OF THE RIGHTS OF SOVEREIGNS BY INSTITUTION.
[Sidenote: The act of instituting a commonwealth, what.]
A _commonwealth_ is said to be _instituted_, when a _multitude_ of men
do agree; and _covenant, every one, with every one_, that to whatsoever
_man_, or _assembly of men_, shall be given by the major part, the
_right_ to _present_ the person of them all, that is to say, to be their
_representative_; every one, as well he that _voted for it_, as he that
_voted against it_, shall _authorize_ all the actions and judgments, of
that man, or assembly of men, in the same manner, as if they were his
own, to the end, to live peaceably amongst themselves, and be protected
against other men.
[Sidenote: The consequences to such institution, are.]
From this institution of a commonwealth are derived all the _rights_,
and _faculties_ of him, or them, on whom sovereign power is conferred by
the consent of the people assembled.
[Sidenote: 1. The subjects cannot change the form of government.]
First, because they covenant, it is to be understood, they are not
obliged by former covenant to anything repugnant hereunto. And
consequently they that have already instituted a commonwealth, being
thereby bound by covenant, to own the actions, and judgments of one,
cannot lawfully make a new covenant, amongst themselves, to be obedient
to any other, in any thing whatsoever, without his permission. And
therefore, they that are subjects to a monarch, cannot without his leave
cast off monarchy, and return to the confusion of a disunited multitude;
nor transfer their person from him that beareth it, to another man, or
other assembly of men: for they are bound, every man to every man, to
own, and be reputed author of all, that he that already is their
sovereign, shall do, and judge fit to be done: so that any one man
dissenting, all the rest should break their covenant made to that man,
which is injustice: and they have also every man given the sovereignty
to him that beareth their person; and therefore if they depose him, they
take from him that which is his own, and so again it is injustice.
Besides, if he that attempteth to depose his sovereign, be killed, or
punished by him for such attempt, he is author of his own punishment, as
being by the institution, author of all his sovereign shall do: and
because it is injustice for a man to do anything, for which he may be
punished by his own authority, he is also upon that title, unjust. And
whereas some men have pretended for their disobedience to their
sovereign, a new covenant, made, not with men, but with God; this also
is unjust: for there is no covenant with God, but by mediation of
somebody that representeth God’s person; which none doth but God’s
lieutenant, who hath the sovereignty under God. But this pretence of
covenant with God, is so evident a lie, even in the pretenders’ own
consciences, that it is not only an act of an unjust, but also of a
vile, and unmanly disposition.
[Sidenote: 2. Sovereign power cannot be forfeited.]
Secondly, because the right of bearing the person of them all, is given
to him they make sovereign, by covenant only of one to another, and not
of him to any of them; there can happen no breach of covenant on the
part of the sovereign; and consequently none of his subjects, by any
pretence of forfeiture, can be freed from his subjection. That he which
is made sovereign maketh no covenant with his subjects beforehand, is
manifest; because either he must make it with the whole multitude, as
one party to the covenant; or he must make a several covenant with every
man. With the whole, as one party, it is impossible; because as yet they
are not one person: and if he make so many several covenants as there be
men, those covenants after he hath the sovereignty are void; because
what act soever can be pretended by any one of them for breach thereof,
is the act both of himself, and of all the rest, because done in the
person, and by the right of every one of them in particular. Besides, if
any one, or more of them, pretend a breach of the covenant made by the
sovereign at his institution; and others, or one other of his subjects,
or himself alone, pretend there was no such breach, there is in this
case, no judge to decide the controversy; it returns therefore to the
sword again; and every man recovereth the right of protecting himself by
his own strength, contrary to the design they had in the institution. It
is therefore in vain to grant sovereignty by way of precedent covenant.
The opinion that any monarch receiveth his power by covenant, that is to
say, on condition, proceedeth from want of understanding this easy
truth, that covenants being but words and breath, have no force to
oblige, contain, constrain, or protect any man, but what it has from the
public sword; that is, from the untied hands of that man, or assembly of
men that hath the sovereignty, and whose actions are avouched by them
all, and performed by the strength of them all, in him united. But when
an assembly of men is made sovereign; then no man imagineth any such
covenant to have passed in the institution; for no man is so dull as to
say, for example, the people of Rome made a covenant with the Romans, to
hold the sovereignty on such or such conditions; which not performed,
the Romans might lawfully depose the Roman people. That men see not the
reason to be alike in a monarchy, and in a popular government,
proceedeth from the ambition of some, that are kinder to the government
of an assembly, whereof they may hope to participate, than of monarchy,
which they despair to enjoy.
