Thomas Hobbes · Complete work
Part II, Chapter XXI, 2
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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 Soveraign, he may neverthelesse, without Injustice, refuse to do; we are to consider, what Rights we passe away, when we make a Common-wealth; or (which is all one,) what Liberty we deny our selves, by owning all the Actions (without exception) of the Man, or Assembly we make our Soveraign. 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 expresse words, “I Authorise all his Actions,” or from the Intention of him that submitteth himselfe 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 Soveraignty; namely, the Peace of the Subjects within themselves, and their Defence against a common Enemy.
First therefore, seeing Soveraignty by Institution, is by Covenant of every one to every one; and Soveraignty 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 shewn before in the 14. Chapter, that Covenants, not to defend a mans own body, are voyd. Therefore,
If the Soveraign command a man (though justly condemned,) to kill, wound, or mayme himselfe; or not to resist those that assault him; or to abstain from the use of food, ayre, medicine, or any other thing, without which he cannot live; yet hath that man the Liberty to disobey.
If a man be interrogated by the Soveraign, or his Authority, concerning a crime done by himselfe, he is not bound (without assurance of Pardon) to confesse it; because no man (as I have shewn in the same Chapter) can be obliged by Covenant to accuse himselfe.
Again, the Consent of a Subject to Soveraign 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 naturall Liberty: For by allowing him to Kill Me, I am not bound to Kill my selfe when he commands me. “’Tis one thing to say ‘Kill me, or my fellow, if you please;’ another thing to say, ‘I will kill my selfe, or my fellow.’” It followeth therefore, that
No man is bound by the words themselves, either to kill himselfe, or any other man; And consequently, that the Obligation a man may sometimes have, upon the Command of the Soveraign 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 refusall to obey, frustrates the End for which the Soveraignty was ordained; then there is no Liberty to refuse: otherwise there is.
Upon this ground, a man that is commanded as a Souldier to fight against the enemy, though his Soveraign have Right enough to punish his refusall with death, may neverthelesse in many cases refuse, without Injustice; as when he substituteth a sufficient Souldier in his place: for in this case he deserteth not the service of the Common-wealth. And there is allowance to be made for naturall timorousnesse, not onely 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 trechery, but fear, they are not esteemed to do it unjustly, but dishonourably. For the same reason, to avoyd battell, is not Injustice, but Cowardise. But he that inrowleth himselfe a Souldier, or taketh imprest mony, taketh away the excuse of a timorous nature; and is obliged, not onely to go to the battell, but also not to run from it, without his Captaines leave. And when the Defence of the Common-wealth, requireth at once the help of all that are able to bear Arms, every one is obliged; because otherwise the Institution of the Common-wealth, which they have not the purpose, or courage to preserve, was in vain.
To resist the Sword of the Common-wealth, in defence of another man, guilty, or innocent, no man hath Liberty; because such Liberty, takes away from the Soveraign, 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 Soveraign Power Unjustly, or committed some Capitall crime, for which every one of them expecteth death, whether have they not the Liberty then to joyn 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 onely 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, unlawfull.
As for other Lyberties, they depend on the silence of the Law. In cases where the Soveraign has prescribed no rule, there the Subject hath the liberty to do, or forbeare, according to his own discretion. And therefore such Liberty is in some places more, and in some lesse; and in some times more, in other times lesse, according as they that have the Soveraignty shall think most convenient. As for Example, there was a time, when in England a man might enter in to his own Land, (and dispossesse 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 is 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 controversie with his Soveraigne, of Debt, or of right of possession of lands or goods, or concerning any service required at his hands, or concerning any penalty corporall, 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 Soveraign. For seeing the Soveraign demandeth by force of a former Law, and not by vertue of his Power; he declareth thereby, that he requireth no more, than shall appear to be due by that Law. The sute therefore is not contrary to the will of the Soveraign; 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 any thing by pretence of his Power; there lyeth, in that case, no action of Law: for all that is done by him in Vertue of his Power, is done by the Authority of every subject, and consequently, he that brings an action against the Soveraign, brings it against himselfe.
If a Monarch, or Soveraign 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 voyd; unlesse he directly renounce, or transferre the Soveraignty to another. For in that he might openly, (if it had been his will,) and in plain termes, 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 Soveraign Power; and therefore the Soveraignty is still retayned; and consequently all those Powers, which are necessary to the exercising thereof; such as are the Power of Warre, and Peace, of Judicature, of appointing Officers, and Councellours, of levying Mony, and the rest named in the 18th Chapter.
