.
The degrees of crime are taken on diverse scales, and measured, first, by the malignity of the source, or cause: secondly, by the contagion of the example: thirdly, by the mischief of the effect: and fourthly, by the concurrence of times, places, and persons.
The same fact done against the law, if it proceed from presumption of strength, riches, or friends to resist those that are to execute the law, is a greater crime than if it proceed from hope of not being discovered, or of escape by flight: for presumption of impunity by force is a root from whence springeth, at all times, and upon all temptations, a contempt of all laws; whereas in the latter case the apprehension of danger that makes a man fly renders him more obedient for the future. A crime which know to be so is greater than the same crime proceeding from a false persuasion that it is lawful: for he that committeth it against his own conscience presumeth on his force, or other power, which encourages him to commit the same again, but he that doth it by error, after the error shown him, is conformable to the law.
He whose error proceeds from the authority of a teacher, or an interpreter of the law publicly authorised, is not so faulty as he whose error proceedeth from a peremptory pursuit of his own principles and reasoning: for what is taught by one that teacheth by public authority, the Commonwealth teacheth, and hath a resemblance of law, till the same authority controlleth it; and in all crimes that contain not in them a denial of the sovereign power, nor are against an evident law, excuseth totally; whereas he that groundeth his actions on his private judgement ought, according to the rectitude or error thereof, to stand or fall.
The same fact, if it have been constantly punished in other men, is a greater crime than if there have been many precedent examples of impunity. For those examples are so many hopes of impunity, given by the sovereign himself: and because he which furnishes a man with such a hope and presumption of mercy, as encourageth him to offend, hath his part in the offence, he cannot reasonably charge the offender with the whole.
A crime arising from a sudden passion is not so great as when the same ariseth from long meditation: for in the former case there is a place for extenuation in the common infirmity of human nature; but he that doth it with premeditation has used circumspection, and cast his eye on the law, on the punishment, and on the consequence thereof to human society; all which in committing the crime he hath contemned and postponed to his own appetite. But there is no suddenness of passion sufficient for a total excuse: for all the time between the first knowing of the law, and the commission of the fact, shall be taken for a time of deliberation, because he ought, by meditation of the law, to rectify the irregularity of his passions.
Where the law is publicly, and with assiduity, before all the people read and interpreted, a fact done against it is a greater crime than where men are left without such instruction to enquire of it with difficulty, uncertainty, and interruption of their callings, and be informed by private men: for in this case, part of the fault is discharged upon common infirmity; but in the former there is apparent negligence, which is not without some contempt of the sovereign power.
Those facts which the law expressly condemneth, but the lawmaker by other manifest signs of his will tacitly approveth, are less crimes than the same facts condemned both by the law and lawmaker. For seeing the will of the lawmaker is a law, there appear in this case two contradictory laws; which would totally excuse, if men were bound to take notice of the sovereigns approbation, by other arguments than are expressed by his command. But because there are punishments consequent, not only to the transgression of his law, but also to the observing of it he is in part a cause of the transgression, and therefore cannot reasonably impute the whole crime to the delinquent. For example, the law condemneth duels; the punishment is made capital: on the contrary part, he that refuseth duel is subject to contempt and scorn, without remedy; and sometimes by the sovereign himself thought unworthy to have any charge or preferment in war: if thereupon he accept duel, considering all men lawfully endeavour to obtain the good opinion of them that have the sovereign power, he ought not in reason to be rigorously punished, seeing part of the fault may be discharged on the punisher: which I say, not as wishing liberty of private revenges, or any other kind of disobedience, but a care in governors not to countenance anything obliquely which directly they forbid. The examples of princes, to those that see them, are, and ever have been, more potent to govern their actions than the laws themselves. And though it be our duty to do, not what they do, but what they say; yet will that duty never be performed till it please God to give men an extraordinary and supernatural grace to follow that precept.
Again, if we compare crimes by the mischief of their effects; first, the same fact when it redounds to the damage of many is greater than when it redounds to the hurt of few. And therefore when a fact hurteth, not only in the present, but also by example in the future, it is a greater crime than if it hurt only in the present: for the former is a fertile crime, and multiplies to the hurt of many; the latter is barren. To maintain doctrines contrary to the religion established in the Commonwealth is a greater fault in an authorised preacher than in a private person: so also is it to live profanely, incontinently, or do any irreligious act whatsoever. Likewise in a professor of the law, to maintain any point, or do any act, that tendeth to the weakening of the sovereign power is a greater crime than in another man: also in a man that hath such reputation for wisdom as that his counsels are followed, or his actions imitated by many, his fact against the law is a greater crime than the same fact in another: for such men not only commit crime, but teach it for law to all other men. And generally all crimes are the greater by the scandal they give; that is to say, by becoming stumbling-blocks to the weak, that look not so much upon the way they go in, as upon the light that other men carry before them.
