The Soveraign Is Legislator
1. The Legislator in all Common-wealths, is only the Soveraign, be he one Man, as in a Monarchy, or one Assembly of men, as in a Democracy, or Aristocracy. For the Legislator, is he that maketh the Law. And the Common-wealth only, praescribes, and commandeth the observation of those rules, which we call Law: Therefore the Common-wealth is the Legislator. But the Common-wealth is no Person, nor has capacity to doe any thing, but by the Representative, (that is, the Soveraign;) and therefore the Soveraign is the sole Legislator. For the same reason, none can abrogate a Law made, but the Soveraign; because a Law is not abrogated, but by another Law, that forbiddeth it to be put in execution.
And Not Subject To Civill Law
2. The Soveraign of a Common-wealth, be it an Assembly, or one Man, is not subject to the Civill Lawes. For having power to make, and repeale Lawes, he may when he pleaseth, free himselfe from that subjection, by repealing those Lawes that trouble him, and making of new; and consequently he was free before. For he is free, that can be free when he will: Nor is it possible for any person to be bound to himselfe; because he that can bind, can release; and therefore he that is bound to himselfe onely, is not bound.
Use, A Law Not By Vertue Of Time, But Of The Soveraigns Consent
3. When long Use obtaineth the authority of a Law, it is not the Length of Time that maketh the Authority, but the Will of the Soveraign signified by his silence, (for Silence is sometimes an argument of Consent;) and it is no longer Law, then the Soveraign shall be silent therein. And therefore if the Soveraign shall have a question of Right grounded, not upon his present Will, but upon the Lawes formerly made; the Length of Time shal bring no prejudice to his Right; but the question shal be judged by Equity. For many unjust Actions, and unjust Sentences, go uncontrolled a longer time, than any man can remember. And our Lawyers account no Customes Law, but such as are reasonable, and that evill Customes are to be abolished; But the Judgement of what is reasonable, and of what is to be abolished, belongeth to him that maketh the Law, which is the Soveraign Assembly, or Monarch.
The Law Of Nature, And The Civill Law Contain Each Other
4. The Law of Nature, and the Civill Law, contain each other, and are of equall extent. For the Lawes of Nature, which consist in Equity, Justice, Gratitude, and other morall Vertues on these depending, in the condition of meer Nature (as I have said before in the end of the 15th Chapter,) are not properly Lawes, but qualities that dispose men to peace, and to obedience. When a Common-wealth is once settled, then are they actually Lawes, and not before; as being then the commands of the Common-wealth; and therefore also Civill Lawes: for it is the Soveraign Power that obliges men to obey them. For in the differences of private men, to declare, what is Equity, what is Justice, and what is morall Vertue, and to make them binding, there is need of the Ordinances of Soveraign Power, and Punishments to be ordained for such as shall break them; which Ordinances are therefore part of the Civill Law. The Law of Nature therefore is a part of the Civill Law in all Common-wealths of the world. Reciprocally also, the Civill Law is a part of the Dictates of Nature. For Justice, that is to say, Performance of Covenant, and giving to every man his own, is a Dictate of the Law of Nature. But every subject in a Common-wealth, hath covenanted to obey the Civill Law, (either one with another, as when they assemble to make a common Representative, or with the Representative it selfe one by one, when subdued by the Sword they promise obedience, that they may receive life;) And therefore Obedience to the Civill Law is part also of the Law of Nature. Civill, and Naturall Law are not different kinds, but different parts of Law; whereof one part being written, is called Civill, the other unwritten, Naturall. But the Right of Nature, that is, the naturall Liberty of man, may by the Civill Law be abridged, and restrained: nay, the end of making Lawes, is no other, but such Restraint; without the which there cannot possibly be any Peace. And Law was brought into the world for nothing else, but to limit the naturall liberty of particular men, in such manner, as they might not hurt, but assist one another, and joyn together against a common Enemy.
Provinciall Lawes Are Not Made By Custome, But By The Soveraign Power
5. If the Soveraign of one Common-wealth, subdue a people that have lived under other written Lawes, and afterwards govern them by the same Lawes, by which they were governed before; yet those Lawes are the Civill Lawes of the Victor, and not of the Vanquished Common-wealth, For the Legislator is he, not by whose authority the Lawes were first made, but by whose authority they now continue to be Lawes. And therefore where there be divers Provinces, within the Dominion of a Common-wealth, and in those Provinces diversity of Lawes, which commonly are called the Customes of each severall Province, we are not to understand that such Customes have their Force, onely from Length of Time; but that they were antiently Lawes written, or otherwise made known, for the Constitutions, and Statutes of their Soveraigns; and are now Lawes, not by vertue of the Praescription of time, but by the Constitutions of their present Soveraigns. But if an unwritten Law, in all the Provinces of a Dominion, shall be generally observed, and no iniquity appear in the use thereof; that law can be no other but a Law of Nature, equally obliging all man-kind.
Some Foolish Opinions Of Lawyers Concerning The Making Of Lawes
6. Seeing then all Lawes, written, and unwritten, have their Authority, and force, from the Will of the Common-wealth; that is to say, from the Will of the Representative; which in a Monarchy is the Monarch, and in other Common-wealths the Soveraign Assembly; a man may wonder from whence proceed such opinions, as are found in the Books of Lawyers of eminence in severall Common-wealths, directly, or by consequence making the Legislative Power depend on private men, or subordinate Judges. As for example, "That the Common Law, hath no Controuler but the Parlament;" which is true onely where a Parlament has the Soveraign Power, and cannot be assembled, nor dissolved, but by their own discretion. For if there be a right in any else to dissolve them, there is a right also to controule them, and consequently to controule their controulings. And if there be no such right, then the Controuler of Lawes is not Parlamentum, but Rex In Parlamento. And where a Parlament is Soveraign, if it should assemble never so many, or so wise men, from the Countries subject to them, for whatsoever cause; yet there is no man will believe, that such an Assembly hath thereby acquired to themselves a Legislative Power. Item, that the two arms of a Common-wealth, are Force, and Justice; The First Whereof Is In The King; The Other Deposited In The Hands Of The Parlament. As if a Common-wealth could consist, where the Force were in any hand, which Justice had not the Authority to command and govern.
7. That Law can never be against Reason, our Lawyers are agreed; and that not the Letter,(that is, every construction of it,) but that which is according to the Intention of the Legislator, is the Law. And it is true: but the doubt is, of whose Reason it is, that shall be received for Law. It is not meant of any private Reason; for then there would be as much contradiction in the Lawes, as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall Perfection of Reason, Gotten By Long Study, Observation, And Experience, (as his was.) For it is possible long study may encrease, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine; and of those that study, and observe with equall time, and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that Juris Prudentia, or wisedome of subordinate Judges; but the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law: And the Common-wealth being in their Representative but one Person, there cannot easily arise any contradiction in the Lawes; and when there doth, the same Reason is able, by interpretation, or alteration, to take it away. In all Courts of Justice, the Soveraign (which is the Person of the Common-wealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto; which then is his Soveraigns Sentence; otherwise it is his own, and an unjust one.
Law Made, If Not Also Made Known, Is No Law
8. From this, that the Law is a Command, and a Command consisteth in declaration, or manifestation of the will of him that commandeth, by voyce, writing, or some other sufficient argument of the same, we may understand, that the Command of the Common-wealth, is Law onely to those, that have means to take notice of it. Over naturall fooles, children, or mad-men there is no Law, no more than over brute beasts; nor are they capable of the title of just, or unjust; because they had never power to make any covenant, or to understand the consequences thereof; and consequently never took upon them to authorise the actions of any Soveraign, as they must do that make to themselves a Common-wealth. And as those from whom Nature, or Accident hath taken away the notice of all Lawes in generall; so also every man, from whom any accident, not proceeding from his own default, hath taken away the means to take notice of any particular Law, is excused, if he observe it not; And to speak properly, that Law is no Law to him. It is therefore necessary, to consider in this place, what arguments, and signes be sufficient for the knowledge of what is the Law; that is to say, what is the will of the Soveraign, as well in Monarchies, as in other formes of government.
