CHAPTER XXI.

OF THE LIBERTY OF SUBJECTS.

[Sidenote: Liberty what.]

LIBERTY, or FREEDOM, signifieth, properly, the absence of opposition; by

opposition, I mean external impediments of motion; and may be applied no

less to irrational, and inanimate creatures, than to rational. For

whatsoever is so tied, or environed, as it cannot move but within a

certain space, which space is determined by the opposition of some

external body, we say it hath not liberty to go further. And so of all

living creatures, whilst they are imprisoned, or restrained, with walls,

or chains; and of the water whilst it is kept in by banks, or vessels,

that otherwise would spread itself into a larger space, we use to say,

they are not at liberty, to move in such manner, as without those

external impediments they would. But when the impediment of motion, is

in the constitution of the thing itself, we use not to say; it wants the

liberty; but the power to move; as when a stone lieth still, or a man is

fastened to his bed by sickness.

[Sidenote: What it is to be free.]

And according to this proper, and generally received meaning of the

word, a FREEMAN, _is he, that in those things, which by his strength and

wit he is able to do, is not hindered to do what he has a will to_. But

when the words _free_, and _liberty_, are applied to any thing but

_bodies_, they are abused; for that which is not subject to motion, is

not subject to impediment: and therefore, when it is said, for example,

the way is free, no liberty of the way is signified, but of those that

walk in it without stop. And when we say a gift is free, there is not

meant any liberty of the gift, but of the giver, that was not bound by

any law or covenant to give it. So when we _speak freely_, it is not the

liberty of voice, or pronunciation, but of the man, whom no law hath

obliged to speak otherwise than he did. Lastly, from the use of the word

_free-will_, no liberty can be inferred of the will, desire, or

inclination, but the liberty of the man; which consisteth in this, that

he finds no stop, in doing what he has the will, desire, or inclination

to do.

[Sidenote: Fear and liberty are consistent.]

Fear and liberty are consistent; as when a man throweth his goods into

the sea for _fear_ the ship should sink, he doth it nevertheless very

willingly, and may refuse to do it if he will: it is therefore the

action of one that was _free_: so a man sometimes pays his debt, only

for _fear_ of imprisonment, which because nobody hindered him from

detaining, was the action of a man at _liberty_. And generally all

actions which men do in commonwealths, for _fear_ of the law, are

actions, which the doers had _liberty_ to omit.

[Sidenote: Liberty and necessity consistent.]

_Liberty_, and _necessity_ are consistent: as in the water, that hath

not only _liberty_, but a _necessity_ of descending by the channel; so

likewise in the actions which men voluntarily do: which, because they

proceed from their will, proceed from _liberty_; and yet, because every

act of man’s will, and every desire, and inclination proceedeth from

some cause, and that from another cause, in a continual chain, whose

first link is in the hand of God the first of all causes, proceed from

_necessity_. So that to him that could see the connexion of those

causes, the _necessity_ of all men’s voluntary actions, would appear

manifest. And therefore God, that seeth, and disposeth all things, seeth

also that the _liberty_ of man in doing what he will, is accompanied

with the _necessity_ of doing that which God will, and no more, nor

less. For though men may do many things, which God does not command, nor

is therefore author of them; yet they can have no passion, nor appetite

to anything, of which appetite God’s will is not the cause. And did not

his will assure the _necessity_ of man’s will, and consequently of all

that on man’s will dependeth, the _liberty_ of men would be a

contradiction, and impediment to the omnipotence and _liberty_ of God.

And this shall suffice, as to the matter in hand, of that natural

_liberty_, which only is properly called _liberty_.

[Sidenote: Artificial bonds, or covenants.]

But as men, for the attaining of peace, and conservation of themselves

thereby, have made an artificial man, which we call a commonwealth; so

also have they made artificial chains, called _civil laws_, which they

themselves, by mutual covenants, have fastened at one end, to the lips

of that man, or assembly, to whom they have given the sovereign power;

and at the other end to their own ears. These bonds, in their own nature

but weak, may nevertheless be made to hold, by the danger, though not by

the difficulty of breaking them.