Also facts of hostility against the present state of the Commonwealth are greater crimes than the same acts done to private men: for the damage extends itself to all: such are the betraying of the strengths or revealing of the secrets of the Commonwealth to an enemy; also all attempts upon the representative of the Commonwealth, be it a monarch or an assembly; and all endeavours by word or deed to diminish the authority of the same, either in the present time or in succession: which crimes the Latins understand by crimina laesae majestatis, and consist in design, or act, contrary to a fundamental law.
Likewise those crimes which render judgements of no effect are greater crimes than injuries done to one or a few persons; as to receive money to give false judgement or testimony is a greater crime than otherwise to deceive a man of the like or a greater sum; because not only he has wrong, that falls by such judgements, but all judgements are rendered useless, and occasion ministered to force and private revenges.
Also robbery and depeculation of the public treasury or revenues is a greater crime than the robbing or defrauding of a private man, because to rob the public is to rob many at once; also the counterfeit usurpation of public ministry, the counterfeiting of public seals, or public coin, than counterfeiting of a private man's person or his seal, because the fraud thereof extendeth to the damage of many.
Of facts against the law done to private men, the greater crime is that where the damage, in the common opinion of men, is most sensible. And therefore:
To kill against the law is a greater crime than any other injury, life preserved.
And to kill with torment, greater than simply to kill.
And mutilation of a limb, greater than the spoiling a man of his goods.
And the spoiling a man of his goods by terror of death or wounds, than by clandestine surreption.
And by clandestine surreption, than by consent fraudulently obtained.
And the violation of chastity by force, greater than by flattery.
And of a woman married, than of a woman not married.
For all these things are commonly so valued; though some men are more, and some less, sensible of the same offence. But the law regardeth not the particular, but the general inclination of mankind.
And therefore the offence men take from contumely, in words or gesture, when they produce no other harm than the present grief of him that is reproached, hath been neglected in the laws of the Greeks, Romans, and other both ancient and modern Commonwealths; supposing the true cause of such grief to consist, not in the contumely (which takes no hold upon men conscious of their own virtue), but in the pusillanimity of him that is offended by it.
Also a crime against a private man is much aggravated by the person, time, and place. For to kill one's parent is a greater crime than to kill another: for the parent ought to have the honour of a sovereign (though he have surrendered his power to the civil law), because he had it originally by nature. And to rob a poor man is a greater crime than to rob a rich man, because it is to the poor a more sensible damage.
And a crime committed in the time or place appointed for devotion is greater than if committed at another time or place: for it proceeds from a greater contempt of the law.
Many other cases of aggravation and extenuation might be added; but by these I have set down, it is obvious to every man to take the altitude of any other crime proposed.
Lastly, because in almost all crimes there is an injury done, not only to some private men, but also to the Commonwealth, the same crime, when the accusation is in the name of the Commonwealth, is called public crime; and when in the name of a private man, a private crime; and the pleas according thereupon called public, judicia publica, pleas of the crown; or private pleas. As in an accusation of murder, if the accuser be a private man, the plea is a private plea; if the accuser be the sovereign, the plea is a public plea.
A punishment is an evil inflicted by public authority on him that hath done or omitted that which is judged by the same authority to be a transgression of the law, to the end that the will of men may thereby the better be disposed to obedience.
Before I infer anything from this definition, there is a question to be answered of much importance; which is, by what door the right or authority of punishing, in any case, came in. For by that which has been said before, no man is supposed bound by covenant not to resist violence; and consequently it cannot be intended that he gave any right to another to lay violent hands upon his person. In the making of a Commonwealth every man giveth away the right of defending another, but not of defending himself. Also he obligeth himself to assist him that hath the sovereignty in the punishing of another, but of himself not. But to covenant to assist the sovereign in doing hurt to another, unless he that so covenanteth have a right to do it himself, is not to give him a right to punish. It is manifest therefore that the right which the Commonwealth (that is, he or they that represent it) hath to punish is not grounded on any concession or gift of the subjects. But I have also shown formerly that before the institution of Commonwealth, every man had a right to everything, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of punishing which is exercised in every Commonwealth. For the subjects did not give the sovereign that right; but only, in laying down theirs, strengthened him to use his own as he should think fit for the preservation of them all: so that it was not given, but left to him, and to him only; and, excepting the limits set him by natural law, as entire as in the condition of mere nature, and of war of every one against his neighbour.
From the definition of punishment, I infer, first, that neither private revenges nor injuries of private men can properly be styled punishment, because they proceed not from public authority.
Secondly, that to be neglected and unpreferred by the public favour is not a punishment, because no new evil is thereby on any man inflicted; he is only left in the estate he was in before.
Thirdly, that the evil inflicted by public authority, without precedent public condemnation, is not to be styled by the name of punishment, but of a hostile act, because the fact for which a man is punished ought first to be judged by public authority to be a transgression of the law.