[Sidenote: 3. No man can without injustice protest against the
institution of the sovereign declared by the major part.]
Thirdly, because the major part hath by consenting voices declared a
sovereign; he that dissented must now consent with the rest; that is, be
contented to avow all the actions he shall do, or else justly be
destroyed by the rest. For if he voluntarily entered into the
congregation of them that were assembled, he sufficiently declared
thereby his will, and therefore tacitly covenanted, to stand to what the
major part should ordain: and therefore if he refuse to stand thereto,
or make protestation against any of their decrees, he does contrary to
his covenant, and therefore unjustly. And whether he be of the
congregation, or not; and whether his consent be asked, or not, he must
either submit to their decrees, or be left in the condition of war he
was in before; wherein he might without injustice be destroyed by any
man whatsoever.
[Sidenote: 4. The sovereign’s actions cannot be justly accused by the
subject.]
Fourthly, because every subject is by this institution author of all the
actions, and judgments of the sovereign instituted; it follows, that
whatsoever he doth, it can be no injury to any of his subjects; nor
ought he to be by any of them accused of injustice. For he that doth
anything by authority from another, doth therein no injury to him by
whose authority he acteth: but by this institution of a commonwealth,
every particular man is author of all the sovereign doth: and
consequently he that complaineth of injury from his sovereign,
complaineth of that whereof he himself is author; and therefore ought
not to accuse any man but himself; no nor himself of injury; because to
do injury to one’s self, is impossible. It is true that they that have
sovereign power may commit iniquity; but not injustice, or injury in the
proper signification.
[Sidenote: 5. Whatsoever the sovereign doth is unpunishable by the
subject.]
Fifthly, and consequently to that which was said last, no man that hath
sovereign power can justly be put to death, or otherwise in any manner
by his subjects punished. For seeing every subject is author of the
actions of his sovereign; he punisheth another for the actions committed
by himself.
[Sidenote: 6. The sovereign is judge of what is necessary for the peace
and defence of his subjects.]
And because the end of this institution, is the peace and defence of
them all; and whosoever has right to the end, has right to the means; it
belongeth of right, to whatsoever man, or assembly that hath the
sovereignty, to be judge both of the means of peace and defence, and
also of the hindrances, and disturbances of the same; and to do
whatsoever he shall think necessary to be done, both beforehand, for the
preserving of peace and security, by prevention of discord at home, and
hostility from abroad; and, when peace and security are lost, for the
recovery of the same. And therefore,
[Sidenote: And judge of what doctrines are fit to be taught them.]
Sixthly, it is annexed to the sovereignty, to be judge of what opinions
and doctrines are averse, and what conducing to peace; and consequently,
on what occasions, how far, and what men are to be trusted withal, in
speaking to multitudes of people; and who shall examine the doctrines of
all books before they be published. For the actions of men proceed from
their opinions; and in the well-governing of opinions, consisteth the
well-governing of men’s actions, in order to their peace, and concord.
And though in matter of doctrine, nothing ought to be regarded but the
truth; yet this is not repugnant to regulating the same by peace. For
doctrine repugnant to peace, can no more be true, than peace and concord
can be against the law of nature. It is true, that in a commonwealth,
where by the negligence, or unskilfulness of governors, and teachers,
false doctrines are by time generally received; the contrary truths may
be generally offensive. Yet the most sudden, and rough bursting in of a
new truth, that can be, does never break the peace, but only sometimes
awake the war. For those men that are so remissly governed, that they
dare take up arms to defend, or introduce an opinion, are still in war;
and their condition not peace, but only a cessation of arms for fear of
one another; and they live, as it were, in the precincts of battle
continually. It belongeth therefore to him that hath the sovereign
power, to be judge, or constitute all judges of opinions and doctrines,
as a thing necessary to peace; thereby to prevent discord and civil war.
