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Time Line 1651
Social Science History on Hobbes, Filmer and Locke Introduction and Contents |
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Leviathan
The Matter, Form and Power of a CommonwealthEcclesiastical and Civil
By Thomas Hobbes, Published April 1651
Chapter 21: Of the Liberty of Subjects
(¶) Paragraph numbers added to assist referencing
(¶ 21.1)
[Margin: Liberty what]
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.
(¶ 21.2)
[Margin: What it is to be free]
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.
(¶ 21.3)
[Margin: Fear and Liberty consistent]
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.
(¶ 21.4)
[Margin: Liberty and necessity consistent]
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.
(¶ 21.5)
[Margin: Artificial bonds, or Covenants]
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.
[The margin note for the following paragraph does not seem to fit meaning
of the paragraph]
(¶ 21.6)
[Margin: Liberty of Subjects consisteth in Liberty from covenants]
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.
(¶ 21.7)
[Margin: Liberty of the Subject consistent with the unlimited power of
the Sovereign]
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.
(¶ 21.8)
[Margin: The Liberty which writers praise, is the Libery of Sovereigns;
not of Private men]
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.
(¶ 21.9)
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."* 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. * Aristotle, Politics, Bk VI
(¶ 21.10)
[Margin: Liberty of subjects: how to be measured]
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.
(¶ 21.11)
[Margin: Subjects have liberty to defend their own bodies even against
them that lawfully invade them]
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,
(¶ 21.12)
[Margin: Are not bound to hurt themselves]
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.
(¶ 21.13)
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.
(¶ 21.14)
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
(¶ 21.15)
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.
(¶ 21.16)
[Margin: Nor to warfare, unless they voluntarily undertake it]
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.
(¶ 21.17)
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.
(¶ 21.18)
[Margin: The Greatest Liberty of Subjects, depends on the silence of the
Law]
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.
(¶ 21.19)
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.
(¶ 21.20)
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.
(¶ 21.21)
[Margin: 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.
(¶ 21.22)
[Margin: 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.
(¶ 21.23)
[Margin: 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.
(¶ 21.24)
[Margin: In case of banishment]
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.
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