Fourthly, that the evil inflicted by usurped power, and judges without authority from the sovereign, is not punishment, but an act of hostility, because the acts of power usurped have not for author the person condemned, and therefore are not acts of public authority.
Fifthly, that all evil which is inflicted without intention or possibility of disposing the delinquent or, by his example, other men to obey the laws is not punishment, but an act of hostility, because without such an end no hurt done is contained under that name.
Sixthly, whereas to certain actions there be annexed by nature diverse hurtful consequences; as when a man in assaulting another is himself slain or wounded; or when he falleth into sickness by the doing of some unlawful act; such hurt, though in respect of God, who is the author of nature, it may be said to be inflicted, and therefore a punishment divine; yet it is not contained in the name of punishment in respect of men, because it is not inflicted by the authority of man.
Seventhly, if the harm inflicted be less than the benefit of contentment that naturally followeth the crime committed, that harm is not within the definition and is rather the price or redemption than the punishment of a crime: because it is of the nature of punishment to have for end the disposing of men to obey the law; which end (if it be less than the benefit of the transgression) it attaineth not, but worketh a contrary effect.
Eighthly, if a punishment be determined and prescribed in the law itself, and after the crime committed there be a greater punishment inflicted, the excess is not punishment, but an act of hostility. For seeing the aim of punishment is not a revenge, but terror; and the terror of a great punishment unknown is taken away by the declaration of a less, the unexpected addition is no part of the punishment. But where there is no punishment at all determined by the law, there whatsoever is inflicted hath the nature of punishment. For he that goes about the violation of a law, wherein no penalty is determined, expecteth an indeterminate, that is to say, an arbitrary punishment.
Ninthly, harm inflicted for a fact done before there was a law that forbade it is not punishment, but an act of hostility: for before the law, there is no transgression of the law: but punishment supposeth a fact judged to have been a transgression of the law; therefore harm inflicted before the law made is not punishment, but an act of hostility.
Tenthly, hurt inflicted on the representative of the Commonwealth is not punishment, but an act of hostility: because it is of the nature of punishment to be inflicted by public authority, which is the authority only of the representative itself.
Lastly, harm inflicted upon one that is a declared enemy falls not under the name of punishment: because seeing they were either never subject to the law, and therefore cannot transgress it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgress it, all the harms that can be done them must be taken as acts of hostility. But in declared hostility all infliction of evil is lawful. From whence it followeth that if a subject shall by fact or word wittingly and deliberately deny the authority of the representative of the Commonwealth (whatsoever penalty hath been formerly ordained for treason), he may lawfully be made to suffer whatsoever the representative will: for in denying subjection, he denies such punishment as by the law hath been ordained, and therefore suffers as an enemy of the Commonwealth; that is, according to the will of the representative. For the punishments set down in the law are to subjects, not to enemies; such as are they that, having been by their own act subjects, deliberately revolting, deny the sovereign power.
The first and most general distribution of punishments is into divine and human. Of the former I shall have occasion to speak in a more convenient place hereafter.
Human are those punishments that be inflicted by the commandment of man; and are either corporal, or pecuniary, or ignominy, or imprisonment, or exile, or mixed of these.
Corporal punishment is that which is inflicted on the body directly, and according to the intention of him that inflicteth it: such as are stripes, or wounds, or deprivation of such pleasures of the body as were before lawfully enjoyed.
And of these, some be capital, some less than capital. Capital is the infliction of death; and that either simply or with torment. Less than capital are stripes, wounds, chains, and any other corporal pain not in its own nature mortal. For if upon the infliction of a punishment death follow, not in the intention of the inflicter, the punishment is not to be esteemed capital, though the harm prove mortal by an accident not to be foreseen; in which case death is not inflicted, but hastened.
Pecuniary punishment is that which consisteth not only in the deprivation of a sum of money, but also of lands, or any other goods which are usually bought and sold for money. And in case the law that ordaineth such a punishment be made with design to gather money from such as shall transgress the same, it is not properly a punishment, but the price of privilege and exemption from the law, which doth not absolutely forbid the fact but only to those that are not able to pay the money: except where the law is natural, or part of religion; for in that case it is not an exemption from the law, but a transgression of it. As where a law exacteth a pecuniary mulct of them that take the name of God in vain, the payment of the mulct is not the price of a dispensation to swear, but the punishment of the transgression of a law indispensable. In like manner if the law impose a sum of money to be paid to him that has been injured, this is but a satisfaction for the hurt done him, and extinguisheth the accusation of the party injured, not the crime of the offender.