Unwritten Lawes Are All Of Them Lawes Of Nature
And first, if it be a Law that obliges all the Subjects without exception, and is not written, nor otherwise published in such places as they may take notice thereof, it is a Law of Nature. For whatsoever men are to take knowledge of for Law, not upon other mens words, but every one from his own reason, must be such as is agreeable to the reason of all men; which no Law can be, but the Law of Nature. The Lawes of Nature therefore need not any publishing, nor Proclamation; as being contained in this one Sentence, approved by all the world, "Do not that to another, which thou thinkest unreasonable to be done by another to thy selfe."
Secondly, if it be a Law that obliges only some condition of men, or one particular man and be not written, nor published by word, then also it is a Law of Nature; and known by the same arguments, and signs, that distinguish those in such a condition, from other Subjects. For whatsoever Law is not written, or some way published by him that makes it Law, can be known no way, but by the reason of him that is to obey it; and is therefore also a Law not only Civill, but Naturall. For example, if the Soveraign employ a Publique Minister, without written Instructions what to doe; he is obliged to take for Instructions the Dictates of Reason; As if he make a Judge, The Judge is to take notice, that his Sentence ought to be according to the reason of his Soveraign, which being alwaies understood to be Equity, he is bound to it by the Law of Nature: Or if an Ambassador, he is (in al things not conteined in his written Instructions) to take for Instruction that which Reason dictates to be most conducing to his Soveraigns interest; and so of all other Ministers of the Soveraignty, publique and private. All which Instructions of naturall Reason may be comprehended under one name of Fidelity; which is a branch of naturall Justice.
The Law of Nature excepted, it belongeth to the essence of all other Lawes, to be made known, to every man that shall be obliged to obey them, either by word, or writing, or some other act, known to proceed from the Soveraign Authority. For the will of another, cannot be understood, but by his own word, or act, or by conjecture taken from his scope and purpose; which in the person of the Common-wealth, is to be supposed alwaies consonant to Equity and Reason. And in antient time, before letters were in common use, the Lawes were many times put into verse; that the rude people taking pleasure in singing, or reciting them, might the more easily reteine them in memory. And for the same reason Solomon adviseth a man, to bind the ten Commandements (Prov. 7. 3) upon his ten fingers. And for the Law which Moses gave to the people of Israel at the renewing of the Covenant, (Deut. 11. 19) he biddeth them to teach it their Children, by discoursing of it both at home, and upon the way; at going to bed, and at rising from bed; and to write it upon the posts, and dores of their houses; and (Deut. 31. 12) to assemble the people, man, woman, and child, to heare it read.
Nothing Is Law Where The Legislator Cannot Be Known
Nor is it enough the Law be written, and published; but also that there be manifest signs, that it proceedeth from the will of the Soveraign. For private men, when they have, or think they have force enough to secure their unjust designes, and convoy them safely to their ambitious ends, may publish for Lawes what they please, without, or against the Legislative Authority. There is therefore requisite, not only a Declaration of the Law, but also sufficient signes of the Author, and Authority. The Author, or Legislator is supposed in every Common-wealth to be evident, because he is the Soveraign, who having been Constituted by the consent of every one, is supposed by every one to be sufficiently known. And though the ignorance, and security of men be such, for the most part, as that when the memory of the first Constitution of their Common-wealth is worn out, they doe not consider, by whose power they use to be defended against their enemies, and to have their industry protected, and to be righted when injury is done them; yet because no man that considers, can make question of it, no excuse can be derived from the ignorance of where the Soveraignty is placed. And it is a Dictate of Naturall Reason, and consequently an evident Law of Nature, that no man ought to weaken that power, the protection whereof he hath himself demanded, or wittingly received against others. Therefore of who is Soveraign, no man, but by his own fault, (whatsoever evill men suggest,) can make any doubt. The difficulty consisteth in the evidence of the Authority derived from him; The removing whereof, dependeth on the knowledge of the publique Registers, publique Counsels, publique Ministers, and publique Seales; by which all Lawes are sufficiently verified.
Difference Between Verifying And Authorising
Verifyed, I say, not Authorised: for the Verification, is but the Testimony and Record; not the Authority of the law; which consisteth in the Command of the Soveraign only.
The Law Verifyed By The Subordinate Judge
If therefore a man have a question of Injury, depending on the Law of Nature; that is to say, on common Equity; the Sentence of the Judge, that by Commission hath Authority to take cognisance of such causes, is a sufficient Verification of the Law of Nature in that individuall case. For though the advice of one that professeth the study of the Law, be usefull for the avoyding of contention; yet it is but advice; tis the Judge must tell men what is Law, upon the hearing of the Controversy.
By The Publique Registers
But when the question is of injury, or crime, upon a written Law; every man by recourse to the Registers, by himself, or others, may (if he will) be sufficiently enformed, before he doe such injury, or commit the crime, whither it be an injury, or not: Nay he ought to doe so: for when a man doubts whether the act he goeth about, be just, or injust; and may informe himself, if he will; the doing is unlawfull. In like manner, he that supposeth himself injured, in a case determined by the written Law, which he may by himself, or others see and consider; if he complaine before he consults with the Law, he does unjustly, and bewrayeth a disposition rather to vex other men, than to demand his own right.
By Letters Patent, And Publique Seale
If the question be of Obedience to a publique Officer; To have seen his Commission, with the Publique Seale, and heard it read; or to have had the means to be informed of it, if a man would, is a sufficient Verification of his Authority. For every man is obliged to doe his best endeavour, to informe himself of all written Lawes, that may concerne his own future actions.
The Interpretation Of The Law Dependeth On The Soveraign Power
The Legislator known; and the Lawes, either by writing, or by the light of Nature, sufficiently published; there wanteth yet another very materiall circumstance to make them obligatory. For it is not the Letter, but the Intendment, or Meaning; that is to say, the authentique Interpretation of the Law (which is the sense of the Legislator,) in which the nature of the Law consisteth; And therefore the Interpretation of all Lawes dependeth on the Authority Soveraign; and the Interpreters can be none but those, which the Soveraign, (to whom only the Subject oweth obedience) shall appoint. For else, by the craft of an Interpreter, the Law my be made to beare a sense, contrary to that of the Soveraign; by which means the Interpreter becomes the Legislator.
All Lawes Need Interpretation
All Laws, written, and unwritten, have need of Interpretation. The unwritten Law of Nature, though it be easy to such, as without partiality, and passion, make use of their naturall reason, and therefore leaves the violators thereof without excuse; yet considering there be very few, perhaps none, that in some cases are not blinded by self love, or some other passion, it is now become of all Laws the most obscure; and has consequently the greatest need of able Interpreters. The written Laws, if they be short, are easily mis-interpreted, from the divers significations of a word, or two; if long, they be more obscure by the diverse significations of many words: in so much as no written Law, delivered in few, or many words, can be well understood, without a perfect understanding of the finall causes, for which the Law was made; the knowledge of which finall causes is in the Legislator. To him therefore there can not be any knot in the Law, insoluble; either by finding out the ends, to undoe it by; or else by making what ends he will, (as Alexander did with his sword in the Gordian knot,) by the Legislative power; which no other Interpreter can doe.
The Authenticall Interpretation Of Law Is Not That Of Writers
The Interpretation of the Lawes of Nature, in a Common-wealth, dependeth not on the books of Morall Philosophy. The Authority of writers, without the Authority of the Common-wealth, maketh not their opinions Law, be they never so true. That which I have written in this Treatise, concerning the Morall Vertues, and of their necessity, for the procuring, and maintaining peace, though it bee evident Truth, is not therefore presently Law; but because in all Common-wealths in the world, it is part of the Civill Law: For though it be naturally reasonable; yet it is by the Soveraigne Power that it is Law: Otherwise, it were a great errour, to call the Lawes of Nature unwritten Law; whereof wee see so many volumes published, and in them so many contradictions of one another, and of themselves.
