2.21. CHAP. XXI
Of the LIBERTY of Subjects
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.
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 anything but
bodies, they are abused; for that which is not subject to motion is
not to 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 words 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.
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 no body 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.
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 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.
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 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.
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
pretermitted, 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 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
pretermitted: 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.
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 any thing, 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 Jephthah 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 oyster shell 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.
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 Luca 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 judgement to distinguish, mistake
that for their private inheritance and birthright 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 "In democracy,
liberty is to be supposed: for it is commonly held that no man is free
in any other government."(1) 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 anything so dearly bought
as these western parts have bought the learning of the Greek and Latin
tongues.
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 authorise 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.
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 shown
before, in the fourteenth Chapter, that covenants not to defend a
man's own body are void. Therefore,
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 authorise, 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.
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 enrolleth himself a soldier,
or taketh impressed 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.
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
after times 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 counsellors, of levying money, and the rest named in the eighteenth
Chapter.
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.
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.
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.
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 license.
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.
[(1)]
Aristotle, Politics, Bk VI