The NUTRITION of a commonwealth consisteth, in the plenty, and distribution of materials conducing to life: in concoction, or preparation; and, when concocted, in the conveyance of it, by convenient conduits, to the public use.
As for the plenty of matter, it is a thing limited by nature, to those commodities, which from the two breasts of our common mother, land and sea, God usually either freely giveth, or for labour selleth to mankind.
For the matter of this nutriment, consisting in animals, vegetals, and minerals, God hath freely laid them before us, in or near to the face of the earth; so as there needeth no more but the labour, and industry of receiving them. Insomuch as plenty dependeth, next to God’s favour, merely on the labour and industry of men.
This matter, commonly called commodities, is partly native, and partly foreign: native, that which is to be had within the territory of the commonwealth: foreign, that which is imported from without. And because there is no territory under the dominion of one commonwealth, except it be of very vast extent, that produceth all things needful for the maintenance, and motion of the whole body; and few that produce not some thing more than necessary; the superfluous commodities to be had within, become no more superfluous, but supply these wants at home, by importation of that which may be had abroad, either by exchange, or by just war, or by labour. For a man’s labour also, is a commodity exchangeable for benefit, as well as any other thing: and there have been commonwealths that having no more territory, than hath served them for habitation, have nevertheless, not only maintained, but also encreased their power, partly by the labour of trading from one place to another, and partly by selling the manufactures whereof the materials were brought in from other places.
The distribution of the materials of this nourishment, is the constitution of mine, and thine, and his; that is to say, in one word propriety; and belongeth in all kinds of commonwealth to the sovereign power. For where there is no commonwealth, there is, as hath been already shown, a perpetual war of every man against his neighbour; and therefore every thing is his that getteth it, and keepeth it by force; which is neither propriety, nor community; but uncertainty. Which is so evident, that even Cicero, a passionate defender of liberty, in a public pleading, attributeth all propriety to the law civil. Let the civil law, saith he, be once abandoned, or but negligently guarded, not to say oppressed, and there is nothing, that any man can be sure to receive from his ancestor, or leave to his children. And again; Take away the civil law, and no man knows what is his own, and what another man’s. Seeing therefore the introduction of propriety is an effect of commonwealth, which can do nothing but by the person that represents it, it is the act only of the sovereign; and consisteth in the laws, which none can make that have not the sovereign power. And this they well knew of old, who called that Νόμος, that is to say, distribution, which we call law; and defined justice, by distributing to every man his own.
In this distribution, the first law, is for division of the land itself: wherein the sovereign assigneth to every man a portion, according as he, and not according as any subject, or any number of them, shall judge agreeable to equity, and the common good. The children of Israel, were a commonwealth in the wilderness; but wanted the commodities of the earth, till they were masters of the Land of Promise; which afterward was divided amongst them, not by their own discretion, but by the discretion of Eleazar the Priest, and Joshua their General, who, when there were twelve tribes, making them thirteen by subdivision of the tribe of Joseph, made nevertheless but twelve portions of the land; and ordained for the tribe of Levi no land; but assigned them the tenth part of the whole fruits; which division was therefore arbitrary. And though a people coming into possession of a land by war, do not always exterminate the ancient inhabitants, as did the Jews, but leave to many, or most, or all of them their estates; yet it is manifest they hold them afterwards, as of the victors’ distribution; as the people of England held all theirs of William the Conqueror.
From whence we may collect, that the propriety which a subject hath in his lands, consisteth in a right to exclude all other subjects from the use of them; and not to exclude their sovereign, be it an assembly, or a monarch. For seeing the sovereign, that is to say, the commonwealth, whose person he representeth, is understood to do nothing but in order to the common peace and security, this distribution of lands, is to be understood as done in order to the same: and consequently, whatsoever distribution he shall make in prejudice thereof, is contrary to the will of every subject, that committed his peace, and safety to his discretion, and conscience; and therefore by the will of every one of them, is to be reputed void. It is true, that a sovereign monarch, or the greater part of a sovereign assembly, may ordain the doing of many things in pursuit of their passions, contrary to their own consciences, which is a breach of trust, and of the law of nature; but this is not enough to authorize any subject, either to make war upon, or so much as to accuse of injustice, or any way to speak evil of their sovereign; because they have authorized all his actions, and in bestowing the sovereign power, made them their own. But in what cases the commands of sovereigns are contrary to equity, and the law of nature, is to be considered hereafter in another place.