Ignominy is the infliction of such evil as is made dishonourable; or the deprivation of such good as is made honourable by the Commonwealth. For there be some things honourable by nature; as the effects of courage, magnanimity, strength, wisdom, and other abilities of body and mind: others made honourable by the Commonwealth; as badges, titles, offices, or any other singular mark of the sovereigns favour. The former, though they may fail by nature or accident, cannot be taken away by a law; and therefore the loss of them is not punishment. But the latter may be taken away by the public authority that made them honourable, and are properly punishments: such are, degrading men condemned, of their badges, titles, and offices; or declaring them incapable of the like in time to come.
Imprisonment is when a man is by public authority deprived of liberty, and may happen from two diverse ends; whereof one is the safe custody of a man accused; the other is the inflicting of pain on a man condemned. The former is not punishment, because no man is supposed to be punished before he be judicially heard and declared guilty. And therefore whatsoever hurt a man is made to suffer by bonds or restraint before his cause be heard, over and above that which is necessary to assure his custody, is against the law of nature. But the latter is punishment because evil, and inflicted by public authority for somewhat that has by the same authority been judged a transgression of the law. Under this word imprisonment, I comprehend all restraint of motion caused by an external obstacle, be it a house, which is called by the general name of a prison; or an island, as when men are said to be confined to it; or a place where men are set to work, as in old time men have been condemned to quarries, and in these times to galleys; or be it a chain or any other such impediment.
Exile (banishment) is when a man is for a crime condemned to depart out of the dominion of the Commonwealth, or out of a certain part thereof, and during a prefixed time, or for ever, not to return into it; and seemeth not in its own nature, without other circumstances, to be a punishment, but rather an escape, or a public commandment to avoid punishment by flight. And Cicero says there was never any such punishment ordained in the city of Rome; but calls it a refuge of men in danger. For if a man banished be nevertheless permitted to enjoy his goods, and the revenue of his lands, the mere change of air is no punishment; nor does it tend to that benefit of the Commonwealth for which all punishments are ordained, that is to say, to the forming of men's wills to the observation of the law; but many times to the damage of the Commonwealth. For a banished man is a lawful enemy of the Commonwealth that banished him, as being no more a member of the same. But if he be withal deprived of his lands, or goods, then the punishment lieth not in the exile, but is to be reckoned amongst punishments pecuniary.
All punishments of innocent subjects, be they great or little, are against the law of nature: for punishment is only for transgression of the law, and therefore there can be no punishment of the innocent. It is therefore a violation, first, of that law of nature which forbiddeth all men, in their revenges, to look at anything but some future good: for there can arrive no good to the Commonwealth by punishing the innocent. Secondly, of that which forbiddeth ingratitude: for seeing all sovereign power is originally given by the consent of every one of the subjects, to the end they should as long as they are obedient be protected thereby, the punishment of the innocent is a rendering of evil for good. And thirdly, of the law that commandeth equity; that is to say, an equal distribution of justice, which in punishing the innocent is not observed.
But the infliction of what evil soever on an innocent man that is not a subject, if it be for the benefit of the Commonwealth, and without violation of any former covenant, is no breach of the law of nature. For all men that are not subjects are either enemies, or else they have ceased from being so by some precedent covenants. But against enemies, whom the Commonwealth judgeth capable to do them hurt, it is lawful by the original right of nature to make war; wherein the sword judgeth not, nor doth the victor make distinction of nocent and innocent as to the time past, nor has other respect of mercy than as it conduceth to the good of his own people. And upon this ground it is that also in subjects who deliberately deny the authority of the Commonwealth established, the vengeance is lawfully extended, not only to the fathers, but also to the third and fourth generation not yet in being, and consequently innocent of the fact for which they are afflicted: because the nature of this offence consisteth in the renouncing of subjection, which is a relapse into the condition of war commonly called rebellion; and they that so offend, suffer not as subjects, but as enemies. For rebellion is but war renewed.
Reward is either of gift or by contract. When by contract, it is called salary and wages; which is benefit due for service performed or promised. When of gift, it is benefit proceeding from the grace of them that bestow it, to encourage or enable men to do them service. And therefore when the sovereign of a Commonwealth appointeth a salary to any public office, he that receiveth it is bound in justice to perform his office; otherwise, he is bound only in honour to acknowledgement and an endeavour of requital. For though men have no lawful remedy when they be commanded to quit their private business to serve the public, without reward or salary, yet they are not bound thereto by the law of nature, nor by the institution of the Commonwealth, unless the service cannot otherwise be done; because it is supposed the sovereign may make use of all their means, insomuch as the most common soldier may demand the wages of his warfare as a debt.
The benefits which a sovereign bestoweth on a subject, for fear of some power and ability he hath to do hurt to the Commonwealth, are not properly rewards: for they are not salaries, because there is in this case no contract supposed, every man being obliged already not to do the Commonwealth disservice: nor are they graces, because they be extorted by fear, which ought not to be incident to the sovereign power: but are rather sacrifices, which the sovereign, considered in his natural person, and not in the person of the Commonwealth, makes for the appeasing the discontent of him he thinks more potent than himself; and encourage not to obedience, but, on the contrary, to the continuance and increasing of further extortion.