[Sidenote: 7. The right of making rules; whereby the subjects may every
man know what is so his own, as no other subject can without
injustice take it from him.]
Seventhly, is annexed to the sovereignty, the whole power of prescribing
the rules, whereby every man may know, what goods he may enjoy, and what
actions he may do, without being molested by any of his fellow-subjects;
and this is it men call _propriety_. For before constitution of
sovereign power, as hath already been shown, all men had right to all
things; which necessarily causeth war: and therefore this propriety,
being necessary to peace, and depending on sovereign power, is the act
of that power, in order to the public peace. These rules of propriety,
or _meum_ and _tuum_, and of _good_, _evil_, _lawful_, and _unlawful_ in
the actions of subjects, are the civil laws; that is to say, the laws of
each commonwealth in particular; though the name of civil law be now
restrained to the ancient civil laws of the city of Rome; which being
the head of a great part of the world, her laws at that time were in
these parts the civil law.
[Sidenote: 8. To him also belongeth the right of judicature and decision
of controversy.]
Eighthly, is annexed to the sovereignty, the right of judicature; that
is to say, of hearing and deciding all controversies, which may arise
concerning law, either civil, or natural; or concerning fact. For
without the decision of controversies, there is no protection of one
subject, against the injuries of another; the laws concerning _meum_ and
_tuum_ are in vain; and to every man remaineth, from the natural and
necessary appetite of his own conservation, the right of protecting
himself by his private strength, which is the condition of war, and
contrary to the end for which every commonwealth is instituted.
[Sidenote: 9. And of making war, and peace, as he shall think best.]
Ninthly, is annexed to the sovereignty, the right of making war and
peace with other nations, and commonwealths; that is to say, of judging
when it is for the public good, and how great forces are to be
assembled, armed, and paid for that end; and to levy money upon the
subjects, to defray the expenses thereof. For the power by which the
people are to be defended, consisteth in their armies; and the strength
of an army, in the union of their strength under one command; which
command the sovereign instituted, therefore hath; because the command of
the _militia_, without other institution, maketh him that hath it
sovereign. And therefore whosoever is made general of an army, he that
hath the sovereign power is always generalissimo.
[Sidenote: 10. And of choosing all counsellors and ministers, both of
peace & war.]
Tenthly, is annexed to the sovereignty, the choosing of all counsellors,
ministers, magistrates, and officers, both in peace, and war. For seeing
the sovereign is charged with the end, which is the common peace and
defence, he is understood to have power to use such means, as he shall
think most fit for his discharge.
[Sidenote: 11. And of rewarding and punishing, and that (where no former
law hath determined the measure of it) arbitrarily.]
Eleventhly, to the sovereign is committed the power of rewarding with
riches, or honour, and of punishing with corporal or pecuniary
punishment, or with ignominy, every subject according to the law he hath
formerly made; or if there be no law made, according as he shall judge
most to conduce to the encouraging of men to serve the commonwealth, or
deterring of them from doing disservice to the same.
[Sidenote: 12. And of honour and order.]
Lastly, considering what value men are naturally apt to set upon
themselves; what respect they look for from others; and how little they
value other men; from whence continually arise amongst them, emulation,
quarrels, factions, and at last war, to the destroying of one another,
and diminution of their strength against a common enemy; it is necessary
that there be laws of honour, and a public rate of the worth of such men
as have deserved, or are able to deserve well of the commonwealth; and
that there be force in the hands of some or other, to put those laws in
execution. But it hath already been shown, that not only the whole
_militia_, or forces of the commonwealth; but also the judicature of all
controversies, is annexed to the sovereignty. To the sovereign therefore
it belongeth also to give titles of honour; and to appoint what order of
place, and dignity, each man shall hold; and what signs of respect, in
public or private meetings, they shall give to one another.
[Sidenote: These rights are indivisible.]
These are the rights, which make the essence of sovereignty; and which
are the marks, whereby a man may discern in what man, or assembly of
men, the sovereign power is placed, and resideth. For these are
incommunicable, and inseparable. The power to coin money; to dispose of
the estate and persons of infant heirs; to have præemption in markets;
and all other statute prerogatives, may be transferred by the sovereign;
and yet the power to protect his subjects be retained. But if he
transfer the _militia_, he retains the judicature in vain, for want of
execution of the laws: or if he grant away the power of raising money;
the _militia_ is in vain; or if he give away the government of
doctrines, men will be frighted into rebellion with the fear of spirits.