The Interpreter Of The Law Is The Judge Giving Sentence Viva Voce
In Every Particular Case
The Interpretation of the Law of Nature, is the Sentence of the Judge constituted by the Soveraign Authority, to heare and determine such controversies, as depend thereon; and consisteth in the application of the Law to the present case. For in the act of Judicature, the Judge doth no more but consider, whither the demand of the party, be consonant to naturall reason, and Equity; and the Sentence he giveth, is therefore the Interpretation of the Law of Nature; which Interpretation is Authentique; not because it is his private Sentence; but because he giveth it by Authority of the Soveraign, whereby it becomes the Soveraigns Sentence; which is Law for that time, to the parties pleading.
The Sentence Of A Judge, Does Not Bind Him, Or Another Judge
To Give Like Sentence In Like Cases Ever After
But because there is no Judge Subordinate, nor Soveraign, but may erre in a Judgement of Equity; if afterward in another like case he find it more consonant to Equity to give a contrary Sentence, he is obliged to doe it. No mans error becomes his own Law; nor obliges him to persist in it. Neither (for the same reason) becomes it a Law to other Judges, though sworn to follow it. For though a wrong Sentence given by authority of the Soveraign, if he know and allow it, in such Lawes as are mutable, be a constitution of a new Law, in cases, in which every little circumstance is the same; yet in Lawes immutable, such as are the Lawes of Nature, they are no Lawes to the same, or other Judges, in the like cases for ever after. Princes succeed one another; and one Judge passeth, another commeth; nay, Heaven and Earth shall passe; but not one title of the Law of Nature shall passe; for it is the Eternall Law of God. Therefore all the Sentences of precedent Judges that have ever been, cannot all together make a Law contrary to naturall Equity: Nor any Examples of former Judges, can warrant an unreasonable Sentence, or discharge the present Judge of the trouble of studying what is Equity (in the case he is to Judge,) from the principles of his own naturall reason. For example sake, 'Tis against the Law of Nature, To Punish The Innocent; and Innocent is he that acquitteth himselfe Judicially, and is acknowledged for Innocent by the Judge. Put the case now, that a man is accused of a capitall crime, and seeing the powers and malice of some enemy, and the frequent corruption and partiality of Judges, runneth away for feare of the event, and afterwards is taken, and brought to a legall triall, and maketh it sufficiently appear, he was not guilty of the crime, and being thereof acquitted, is neverthelesse condemned to lose his goods; this is a manifest condemnation of the Innocent. I say therefore, that there is no place in the world, where this can be an interpretation of a Law of Nature, or be made a Law by the Sentences of precedent Judges, that had done the same. For he that judged it first, judged unjustly; and no Injustice can be a pattern of Judgement to succeeding Judges. A written Law may forbid innocent men to fly, and they may be punished for flying: But that flying for feare of injury, should be taken for presumption of guilt, after a man is already absolved of the crime Judicially, is contrary to the nature of a Presumption, which hath no place after Judgement given. Yet this is set down by a great Lawyer for the common Law of England. "If a man," saith he, "that is Innocent, be accused of Felony, and for feare flyeth for the same; albeit he judicially acquitteth himselfe of the Felony; yet if it be found that he fled for the Felony, he shall notwithstanding his Innocency, Forfeit all his goods, chattels, debts, and duties. For as to the Forfeiture of them, the Law will admit no proofe against the Presumption in Law, grounded upon his flight." Here you see, An Innocent Man, Judicially Acquitted, Notwithstanding His Innocency, (when no written Law forbad him to fly) after his acquitall, Upon A Presumption In Law, condemned to lose all the goods he hath. If the Law ground upon his flight a Presumption of the fact, (which was Capitall,) the Sentence ought to have been Capitall: if the presumption were not of the Fact, for what then ought he to lose his goods? This therefore is no Law of England; nor is the condemnation grounded upon a Presumption of Law, but upon the Presumption of the Judges. It is also against Law, to say that no Proofe shall be admitted against a Presumption of Law. For all Judges, Soveraign and subordinate, if they refuse to heare Proofe, refuse to do Justice: for though the Sentence be Just, yet the Judges that condemn without hearing the Proofes offered, are Unjust Judges; and their Presumption is but Prejudice; which no man ought to bring with him to the Seat of Justice, whatsoever precedent judgements, or examples he shall pretend to follow. There be other things of this nature, wherein mens Judgements have been perverted, by trusting to Precedents: but this is enough to shew, that though the Sentence of the Judge, be a Law to the party pleading, yet it is no Law to any Judge, that shall succeed him in that Office.
In like manner, when question is of the Meaning of written Lawes, he is not the Interpreter of them, that writeth a Commentary upon them. For Commentaries are commonly more subject to cavill, than the Text; and therefore need other Commentaries; and so there will be no end of such Interpretation. And therefore unlesse there be an Interpreter authorised by the Soveraign, from which the subordinate Judges are not to recede, the Interpreter can be no other than the ordinary Judges, in the some manner, as they are in cases of the unwritten Law; and their Sentences are to be taken by them that plead, for Lawes in that particular case; but not to bind other Judges, in like cases to give like judgements. For a Judge may erre in the Interpretation even of written Lawes; but no errour of a subordinate Judge, can change the Law, which is the generall Sentence of the Soveraigne.
The Difference Between The Letter And Sentence Of The Law
In written Lawes, men use to make a difference between the Letter, and the Sentence of the Law: And when by the Letter, is meant whatsoever can be gathered from the bare words, 'tis well distinguished. For the significations of almost all words, are either in themselves, or in the metaphoricall use of them, ambiguous; and may be drawn in argument, to make many senses; but there is onely one sense of the Law. But if by the Letter, be meant the Literall sense, then the Letter, and the Sentence or intention of the Law, is all one. For the literall sense is that, which the Legislator is alwayes supposed to be Equity: For it were a great contumely for a Judge to think otherwise of the Soveraigne. He ought therefore, if the Word of the Law doe not fully authorise a reasonable Sentence, to supply it with the Law of Nature; or if the case be difficult, to respit Judgement till he have received more ample authority. For Example, a written Law ordaineth, that he which is thrust out of his house by force, shall be restored by force: It happens that a man by negligence leaves his house empty, and returning is kept out by force, in which case there is no speciall Law ordained. It is evident, that this case is contained in the same Law: for else there is no remedy for him at all; which is to be supposed against the Intention of the Legislator. Again, the word of the Law, commandeth to Judge according to the Evidence: A man is accused falsly of a fact, which the Judge saw himself done by another; and not by him that is accused. In this case neither shall the Letter of the Law be followed to the condemnation of the Innocent, nor shall the Judge give Sentence against the evidence of the Witnesses; because the Letter of the Law is to the contrary: but procure of the Soveraign that another be made Judge, and himselfe Witnesse. So that the incommodity that follows the bare words of a written Law, may lead him to the Intention of the Law, whereby to interpret the same the better; though no Incommodity can warrant a Sentence against the Law. For every Judge of Right, and Wrong, is not Judge of what is Commodious, or Incommodious to the Common-wealth.
The Abilities Required In A Judge
The abilities required in a good Interpreter of the Law, that is to say, in a good Judge, are not the same with those of an Advocate; namely the study of the Lawes. For a Judge, as he ought to take notice of the Fact, from none but the Witnesses; so also he ought to take notice of the Law, from nothing but the Statutes, and Constitutions of the Soveraign, alledged in the pleading, or declared to him by some that have authority from the Soveraign Power to declare them; and need not take care before-hand, what hee shall Judge; for it shall bee given him what hee shall say concerning the Fact, by Witnesses; and what hee shall say in point of Law, from those that shall in their pleadings shew it, and by authority interpret it upon the place. The Lords of Parlament in England were Judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the Lawes, and fewer had made profession of them: and though they consulted with Lawyers, that were appointed to be present there for that purpose; yet they alone had the authority of giving Sentence. In like manner, in the ordinary trialls of Right, Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right: and in a question of crime, not onely determine whether done, or not done; but also whether it be Murder, Homicide, Felony, Assault, and the like, which are determinations of Law: but because they are not supposed to know the Law of themselves, there is one that hath Authority to enforme them of it, in the particular case they are to Judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unlesse it be made appear, they did it against their consciences, or had been corrupted by reward. The things that make a good Judge, or good Interpreter of the Lawes, are, first A Right Understanding of that principall Law of Nature called Equity; which depending not on the reading of other mens Writings, but on the goodnesse of a mans own naturall Reason, and Meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon. Secondly, Contempt Of Unnecessary Riches, and Preferments. Thirdly, To Be Able In Judgement To Devest Himselfe Of All Feare, Anger, Hatred, Love, And Compassion. Fourthly, and lastly, Patience To Heare; Diligent Attention In Hearing; And Memory To Retain, Digest And Apply What He Hath Heard.
