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 aftertimes, 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 councillors, of levying money, and the rest named in the 18th chapter.
In what cases subjects are absolved of their obedience to their sovereign.
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.
In case of captivity.
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.
In case the sovereign cast off the government from himself and his heirs.
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.
In case of banishment.