The Obligation of Subjects to the Soveraign 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 Soveraignty is the Soule of the Common-wealth; which once departed from the Body, the members doe 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 anothers sword, Nature applyeth his obedience to it, and his endeavour to maintaine it. And though Soveraignty, in the intention of them that make it, be immortall; yet is it in its own nature, not only subject to violent death, by forreign war; but also through the ignorance, and passions of men, it hath in it, from the very institution, many seeds of a naturall mortality, by Intestine Discord.
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 corporall Libertie given him, on condition to be Subject to the Victor, he hath Libertie to accept the condition; and having accepted it, is the subject of him that took him; because he had no other way to preserve himselfe. The case is the same, if he be deteined on the same termes, in a forreign country. But if a man be held in prison, or bonds, or is not trusted with the libertie of his bodie; he cannot be understood to be bound by Covenant to subjection; and therefore may, if he can, make his escape by any means whatsoever.
If a Monarch shall relinquish the Soveraignty, both for himself, and his heires; His Subjects returne to the absolute Libertie of Nature; because, though Nature may declare who are his Sons, and who are the nerest of his Kin; yet it dependeth on his own will, (as hath been said in the precedent chapter,) who shall be his Heyr. If therefore he will have no Heyre, there is no Soveraignty, nor Subjection. The case is the same, if he dye without known Kindred, and without declaration of his Heyre. For then there can no Heire be known, and consequently no Subjection be due.
If the Soveraign Banish his Subject; during the Banishment, he is not Subject. But he that is sent on a message, or hath leave to travell, is still Subject; but it is, by Contract between Soveraigns, not by vertue of the covenant of Subjection. For whosoever entreth into anothers dominion, is Subject to all the Lawes thereof; unless he have a privilege by the amity of the Soveraigns, or by speciall licence.
If a Monarch subdued by war, render himself Subject to the Victor; his Subjects are delivered from their former obligation, and become obliged to the Victor. But if he be held prisoner, or have not the liberty of his own Body; he is not understood to have given away the Right of Soveraigntie; and therefore his Subjects are obliged to yield obedience to the Magistrates formerly placed, governing not in their own name, but in his. For, his Right remaining, the question is only of the Administration; that is to say, of the Magistrates and Officers; which, if he have not means to name, he is supposed to approve those, which he himself had formerly appointed.
CHAPTER XXII. OF SYSTEMES SUBJECT, POLITICALL, AND PRIVATE
Musean translation
Mouseia’s complete machine-assisted Musean translation, made directly from the complete 1651 English text (introduction, forty-seven chapters, review and conclusion) for fidelity, the author’s force and cadence, and modern clarity. Hobbes’s marginal summaries are omitted.
Now to consider the particulars of a subject's true liberty—that is, what he may refuse to do without injustice even when commanded by the sovereign—we must ask what rights we give up when we make a Common-wealth, or, what amounts to the same thing, what liberty we deny ourselves when we acknowledge as our own all the acts, without exception, of the man or assembly we make our sovereign. For both our obligation and our liberty arise from the act of our submission, and must therefore be inferred from arguments grounded in it: no obligation rests on any man unless it arises from some act of his own, since all men are equally free by nature. Such arguments must be drawn either from the express words “I authorize all his actions,” or from the intention of the one submitting to his power, an intention understood from the end for which he submits. Thus the obligation and liberty of the subject must be derived either from those words, or equivalent ones, or from the end for which sovereignty is instituted: peace among the subjects themselves and their defense against a common enemy.
First, since sovereignty by institution arises from a Covenant of each person with every other, and sovereignty by acquisition from the Covenants of the vanquished with the victor, or of the child with the parent, every subject plainly retains liberty in all matters whose right cannot be transferred by Covenant. I showed earlier, in the 14. Chapter, that Covenants not to defend one's own body are void. Therefore,
If the sovereign commands a man, even a man justly condemned, to kill, wound, or maim himself; not to resist those who attack him; or to refrain from food, air, medicine, or anything else without which he cannot live, that man nevertheless has the liberty to disobey.
If a man is questioned by the sovereign, or by the sovereign's authority, about a crime he himself has committed, he is not bound to confess it without assurance of pardon, because no one, as I showed in the same chapter, can be obliged by Covenant to accuse himself.
Again, a subject's consent to sovereign power is expressed in these words: “I authorize, or take responsibility for, all his actions.” They impose no restriction at all on his former natural liberty. For by permitting the sovereign to kill me, I do not bind myself to kill myself at his command. “It is one thing to say, ‘Kill me or my fellow if you please’; another to say, ‘I will kill myself or my fellow.’” It follows, therefore, that
No man is bound by those words themselves to kill himself or anyone else. Consequently, any obligation a man may sometimes have, at the sovereign's command, to undertake a dangerous or dishonorable duty depends not on the words of our submission, but on its intention, which is understood from its end. Thus when our refusal to obey would frustrate the end for which sovereignty was instituted, we have no liberty to refuse; otherwise, we do.
