Page images
PDF
EPUB

§. 133. By common-wealth, I must be understood all along to mean, not a democracy, or any form of government, but any independent community, which the Latines fignified by the word civitas, to which the word which best answers in our language, is common-wealth, and most properly expreffes fuch a fociety of men, which community or city in English does not; for there may be fubordinate communities in a government; and city amongst us has a quite different notion. from common-wealth: and therefore, to avoid ambiguity, I crave leave to use the word common-wealth in that fenfe, in which I find it ufed by king James the first; and I take it to be its genuine fignification; which if any body diflike, I confent with him to change it for a better.

CHA P. XI.

Of the Extent of the Legislative Power.

§. 134. T

HE great end of men's entering into fociety, being the enjoyment of their properties in peace and fafety, and the great inftrument and means of that being the laws eftablished in that fociety; the firft and fundamental pofitive law of all common-wealths is the establishing of the legislative power; as the firft and fundamental natural

law,

law, which is to govern even the legislative itself, is the prefervation of the fociety, and (as far as will confift with the public good) of every perfon in it. This legislative is not only the fupreme power of the common-wealth, but facred and unalterable in the hands where the community have once placed it; nor can any edict of any body elfe, in what form foever conceived, or by what power foever backed, have the force and obligation of a law, which has not its fanction from that legislative which the public has chofen and appointed: for without this the law could not have that, which is abfolutely neceffary to its being a law, the confent of the fociety, over whom no body can have a power to make laws, but by their own confent, and by authority re

ceived

*The lawful power of making laws to command whole politic focieties of men, belonging fo properly unto the fame intire focieties, that for any prince or potentate of what kind foever upon earth, to exercife the fame of himself, and not by exprefs commiffion immediately and perfonally received from God, or else by authority derived at the first from their confent, upon whofe perfons they impofe laws, it is no better. than mere tyranny. Laws they are not therefore which public approbation hath not made fo. Hooker's Eccl. Pol. l. i. fe&.

IO.

Of this point therefore we are to note, that fith men naturally have no full and perfect power to command whole politic multitudes of men, therefore utterly without our confent, we could in fuch fort be at no man's commandment living. And to be commanded we don do confent, when that fociety, whereof we be a part, hath at any time before confented, without revoking the fame after by the like univerfal agreement.

Laws therefore human, of what kind fo ever, are available by confent. Ibid.

ceived from them; and therefore all the obedience, which by the most folemn ties any one can be obliged to pay, ultimately terminates in this fupreme power, and is directed by those laws which it enacts: nor can any oaths to any foreign power whatsoever, or any domeftic fubordinate power, discharge any member of the fociety from his obedience to the legislative, acting pursuant to their trust; nor oblige him to any obedience contrary to the laws fo enacted, or farther than they do allow; it being ridiculous to imagine one can be tied ultimately to obey any power in the fociety, which is not the fupreme.

§. 135. Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the fupreme power in every common-wealth; yet,

First, It is not, nor can poffibly be abfolutely arbitrary over the lives and fortunes of the people for it being but the joint power of every member of the fociety given up to that perfon, or affembly, which is legiflator; it can be no more than those persons had in a ftate of nature before they entered into fociety, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an abfolute arbitrary power over himself, or over any other, to deftroy his own life, or take away the life or property of another. A man,

as

as has been proved, cannot fubject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or poffeffion of another, but only fo much as the law of nature gave him for the prefervation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, fo that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the fociety. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enflave, or defignedly to impoverish the subjects. The obligations of the law of nature ceafe not in fociety, but only in many cases are drawn closer, and have by human laws known

*Two foundations there are which bear up public focieties; the one a natural inclination, whereby all men defire fociable life and fellowship; the other an order, exprefly or fecretly agreed upon, touching the manner of their union in living together: the latter is that which we call the law of a common-weal, the very foul of a politic body, the parts whereof are by law animated, held together, and fet on work in fuch actions as the common good requireth. Laws politic, ordained for external order and regiment amongst men, are never framed as they fhould be, unless prefuming the will of man to be inwardly obftinate, rebellious, and averfe from all obedience to the facred laws of his nature; in a word, unlefs prefuming man to be, in regard of his depraved mind, little better than a wild beaft, they do accordingly provide, notwithstanding, fo to frame his outward actions, that they be no hindrance unto the common good, for which focieties are inftituted. Unless they do this, they are not perfect. Hooker's Eccl. Pol. l. i. fect. 10.

1

[ocr errors]

known penalties annexed to them, to inforce their obfervation." Thus the law of nature ftands as an eternal rule to all men, legiflators as well as others. The rules that they make for other men's actions must, as well as their own and other men's actions, be conformable to the law of nature, .eto the will of God, of which that is a decla ration, and the fundamental law of nature being the prefervation of mankind, no human fanction can be good, or valid against it.

§. 136. Secondly, * The legislative, or fu preme authority, cannot affume to its felf a power to rule by extemporary arbitrary decrees, but is bound to difpenfe juftice, and decide the rights of the fubject by promulgated ftanding laws, and known authorized judges: for the law of nature being unwritten, and fo no where to be found but in the minds of men, they who through paffion or intereft fhall mifcite, or misapply it, cannot fo eafily be convinced of their mistake where there is no established judge: and fo it ferves not, as it ought, to determine the rights, and fence the properties

* Human laws are measures in refpect of men whofe actions they must direct, how beit fuch measures they are as have also their higher rules to be measured by, which rules are two, the law of God, and the law of nature; fo that laws human muft be made according to the general laws of nature, and without contradiction to any pofitive law of fcripture, other wife they are ill made. Hooker's Eccl. Pol. 1, iii, fect, 9.

[ocr errors]

To conftrain men to any thing inconvenient doth feem unreasonable. Ibid. 1. i. fect. 10.

« PreviousContinue »