Divisions Of Law
The difference and division of the Lawes, has been made in divers manners, according to the different methods, of those men that have written of them. For it is a thing that dependeth not on Nature, but on the scope of the Writer; and is subservient to every mans proper method. In the Institutions of Justinian, we find seven sorts of Civill Lawes.
1. The Edicts, Constitutions, and Epistles Of The Prince, that is, of the Emperour; because the whole power of the people was in him. Like these, are the Proclamations of the Kings of England.
2. The Decrees Of The Whole People Of Rome (comprehending the Senate,) when they were put to the Question by the Senate. These were Lawes, at first, by the vertue of the Soveraign Power residing in the people; and such of them as by the Emperours were not abrogated, remained Lawes by the Authority Imperiall. For all Lawes that bind, are understood to be Lawes by his authority that has power to repeale them. Somewhat like to these Lawes, are the Acts of Parliament in England.
3. The Decrees Of The Common People (excluding the Senate,) when they were put to the question by the Tribune of the people. For such of them as were not abrogated by the Emperours, remained Lawes by the Authority Imperiall. Like to these, were the Orders of the House of Commons in England.
4. Senatus Consulta, the Orders Of The Senate; because when the people of Rome grew so numerous, as it was inconvenient to assemble them; it was thought fit by the Emperour, that men should Consult the Senate in stead of the people: And these have some resemblance with the Acts of Counsell.
5. The Edicts Of Praetors, and (in some Cases) of the Aediles: such as are the Chiefe Justices in the Courts of England.
6. Responsa Prudentum; which were the Sentences, and Opinions of those Lawyers, to whom the Emperour gave Authority to interpret the Law, and to give answer to such as in matter of Law demanded their advice; which Answers, the Judges in giving Judgement were obliged by the Constitutions of the Emperour to observe; And should be like the Reports of Cases Judged, if other Judges be by the Law of England bound to observe them. For the Judges of the Common Law of England, are not properly Judges, but Juris Consulti; of whom the Judges, who are either the Lords, or Twelve men of the Country, are in point of Law to ask advice.
7. Also, Unwritten Customes, (which in their own nature are an imitation of Law,) by the tacite consent of the Emperour, in case they be not contrary to the Law of Nature, are very Lawes.
Another division of Lawes, is into Naturall and Positive. Naturall are those which have been Lawes from all Eternity; and are called not onely Naturall, but also Morall Lawes; consisting in the Morall Vertues, 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 for Eternity; but have been made Lawes by the Will of those that have had the Soveraign Power over others; and are either written, or made known to men, by some other argument of the Will of their Legislator.
Another Division Of Law
Again, of Positive Lawes some are Humane, some Divine; And of Humane positive lawes, 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; neverthelesse the Command is not addressed to the Delinquent, (who cannot be supposed will faithfully punish himselfe,) but to publique Ministers appointed to see the Penalty executed. And these Penal Lawes are for the most part written together with the Lawes Distributive; and are sometimes called Judgements. For all Lawes are generall judgements, or Sentences of the Legislator; as also every particular Judgement, is a Law to him, whose case is Judged.
Divine Positive Law How Made Known To Be Law
Divine Positive Lawes (for Naturall Lawes being Eternall, and Universall, are all Divine,) are those, which being the Commandements of God, (not from all Eternity, nor universally addressed to all men, but onely to a certain people, or to certain persons,) are declared for such, by those whom God hath authorised to declare them. But this Authority of man to declare what be these Positive Lawes of God, how can it be known? God may command a man by a supernaturall way, to deliver Lawes 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 Supernaturall Revelation Be Assured Of The Revelation Received By The Declarer? and How Can He Be Bound To Obey Them? For the first question, how a man can be assured of the Revelation of another, without a Revelation particularly to himselfe, it is evidently impossible: for though a man may be induced to believe such Revelation, from the Miracles they see him doe, or from seeing the Extraordinary sanctity of his life, or from seeing the Extraordinary wisedome, or Extraordinary felicity of his Actions, all which are marks of Gods extraordinary favour; yet they are not assured evidence of speciall Revelation. Miracles are Marvellous workes: 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 Naturall, and ordinary causes. And therefore no man can infallibly know by naturall reason, that another has had a supernaturall revelation of Gods will; but only a beliefe; every one (as the signs thereof shall appear greater, or lesser) a firmer, or a weaker belief.
But for the second, how he can be bound to obey them; it is not so hard. For if the Law declared, be not against the Law of Nature (which is undoubtedly Gods Law) and he undertake to obey it, he is bound by his own act; bound I say to obey it, but not bound to believe it: for mens beliefe, and interiour cogitations, are not subject to the commands, but only to the operation of God, ordinary, or extraordinary. Faith of Supernaturall Law, is not a fulfilling, but only an assenting to the same; and not a duty that we exhibite to God, but a gift which God freely giveth to whom he pleaseth; as also Unbelief is not a breach of any of his Lawes; but a rejection of them all, except the Lawes Naturall. But this that I say, will be made yet cleerer, by the Examples, and Testimonies concerning this point in holy Scripture. The Covenant God made with Abraham (in a Supernaturall Manner) was thus, (Gen. 17. 10) "This is the Covenant which thou shalt observe between Me and Thee and thy Seed after thee." Abrahams Seed had not this revelation, nor were yet in being; yet they are a party to the Covenant, and bound to obey what Abraham should declare to them for Gods Law; which they could not be, but in vertue 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 Soveraign power over their children, and servants. Againe, 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 Righteousnesse and Judgement," it is manifest, the obedience of his Family, who had no Revelation, depended on their former obligation to obey their Soveraign. At Mount Sinai Moses only went up to God; the people were forbidden to approach on paine of death; yet were they bound to obey all that Moses declared to them for Gods Law. Upon what ground, but on this submission of their own, "Speak thou to us, and we will heare thee; but let not God speak to us, lest we dye?" By which two places it sufficiently appeareth, that in a Common-wealth, a subject that has no certain and assured Revelation particularly to himself concerning the Will of God, is to obey for such, the Command of the Common-wealth: for if men were at liberty, to take for Gods Commandements, their own dreams, and fancies, or the dreams and fancies of private men; scarce two men would agree upon what is Gods Commandement; and yet in respect of them, every man would despise the Commandements of the Common-wealth. I conclude therefore, that in all things not contrary to the Morall 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 Lawes of the Common-wealth. Which also is evident to any mans reason; for whatsoever is not against the Law of Nature, may be made Law in the name of them that have the Soveraign power; and there is no reason men should be the lesse obliged by it, when tis propounded in the name of God. Besides, there is no place in the world where men are permitted to pretend other Commandements of God, than are declared for such by the Common-wealth. Christian States punish those that revolt from Christian Religion, and all other States, those that set up any Religion by them forbidden. For in whatsoever is not regulated by the Common-wealth, tis Equity (which is the Law of Nature, and therefore an eternall Law of God) that every man equally enjoy his liberty.
Another Division Of Lawes
There is also another distinction of Laws, into Fundamentall, and Not Fundamentall: but I could never see in any Author, what a Fundamentall Law signifieth. Neverthelesse one may very reasonably distinguish Laws in that manner.