On these grounds, a man ordered to fight the enemy as a soldier may in many cases refuse without injustice, even though his sovereign has ample right to punish his refusal with death. He may, for example, put a capable soldier in his place, in which case he does not abandon the service of the Common-wealth. Allowance must also be made for natural fearfulness, not only in women, from whom no such dangerous duty is expected, but also in men of feminine courage. When armies meet in battle, men on one side or both may flee; yet if they flee from fear rather than treachery, their act is held dishonorable, not unjust. For the same reason, avoiding battle is cowardice but not injustice. A man who enlists as a soldier, however, or accepts an advance of pay, surrenders the excuse of a fearful nature, and is bound not only to go into battle but also not to flee without his captain's leave. And when the defense of the Common-wealth demands the help of everyone able to bear arms at once, everyone is bound to give it; otherwise, instituting a Common-wealth they have neither the purpose nor the courage to preserve would have been in vain.
No man has the liberty to resist the sword of the Common-wealth in defense of another, whether guilty or innocent, because such liberty would deprive the sovereign of the means to protect us and so destroy the very essence of government. But suppose many men have already joined in unjust resistance to sovereign power or committed a capital crime for which each expects death. Do they not then have the liberty to unite and help defend one another? Certainly they do: they are merely defending their lives, which a guilty man may do as well as an innocent one. Their first breach of duty was indeed unjust; but their subsequent taking up of arms, even to maintain what they have done, is no new act of injustice. If it is solely to defend their own persons, it is not unjust at all. But an offer of pardon deprives those to whom it is offered of the plea of self-defense, and makes their continued assistance to or defense of the others unlawful.
Other liberties depend on the silence of the law. Where the sovereign has prescribed no rule, the subject has liberty to act or refrain according to his own judgment. Such liberty is therefore greater in some places and smaller in others, greater at some times and smaller at others, as those who hold sovereignty think most convenient. For example, there was a time when a man in England could enter his own land by force and dispossess someone wrongfully holding it. Later that liberty of forcible entry was taken away by a statute enacted by the king in Parliament. And in some parts of the world men have the liberty to have many wives; elsewhere they do not.
If a subject has a dispute with his sovereign concerning a debt, the right to possess land or goods, a service required of him, or a bodily or monetary penalty founded on a preexisting law, he has the same liberty to sue for his right as he would have against another subject, before judges appointed by the sovereign. For when the sovereign bases his claim on a former law rather than on his own power, he thereby declares that he requires no more than what that law shows to be due. Such a suit therefore does not contradict the sovereign's will, and the subject has the liberty to demand a hearing and a judgment under that law. But if the sovereign demands or takes something by virtue of his power, no legal action lies against him: everything he does by virtue of that power is done by the authority of every subject, so that anyone who brings an action against the sovereign brings it against himself.
If a monarch or sovereign assembly grants all or some of his subjects a liberty that, while the grant stands, disables him from providing for their safety, the grant is void, unless he directly renounces sovereignty or transfers it to another. For he could have renounced or transferred it openly and in plain words if he had wished, and did not; we must therefore understand that he did not intend to do so. Rather, the grant arose from ignorance that such liberty is incompatible with sovereign power. Sovereignty is therefore still retained, together with all the powers needed to exercise it: the power to make war and peace, to judge, to appoint officers and counselors, to levy money, and the others named in the 18th Chapter.
The subjects' obligation to the sovereign is understood to last only as long as the power by which he can protect them lasts. For no Covenant can make men surrender the Right of Nature to protect themselves when no one else can protect them. Sovereignty is the soul of the Common-wealth; once it leaves the body, the limbs no longer receive their motion from it. The end of obedience is protection; wherever a man sees protection, whether in his own sword or another's, nature directs his obedience to it and his efforts toward maintaining it. Though those who establish sovereignty intend it to be immortal, it is by its nature vulnerable not only to violent death through foreign war, but also, through men's ignorance and passions, bears within itself from its very foundation many seeds of natural mortality in civil discord.
If a subject is taken prisoner in war, or if his person or means of living fall within the enemy's control, and he is granted his life and bodily liberty on condition that he become subject to the victor, he has the liberty to accept that condition. Once he accepts it, he is subject to his captor, for he had no other way to preserve himself. The same applies if he is detained on the same terms in a foreign country. But if he is held in prison or chains, or is not trusted with bodily liberty, he cannot be understood to be bound to subjection by Covenant, and may escape by any means he can.