And whereas some salaries are certain, and proceed from the public treasury; and others uncertain and casual, proceeding from the execution of the office for which the salary is ordained; the latter is in some cases hurtful to the Commonwealth, as in the case of judicature. For where the benefit of the judges, and ministers of a court of justice, ariseth for the multitude of causes that are brought to their cognizance, there must needs follow two inconveniences: one is the nourishing of suits; for the more suits, the greater benefit: and another that depends on that, which is contention which is about jurisdiction; each court drawing to itself as many causes as it can. But in offices of execution there are not those inconveniences, because their employment cannot be increased by any endeavour of their own. And thus much shall suffice for the nature of punishment and reward; which are, as it were, the nerves and tendons that move the limbs and joints of a Commonwealth.
Hitherto I have set forth the nature of man, whose pride and other passions have compelled him to submit himself to government; together with the great power of his governor, whom I compared to LEVIATHAN, taking that comparison out of the two last verses of the one-and-fortieth of Job; where God, having set forth the great power of Leviathan, calleth him king of the proud. "There is nothing," saith he, "on earth to be compared with him. He is made so as not to be afraid. He seeth every high thing below him; and is king of all the children of pride." But because he is mortal, and subject to decay, as all other earthly creatures are; and because there is that in heaven, though not on earth, that he should stand in fear of, and whose laws he ought to obey; I shall in the next following chapters speak of his diseases and the causes of his mortality, and of what laws of nature he is bound to obey.
THOUGH nothing can be immortal which mortals make; yet, if men had the use of reason they pretend to, their Commonwealths might be secured, at least, from perishing by internal diseases. For by the nature of their institution, they are designed to live as long as mankind, or as the laws of nature, or as justice itself, which gives them life. Therefore when they come to be dissolved, not by external violence, but intestine disorder, the fault is not in men as they are the matter, but as they are the makers and orderers of them. For men, as they become at last weary of irregular jostling and hewing one another, and desire with all their hearts to conform themselves into one firm and lasting edifice; so for want both of the art of making fit laws to square their actions by, and also of humility and patience to suffer the rude and cumbersome points of their present greatness to be taken off, they cannot without the help of a very able architect be compiled into any other than a crazy building, such as, hardly lasting out their own time, must assuredly fall upon the heads of their posterity.
Amongst the infirmities therefore of a Commonwealth, I will reckon in the first place those that arise from an imperfect institution, and resemble the diseases of a natural body, which proceed from a defectuous procreation.
Of which this is one: that a man to obtain a kingdom is sometimes content with less power than to the peace and defence of the Commonwealth is necessarily required. From whence it cometh to pass that when the exercise of the power laid by is for the public safety to be resumed, it hath the resemblance of an unjust act, which disposeth great numbers of men, when occasion is presented, to rebel; in the same manner as the bodies of children gotten by diseased parents are subject either to untimely death, or to purge the ill quality derived from their vicious conception, by breaking out into biles and scabs. And when kings deny themselves some such necessary power, it is not always (though sometimes) out of ignorance of what is necessary to the office they undertake, but many times out of a hope to recover the same again at their pleasure: wherein they reason not well; because such as will hold them to their promises shall be maintained against them by foreign Commonwealths; who in order to the good of their own subjects let slip few occasions to weaken the estate of their neighbours. So was Thomas Becket, Archbishop of Canterbury, supported against Henry the Second by the Pope; the subjection of ecclesiastics to the Commonwealth having been dispensed with by William the Conqueror at his reception, when he took an oath not to infringe the liberty of the Church. And so were the barons, whose power was by William Rufus, to have their help in transferring the succession from his elder brother to himself, increased to a degree inconsistent with the sovereign power, maintained in their rebellion against King John by the French.
Nor does this happen in monarchy only. For whereas the style of the ancient Roman Commonwealth was, "The Senate and People of Rome"; neither senate nor people pretended to the whole power; which first caused the seditions of Tiberius Gracchus, Caius Gracchus, Lucius Saturninus, and others; and afterwards the wars between the senate and the people under Marius and Sylla; and again under Pompey and Caesar to the extinction of their democracy and the setting up of monarchy.
The people of Athens bound themselves but from one only action, which was that no man on pain of death should propound the renewing of the war for the island of Salamis; and yet thereby, if Solon had not caused to be given out he was mad, and afterwards in gesture and habit of a madman, and in verse, propounded it to the people that flocked about him, they had had an enemy perpetually in readiness, even at the gates of their city: such damage, or shifts, are all Commonwealths forced to that have their power never so little limited.