A Fundamentall Law What
For a Fundamentall Law in every Common-wealth is that, which being taken away, the Common-wealth faileth, and is utterly dissolved; as a building whose Foundation is destroyed. And therefore a Fundamentall Law is that, by which Subjects are bound to uphold whatsoever power is given to the Soveraign, whether a Monarch, or a Soveraign Assembly, without which the Common-wealth 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 Publique good. Not Fundamentall is that the abrogating whereof, draweth not with it the dissolution of the Common-Wealth; such as are the Lawes Concerning Controversies between subject and subject. Thus much of the Division of Lawes.
Difference Between Law And Right
I find the words Lex Civilis, and Jus Civile, that is to say, Law and Right Civil, promiscuously used for the same thing, even in the most learned Authors; which neverthelesse ought not to be so. For Right is Liberty, namely that Liberty which the Civil Law leaves us: But Civill 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 himselfe by his own strength, and to invade a suspected neighbour, by way of prevention; but the Civill Law takes away that Liberty, in all cases where the protection of the Lawe may be safely stayd for. Insomuch as Lex and Jus, are as different as Obligation and Liberty.
And Between A Law And A Charter
Likewise Lawes and Charters are taken promiscuously for the same thing. Yet Charters are Donations of the Soveraign; and not Lawes, but exemptions from Law. The phrase of a Law is Jubeo, Injungo, I Command, and Enjoyn: the phrase of a Charter is Dedi, Concessi, I Have Given, I Have Granted: but what is given or granted, to a man, is not forced upon him, by a Law. A Law may be made to bind All the Subjects of a Common-wealth: a Liberty, or Charter is only to One man, or some One part of the people. For to say all the people of a Common-wealth, have Liberty in any case whatsoever; is to say, that in such case, there hath been no Law made; or else having been made, is now abrogated.
CHAPTER XXVII. OF CRIMES, EXCUSES, AND EXTENUATIONS
A Sinne, is not onely a Transgression of a Law, but also any Contempt of the Legislator. For such Contempt, is a breach of all his Lawes at once. And therefore may consist, not onely in the Commission of a Fact, or in the Speaking of Words by the Lawes forbidden, or in the Omission of what the Law commandeth, but also in the Intention, or purpose to transgresse. For the purpose to breake the Law, is some degree of Contempt of him, to whom it belongeth to see it executed. To be delighted in the Imagination onely, of being possessed of another mans goods, servants, or wife, without any intention to take them from him by force, or fraud, is no breach of the Law, that sayth, "Thou shalt not covet:" nor is the pleasure a man my have in imagining, or dreaming of the death of him, from whose life he expecteth nothing but dammage, and displeasure, a Sinne; 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 reall, is a Passion so adhaerent to the Nature both of a man, and every other living creature, as to make it a Sinne, were to make Sinne of being a man. The consideration of this, has made me think them too severe, both to themselves, and others, that maintain, that the First motions of the mind, (though checked with the fear of God) be Sinnes. But I confesse it is safer to erre on that hand, than on the other.
A Crime What
A Crime, is a sinne, 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 sinne; but not every sinne a Crime. To intend to steale, or kill, is a sinne, though it never appeare in Word, or Fact: for God that seeth the thoughts of man, can lay it to his charge: but till it appear by some thing done, or said, by which the intention may be Crime; which distinction the Greeks observed in the word amartema, and egklema, or aitia; wherof the former, (which is translated Sinne,) signifieth any swarving from the Law whatsoever; but the two later, (which are translated Crime,) signifie that sinne onely, whereof one man may accuse another. But of Intentions, which never appear by any outward act, there is no place for humane accusation. In like manner the Latines by Peccatum, which is Sinne, signifie all manner of deviation from the Law; but by crimen, (which word they derive from Cerno, which signifies to perceive,) they mean onely such sinnes, as my be made appear before a Judge; and therfore are not meer Intentions.
Where No Civill Law Is, There Is No Crime
From this relation of Sinne to the Law, and of Crime to the Civill Law, may be inferred, First, that where Law ceaseth, Sinne ceaseth. But because the Law of Nature is eternall, Violation of Covenants, Ingratitude, Arrogance, and all Facts contrary to any Morall vertue, can never cease to be Sinne. Secondly, that the Civill 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 onely by his own Conscience, and cleared by the Uprightnesse of his own Intention. When therefore his Intention is Right, his fact is no Sinne: if otherwise, his fact is Sinne; but not Crime. Thirdly, That when the Soveraign 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 Soveraign Power can be supposed to give away the Right of preserving his own body; for the safety whereof all Soveraignty was ordained. But this is to be understood onely 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.
Ignorance Of The Law Of Nature Excuseth No Man
The source of every Crime, is some defect of the Understanding; or some errour in Reasoning, or some sudden force of the Passions. Defect in the Understanding, is Ignorance; in Reasoning, Erroneous Opinion. Again, ignorance is of three sort; of the Law, and of the Soveraign, 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 himselfe. Therefore into what place soever a man shall come, if he do any thing contrary to that Law, it is a Crime. If a man come from the Indies hither, and perswade men here to receive a new Religion, or teach them any thing that tendeth to disobedience of the Lawes of this Country, though he be never so well perswaded of the truth of what he teacheth, he commits a Crime, and may be justly punished for the same, not onely because his doctrine is false, but also because he does that which he would not approve in another, namely, that comming from hence, he should endeavour to alter the Religion there. But ignorance of the Civill Law, shall Excuse a man in a strange Country, till it be declared to him; because, till then no Civill Law is binding.
Ignorance Of The Civill Law Excuseth Sometimes
In the like manner, if the Civill Law of a mans 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 Civill Law, Excuseth not.
Ignorance Of The Soveraign Excuseth Not
Ignorance of the Soveraign Power, in the place of a mans 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 Excuseth Not
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 Lawes, in every Common-wealth; which punishment, if it be determined already by the Law, he is subject to that; if not, then is he subject to Arbitrary punishment. For it is reason, that he which does Injury, without other limitation than that of his own Will, should suffer punishment without other limitation, than that of his Will whose Law is thereby violated.
Punishments Declared Before The Fact, Excuse From Greater Punishments
But when a penalty, is either annexed to the Crime in the Law it selfe, 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 deterre 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 the Law that tempted, and deceiveth them.
Nothing Can Be Made A Crime By A Law Made After The Fact
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 lyable to the Penalty ordained after, in case no lesser Penalty were made known before, neither by Writing, nor by Example, for the reason immediatly before alledged.
False Principles Of Right And Wrong Causes Of Crime
From defect in Reasoning, (that is to say, from Errour,) men are prone to violate the Lawes, three wayes. First, by Presumption of false Principles; as when men from having observed how in all places, and in all ages, unjust Actions have been authorised, by the force, and victories of those who have committed them; and that potent men, breaking through the Cob-web Lawes of their Country, the weaker sort, and those that have failed in their Enterprises, have been esteemed the onely Criminals; have thereupon taken for Principles, and grounds of their Reasoning, "That Justice is but a vain word: That whatsoever a man can get by his own Industry, and hazard, is his own: That the Practice of all Nations cannot be unjust: That examples of former times are good Arguments of doing the like again;" and many more of that kind: Which being granted, no Act in it selfe can be a Crime, but must be made so (not by the Law, but) by the successe of them that commit it; and the same Fact be vertuous, or vicious, as Fortune pleaseth; so that what Marius makes a Crime, Sylla shall make meritorious, and Caesar (the same Lawes standing) turn again into a Crime, to the perpetuall disturbance of the Peace of the Common-wealth.
False Teachers Mis-interpreting The Law Of Nature Secondly, by false Teachers, that either mis-interpret the Law of Nature, making it thereby repugnant to the Law Civill; or by teaching for Lawes, such Doctrines of their own, or Traditions of former times, as are inconsistent with the duty of a Subject.
