Fourthly, to be able to give Counsell to a Common-wealth, in a…

Fourthly, to be able to give Counsell to a Common-wealth, in a businesse that hath reference to another Common-wealth, It Is Necessary To Be Acquainted With The Intelligences, And Letters That Come From Thence, And With All The Records Of Treaties, And Other Transactions Of State Between Them; which none can doe, but such as the Representative shall think fit. By which we may see, that they who are not called to Counsell, can have no good Counsell in such cases to obtrude.

Fifthly, Supposing the number of Counsellors equall, a man is better Counselled by hearing them apart, then in an Assembly; and that for many causes. First, in hearing them apart, you have the advice of every man; but in an Assembly may of them deliver their advise with I, or No, or with their hands, or feet, not moved by their own sense, but by the eloquence of another, or for feare of displeasing some that have spoken, or the whole Assembly, by contradiction; or for feare of appearing duller in apprehension, than those that have applauded the contrary opinion. Secondly, in an Assembly of many, there cannot choose but be some whose interests are contrary to that of the Publique; and these their Interests make passionate, and Passion eloquent, and Eloquence drawes others into the same advice. For the Passions of men, which asunder are moderate, as the heat of one brand; in Assembly are like many brands, that enflame one another, (especially when they blow one another with Orations) to the setting of the Common-wealth on fire, under pretence of Counselling it. Thirdly, in hearing every man apart, one may examine (when there is need) the truth, or probability of his reasons, and of the grounds of the advise he gives, by frequent interruptions, and objections; which cannot be done in an Assembly, where (in every difficult question) a man is rather astonied, and dazled with the variety of discourse upon it, than informed of the course he ought to take. Besides, there cannot be an Assembly of many, called together for advice, wherein there be not some, that have the ambition to be thought eloquent, and also learned in the Politiques; and give not their advice with care of the businesse propounded, but of the applause of their motly orations, made of the divers colored threds, or shreds of Authors; which is an Impertinence at least, that takes away the time of serious Consultation, and in the secret way of Counselling apart, is easily avoided. Fourthly, in Deliberations that ought to be kept secret, (whereof there be many occasions in Publique Businesse,) the Counsells of many, and especially in Assemblies, are dangerous; And therefore great Assemblies are necessitated to commit such affaires to lesser numbers, and of such persons as are most versed, and in whose fidelity they have most confidence.

To conclude, who is there that so far approves the taking of Counsell from a great Assembly of Counsellours, that wisheth for, or would accept of their pains, when there is a question of marrying his Children, disposing of his Lands, governing his Household, or managing his private Estate, especially if there be amongst them such as wish not his prosperity? A man that doth his businesse by the help of many and prudent Counsellours, with every one consulting apart in his proper element, does it best, as he that useth able Seconds at Tennis play, placed in their proper stations. He does next best, that useth his own Judgement only; as he that has no Second at all. But he that is carried up and down to his businesse in a framed Counsell, which cannot move but by the plurality of consenting opinions, the execution whereof is commonly (out of envy, or interest) retarded by the part dissenting, does it worst of all, and like one that is carried to the ball, though by good Players, yet in a Wheele-barrough, or other frame, heavy of it self, and retarded also by the inconcurrent judgements, and endeavours of them that drive it; and so much the more, as they be more that set their hands to it; and most of all, when there is one, or more amongst them, that desire to have him lose. And though it be true, that many eys see more then one; yet it is not to be understood of many Counsellours; but then only, when the finall Resolution is in one man. Otherwise, because many eyes see the same thing in divers lines, and are apt to look asquint towards their private benefit; they that desire not to misse their marke, though they look about with two eyes, yet they never ayme but with one; And therefore no great Popular Common-wealth was ever kept up; but either by a forraign Enemy that united them; or by the reputation of some one eminent Man amongst them; or by the secret Counsell of a few; or by the mutuall feare of equall factions; and not by the open Consultations of the Assembly. And as for very little Common-wealths, be they Popular, or Monarchicall, there is no humane wisdome can uphold them, longer then the Jealousy lasteth of their potent Neighbours.

CHAPTER XXVI. OF CIVILL LAWES

Civill Law what

By CIVILL LAWES, I understand the Lawes, that men are therefore bound to observe, because they are Members, not of this, or that Common-wealth in particular, but of a Common-wealth. For the knowledge of particular Lawes belongeth to them, that professe the study of the Lawes of their severall Countries; but the knowledge of Civill Law in generall, to any man. The antient Law of Rome was called their Civil Law, from the word Civitas, which signifies a Common-wealth; And those Countries, which having been under the Roman Empire, and governed by that Law, retaine still such part thereof as they think fit, call that part the Civill Law, to distinguish it from the rest of their own Civill Lawes. But that is not it I intend to speak of here; my designe being not to shew what is Law here, and there; but what is Law; as Plato, Aristotle, Cicero, and divers others have done, without taking upon them the profession of the study of the Law.

And first it manifest, that Law in generall, is not Counsell, but Command; nor a Command of any man to any man; but only of him, whose Command is addressed to one formerly obliged to obey him. And as for Civill Law, it addeth only the name of the person Commanding, which is Persona Civitatis, the Person of the Common-wealth.

Which considered, I define Civill Law in this Manner. "CIVILL LAW, Is to every Subject, those Rules, which the Common-wealth hath Commanded him, by Word, Writing, or other sufficient Sign of the Will, to make use of, for the Distinction of Right, and Wrong; that is to say, of what is contrary, and what is not contrary to the Rule."

In which definition, there is nothing that is not at first sight evident. For every man seeth, that some Lawes are addressed to all the Subjects in generall; some to particular Provinces; some to particular Vocations; and some to particular Men; and are therefore Lawes, to every of those to whom the Command is directed; and to none else. As also, that Lawes are the Rules of Just, and Unjust; nothing being reputed Unjust, that is not contrary to some Law. Likewise, that none can make Lawes but the Common-wealth; because our Subjection is to the Common-wealth only: and that Commands, are to be signified by sufficient Signs; because a man knows not otherwise how to obey them. And therefore, whatsoever can from this definition by necessary consequence be deduced, ought to be acknowledged for truth. Now I deduce from it this that followeth.

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.