In the distribution of land, the commonwealth itself, may be conceived to have a portion, and possess, and improve the same by their representative; and that such portion may be made sufficient, to sustain the whole expense to the common peace, and defence necessarily required. Which were very true, if there could be any representative conceived free from human passions, and infirmities. But the nature of men being as it is, the setting forth of public land, or of any certain revenue for the commonwealth, is in vain; and tendeth to the dissolution of government, and to the condition of mere nature, and war, as soon as ever the sovereign power falleth into the hands of a monarch, or of an assembly, that are either too negligent of money, or too hazardous in engaging the public stock into a long or costly war. Commonwealths can endure no diet: for seeing their expense is not limited by their own appetite, but by external accidents, and the appetites of their neighbours, the public riches cannot be limited by other limits, than those which the emergent occasions shall require. And whereas in England, there were by the Conqueror, divers lands reserved to his own use, besides forests and chases, either for his recreation, or preservation of woods, and divers services reserved on the land he gave his subjects; yet it seems they were not reserved for his maintenance in his public, but in his natural capacity. For he, and his successors did for all that, lay arbitrary taxes on all subjects’ land, when they judged it necessary. Or if those public lands, and services, were ordained as a sufficient maintenance of the commonwealth, it was contrary to the scope of the institution; being, as it appeared by those ensuing taxes, insufficient, and, as it appears by the late small revenue of the crown, subject to alienation and diminution. It is therefore in vain, to assign a portion to the commonwealth; which may sell, or give it away; and does sell and give it away, when it is done by their representative.
As the distribution of lands at home; so also to assign in what places, and for what commodities, the subject shall traffic abroad, belongeth to the sovereign. For if it did belong to private persons to use their own discretion therein, some of them would be drawn for gain, both to furnish the enemy with means to hurt the commonwealth, and hurt it themselves, by importing such things, as pleasing men’s appetites, be nevertheless noxious, or at least unprofitable to them. And therefore it belongeth to the commonwealth, that is, to the sovereign only, to approve, or disapprove both of the places, and matter of foreign traffic.
Further, seeing it is not enough to the sustentation of a commonwealth, that every man have a propriety in a portion of land, or in some few commodities, or a natural property in some useful art, and there is no art in the world, but is necessary either for the being, or well being almost of every particular man; it is necessary, that men distribute that which they can spare, and transfer their propriety therein, mutually one to another, by exchange, and mutual contract. And therefore it belongeth to the commonwealth, that is to say, to the sovereign, to appoint in what manner all kinds of contract between subjects, as buying, selling, exchanging, borrowing, lending, letting, and taking to hire, are to be made; and by what words and signs they shall be understood for valid. And for the matter, and distribution of the nourishment, to the several members of the commonwealth, thus much, considering the model of the whole work, is sufficient.
By concoction, I understand the reducing of all commodities, which are not presently consumed, but reserved for nourishment in time to come, to something of equal value, and withal so portable, as not to hinder the motion of men from place to place; to the end a man may have in what place soever, such nourishment as the place affordeth. And this is nothing else but gold, and silver, and money. For gold and silver, being, as it happens, almost in all countries of the world highly valued, is a commodious measure of the value of all things else between nations; and money, of what matter soever coined by the sovereign of a commonwealth, is a sufficient measure of the value of all things else, between the subjects of that commonwealth. By the means of which measures, all commodities, moveable and immoveable, are made to accompany a man to all places of his resort, within and without the place of his ordinary residence; and the same passeth from man to man, within the commonwealth; and goes round about, nourishing, as it passeth, every part thereof; in so much as this concoction, is as it were the sanguification of the commonwealth: for natural blood is in like manner made of the fruits of the earth; and circulating, nourisheth by the way every member of the body of man.