And False Inferences From True Principles, By Teachers
Thirdly, by Erroneous Inferences from True Principles; which happens commonly to men that are hasty, and praecipitate 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 onely common experience, and a good naturall wit; whereof no man thinks himselfe unprovided: whereas the knowledge, of Right and Wrong, which is no lesse 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 businesse; much lesse in them that undertake a publique charge; because they pretend to the Reason, upon the want whereof they would ground their Excuse.
By Their Passions;
Of the Passions that most frequently are the causes of Crime, one, is Vain-glory, or a foolish over-rating of their own worth; as if difference of worth, were an effect of their wit, or riches, or bloud, or some other naturall quality, not depending on the Will of those that have the Soveraign Authority. From whence proceedeth a Presumption that the punishments ordained by the Lawes, and extended generally to all Subjects, ought not to be inflicted on them, with the same rigour they are inflicted on poore, obscure, and simple men, comprehended under the name of the Vulgar.
Presumption Of Riches
Therefore it happeneth commonly, that such as value themselves by the greatnesse of their wealth, adventure on Crimes, upon hope of escaping punishment, by corrupting publique Justice, or obtaining Pardon by Mony, 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 Lawes, from a hope of oppressing the Power, to whom it belongeth to put them in execution.
And that such as have a great, and false opinion of their own Wisedome, take upon them to reprehend the actions, and call in question the Authority of them that govern, and so to unsettle the Lawes with their publique discourse, as that nothing shall be a Crime, but what their own designes 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 designes are too subtile to be perceived. These I say are effects of a false presumption of their own Wisdome. For of them that are the first movers in the disturbance of Common-wealth, (which can never happen without a Civill Warre,) very few are left alive long enough, to see their new Designes established: so that the benefit of their Crimes, redoundeth to Posterity, and such as would least have wished it: which argues they were not as wise, as they thought they were. And those that deceive upon hope of not being observed, do commonly deceive themselves, (the darknesse in which they believe they lye hidden, being nothing else but their own blindnesse;) and are no wiser than Children, that think all hid, by hiding their own eyes.
And generally all vain-glorious men, (unlesse they be withall 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.
Hatred, Lust, Ambition, Covetousnesse, Causes Of Crime
As for the Passions, of Hate, Lust, Ambition, and Covetousnesse, what Crimes they are apt to produce, is so obvious to every mans 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 hindred, but by extraordinary use of Reason, or a constant severity in punishing them. For in those things men hate, they find a continuall, and unavoydable molestation; whereby either a mans patience must be everlasting, or he must be eased by removing the power of that which molesteth him; The former is difficult; the later is many times impossible, without some violation of the Law. Ambition, and Covetousnesse 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 easie, or uncertain punishments.
Fear Sometimes Cause Of Crime, As When The Danger Is Neither Present,
Of all Passions, that which enclineth men least to break the Lawes, is Fear. Nay, (excepting some generous natures,) it is the onely thing, (when there is apparence of profit, or pleasure by breaking the Lawes,) that makes men keep them. And yet in many cases a Crime may be committed through Feare.
For not every Fear justifies the Action it produceth, but the fear onely of corporeall hurt, which we call Bodily Fear, and from which a man cannot see how to be delivered, but by the action. A man is assaulted, fears present death, from which he sees not how to escape, but by wounding him that assaulteth him; If he wound him to death, this is no Crime; because no man is supposed at the making of a Common-wealth, to have abandoned the defence of his life, or limbes, where the Law cannot arrive time enough to his assistance. But to kill a man, because from his actions, or his threatnings, I may argue he will kill me when he can, (seeing I have time, and means to demand protection, from the Soveraign Power,) is a Crime. Again, a man receives words of disgrace, or some little injuries (for which they that made the Lawes, had assigned no punishment, nor thought it worthy of a man that hath the use of Reason, to take notice of,) and is afraid, unlesse he revenge it, he shall fall into contempt, and consequently be obnoxious to the like injuries from others; and to avoyd this, breaks the Law, and protects himselfe for the future, by the terrour of his private revenge. This is a Crime; For the hurt is not Corporeall, but Phantasticall, and (though in this corner of the world, made sensible by a custome not many years since begun, amongst young and vain men,) so light, as a gallant man, and one that is assured of his own courage, cannot take notice of. Also a man may stand in fear of Spirits, either through his own superstition, or through too much credit given to other men, that tell him of strange Dreams and visions; and thereby be made believe they will hurt him, for doing, or omitting divers things, which neverthelesse, to do, or omit, is contrary to the Lawes; And that which is so done, or omitted, is not to be Excused by this fear; but is a Crime. For (as I have shewn 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 reall Visions; and therefore he that presumes to break the Law upon his own, or anothers Dream, or pretended Vision, or upon other Fancy of the power of Invisible Spirits, than is permitted by the Common-wealth, leaveth the Law of Nature, which is a certain offence, and followeth the imagery of his own, or another private mans brain, which he can never know whether it signifieth any thing, or nothing, nor whether he that tells his Dream, say true, or lye; which if every private man should have leave to do, (as they must by the Law of Nature, if any one have it) there could no Law be made to hold, and so all Common-wealth would be dissolved.
Crimes Not Equall
From these different sources of Crimes, it appeares already, that all Crimes are not (as the Stoicks of old time maintained) of the same allay. There is place, not only for EXCUSE, by which that which seemed a Crime, is proved to be none at all; but also for EXTENUATION, by which the Crime, that seemed great, is made lesse. For though all Crimes doe equally deserve the name of Injustice, as all deviation from a strait line is equally crookednesse, which the Stoicks 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 Stoicks not observing, held it as great a Crime, to kill a Hen, against the Law, as to kill ones Father.
That which totally Excuseth a Fact, and takes away from it 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 enforme 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 Lawes of Nature; because they are known by the reason he pretends to: only Children, and Madmen are Excused from offences against the Law Naturall.
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 dye; 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 terrour of present death, be compelled to doe 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 doe it not, I die presently; if I doe it, I die afterwards; therefore by doing it, there is time of life gained;" Nature therefore compells him to the fact.
When a man is destitute of food, or other thing necessary for his life, and cannot preserve himselfe 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 obtaine for mony nor charity; or in defence of his life, snatch away another mans Sword, he is totally Excused, for the reason next before alledged.
Excuses Against The Author
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, bothe the Author, and Actor are Criminalls. From hence it followeth that when that Man, or Assembly, that hath the Soveraign 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 himselfe, because he is the Author; and what cannot justly be condemned by the Soveraign, cannot justly be punished by any other. Besides, when the Soveraign commandeth any thing to be done against his own former Law, the Command, as to that particular fact, is an abrogation of the Law.
If that Man, or Assembly, that hath the Soveraign Power, disclaime any Right essentiall to the Soveraignty, whereby there accrueth to the Subject, any liberty inconsistent with the Soveraign Power, that is to say, with the very being of a Common-wealth, if the Subject shall refuse to obey the Command in any thing, contrary to the liberty granted, this is neverthelesse a Sinne, and contrary to the duty of the Subject: for he ought to take notice of what is inconsistent with the Soveraignty, 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 evill consequence thereof. But if he not onely disobey, but also resist a publique Minister in the execution of it, then it is a Crime; because he might have been righted, (without any breach of the Peace,) upon complaint.
The Degrees of Crime are taken on divers Scales, and measured, First, by the malignity of the Source, or Cause: Secondly, by the contagion of the Example: Thirdly, by the mischiefe of the Effect; and Fourthly, by the concurrence of Times, Places, and Persons.
Presumption Of Power, Aggravateth
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 Lawes; whereas in the later case, the apprehension of danger, that makes a man fly, renders him more obedient for the future. A Crime which we know to be so, is greater than the same Crime proceeding from a false perswasion that it is lawfull: 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 errour, after the errour shewn him, is conformable to the Law.
Evill Teachers, Extenuate
Hee, whose errour proceeds from the authority of a Teacher, or an Interpreter of the Law publiquely authorised, is not so faulty, as he whose errour proceedeth from a peremptory pursute of his own principles, and reasoning: For what is taught by one that teacheth by publique Authority, the Common-wealth teacheth, and hath a resemblance of Law, till the same Authority controuleth it; and in all Crimes that contain not in them a denyall of the Soveraign 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 errour thereof, to stand, or fall.