In the second place, I observe the diseases of a Commonwealth that proceed from the poison of seditious doctrines, whereof one is that every private man is judge of good and evil actions. This is true in the condition of mere nature, where there are no civil laws; and also under civil government in such cases as are not determined by the law. But otherwise, it is manifest that the measure of good and evil actions is the civil law; and the judge the legislator, who is always representative of the Commonwealth. From this false doctrine, men are disposed to debate with themselves and dispute the commands of the Commonwealth, and afterwards to obey or disobey them as in their private judgments they shall think fit; whereby the Commonwealth is distracted and weakened.
Another doctrine repugnant to civil society is that whatsoever a man does against his conscience is sin; and it dependeth on the presumption of making himself judge of good and evil. For a man's conscience and his judgement is the same thing; and as the judgement, so also the conscience may be erroneous. Therefore, though he that is subject to no civil law sinneth in all he does against his conscience, because he has no other rule to follow but his own reason, yet it is not so with him that lives in a Commonwealth, because the law is the public conscience by which he hath already undertaken to be guided. Otherwise in such diversity as there is of private consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the sovereign power farther than it shall seem good in his own eyes.
It hath been also commonly taught that faith and sanctity are not to be attained by study and reason, but by supernatural inspiration or infusion. Which granted, I see not why any man should render a reason of his faith; or why every Christian should not be also a prophet; or why any man should take the law of his country rather than his own inspiration for the rule of his action. And thus we fall again into the fault of taking upon us to judge of good and evil; or to make judges of it such private men as pretend to be supernaturally inspired, to the dissolution of all civil government. Faith comes by hearing, and hearing by those accidents which guide us into the presence of them that speak to us; which accidents are all contrived by God Almighty, and yet are not supernatural, but only, for the great number of them that concur to every effect, unobservable. Faith and sanctity are indeed not very frequent; but yet they are not miracles, but brought to pass by education, discipline, correction, and other natural ways by which God worketh them in His elect, at such time as He thinketh fit. And these three opinions, pernicious to peace and government, have in this part of the world proceeded chiefly from tongues and pens of unlearned divines; who, joining the words of Holy Scripture together otherwise is agreeable to reason, do what they can to make men think that sanctity and natural reason cannot stand together.
A fourth opinion repugnant to the nature of a Commonwealth is this: that he that hath the sovereign power is subject to the civil laws. It is true that sovereigns are all subject to the laws of nature, because such laws be divine and divine and cannot by any man or Commonwealth be abrogated. But to those laws which the sovereign himself, that is, which the Commonwealth, maketh, he is not subject. For to be subject to laws is to be to be subject to the Commonwealth, that is, to the sovereign representative, that is, to himself which is not subjection, but freedom from the laws. Which error, because it setteth the laws above the sovereign, setteth also a judge above him, and a power to punish him; which is to make a new sovereign; and again for the same reason a third to punish the second; and so continually without end, to the confusion and dissolution of the Commonwealth.
A fifth doctrine that tendeth to the dissolution of a Commonwealth is that every private man has an absolute propriety in his goods, such as excludeth the right of the sovereign. Every man has indeed a propriety that excludes the right of every other subject: and he has it only from the sovereign power, without the protection whereof every other man should have right to the same. But the right of the sovereign also be excluded, he cannot perform the office they have put him into, which is to defend them both from foreign enemies and from the injuries of one another; and consequently there is no longer a Commonwealth.
And if the propriety of subjects exclude not the right of the sovereign representative to their goods; much less, to their offices of judicature or execution in which they represent the sovereign himself.
There is a sixth doctrine, plainly and directly against the essence of a Commonwealth, and it is this: that the sovereign power may be divided. For what is it to divide the power of a Commonwealth, but to dissolve it; for powers divided mutually destroy each other. And for these doctrines men are chiefly beholding to some of those that, making profession of the laws, endeavour to make them depend upon their own learning, and not upon the legislative power.
And as false doctrine, so also oftentimes the example of different government in a neighbouring nation disposeth men to alteration of the form already settled. So the people of the Jews were stirred up to reject God, and to call upon the prophet Samuel for a king after the manner of the nations: so also the lesser cities of Greece were continually disturbed with seditions of the aristocratical and democratical factions; one part of almost every Commonwealth desiring to imitate the Lacedaemonians; the other, the Athenians. And I doubt not but many men have been contented to see the late troubles in England out of an imitation of the Low Countries, supposing there needed no more to grow rich than to change, as they had done, the form of their government. For the constitution of man's nature is of itself subject to desire novelty: when therefore they are provoked to the same by the neighbourhood also of those that have been enriched by it, it is almost impossible to be content with those that solicit them to change; and love the first beginnings, though they be grieved with the continuance of disorder; like hot bloods that, having gotten the itch, tear themselves with their own nails till they can endure the smart no longer.