And because silver and gold have their value from the matter itself; they have first this privilege, that the value of them cannot be altered by the power of one, nor of a few commonwealths; as being a common measure of the commodities of all places. But base money, may easily be enhanced, or abased. Secondly, they have the privilege to make commonwealths move, and stretch out their arms, when need is, into foreign countries: and supply, not only private subjects that travel, but also whole armies with provision. But that coin, which is not considerable for the matter, but for the stamp of the place, being unable to endure change of air, hath its effect at home only; where also it is subject to the change of laws, and thereby to have the value diminished, to the prejudice many times of those that have it.
The conduits, and ways by which it is conveyed to the public use, are of two sorts: one, that conveyeth it to the public coffers; the other, that issueth the same out again for public payments. Of the first sort, are collectors, receivers, and treasurers; of the second, are the treasurers again, and the officers appointed for payment of several public or private ministers. And in this also, the artificial man maintains his resemblance with the natural; whose veins receiving the blood from the several parts of the body, carry it to the heart; where being made vital, the heart by the arteries sends it out again, to enliven, and enable for motion all the members of the same.
The procreation or children of a commonwealth, are those we call plantations, or colonies; which are numbers of men sent out from the commonwealth, under a conductor, or governor, to inhabit a foreign country, either formerly void of inhabitants, or made void then by war. And when a colony is settled, they are either a commonwealth of themselves, discharged of their subjection to their sovereign that sent them, as hath been done by many commonwealths, of ancient time, in which case the commonwealth from which they went, was called their metropolis or mother, and requires no more of them, than fathers require of the children, whom they emancipate and make free from their domestic government, which is honour, and friendship; or else they remain united to their metropolis, as were the colonies of the people of Rome; and then they are no commonwealths themselves, but provinces, and parts of the commonwealth that sent them. So that the right of colonies, saving honour and league with theirwith their metropolis, dependeth wholly on their licence or letters, by which their sovereign authorized them to plant.
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 them, when they perceive who it is that speaketh, and to whom the speech is directed, and upon what occasion. But finding those phrases in men’s writings, and being not able, or not willing to enter into a consideration of the circumstances, they mistake sometimes the precepts of counsellors, for the precepts of them that command; and sometimes the contrary; according as it best agreeth with the conclusions they would infer, or the actions they approve. To avoid which mistakes, and render to those terms of commanding, counselling and exhorting, their proper and distinct significations, I define them thus.
Command is, where a man saith, do this, or do not this, 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 the sense of the assembly, is the resolution of the debate, and end of all deliberation. And generally he that demandeth counsel, is author of it; and therefore cannot punish it; and what the sovereign cannot, no man else can. But if one subject giveth counsel to another, to do 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 rigour of true reasoning; but encourages him he counselleth to action: as he that dehorteth, deterreth him from it. And, therefore, they have in their speeches, a regard to the common passions and opinions of men, in deducing their reasons; and make use of similitudes, metaphors, examples, and other tools of oratory, to persuade their hearers of the utility, honour, or justice of following their 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 then they are no more counsels, but commands; which when they are for execution of sour labour, sometimes necessity, and always humanity requireth to be sweetened in the delivery, by encouragement, and in the tune and phrase of counsel, rather than in harsher language of command.