Examples Of Impunity, Extenuate
The same Fact, if it have been constantly punished in other men, as a greater Crime, than if there have been may precedent Examples of impunity. For those Examples, are so many hopes of Impunity given by the Soveraign himselfe: 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 humane nature: but he that doth it with praemeditation, has used circumspection, and cast his eye, on the Law, on the punishment, and on the consequence thereof to humane society; all which in committing the Crime, hee hath contemned, and postposed to his own appetite. But there is no suddennesse of Passion sufficient for a totall 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 rectifie the irregularity of his Passions.
Where the Law is publiquely, 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 Soveraign Power.
Tacite Approbation Of The Soveraign, Extenuates
Those facts which the Law expresly condemneth, but the Law-maker by other manifest signes of his will tacitly approveth, are lesse Crimes, than the same facts, condemned both by the Law, and Lawmaker. For seeing the will of the Law-maker is a Law, there appear in this case two contradictory Lawes; which would totally Excuse, if men were bound to take notice of the Soveraigns approbation, by other arguments, than are expressed by his command. But because there are punishments consequent, not onely 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 Duells; the punishment is made capitall: On the contrary part, he that refuseth Duell, is subject to contempt and scorne, without remedy; and sometimes by the Soveraign himselfe thought unworthy to have any charge, or preferment in Warre: If thereupon he accept Duell, considering all men lawfully endeavour to obtain the good opinion of them that have the Soveraign 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 Governours, not to countenance any thing obliquely, which directly they forbid. The examples of Princes, to those that see them, are, and ever have been, more potent to govern their actions, than the Lawes 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 supernaturall grace to follow that Precept.
Comparison Of Crimes From Their Effects
Again, if we compare Crimes by the mischiefe of their Effects, First, the same fact, when it redounds to the dammage of many, is greater, than when it redounds to the hurt of few. And therefore, when a fact hurteth, not onely in the present, but also, (by example) in the future, it is a greater Crime, than if it hurt onely in the present: for the former, is a fertile Crime, and multiplyes to the hurt of many; the later is barren. To maintain doctrines contrary to the Religion established in the Common-wealth, is a greater fault, in an authorised Preacher, than in a private person: So also is it, to live prophanely, incontinently, or do any irreligious act whatsoever. Likewise in a Professor of the Law, to maintain any point, on do any act, that tendeth to the weakning of the Soveraign Power, as a greater Crime, than in another man: Also in a man that hath such reputation for wisedome, as that his counsells 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 onely commit Crime, but teach it for Law to all other men. And generally all Crimes are the greater, by the scandall 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 Common-wealth, are greater Crimes, than the same acts done to private men; For the dammage extends it selfe to all: Such are the betraying of the strengths, or revealing of the secrets of the Common-wealth to an Enemy; also all attempts upon the Representative of the Common-wealth, 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 Latines understand by Crimina Laesae Majestatis, and consist in designe, or act, contrary to a Fundamentall Law.
Bribery And False Testimony
Likewise those Crimes, which render Judgements of no effect, are greater Crimes, than Injuries done to one, or a few persons; as to receive mony to give False judgement, or testimony, is a greater Crime, than otherwise to deceive a man of the like, or a greater summe; because not onely he has wrong, that falls by such judgements; but all Judgements are rendered uselesse, and occasion ministred to force, and private revenges.
Also Robbery, and Depeculation of the Publique treasure, or Revenues, is a greater Crime, than the robbing, or defrauding of a Private man; because to robbe the publique, is to robbe many at once.
Also the Counterfeit usurpation of publique Ministery, the Counterfeiting of publique Seales, or publique Coine, than counterfeiting of a private mans person, or his seale; because the fraud thereof, extendeth to the dammage of many.
Crimes Against Private Men Compared
Of facts against the Law, done to private men, the greater Crime, is that, where the dammage in the common opinion of men, is most sensible. And therefore
To kill against the Law, is a greater Crime, that any other injury, life preserved.
And to kill with Torment, greater, than simply to kill.
And Mutilation of a limbe, greater, than the spoyling a man of his goods.
And the spoyling a man of his goods, by Terrour 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 lesse sensible of the same offence. But the Law regardeth not the particular, but the generall inclination of mankind.
And therefore the offence men take, from contumely, in words, or gesture, when they produce no other harme, than the present griefe of him that is reproached, hath been neglected in the Lawes of the Greeks, Romans, and other both antient, and moderne Common-wealths; supposing the true cause of such griefe to consist, not in the contumely, (which takes no hold upon men conscious of their own Vertue,) but in the Pusillanimity of him that is offended by it.
Also a Crime against a private man, is much aggravated by the person, time, and place. For to kill ones Parent, is a greater Crime, than to kill another: for the Parent ought to have the honour of a Soveraign, (though he have surrendred his Power to the Civill Law,) because he had it originally by Nature. And to Robbe a poore man, is a greater Crime, than to robbe a rich man; because 'tis to the poore a more sensible dammage.
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.
Publique Crimes What
Lastly, because in almost all Crimes there is an Injury done, not onely to some Private man, but also to the Common-wealth; the same Crime, when the accusation is in the name of the Common-wealth, is called Publique Crime; and when in the name of a Private man, a Private Crime; And the Pleas according thereunto called Publique, 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 Soveraign, the plea is a Publique plea.
CHAPTER XXVIII. OF PUNISHMENTS, AND REWARDS
The Definition Of Punishment
"A PUNISHMENT, is an Evill inflicted by publique 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."
Right To Punish Whence Derived
Before I inferre any thing 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 Common-wealth, every man giveth away the right of defending another; but not of defending himselfe. Also he obligeth himselfe, to assist him that hath the Soveraignty, in the Punishing of another; but of himselfe not. But to covenant to assist the Soveraign, in doing hurt to another, unlesse he that so covenanteth have a right to doe it himselfe, is not to give him a Right to Punish. It is manifest therefore that the Right which the Common-wealth (that is, he, or they that represent it) hath to Punish, is not grounded on any concession, or gift of the Subjects. But I have also shewed formerly, that before the Institution of Common-wealth, every man had a right to every thing, and to do whatsoever he thought necessary to his own preservation; subduing, hurting, or killing any man in order thereunto. And this is the foundation of that right of Punishing, which is exercised in every Common-wealth. For the Subjects did not give the Soveraign that right; but onely in laying down theirs, strengthned 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 onely; and (excepting the limits set him by naturall Law) as entire, as in the condition of meer Nature, and of warre of every one against his neighbour.
Private Injuries, And Revenges No Punishments
From the definition of Punishment, I inferre, First, that neither private revenges, nor injuries of private men, can properly be stiled Punishment; because they proceed not from publique Authority.
Nor Denyall Of Preferment
Secondly, that to be neglected, and unpreferred by the publique favour, is not a Punishment; because no new evill is thereby on any man Inflicted; he is onely left in the estate he was in before.
Nor Pain Inflicted Without Publique Hearing
Thirdly, that the evill inflicted by publique Authority, without precedent publique condemnation, is not to be stiled by the name of Punishment; but of an hostile act; because the fact for which a man is Punished, ought first to be Judged by publique Authority, to be a transgression of the Law.
Nor Pain Inflicted By Usurped Power
Fourthly, that the evill inflicted by usurped power, and Judges without Authority from the Soveraign, 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 publique Authority.
Nor Pain Inflicted Without Respect To The Future Good
Fifthly, that all evill which is inflicted without intention, or possibility of disposing the Delinquent, or (by his example) other men, to obey the Lawes, is not Punishment; but an act of hostility; because without such an end, no hurt done is contained under that name.
