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my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature : force without right, upon a man's perfon, makes a state of war, both where there is, and is not, a common judge.
f. 20. But when the actual force is over, the state of war ceases between those that are in society, and are equally on both sides subjected to the fair determination of the law; because then there lies open the remedy of appeal for the past injury, and to prevent future harm : but where no such appeal is, as in the state of nature, for want of positive laws, and judges with authority to appeal to, the state of war once begun, continues, with a right to the innocent party to destroy the other whenever he can, until the aggressor offers peace, ,
and desires reconciliation on such terms as may repair any wrongs he has already done, and secure the innocent for the future ; nay, where an appeal to the law, and constituted judges, lies open, but the remedy is denied by a manifest perverting of justice, and a barefaced wresting of the laws to protect or indemnify the violence or injuries of some men, or party of men, there it is hard to imagine any thing but a state of war :
for where-ever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent, by an unbiassed application of it, to all who are under it; where-ever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.
$. 21. To avoid this state of war (wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men's putting themselves into fociety, and quitting the state of nature: for where there is an authority, a power on earth, from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power. Had there been any such court, any superior jurisdiction on earth, to determine the right between Jephtha and the Ammonites, they had never come to a state of war : but we see he was forced to appeal to heaven. The Lord the Judge (says he) be judge this day between the children of Israel and the children of Ammon, Judg. xi. 27. and then prosecuting, and relying on his appeal, he leads out his army to battle: and
therefore in such controversies, where the question is put, who shall be judge? It cannot be meant, who shall decide the controversy; every one knows what Jephtha here tells us, that the Lord the Judge shall judge. Where there is no judge on earth, the appeal lies to God in heaven. That question then cannot mean, who shall judge, whether another hath put himself in a state of war with me, and whether I may, as Jephtha did, appeal to heaven in it? of that I myself can only be judge in my own conscience, as I will' answer it, at the great day, to the supreme judge of all men.
CH A P. IV.
Of SLAVERY. §. 22. THE
natural liberty of man is to
be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule.
The liberty of man, in society, is to be under no other legislative power, but that established, hy consent, in the common-wealth ; nor under the dominion of any will, or restraint of any law, but what that legislative Thall enact, according to the trust put in it. Freedom, then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every one
to do what he lifts, to live as be pleases, and not to be tied by any laws : but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not ; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.
. 23. This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man's preservation, that he cannot part with it, but by what forfeits his preservation and life together : for a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himfelf under the absolute, arbitrary power of another, to take away
his life, when he pleases. No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it. Indeed, having by his fault forfeited his own life, by some act that deserves death; he, to whom he has forfeited it, may (when he has him in his power) delay to take it, and make use of him to his own service, and he does him no injury by it: for, whenever he finds the hardship of his lavery outweigh the value of his life, it is in his power, by resisting the
will of his master, to draw on himself the
§. 24. This is the perfect condition of
power on the one side, and obedience on the other, the state of war and savery ceases, as long as the compact endures : for, as has been said, no man can, by agreement, pass over to another that which he hath not in himself, a power over his own life.
I confess, we find among the Jews, as well as other nations, that men did sell themselves ; but, it is plain, this was only to drudgery, not to savery : for, it is evident, the person fold was not under an absolute, arbitrary, despotical power : for the master could not have power to kill him, at any time, whom, at a certain time, he was obliged to let go free out of his service; and the master of such a servant was so far from having an arbitrary power over his life, that he could not, at pleasure, so much as maim him, but the loss of an eye, or tooth, set him free, Exod. xxi.
CH A P.