If a monarch relinquishes sovereignty both for himself and for his heirs, his subjects return to the absolute liberty of nature. For though nature may show who his sons and nearest relatives are, it depends on his own will, as I said in the preceding chapter, who shall be his heir. If he chooses to have no heir, therefore, there is no sovereignty and no subjection. The same is true if he dies without known relatives and without naming an heir: then no heir can be known, and consequently no subjection is owed.
If the sovereign banishes a subject, that person is not a subject during his banishment. Someone sent on an errand or given leave to travel remains a subject, however, by agreement between sovereigns rather than by virtue of the Covenant of subjection. For anyone who enters another's dominion is subject to all its laws, unless he has a privilege through the sovereigns' friendship or through a special license.
If a monarch conquered in war submits to the victor as a subject, his subjects are released from their former obligation and become obliged to the victor. But if he is held prisoner or lacks bodily liberty, he cannot be understood to have surrendered the right of sovereignty. His subjects are therefore bound to obey the magistrates previously appointed, who govern not in their own name but in his. For while his right remains, the only question is one of administration, that is, of magistrates and officers; if he cannot appoint them, he is presumed to approve those he himself appointed earlier.
CHAPTER XXII. OF SUBJECT SYSTEMS, POLITICAL AND PRIVATE
Plain English translation
Mouseia’s complete Plain English edition, made independently and directly from the complete 1651 English text (introduction, forty-seven chapters, review and conclusion). Hobbes’s marginal summaries are omitted.
Now let us look at the specific ways in which a subject is truly free. What can a subject refuse to do without acting unjustly, even if the sovereign commands it? We must consider what rights we give up when we create a commonwealth. In other words, what freedom do we give up when we authorize every action, without exception, of the man or assembly we make our sovereign? Both our duties and our freedom come from our act of submission. We must therefore work them out from that act. Nobody has a duty unless it arises from some action of his own, because all people are equally free by nature. Our reasoning must be based either on the explicit words, "I authorize all his actions," or on the purpose of the person submitting to the sovereign's power. We can understand that purpose from the goal of submission. So the subject's duties and freedom must come either from those words, or equivalent ones, or from the goal of establishing sovereignty: peace among the subjects and defense against a common enemy.
First, people establish sovereignty by making covenants with one another. When a sovereign acquires power, defeated people make covenants with the victor, or a child with a parent. So clearly every subject is free in matters where a right cannot be transferred by covenant. I showed earlier in the 14. Chapter that covenants not to defend one's own body are invalid. Therefore:
If a sovereign commands a person, even one rightly condemned, to kill, wound, or disable himself, or not to resist an attacker, or to go without food, air, medicine, or anything else needed for life, the person is still free to disobey.
If the sovereign or someone authorized by the sovereign questions a person about a crime he committed, the person is not obliged to confess without a guarantee of pardon. As I showed in the same chapter, no covenant can oblige a person to accuse himself.
Also, a subject gives consent to sovereign power in these words: "I authorize, or take responsibility for, all his actions." They put no limit on the subject's previous natural freedom. By allowing the sovereign to kill me, I do not bind myself to kill myself when ordered to. Saying "Kill me or my fellow person if you wish" is one thing. Saying "I will kill myself or my fellow person" is another. It follows that:
The words themselves do not oblige anyone to kill himself or another person. So any duty to carry out a dangerous or dishonorable task at the sovereign's command depends not on the words of submission but on the purpose behind them. We understand that purpose from the goal of submission. If our refusal to obey would defeat the goal for which sovereignty was created, we are not free to refuse. Otherwise we are.
For this reason, a person ordered to fight the enemy as a soldier may in many cases refuse without acting unjustly, even though the sovereign has the right to punish that refusal with death. For example, he can send another capable soldier in his place, because he has then not abandoned the commonwealth's service. We must make allowances for natural fear, not just in women, from whom no such dangerous duty is expected, but also in men with what is called feminine courage. When armies fight, soldiers on one or both sides may run away. If they do it from fear rather than treachery, people consider their conduct dishonorable but not unjust. For the same reason, avoiding battle is cowardly but not unjust. But someone who enlists as a soldier or accepts an enlistment payment can no longer use a fearful nature as an excuse. He must not only go to battle but also stay there unless his captain allows him to leave. When defense of the commonwealth requires everyone able to bear arms at once, everyone must help. Otherwise the founding of a commonwealth they are unwilling or too afraid to preserve would have been pointless.