Naturall Evill Consequences, No Punishments
Sixthly, whereas to certain actions, there be annexed by Nature, divers hurtfull consequences; as when a man in assaulting another, is himselfe slain, or wounded; or when he falleth into sicknesse by the doing of some unlawfull 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 contaned in the name of Punishment in respect of men, because it is not inflicted by the Authority of man.
Hurt Inflicted, If Lesse Than The Benefit Of Transgressing,
Is Not Punishment
Seventhly, If the harm inflicted be lesse than the benefit, or 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 lesse that the benefit of the transgression) it attaineth not, but worketh a contrary effect.
Where The Punishment Is Annexed To The Law, A Greater Hurt Is Not
Punishment, But Hostility
Eighthly, If a Punishment be determined and prescribed in the Law it selfe, and after the crime committed, there be a greater Punishment inflicted, the excesse is not Punishment, but an act of hostility. For seeing the aym of Punishment is not a revenge, but terrour; and the terrour of a great Punishment unknown, is taken away by the declaration of a lesse, 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.
Hurt Inflicted For A Fact Done Before The Law, No Punishment
Ninthly, Harme inflicted for a Fact done before there was a Law that forbad it, is not Punishment, but an act of Hostility: For before the Law, there is no transgression of the Law: But Punishment supposeth a fact judged, to have been a transgression of the Law; Therefore Harme inflicted before the Law made, is not Punishment, but an act of Hostility.
The Representative Of The Common-wealth Unpunishable
Tenthly, Hurt inflicted on the Representative of the Common-wealth, is not Punishment, but an act of Hostility: Because it is of the nature of Punishment, to be inflicted by publique Authority, which is the Authority only of the Representative it self.
Hurt To Revolted Subjects Is Done By Right Of War, Not
By Way Of Punishment
Lastly, Harme inflicted upon one that is a declared enemy, fals not under the name of Punishment: Because seeing they were either never subject to the Law, and therefore cannot transgresse it; or having been subject to it, and professing to be no longer so, by consequence deny they can transgresse it, all the Harmes that can be done them, must be taken as acts of Hostility. But in declared Hostility, all infliction of evill is lawfull. From whence it followeth, that if a subject shall by fact, or word, wittingly, and deliberatly deny the authority of the Representative of the Common-wealth, (whatsoever penalty hath been formerly ordained for Treason,) he may lawfully be made to suffer whatsoever the Representative will: For in denying subjection, he denyes such Punishment as by the Law hath been ordained; and therefore suffers as an enemy of the Common-wealth; that is, according to the will of the Representative. For the Punishments set down in the Law, are to Subjects, not to Enemies; such as are they, that having been by their own act Subjects, deliberately revolting, deny the Soveraign Power.
The first, and most generall distribution of Punishments, is into Divine, and Humane. Of the former I shall have occasion, to speak, in a more convenient place hereafter.
Humane, are those Punishments that be inflicted by the Commandement of Man; and are either Corporall, or Pecuniary, or Ignominy, or Imprisonment, or Exile, or mixt of these.
Corporall 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 Capitall, some Lesse than Capitall. Capitall, is the Infliction of Death; and that either simply, or with torment. Lesse than Capitall, are Stripes, Wounds, Chains, and any other corporall Paine, not in its own nature mortall. For if upon the Infliction of a Punishment death follow not in the Intention of the Inflicter, the Punishment is not be bee esteemed Capitall, though the harme prove mortall 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 Summe of Mony, but also of Lands, or any other goods which are usually bought and sold for mony. And in case the Law, that ordaineth such a punishment, be made with design to gather mony, from such as shall transgresse the same, it is not properly a Punishment, but the Price of priviledge, and exemption from the Law, which doth not absolutely forbid the fact, but only to those that are not able to pay the mony: except where the Law is Naturall, 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 vaine, the payment of the mulct, is not the price of a dispensation to sweare, but the Punishment of the transgression of a Law undispensable. In like manner if the Law impose a Summe of Mony to be payd, 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 Evill, as is made Dishonorable; or the deprivation of such Good, as is made Honourable by the Common-wealth. For there be some things Honorable by Nature; as the effects of Courage, Magnanimity, Strength, Wisdome, and other abilities of body and mind: Others made Honorable by the Common-wealth; as Badges, Titles, Offices, or any other singular marke of the Soveraigns favour. The former, (though they may faile by nature, or accident,) cannot be taken away by a Law; and therefore the losse of them is not Punishment. But the later, may be taken away by the publique authority that made them Honorable, and are properly Punishments: Such are degrading men condemned, of their Badges, Titles, and Offices; or declaring them uncapable of the like in time to come.
Imprisonment, is when a man is by publique Authority deprived of liberty; and may happen from two divers ends; whereof one is the safe custody of a man accused; the other is the inflicting of paine on a man condemned. The former is not Punishment; because no man is supposed to be Punisht, before he be Judicially heard, and declared guilty. And therefore whatsoever hurt a man is made to suffer by bonds, or restraint, before his cause be heard, over and above that which is necessary to assure his custody, is against the Law of Nature. But the Later is Punishment, because Evill, and inflicted by publique 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 externall obstacle, be it a House, which is called by the generall name of a Prison; or an Iland, as when men are said to be confined to it; or a place where men are set to worke, as in old time men have been condemned to Quarries, and in these times to Gallies; or be it a Chaine, or any other such impediment.
Exile, (Banishment) is when a man is for a crime, condemned to depart out of the dominion of the Common-wealth, or out of a certaine 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 publique commandement to avoid Punishment by flight. And Cicero sayes, there was never any such Punishment ordained in the City of Rome; but cals it a refuge of men in danger. For if a man banished, be neverthelesse permitted to enjoy his Goods, and the Revenue of his Lands, the meer change of ayr is no punishment; nor does it tend to that benefit of the Common-wealth, for which all Punishments are ordained, (that is to say, to the forming of mens wils to the observation of the Law;) but many times to the dammage of the Common-wealth. For a Banished man, is a lawfull enemy of the Common-wealth that banished him; as being no more a Member of the same. But if he be withall deprived of his Lands, or Goods, then the Punishment lyeth not in the Exile, but is to be reckoned amongst Punishments Pecuniary.
The Punishment Of Innocent Subjects Is Contrary To The Law Of Nature
All Punishments of Innocent subjects, be they great or little, are against the Law of Nature; For Punishment is only of Transgression of the Law, and therefore there can be no Punishment of the Innocent. It is therefore a violation, First, of that Law of Nature, which forbiddeth all men, in their Revenges, to look at any thing but some future good: For there can arrive no good to the Common-wealth, by Punishing the Innocent. Secondly, of that, which forbiddeth Ingratitude: For seeing all Soveraign 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 rendring of Evill for Good. And thirdly, of the Law that commandeth Equity; that is to say, an equall distribution of Justice; which in Punishing the Innocent is not observed.
But The Harme Done To Innocents In War, Not So
But the Infliction of what evill soever, on an Innocent man, that is not a Subject, if it be for the benefit of the Common-wealth, and without violation of any former Covenant, is no breach of the Law of Nature. For all men that are not Subjects, are either Enemies, or else they have ceased from being so, by some precedent covenants. But against Enemies, whom the Common-wealth judgeth capable to do them hurt, it is lawfull by the originall Right of Nature to make warre; 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 deliberatly deny the Authority of the Common-wealth established, the vengeance is lawfully extended, not onely 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 warre, commonly called Rebellion; and they that so offend, suffer not as Subjects, but as Enemies. For Rebellion, is but warre renewed.
Reward, Is Either Salary, Or Grace
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 Soveraign of a Common-wealth appointeth a Salary to any publique Office, he that receiveth it, is bound in Justice to performe his office; otherwise, he is bound onely in honour, to acknowledgement, and an endeavour of requitall. For though men have no lawfull remedy, when they be commanded to quit their private businesse, to serve the publique, without Reward, or Salary; yet they are not bound thereto, by the Law of Nature, nor by the institution of the Common-wealth, unlesse the service cannot otherwise be done; because it is supposed the Soveraign may make use of all their means, insomuch as the most common Souldier, may demand the wages of his warrefare, as a debt.