And as to rebellion in particular against monarchy, one of the most frequent causes of it is the reading of the books of policy and histories of the ancient Greeks and Romans; from which young men, and all others that are unprovided of the antidote of solid reason, receiving a strong and delightful impression of the great exploits of war achieved by the conductors of their armies, receive withal a pleasing idea of all they have done besides; and imagine their great prosperity not to have proceeded from the emulation of particular men, but from the virtue of their popular form of government not considering the frequent seditions and civil wars produced by the imperfection of their policy. From the reading, I say, of such books, men have undertaken to kill their kings, because the Greek and Latin writers in their books and discourses of policy make it lawful and laudable for any man so to do, provided before he do it he call him tyrant. For they say not regicide, that is, killing of a king, but tyrannicide, that is, killing of a tyrant, is lawful. From the same books they that live under a monarch conceive an the opinion that the subjects in a popular Commonwealth enjoy liberty, but that in a monarchy they are all slaves. I say, they that live under a monarchy conceive such an opinion; not that they live under a popular government: for they find no such matter. In sum, I cannot imagine how anything can be more prejudicial to a monarchy than the allowing of such books to be publicly read, without present applying such correctives of discreet masters as are fit to take away their venom: which venom I will not doubt to compare to the biting of a mad dog, which is a disease that physicians call hydrophobia, or fear of water. For as he that is so bitten has a continual torment of thirst, and yet abhorreth water; and is in such an estate as if the poison endeavoured to convert him into a dog; so when a monarchy is once bitten to the quick by those democratical writers that continually snarl at that estate, it wanteth nothing more than a strong monarch, which nevertheless out of a certain tyrannophobia, or fear of being strongly governed, when they have him, they abhor.
As there have been doctors that hold there be three souls in a man; so there be also that think there may be more souls, that is, more sovereigns, than one in a Commonwealth; and set up a supremacy against the sovereignty; canons against laws; and a ghostly authority against the civil; working on men's minds with words and distinctions that of themselves signify nothing, but bewray, by their obscurity, that there walketh (as some think invisibly) another kingdom, as it were a kingdom of fairies, in the dark. Now seeing it is manifest that the civil power and the power of the Commonwealth is the same thing; and that supremacy, and the power of making canons, and granting faculties, implieth a Commonwealth; it followeth that where one is sovereign, another supreme; where one can make laws, and another make canons; there must needs be two Commonwealths, of one and the same subjects; which is a kingdom divided in itself, and cannot stand. For notwithstanding the insignificant distinction of temporal and ghostly, they are still two kingdoms, and every subject is subject to two masters. For seeing the ghostly power challengeth the right to declare what is sin, it challengeth by consequence to declare what is law, sin being nothing but the transgression of the law; and again, the civil power challenging to declare what is law, every subject must obey two masters, who both will have their commands be observed as law, which is impossible. Or, if it be but one kingdom, either the civil, which is the power of the Commonwealth, must be subordinate to the ghostly, and then there is no sovereignty but the ghostly; or the ghostly must be subordinate to the temporal, and then there is no supremacy but the temporal. When therefore these two powers oppose one another, the Commonwealth cannot but be in great danger of civil war and dissolution. For the civil authority being more visible, and standing in the clearer light of natural reason, cannot choose but draw to it in all times a very considerable part of the people: and the spiritual, though it stand in the darkness of School distinctions and hard words; yet, because the fear of darkness and ghosts is greater than other fears, cannot want a party sufficient to trouble, and sometimes to destroy, a Commonwealth. And this is a disease which not unfitly may be compared to the epilepsy, or falling sickness (which the Jews took to be one kind of possession by spirits), in the body natural. For as in this disease there is an unnatural spirit or wind in the head that obstructeth the roots of the nerves and, moving them violently, taketh the motion which naturally they should have from the power of the soul in the brain; thereby causeth violent and irregular motions, which men call convulsions, in the parts; insomuch as he that is seized therewith falleth down sometimes into the water, and sometimes into the fire, as a man deprived of his senses: so also in the body politic, when the spiritual power moveth the members of a Commonwealth by the terror of punishments and hope of rewards, which are the nerves of it, otherwise than by the civil power, which is the soul of the Commonwealth, they ought to be moved; and by strange and hard words suffocates their understanding; it must needs thereby distract the people, and either overwhelm the Commonwealth with oppression, or cast it into the fire of a civil war.
Sometimes also in the merely civil government there be more than one soul: as when the power of levying money, which is the nutritive faculty, has depended on a general assembly; the power of conduct and command, which is the motive faculty, on one man; and the power of making laws, which is the rational faculty, on the accidental consent, not only of those two, but also of a third: this endangereth the Commonwealth, sometimes for want of consent to good laws, but most often for want of such nourishment as is necessary to life and motion. For although few perceive that such government is not government, but division of the Commonwealth into three factions, and call it mixed monarchy; yet the truth is that it is not one independent Commonwealth, but three independent factions; nor one representative person, but three. In the kingdom of God there may be three persons independent, without breach of unity in God that reigneth; but where men reign, that be subject to diversity of opinions, it cannot be so. And therefore if the king bear the person of the people, and the general assembly bear also the person of the people, and another assembly bear the person of a part of the people, they are not one person, nor one sovereign; but three persons, and three sovereigns.