Examples of the difference between command and counsel, we may take from the forms of speech that express them in Holy Scripture. Have no other Gods but me; make to thyself no graven image; take not God’s name in vain; sanctify the sabbath; honour thy parents; kill not; steal not, &c. are commands; because the reason for which we are to obey them, is drawn from the will of God our king, whom we are obliged to obey. But these words, Sell all thou hast; give it to the poor; and follow me, are counsel; because the reason for which we are to do so, is drawn from our own benefit; which is this, that we shall have treasure in Heaven. These words, Go into the village over against you, and you shall find an ass tied, and her colt; loose her, and bring her to me, are a command: for the reason of their fact is drawn from the will of their Master: but these words, Repent and be baptized in the name of Jesus, are counsel; because the reason why we should so do, tendeth not to any benefit of God Almighty, who shall still be king in what manner soever we rebel; but of 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 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 interests, be not inconsistent with the ends and interests 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 (chap. VIII.) is judgment. And the differences of men in that point come from different education, of some to one kind of study or business, and of others to another. When for the doing of any thing, there be infallible rules, as in engines and edifices, the rules of geometry, all the experience of the world cannot equal his counsel, that has learnt, or found out the rule. And when there is no such rule, he that hath most experience in that particular kind of business, has therein the best judgment, 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 assembly, by contradiction; or for fear of appearing duller in apprehension, than those that have applauded the contrary opinion. Secondly, in an assembly of many, there cannot choose but be some whose interests are contrary to that of the public; and these their interests make passionate, and passion eloquent, and eloquence draws others into the same advice. For the passions of men, which asunder are moderate, as the heat of one brand; in an 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 to be thought eloquent, and also learned in the politics; and give not their advice with care of the business propounded, but of the applause of their motley orations, made of the divers coloured threds, or shreads of authors; which is an impertinence at least, that takes away the time of serious consultation, and in the secret way of counselling apart, is easily avoided. Fourthly, in deliberations that ought to be kept secret, whereof there be many occasions in public business, the counsels of many, and especially in assemblies, are dangerous; and therefore great assemblies are necessitated to commit such affairs to lesser numbers, and of such persons as are most versed, and in whose fidelity they have most confidence.
To conclude, who is there that so far approves the taking of counsel from a great assembly of counsellors, that wisheth for, or would accept of their pains, when there is a question of marrying his children, disposing of his lands, governing his household, or managing his private estate, especially if there be amongst them such as wish not his prosperity? A man that doth his business by the help of many and prudent counsellors, with every one consulting apart in his proper element, does it best, as he that useth able seconds at tennis play, placed in their proper stations. He does next best, that useth his own judgment only; as he that has no second at all. But he that is carried up and down to his business in a framed counsel, which cannot move but by the plurality of consenting opinions, the execution whereof is commonly, out of envy or interest, retarded by the part dissenting, does it worst of all, and like one that is carried to the ball, though by good players, yet in a wheel-barrow, or other frame, heavy of itself, and retarded also by the inconcurrent judgments, and endeavours of them that drive it; and so much the more, as they be more that set their hands to it; and most of all, when there is one, or more amongst them, that desire to have him lose. And though it be true, that many eyes see more than one; yet it is not to be understood of many counsellors; but then only, when the final resolution is in one man. Otherwise, because many eyes see the same thing in divers lines, and are apt to look asquint towards their private benefit; they that desire not to miss their mark, though they look about with two eyes, yet they never aim but with one; and therefore no great popular commonwealth was ever kept up, but either by a foreign enemy that united them; or by the reputation of some 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 divers others have done, without taking upon them the profession of the study of the law.
And first it is manifest, that law in general, is not counsel, but command; nor a command of any man to any man; but only of him, whose command is addressed to one formerly obliged to obey him. And as for civil law, it addeth only the name of the person commanding, which is persona civitatis, the person of the 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 what is contrary, and what is not contrary to the rule.
In which definition, there is nothing that is not at first sight evident. For every man seeth, that some laws are addressed to all the subjects in general; some to particular provinces; some to particular vocations; and some to particular men; and are therefore laws, to every of those to whom the command is directed, and to none else. As also, that laws are the rules of just, and unjust; nothing being reputed unjust, that is not contrary to some law. Likewise, that none can make laws but the 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.
1. The legislator in all commonwealths, is only the sovereign, be he one man, as in a monarchy, or one assembly of men, as in a democracy, or aristocracy. For the legislator is he that maketh the law. And the commonwealth only prescribes, and commandeth the observation of those rules, which we call law: therefore the commonwealth is the legislator. But the commonwealth is no person, nor has capacity to do anything, but by the representative, that is, the sovereign; and therefore the sovereign is the sole legislator. For the same reason, none can abrogate a law made, but the sovereign; because a law is not abrogated, but by another law, that forbiddeth it to be put in execution.