[Sidenote: Liberty of subjects consisteth in liberty from covenants.]

In relation to these bonds only it is, that I am to speak now, of the

_liberty_ of _subjects_. For seeing there is no commonwealth in the

world, wherein there be rules enough set down, for the regulating of all

the actions, and words of men; as being a thing impossible: it followeth

necessarily, that in all kinds of actions by the laws prætermitted, men

have the liberty, of doing what their own reasons shall suggest, for the

most profitable to themselves. For if we take liberty in the proper

sense, for corporal liberty; that is to say, freedom from chains and

prison; it were very absurd for men to clamour as they do, for the

liberty they so manifestly enjoy. Again, if we take liberty, for an

exemption from laws, it is it no less absurd, for men to demand as they

do, that liberty, by which all other men may be masters of their lives.

And yet, as absurd as it is, this is it they demand; not knowing that

the laws are of no power to protect them, without a sword in the hands

of a man, or men, to cause those laws to be put in execution. The

liberty of a subject, lieth therefore only in those things, which in

regulating their actions, the sovereign hath prætermitted: such as is

the liberty to buy, and sell, and otherwise contract with one another;

to choose their own abode, their own diet, their own trade of life, and

institute their children as they themselves think fit; and the like.

[Sidenote: Liberty of the subject consistent with the unlimited power of

the sovereign.]

Nevertheless we are not to understand, that by such liberty, the

sovereign power of life and death, is either abolished, or limited. For

it has been already shown, that nothing the sovereign representative can

do to a subject, on what pretence soever, can properly be called

injustice, or injury; because every subject is author of every act the

sovereign doth; so that he never wanteth right to anything, otherwise,

than as he himself is the subject of God, and bound thereby to observe

the laws of nature. And therefore it may, and doth often happen in

commonwealths, that a subject may be put to death, by the command of the

sovereign power; and yet neither do the other wrong: as when Jephtha

caused his daughter to be sacrificed: in which, and the like cases, he

that so dieth, had liberty to do the action, for which he is

nevertheless, without injury put to death. And the same holdeth also in

a sovereign prince, that putteth to death an innocent subject. For

though the action be against the law of nature, as being contrary to

equity, as was the killing of Uriah, by David; yet it was not an injury

to Uriah, but to God. Not to Uriah, because the right to do what he

pleased was given him by Uriah himself: and yet to God, because David

was God’s subject, and prohibited all iniquity by the law of nature:

which distinction, David himself, when he repented the fact, evidently

confirmed, saying, _To thee only have I sinned_. In the same manner, the

people of Athens, when they banished the most potent of their

commonwealth for ten years, thought they committed no injustice; and yet

they never questioned what crime he had done; but what hurt he would do:

nay they commanded the banishment of they knew not whom; and every

citizen bringing his oystershell into the market place, written with the

name of him he desired should be banished, without actually accusing

him, sometimes banished an Aristides, for his reputation of justice; and

sometimes a scurrilous jester, as Hyperbolus, to make a jest of it. And

yet a man cannot say, the sovereign people of Athens wanted right to

banish them; or an Athenian the liberty to jest, or to be just.

[Sidenote: The liberty which writers praise, is the liberty of

sovereigns; not of private men.]

The liberty, whereof there is so frequent and honourable mention, in the

histories, and philosophy of the ancient Greeks, and Romans, and in the

writings, and discourse of those that from them have received all their

learning in the politics, is not the liberty of particular men; but the

liberty of the commonwealth: which is the same with that which every man

then should have, if there were no civil laws, nor commonwealth at all.

