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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