2. The sovereign of a commonwealth, be it an assembly, or one man, is not subject to the civil laws. For having power to make, and repeal laws, he may when he pleaseth, free himself from that subjection, by repealing those laws that trouble him, and making of new; and consequently he was free before. For he is free, that can be free when he will: nor is it possible for any person to be bound to himself; because he that can bind, can release; and therefore he that is bound to himself only, is not bound.
3. When long use obtaineth the authority of a law, it is not the length of time that maketh the authority, but the will of the sovereign signified by his silence, for silence is sometimes an argument of consent; and it is no longer law, than the sovereign shall be silent therein. And therefore if the sovereign shall have a question of right grounded, not upon his present will, but upon the laws formerly made; the length of time shall bring no prejudice to his right; but the question shall be judged by equity. For many unjust actions, and unjust sentences, go uncontrolled a longer time than any man can remember. And our lawyers account no customs law, but such as are reasonable, and that evil customs are to be abolished. But the judgment of what is reasonable, and of what is to be abolished, belongeth to him that maketh the law, which is the sovereign assembly, or monarch.
4. The law of nature, and the civil law, contain each other, and are of equal extent. For the laws of nature, which consist in equity, justice, gratitude, and other moral virtues on these depending, in the condition of mere nature, as I have said before in the end of the fifteenth chapter, are not properly laws, but qualities that dispose men to peace and obedience. When a commonwealth is once settled, then are they actually laws, and not before; as being then the commands of the commonwealth; and therefore also civil laws: for it is the sovereign power that obliges men to obey them. For in the differences of private men, to declare, what is equity, what is justice, and what is moral virtue, and to make them binding, there is need of the ordinances of sovereign power, and punishments to be ordained for such as shall break them; which ordinances are therefore part of the civil law. The law of nature therefore is a part of the civil law in all commonwealths of the world. Reciprocally also, the civil law is a part of the dictates of nature. For justice, that is to say, performance of covenant, and giving to every man his own, is a dictate of the law of nature. But every subject in a commonwealth, hath convenanted to obey the civil law; either one with another, as when they assemble to make a common representative, or with the representative itself one by one, when subdued by the sword they promise obedience, that they may receive life; and therefore obedience to the civil law is part also of the law of nature. Civil, and natural law are not different kinds, but different parts of law; whereof one part being written, is called civil, the other unwritten, natural. But the right of nature, that is, the natural liberty of man, may by the civil law be abridged, and restrained: nay, the end of making laws, is no other, but such restraint; without the which there cannot possibly be any peace. And law was brought into the world for nothing else, but to limit the natural liberty of particular men, in such manner, as they might not hurt, but assist one another, and join together against a common enemy.
5. If the sovereign of one commonwealth, subdue a people that have lived under other written laws, and afterwards govern them by the same laws, by which they were governed before; yet those laws are the civil laws of the victor, and not of the vanquished commonwealth. For the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws. And therefore where there be divers provinces, within the dominion of a commonwealth, and in those provinces diversity of laws, which commonly are called the customs of each several province, we are not to understand that such customs have their force, only from length of time; but that they were anciently laws written, or otherwise made known, for the constitutions, and statutes of their sovereigns; and are now laws, not by virtue of the prescription of time, but by the constitutions of their present sovereigns. But if an unwritten law, in all the provinces of a dominion, shall be generally observed, and no iniquity appear in the use thereof; that law can be no other but a law of nature, equally obliging all mankind.