And the effects of it also be the same. For as amongst masterless men,

there is perpetual war, of every man against his neighbour; no

inheritance, to transmit to the son, nor to expect from the father; no

propriety of goods, or lands; no security; but a full and absolute

liberty in every particular man: so in states, and commonwealths not

dependent on one another, every commonwealth, not every man, has an

absolute liberty, to do what it shall judge, that is to say, what that

man, or assembly that representeth it, shall judge most conducing to

their benefit. But withal, they live in the condition of a perpetual

war, and upon the confines of battle, with their frontiers armed, and

cannons planted against their neighbours round about. The Athenians, and

Romans were free; that is, free commonwealths: not that any particular

men had the liberty to resist their own representative; but that their

representative had the liberty to resist, or invade other people. There

is written on the turrets of the city of Lucca in great characters at

this day, the word LIBERTAS; yet no man can thence infer, that a

particular man has more liberty, or immunity from the service of the

commonwealth there, than in Constantinople. Whether a commonwealth be

monarchical, or popular, the freedom is still the same.

But it is an easy thing, for men to be deceived, by the specious name of

liberty; and for want of judgment to distinguish, mistake that for their

private inheritance, and birth-right, which is the right of the public

only. And when the same error is confirmed by the authority of men in

reputation for their writings on this subject, it is no wonder if it

produce sedition, and change of government. In these western parts of

the world, we are made to receive our opinions concerning the

institution, and rights of commonwealths, from Aristotle, Cicero, and

other men, Greeks and Romans, that living under popular states, derived

those rights, not from the principles of nature, but transcribed them

into their books, out of the practice of their own commonwealths, which

were popular; as the grammarians describe the rules of language, out of

the practice of the time; or the rules of poetry, out of the poems of

Homer and Virgil. And because the Athenians were taught, to keep them

from desire of changing their government, that they were freemen, and

all that lived under monarchy were slaves; therefore Aristotle puts it

down in his _Politics_, (_lib._ 6. _cap._ ii.) _In democracy_, LIBERTY

_is to be supposed: for it is commonly held, that no man is_ FREE _in

any other government_. And as Aristotle; so Cicero, and other writers

have grounded their civil doctrine, on the opinions of the Romans, who

were taught to hate monarchy, at first, by them that having deposed

their sovereign, shared amongst them the sovereignty of Rome; and

afterwards by their successors. And by reading of these Greek, and Latin

authors, men from their childhood have gotten a habit, under a false

show of liberty, of favouring tumults, and of licentious controlling the

actions of their sovereigns, and again of controlling those controllers;

with the effusion of so much blood, as I think I may truly say, there

was never any thing so dearly bought, as these western parts have bought

the learning of the Greek and Latin tongues.

[Sidenote: Liberty of subjects how to be measured.]

To come now to the particulars of the true liberty of a subject; that is

to say, what are the things, which though commanded by the sovereign, he

may nevertheless, without injustice, refuse to do; we are to consider,

what rights we pass away, when we make a commonwealth; or, which is all

one, what liberty we deny ourselves, by owning all the actions, without

exception, of the man, or assembly we make our sovereign. For in the act

of our _submission_, consisteth both our _obligation_, and our

_liberty_; which must therefore be inferred by arguments taken from

thence; there being no obligation on any man, which ariseth not from

some act of his own; for all men equally, are by nature free. And

because such arguments, must either be drawn from the express words, _I

authorize all his actions_, or from the intention of him that submitteth

himself to his power, which intention is to be understood by the end for

which he so submitteth; the obligation, and liberty of the subject, is

to be derived, either from those words, or others equivalent; or else

from the end of the institution of sovereignty, namely, the peace of the

subjects within themselves, and their defence against a common enemy.

[Sidenote: Subjects have liberty to defend their own bodies, even

against them that lawfully invade them.]

First therefore, seeing sovereignty by institution, is by covenant of

every one to every one; and sovereignty by acquisition, by covenants of

the vanquished to the victor, or child to the parent; it is manifest,

that every subject has liberty in all those things, the right whereof

cannot by covenant be transferred. I have shewn before in the 14th

chapter, that covenants, not to defend a man’s own body, are void.

Therefore,

[Sidenote: Are not bound to hurt themselves.]

If the sovereign command a man, though justly condemned, to kill, wound,

or maim himself; or not to resist those that assault him; or to abstain

from the use of food, air, medicine, or any other thing, without which

he cannot live; yet hath that man the liberty to disobey.