And so if we consider any one of the said rights, we shall presently
see, that the holding of all the rest will produce no effect, in the
conservation of peace and justice, the end for which all commonwealths
are instituted. And this division is it, whereof it is said, _a kingdom
divided in itself cannot stand_: for unless this division precede,
division into opposite armies can never happen. If there had not first
been an opinion received of the greatest part of England, that these
powers were divided between the King, and the Lords, and the House of
Commons, the people had never been divided and fallen into this civil
war; first between those that disagreed in politics; and after between
the dissenters about the liberty of religion; which have so instructed
men in this point of sovereign right, that there be few now in England
that do not see, that these rights are inseparable, and will be so
generally acknowledged at the next return of peace; and so continue,
till their miseries are forgotten; and no longer, except the vulgar be
better taught than they have hitherto been.
[Sidenote: And can by no grant pass away without direct renouncing of
the sovereign power.]
And because they are essential and inseparable rights, it follows
necessarily, that in whatsoever words any of them seem to be granted
away, yet if the sovereign power itself be not in direct terms
renounced, and the name of sovereign no more given by the grantees to
him that grants them, the grant is void: for when he has granted all he
can, if we grant back the sovereignty, all is restored, as inseparably
annexed thereunto.
[Sidenote: The power and honour of subjects vanisheth in the presence of
the power sovereign.]
This great authority being indivisible, and inseparably annexed to the
sovereignty, there is little ground for the opinion of them, that say of
sovereign kings, though they be _singulis majores_, of greater power
than every one of their subjects, yet they be _universis minores_, of
less power than them all together. For if by _all together_, they mean
not the collective body as one person, then _all together_, and _every
one_, signify the same; and the speech is absurd. But if by _all
together_, they understand them as one person, which person the
sovereign bears, then the power of all together, is the same with the
sovereign’s power; and so again the speech is absurd: which absurdity
they see well enough, when the sovereignty is in an assembly of the
people; but in a monarch they see it not; and yet the power of
sovereignty is the same in whomsoever it be placed.
And as the power, so also the honour of the sovereign, ought to be
greater, than that of any, or all the subjects. For in the sovereignty
is the fountain of honour. The dignities of lord, earl, duke, and prince
are his creatures. As in the presence of the master, the servants are
equal, and without any honour at all; so are the subjects, in the
presence of the sovereign. And though they shine some more, some less,
when they are out of his sight; yet in his presence, they shine no more
than the stars in the presence of the sun.
[Sidenote: Sovereign power not so hurtful as the want of it, and the
hurt proceeds for the greatest part from not submitting
readily to a less.]
But a man may here object, that the condition of subjects is very
miserable; as being obnoxious to the lusts, and other irregular passions
of him, or them that have so unlimited a power in their hands. And
commonly they that live under a monarch, think it the fault of monarchy;
and they that live under the government of democracy, or other sovereign
assembly, attribute all the inconvenience to that form of commonwealth;
whereas the power in all forms, if they be perfect enough to protect
them, is the same: not considering that the state of man can never be
without some incommodity or other; and that the greatest, that in any
form of government can possibly happen to the people in general, is
scarce sensible, in respect of the miseries, and horrible calamities,
that accompany a civil war, or that dissolute condition of masterless
men, without subjection to laws, and a coercive power to tie their hands
from rapine and revenge: nor considering that the greatest pressure of
sovereign governors, proceedeth not from any delight, or profit they can
expect in the damage or weakening of their subjects, in whose vigour,
consisteth their own strength and glory; but in the restiveness of
themselves, that unwillingly contributing to their own defence, make it
necessary for their governors to draw from them what they can in time of
peace, that they may have means on any emergent occasion, or sudden
need, to resist, or take advantage on their enemies. For all men are by
nature provided of notable multiplying glasses, that is their passions
and self-love, through which, every little payment appeareth a great
grievance; but are destitute of those prospective glasses, namely moral
and civil science, to see afar off the miseries that hang over them, and
cannot without such payments be avoided.
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