Nobody is free to resist the commonwealth's sword to defend another person, whether that person is guilty or innocent. Such freedom would take away the sovereign's means of protecting us and would destroy government itself. But suppose many people have already unjustly resisted sovereign power or committed a capital crime, and each expects to be put to death. Are they then free to join together and help defend one another? Certainly they are. They are defending their lives, which a guilty person has just as much right to do as an innocent one. Breaking their duty in the first place was unjust. Their taking up arms afterward, even to maintain what they did, is not a new injustice. If they act only to defend themselves, their action is not unjust at all. But an offer of pardon takes away the claim of self-defense from those offered it. If they keep helping or defending the others, they act unlawfully.
Other freedoms depend on what the law leaves unsaid. Where the sovereign has set no rule, the subject is free to act or refrain according to his own judgment. These freedoms are greater in some places and smaller in others. They can also vary from one time to another, as those holding sovereign power think best. For example, a person in England was once free to enter his own land by force and drive out people who occupied it unlawfully. Later, a statute made by the king in Parliament removed that freedom of forcible entry. In some parts of the world, men are free to have several wives; elsewhere they are not.
A subject may have a dispute with his sovereign over a debt, the right to possess land or goods, a service demanded from him, or a physical or financial penalty based on an earlier law. In that case he is just as free to sue for his right as if the dispute were with another subject. He can bring the case before judges appointed by the sovereign. When the sovereign makes a demand under an existing law rather than by sovereign power alone, he declares that he claims no more than the law will show is owed. So the lawsuit does not go against the sovereign's will. The subject is free to request a hearing and judgment under that law. But if the sovereign demands or takes something on the basis of sovereign power itself, no legal action is possible. Anything the sovereign does in that capacity is done with every subject's authority. A person who sues the sovereign for it would therefore be suing himself.
Suppose a monarch or sovereign assembly grants freedom to some or all subjects, and honoring the grant would make it impossible to keep them safe. The grant is invalid unless the sovereign directly gives up sovereignty or transfers it to someone else. The sovereign could have plainly and openly given up or transferred power if that was the intention, but did not. We must understand the grant as the result of not realizing that such freedom conflicts with sovereign power. The sovereign keeps sovereignty and therefore all the powers needed to use it, including the power to make war and peace, judge cases, appoint officers and counselors, raise money, and exercise the other powers listed in the 18th Chapter.
Subjects owe obedience to the sovereign only as long as the sovereign has the power to protect them. No covenant can make people give up their natural right to protect themselves when nobody else can. Sovereignty is the soul of the commonwealth. Once the soul leaves the body, the limbs no longer receive their movement from it. The purpose of obedience is protection. Wherever a person sees protection, whether in his own sword or another's, nature directs his obedience toward it and leads him to try to preserve it. The founders of sovereignty intend it to last forever. But by its nature it can die violently in a foreign war. Ignorance and human passions also plant many seeds of a natural death through internal conflict in it from the moment it is established.
If an enemy captures a subject in war, or holds him or his means of survival within its guarded territory, that person may accept an offer of life and bodily freedom on condition that he become subject to the victor. Once he accepts, he is the captor's subject, because he had no other way to save himself. The same applies if he is held on those terms in a foreign country. But if a person remains in prison or chains or is not trusted to move freely, he cannot be considered bound by a covenant of subjection. He may escape by any means he can.
If a monarch gives up sovereignty for both himself and his heirs, his subjects return to the complete freedom of nature. Nature may tell us who his sons and closest relatives are, but, as I said in the previous chapter, he decides who his heir is. If he wants no heir, there is no sovereignty and no subjection. The same applies if he dies without known relatives and without naming an heir. No heir can then be identified, so no obedience is owed.
If a sovereign banishes a subject, that person is no longer a subject during the banishment. Someone sent on an errand or given permission to travel remains a subject. But this follows from agreements between sovereigns, not from the covenant of subjection. Whoever enters someone else's territory is subject to all its laws unless granted a privilege by an agreement of friendship between the sovereigns or by special permission.
If a monarch defeated in war submits to the victor as a subject, his subjects are released from their former obligation and owe obedience to the victor. But if he is held prisoner or denied freedom to move his body, he has not given up his right of sovereignty. His subjects therefore must obey the magistrates he previously appointed. Those magistrates govern in his name, not their own. His right remains. The only question is who administers it, meaning which magistrates and officers serve. If he cannot appoint new ones, we assume he approves those he appointed earlier.
CHAPTER XXII. ON SUBJECT POLITICAL AND PRIVATE ORGANIZATIONS