6. Seeing then all laws, written and unwritten, have their authority and force, from the will of the commonwealth; that is to say, from the will of the representative; which in a monarchy is the monarch, and in other commonwealths the sovereign assembly; a man may wonder from whence proceed such opinions, as are found in the books of lawyers of eminence in several commonwealths, directly, or by consequence making the legislative power depend on private men, or subordinate judges. As for example, that the common law, hath no controller but the parliament; which is true only where a parliament has the sovereign power, and cannot be assembled, nor dissolved, but by their own discretion. For if there be a right in any else to dissolve them, there is a right also to control them, and consequently to control their controllings. And if there be no such right, then the controller of laws is not parliamentum, but rex in parliamento. And where a parliament is sovereign, if it should assemble never so many, or so wise men, from the countries subject to them, for whatsoever cause; yet there is no man will believe, that such an assembly hath thereby acquired to themselves a legislative power. Item, that the two arms of a commonwealth, are force and justice; the first whereof is in the king; the other deposited in the hands of the parliament. As if a commonwealth could consist, where the force were in any hand, which justice had not the authority to command and govern.
7. That law can never be against reason, our lawyers are agreed; and that not the letter, that is every construction of it, but that which is according to the intention of the legislator, is the law. And it is true: but the doubt is of whose reason it is, that shall be received for law. It is not meant of any private reason; for then there would be as much contradiction in the laws, as there is in the Schools; nor yet, as Sir Edward Coke makes it, an artificial perfection of reason, gotten by long study, observation, and experience, as his was. For it is possible long study may increase, and confirm erroneous sentences: and where men build on false grounds, the more they build, the greater is the ruin: and of those that study, and observe with equal time and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that juris prudentia, or wisdom of subordinate judges; but the reason of this our artificial man the commonwealth, and his command, that maketh law: and the commonwealth being in their representative but one person, there cannot easily arise any contradiction in the laws; and when there doth, the same reason is able, by interpretation, or alteration, to take it away. In all courts of justice, the sovereign, which is the person of the commonwealth, is he that judgeth: the subordinate judge, ought to have regard to the reason, which moved his sovereign to make such law, that his sentence may be according thereunto; which then is his sovereign’s sentence; otherwise it is his own, and an unjust one.
8. From this, that the law is a command, and a command consisteth in declaration, or manifestation of the will of him that commandeth, by voice, writing, or some other sufficient argument of the same, we may understand, that the command of the commonwealth is law only to those, that have means to take notice of it. Over natural fools, children, or madmen, there is no law, no more than over brute beasts; nor are they capable of the title of just, or unjust; because they had never power to make any covenant, or to understand the consequences thereof; and consequently never took upon them to authorize the actions of any sovereign, as they must do that make to themselves a commonwealth. And as those from whom nature or accident hath taken away the notice of all laws in general; so also every man, from whom any accident, not proceeding from his own default, hath taken away the means to take notice of any particular law, is excused, if he observe it not: and to speak properly, that law is no law to him. It is therefore necessary, to consider in this place, what arguments, and signs be sufficient for the knowledge of what is the law; that is to say, what is the will of the sovereign, as well in monarchies, as in other forms of government.
And first, if it be a law that obliges all the subjects without exception, and is not written, nor otherwise published in such places as they may take notice thereof, it is a law of nature. For whatsoever men are to take knowledge of for law, not upon other men’s words, but every one from his own reason, must be such as is agreeable to the reason of all men; which no law can be, but the law of nature. The laws of nature therefore need not any publishing, nor proclamation; as being contained in this one sentence, approved by all the world, Do not that to another, which thou thinkest unreasonable to be done by another to 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 belongeth to the essence of all other laws, to be made known, to every man that shall be obliged to obey them, either by word, or writing, or some other act, known to proceed from the sovereign authority. For the will of another cannot be understood, but by his own word, or act, or by conjecture taken from his scope and purpose; which in the person of the 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 (Prov. vii. 3) adviseth a man, to bind the ten commandments upon his ten fingers. And for the law which Moses gave to the people of Israel at the renewing of the covenant (Deut. xi. 19), he biddeth them to teach it their children, by discoursing of it both at home, and upon the way; at going to bed, and at rising from bed; and to write it upon the posts, and doors of their houses; and (Deut. xxxi. 12) to assemble the people, man, woman, and child, to hear it read.