16. Theft, murder, adultery, and all injuries, are forbid by the laws of nature; but what is to be called theft, what murder, what adultery, what injury in a citizen, this is not to be determined by the natural, but by the civil law. For not every taking away of the thing which another possesseth, but only another man’s goods, is theft; but what is our’s, and what another’s, is a question belonging to the civil law. In like manner, not every killing of a man is murder, but only that which the civil law forbids; neither is all encounter with women adultery, but only that which the civil law prohibits. Lastly, all breach of promise is an injury, where the promise itself is lawful; but where there is no right to make any compact, there can be no conveyance of it, and therefore there can no injury follow, as hath been said in the second chapter, [Article 17]. Now what we may contract for, and what not, depends wholly upon the civil laws. The city of Lacedæmon therefore rightly ordered, that those young men who could so take away certain goods from others as not to be caught, should go unpunished; for it was nothing else but to make a law, that what was so acquired should be their own, and not another’s. Rightly also is that man everywhere slain, whom we kill in war or by the necessity of self-defence. So also that copulation which in one city is matrimony, in another will be judged adultery. Also those contracts which make up marriage in one citizen, do not so in another, although of the same city; because that he who is forbidden by the city, that is, by that one man or council whose the supreme power is, to contract aught, hath no right to make any contract, and therefore having made any, it is not valid, and by consequence no marriage. But his contract which received no prohibition, was therefore of force, and so was matrimony. Neither adds it any force to any unlawful contracts, that they were made by an oath or sacrament;[[13]] for those add nothing to the strengthening of the contract, as hath been said above, Chap. II. [Art. 22.] What therefore theft, what murder, what adultery, and in general what injury is, must be known by the civil laws; that is, the commands of him who hath the supreme authority.
The opinion of those who would constitute a city, where there should not be any one endued with absolute power.
17. This same supreme command and absolute power, seems so harsh to the greatest part of men, as they hate the very naming of them; which happens chiefly through want of knowledge, what human nature and the civil laws are; and partly also through their default, who, when they are invested with so great authority, abuse their power to their own lust. That they may therefore avoid this kind of supreme authority, some of them will have a city well enough constituted, if they who shall be the citizens’ convening, do agree concerning certain articles propounded, and in that convent agitated and approved, and do command them to be observed, and punishments prescribed to be inflicted on them who shall break them. To which purpose, and also to the repelling of a foreign enemy, they appoint a certain and limited return, with this condition, that if that suffice not, they may call a new convention of estates. Who sees not in a city thus constituted, that the assembly who prescribed those things had an absolute power? If therefore the assembly continue, or from time to time have a certain day and place of meeting, that power will be perpetual. But if they wholly dissolve, either the city dissolves with them, and so all is returned to the state of war: or else there is somewhere a power left to punish those who shall transgress the laws, whosoever or how many soever they be that have it; which cannot possibly be without an absolute power. For he that by right hath this might given, by punishments to restrain what citizens he pleaseth, hath such a power as a greater cannot possibly be given by any citizens.
The notes of supreme authority.
18. It is therefore manifest, that in every city there is some one man, or council, or court, who by right hath as great a power over each single citizen, as each man hath over himself considered out of that civil state; that is, supreme and absolute, to be limited only by the strength and forces of the city itself, and by nothing else in the world. For if his power were limited, that limitation must necessarily proceed from some greater power. For he that prescribes limits, must have a greater power than he who is confined by them. Now that confining power is either without limit, or is again restrained by some other greater than itself; and so we shall at length arrive to a power, which hath no other limit but that which is the terminus ultimus of the forces of all the citizens together. That same is called the supreme command; and if it be committed to a council, a supreme council, but if to one man, the supreme lord of the city. Now the notes of supreme command are these: to make and abrogate laws, to determine war and peace, to know and judge of all controversies, either by himself, or by judges appointed by him; to elect all magistrates, ministers, and counsellors. Lastly, if there be any man who by right can do some one action, which is not lawful for any citizen or citizens to do beside himself, that man hath obtained the supreme power. For those things which by right may not be done by any one or many citizens, the city itself can only do. He therefore that doth those things, useth the city’s right; which is the supreme power.
If the city be compared with a man, he who hath the supreme command is in order to the city, as the human soul is to the man.
19. They who compare a city and its citizens with a man and his members, almost all say, that he who hath the supreme power in the city is in relation to the whole city, such as the head is to the whole man. But it appears by what hath been already said, that he who is endued with such a power, whether it be a man or a court, hath a relation to the city, not as that of the head, but of the soul to the body. For it is the soul by which a man hath a will, that is, can either will or nill; so by him who hath the supreme power, and no otherwise, the city hath a will, and can either will or nill. A court of counsellors is rather to be compared with the head, or one counsellor, whose only counsel (if of any one alone) the chief ruler makes use of in matters of greatest moment: for the office of the head is to counsel, as the soul’s is to command.
That the supreme power cannot by right be dissolved by their consents, by whose compacts it was constituted;
20. Forasmuch as the supreme command is constituted by virtue of the compacts which each single citizen or subject mutually makes with the other; but all contracts, as they receive their force from the contractors, so by their consent they lose it again and are broken: perhaps some may infer hence, that by the consent of all the subjects together the supreme authority may be wholly taken away. Which inference, if it were true, I cannot discern what danger would thence by right arise to the supreme commanders. For since it is supposed that each one hath obliged himself to each other; if any one of them shall refuse, whatsoever the rest shall agree to do, he is bound notwithstanding. Neither can any man without injury to me, do that which by contract made with me he hath obliged himself not to do. But it is not to be imagined that ever it will happen, that all the subjects together, not so much as one excepted, will combine against the supreme power. Wherefore there is no fear for rulers in chief, that by any right they can be despoiled of their authority. If, notwithstanding, it were granted that their right depended only on that contract which each man makes with his fellow-citizen, it might very easily happen that they might be robbed of that dominion under pretence of right. For subjects being called either by the command of the city, or seditiously flocking together, most men think that the consents of all are contained in the votes of the greater part; which in truth is false. For it is not from nature that the consent of the major part should be received for the consent of all, neither is it true in tumults; but it proceeds from civil institution: and is then only true, when that man or court which hath the supreme power, assembling his subjects, by reason of the greatness of their number allows those that are elected a power of speaking for those who elected them; and will have the major part of voices, in such matters as are by him propounded to be discussed, to be as effectual as the whole. But we cannot imagine that he who is chief, ever convened his subjects with intention that they should dispute his right; unless weary of the burthen of his charge, he declared in plain terms that he renounces and abandons his government. Now, because most men through ignorance esteem not the consent of the major part of citizens only, but even of a very few, provided they be of their opinion, for the consent of the whole city; it may very well seem to them, that the supreme authority may by right be abrogated, so it be done in some great assembly of citizens by the votes of the greater number. But though a government be constituted by the contracts of particular men with particulars, yet its right depends not on that obligation only; there is another tie also towards him who commands. For each citizen compacting with his fellow, says thus: I convey my right on this party, upon condition that you pass yours to the same: by which means, that right which every man had before to use his faculties to his own advantage, is now wholly translated on some certain man or council for the common benefit. Wherefore what by the mutual contracts each one hath made with the other, what by the donation of right which every man is bound to ratify to him that commands, the government is upheld by a double obligation from the citizens; first, that which is due to their fellow-citizens; next, that which they owe to their prince. Wherefore no subjects, how many soever they be, can with any right despoil him who bears the chief rule of his authority, even without his own consent.