If a man be interrogated by the sovereign, or his authority, concerning

a crime done by himself, he is not bound, without assurance of pardon,

to confess it; because no man, as I have shown in the same chapter, can

be obliged by covenant to accuse himself.

Again, the consent of a subject to sovereign power, is contained in

these words, _I authorize, or take upon me, all his actions_; in which

there is no restriction at all, of his own former natural liberty: for

by allowing him to _kill me_, I am not bound to kill myself when he

commands me. It is one thing to say, _kill me, or my fellow, if you

please_; another thing to say, _I will kill myself, or my fellow_. It

followeth therefore, that

No man is bound by the words themselves, either to kill himself, or any

other man; and consequently, that the obligation a man may sometimes

have, upon the command of the sovereign to execute any dangerous, or

dishonourable office, dependeth not on the words of our submission; but

on the intention, which is to be understood by the end thereof. When

therefore our refusal to obey, frustrates the end for which the

sovereignty was ordained; then there is no liberty to refuse: otherwise

there is.

[Sidenote: Nor to warfare, unless they voluntarily undertake it.]

Upon this ground, a man that is commanded as a soldier to fight against

the enemy, though his sovereign have right enough to punish his refusal

with death, may nevertheless in many cases refuse, without injustice; as

when he substituteth a sufficient soldier in his place: for in this case

he deserteth not the service of the commonwealth. And there is allowance

to be made for natural timorousness; not only to women, of whom no such

dangerous duty is expected, but also to men of feminine courage. When

armies fight, there is on one side, or both, a running away; yet when

they do it not out of treachery, but fear, they are not esteemed to do

it unjustly, but dishonourably. For the same reason, to avoid battle, is

not injustice, but cowardice. But he that inrolleth himself a soldier,

or taketh imprest money, taketh away the excuse of a timorous nature;

and is obliged, not only to go to the battle, but also not to run from

it, without his captain’s leave. And when the defence of the

commonwealth, requireth at once the help of all that are able to bear

arms, every one is obliged; because otherwise the institution of the

commonwealth, which they have not the purpose, or courage to preserve,

was in vain.

To resist the sword of the commonwealth, in defence of another man,

guilty, or innocent, no man hath liberty; because such liberty, takes

away from the sovereign, the means of protecting us; and is therefore

destructive of the very essence of government. But in case a great many

men together, have already resisted the sovereign power unjustly, or

committed some capital crime, for which every one of them expecteth

death, whether have they not the liberty then to join together, and

assist, and defend one another? Certainly they have: for they but defend

their lives, which the guilty man may as well do, as the innocent. There

was indeed injustice in the first breach of their duty; their bearing of

arms subsequent to it, though it be to maintain what they have done, is

no new unjust act. And if it be only to defend their persons, it is not

unjust at all. But the offer of pardon taketh from them, to whom it is

offered, the plea of self-defence, and maketh their perseverance in

assisting, or defending the rest, unlawful.

[Sidenote: The greatest liberty of subjects, dependeth on the silence of

the law.]

As for other liberties, they depend on the silence of the law. In cases

where the sovereign has prescribed no rule, there the subject hath the

liberty to do, or forbear, according to his own discretion. And

therefore such liberty is in some places more, and in some less; and in

some times more, in other times less, according as they that have the

sovereignty shall think most convenient. As for example, there was a

time, when in England a man might enter into his own land, and

dispossess such as wrongfully possessed it, by force. But in aftertimes,

that liberty of forcible entry, was taken away by a statute made, by the

king, in parliament. And in some places of the world, men have the

liberty of many wives: in other places, such liberty is not allowed.

If a subject have a controversy with his sovereign, of debt, or of right

of possession of lands or goods, or concerning any service required at

his hands, or concerning any penalty, corporal, or pecuniary, grounded

on a precedent law; he hath the same liberty to sue for his right, as if

it were against a subject; and before such judges, as are appointed by

the sovereign. For seeing the sovereign demandeth by force of a former

law, and not by virtue of his power; he declareth thereby, that he

requireth no more, than shall appear to be due by that law. The suit

therefore is not contrary to the will of the sovereign; and consequently

the subject hath the liberty to demand the hearing of his cause; and

sentence, according to that law. But if he demand, or take anything by

pretence of his power; there lieth, in that case, no action of law; for

all that is done by him in virtue of his power, is done by the authority

of every subject, and consequently he that brings an action against the

sovereign, brings it against himself.