To what disease in the natural body of man I may exactly compare this irregularity of a Commonwealth, I know not. But I have seen a man that had another man growing out of his side, with a head, arms, breast, and stomach of his own: if he had had another man growing out of his other side, the comparison might then have been exact.
Hitherto I have named such diseases of a Commonwealth as are of the greatest and most present danger. There be other, not so great, which nevertheless are not unfit to be observed. As first, the difficulty of raising money for the necessary uses of the Commonwealth, especially in the approach of war. This difficulty ariseth from the opinion that every subject hath of a propriety in his lands and goods exclusive of the sovereign's right to the use of the same. From whence it cometh to pass that the sovereign power, which foreseeth the necessities and dangers of the Commonwealth, finding the passage of money to the public treasury obstructed by the tenacity of the people, whereas it ought to extend itself, to encounter and prevent such dangers in their beginnings, contracteth itself as long as it can, and when it cannot longer, struggles with the people by stratagems of law to obtain little sums, which, not sufficing, he is fain at last violently to open the way for present supply or perish; and, being put often to these extremities, at last reduceth the people to their due temper, or else the Commonwealth must perish. Insomuch as we may compare this distemper very aptly to an ague; wherein, the fleshy parts being congealed, or by venomous matter obstructed, the veins which by their natural course empty themselves into the heart, are not (as they ought to be) supplied from the arteries, whereby there succeedeth at first a cold contraction and trembling of the limbs; and afterwards a hot and strong endeavour of the heart to force a passage for the blood; and before it can do that, contenteth itself with the small refreshments of such things as cool for a time, till, if nature be strong enough, it break at last the contumacy of the parts obstructed, and dissipateth the venom into sweat; or, if nature be too weak, the patient dieth.
Again, there is sometimes in a Commonwealth a disease which resembleth the pleurisy; and that is when the treasury of the Commonwealth, flowing out of its due course, is gathered together in too much abundance in one or a few private men, by monopolies or by farms of the public revenues; in the same manner as the blood in a pleurisy, getting into the membrane of the breast, breedeth there an inflammation, accompanied with a fever and painful stitches.
Also, the popularity of a potent subject, unless the Commonwealth have very good caution of his fidelity, is a dangerous disease; because the people, which should receive their motion from the authority of the sovereign, by the flattery and by the reputation of an ambitious man, are drawn away from their obedience to the laws to follow a man of whose virtues and designs they have no knowledge. And this is commonly of more danger in a popular government than in a monarchy, because an army is of so great force and multitude as it may easily be made believe they are the people. By this means it was that Julius Caesar, who was set up by the people against the senate, having won to himself the affections of his army, made himself master both of senate and people. And this proceeding of popular and ambitious men is plain rebellion, and may be resembled to the effects of witchcraft.
Another infirmity of a Commonwealth is the immoderate greatness of a town, when it is able to furnish out of its own circuit the number and expense of a great army; as also the great number of corporations, which are as it were many lesser Commonwealths in the bowels of a greater, like worms in the entrails of a natural man. To may be added, liberty of disputing against absolute power by pretenders to political prudence; which though bred for the most part in the lees of the people, yet animated by false doctrines are perpetually meddling with the fundamental laws, to the molestation of the Commonwealth, like the little worms which physicians call ascarides.
We may further add the insatiable appetite, or bulimia, of enlarging dominion, with the incurable wounds thereby many times received from the enemy; and the wens, of ununited conquests, which are many times a burden, and with less danger lost than kept; as also the lethargy of ease, and consumption of riot and vain expense.
Lastly, when in a war, foreign or intestine, the enemies get a final victory, so as, the forces of the Commonwealth keeping the field no longer, there is no further protection of subjects in their loyalty, then is the Commonwealth dissolved, and every man at liberty to protect himself by such courses as his own discretion shall suggest unto him. For the sovereign is the public soul, giving life and motion to the Commonwealth, which expiring, the members are governed by it no more than the carcass of a man by his departed, though immortal, soul. For though the right of a sovereign monarch cannot be extinguished by the act of another, yet the obligation of the members may. For he that wants protection may seek it anywhere; and, when he hath it, is obliged (without fraudulent pretence of having submitted himself out of fear) to protect his protection as long as he is able. But when the power of an assembly is once suppressed, the right of the same perisheth utterly, because the assembly itself is extinct; and consequently, there is no possibility for sovereignty to re-enter.