If a monarch, or sovereign assembly, grant a liberty to all, or any of

his subjects, which grant standing, he is disabled to provide for their

safety, the grant is void; unless he directly renounce, or transfer the

sovereignty to another. For in that he might openly, if it had been his

will, and in plain terms, have renounced, or transferred it, and did

not; it is to be understood it was not his will, but that the grant

proceeded from ignorance of the repugnancy between such a liberty and

the sovereign power; and therefore the sovereignty is still retained;

and consequently all those powers, which are necessary to the exercising

thereof; such as are the power of war, and peace, of judicature, of

appointing officers, and councillors, of levying money, and the rest

named in the 18th chapter.

[Sidenote: In what cases subjects are absolved of their obedience to

their sovereign.]

The obligation of subjects to the sovereign, is understood to last as

long, and no longer, than the power lasteth, by which he is able to

protect them. For the right men have by nature to protect themselves,

when none else can protect them, can by no covenant be relinquished. The

sovereignty is the soul of the commonwealth; which once departed from

the body, the members do no more receive their motion from it. The end

of obedience is protection; which, wheresoever a man seeth it, either in

his own, or in another’s sword, nature applieth his obedience to it, and

his endeavour to maintain it. And though sovereignty, in the intention

of them that make it, be immortal; yet is it in its own nature, not only

subject to violent death, by foreign war; but also through the

ignorance, and passions of men, it hath in it, from the very

institution, many seeds of a natural mortality, by intestine discord.

[Sidenote: In case of captivity.]

If a subject be taken prisoner in war; or his person, or his means of

life be within the guards of the enemy, and hath his life and corporal

liberty given him, on condition to be subject to the victor, he hath

liberty to accept the condition; and having accepted it, is the subject

of him that took him; because he had no other way to preserve himself.

The case is the same, if he be detained on the same terms, in a foreign

country. But if a man be held in prison, or bonds, or is not trusted

with the liberty of his body; he cannot be understood to be bound by

covenant to subjection; and therefore may, if he can, make his escape by

any means whatsoever.

[Sidenote: In case the sovereign cast off the government from himself

and his heirs.]

If a monarch shall relinquish the sovereignty, both for himself, and his

heirs; his subjects return to the absolute liberty of nature; because,

though nature may declare who are his sons, and who are the nearest of

his kin; yet it dependeth on his own will, as hath been said in the

precedent chapter, who shall be his heir. If therefore he will have no

heir, there is no sovereignty, nor subjection. The case is the same, if

he die without known kindred, and without declaration of his heir. For

then there can no heir be known, and consequently no subjection be due.

[Sidenote: In case of banishment.]

If the sovereign banish his subject; during the banishment, he is not

subject. But he that is sent on a message, or hath leave to travel, is

still subject; but it is, by contract between sovereigns, not by virtue

of the covenant of subjection. For whosoever entereth into another’s

dominion, is subject to all the laws thereof; unless he have a privilege

by the amity of the sovereigns, or by special licence.

[Sidenote: In case the sovereign render himself subject to another.]

If a monarch subdued by war, render himself subject to the victor; his

subjects are delivered from their former obligation, and become obliged

to the victor. But if he be held prisoner, or have not the liberty of

his own body; he is not understood to have given away the right of

sovereignty; and therefore his subjects are obliged to yield obedience

to the magistrates formerly placed, governing not in their own name, but

in his. For, his right remaining, the question is only of the

administration; that is to say, of the magistrates and officers; which,

if he have not means to name, he is supposed to approve those, which he

himself had formerly appointed.

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The English works of Thomas Hobbes of Malmesbury, Volume 03 (of 11) · 第 6 / 21 章