An examination of the political part of Mr. Hobbs his Leviathan.: By George Lawson, rector of More in the county of Salop.

CAP. V. Of the Second Part, the one and twentieth of the Book, Of the liberty of subjects.

THE subject of this Chapter is, as in the argu∣ment, the liberty of subjects, which follows the power of Soveraigns in this discourse. And because his method is no method, but rather a confusion, I do forbear to reduce the Chapter either to certain Heads or Propositions, and will only observe some few passages, to manifest that he never understood what liberty is. Liberty of subjects is not Natural, nor Moral, nor Theologicall, but Political and Civil. In the Civil Law, and Politicks, its opposed to servi∣tude and bondage, not simply and meerly to obliga∣tion by Laws, as he fancieth: for thus he writes.

T. H.

— So men have also made artificial Charms, called Civil Laws, which they themselves by mutual Covenants have fastened at one end to the lips of the Soveraign, at the other to their own ears.

G. L.

The Authors meaning is, That so far as Laws bind the subject, so far they take away his liberty: and men by constitution of a Soveraign over them, give a power absolute to make Laws, and so far as they

are virtually subject to his power, and actually bound by his Laws, they cannot be free; yet this well examined, will not prove true. For not any kind of Obligation takes it away; for then the Laws of Nature, by which a man is bound, before he be subject to a civil Soveraign, should deprive him of his liberty, yet they leave him as free a man, as any possibly in a free-State can be. The Obligation of just Laws and wise Edicts do regulate liberty, keep it within its proper bounds, and no waies destroy it, or take it away. Therefore that which follows is que∣stionable. For he affirms,

T H.

That the liberty of a subject therefore lieth only in those things, which in regulating their actions, the So∣veraign hath pretermitted.

G. L.

But,

• 1. In things left indifferent, because not de∣fined by Law, the subject is not only liber, sed domi∣nus, and hath not only libertatem, but potestatem. He is not only free, but Lord of those actions, and hath not only liberty, but also an absolute power.
• 2. Though wise and just Laws do regulate actions, yet they do not make the agent a slave or a servant.

For to be a slave or a servant, is to be cast below the condition of a man, and make him subject to some thing below himself. Wisdom and Justice are above the power of the Soveraign, much more above the liberty of a subject. They are particles of the divine

perfection, and to be bound by them, is not only a liberty, but an honour. To be free from the domini∣on of our own base lusts and sins, and the power of Satan, is true liberty divine; and so not to be subject to the lusts and imperious unworthy commands of absolute Soveraigns, whose wills, though irrational & contrary to justice, must stand for Laws, is civil liber∣ty. And then a man is Politically free, when he is so far Master of his life, goods, children, and that which is justly his, that they cannot be taken away from him, but for some crime contrary to just Laws, de∣serving such a penalty. In a word, the liberty of a subject is such a state or condition, as that he is nei∣ther by the Soveraign power, nor any Laws, bound to do any thing, which a rational and just man would not willingly do, though there were no Laws or Pe∣nalties Civil at all. This is not to be free from Laws. And I do not know, who they are, which he saith de∣mands any such thing. The rude and ignorant peo∣ple, and also all children of Belial, desire to have a licence, not only to do good, but evil too, as they please, and they judge all Laws as heavy burdens, and grievous yoaks. If he mean that the subjects of England demanding the benefit of Magna Charta, and the Petition of Right, did aim at any such extra∣vagant liberty, he must needs be a slanderer of his own fellow-subjects, and an enemy to the English liberty, as indeed he is, and that through an errone∣ous notion and conceit of absolute power civil. The liberty of the subjects of this Nation is very great, and such, as if we either consider the Laws of the Constitution, or Administration, the ordinary and common subjects of other Nations are but slaves

unto them. Our Free-holders have the choice of their Knights and Burgesses for the Parliament, so that neither any Laws can be made, nor moneys im∣posed upon them, without their verbal consent, given by their Representatives. In all causes, civil, crimi∣nal, capital, no Judgement can pass against them but by the verdict of a Jury made up of their neigh∣bours, which in it self is an excellent priviledge. The Civilians say, Libertas est res inestimabilis, and to be redeemed at any rate; much more the English liber∣ty is to be valued, and ever was by our ancestors, who obtained it, recovered it, kept it, though with the blood of many thousands. But the question is, whether this liberty is consistent with the Soveraigns power. His opinion is,

T. H.

That by the liberty of the subject, the Soveraigns power of life and death, is neither abolished nor limited.

G. L.

Its certain that the Soveraigns power and the sub∣jects liberty are consistent. For the Soveraign may take away the life of his subject, yet according to the evidence of Judgement, agreeable to Law: no otherwise. Yet he presupposeth,

• 1. That the King is supreme, and the primary subject, owner and pos∣sessor of the original power, which sometimes may be, yet with us its far otherwise.
• 2. That the power of civil Soveraigns is absolute.

For with him,

T. H.

Nothing the Soveraign 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 Soveraign doth, so that he never wanteth right to any thing, otherwise then as he himself is the subject of God, and bound thereby to observe the Laws of Nature. — When Jephtah sacrificed his daughter, and David murthered Uriah, both innocent, yet they did them no injustice, &c.

G. L.

Here he seems to contradict himself. For he grants two things.

• 1. That the Soveraign is subject to God.
• 2. That in that respect he is bound to observe the Laws of nature; yet he saith, he can do no in∣justice to the subject, and that he hath right to any thing, yet so as he is limited by subjection to God, and the Laws of Nature.

• 1. If he be Gods subject, as certainly he is, it follows,
  • 1. That in that respect he is but trusted as a servant with the Administrati∣on of the power civil.
  • 2. That he is fellow-subject with his subjects.
  • 3. He may do injustice, as one fel∣low subject may wrong another.

Secondly, If he be bound to observe the Laws of Nature, which are the Laws of God; then,

• 1. He is not absolute, or solutus legibus. His power is limited and bounded by these Laws.
• 2. Then he hath no power to murther, oppress and destroy his innocent subjects, who are more Gods then his, and

• only trusted by God in his hands for to be protected; righted in all just causes, and vindicated from all wrongs.
• 3. No Prince or Soveraign can assume, or any people give to any person or persons, any the least power above, or contrary unto the Laws of Nature.

These Laws are the moral precepts of eter∣nal justice and equity, from which all civil Laws have their rise, and are either conclusions drawn from them, or certain rules tending to the better observa∣tion of them. Which things well considered, do make it very evident how little the power of civil Lords and Princes must needs be. In some few indif∣ferent things, they may be absolute, have arbitrary power, and be in some respect above those constitu∣tive Laws which they themselves enact.

His instance in Jephtah gives them power above, and contrary to the Laws of God and Nature. Yet who will grant him, that Jephtah sacrificed his daugh∣ter? The text will not evince it; for it only saith, that whatsoever cometh forth of my doors to meet me, &c. shall be the Lords, or I will offer it up for a burnt-offering, Judges 11.31. For the particle 〈◊〉〈◊〉 [Vau] turned by some copulatively for [and] is here, as in many other places, dis-junctive, and sig∣nifies [or]. Again, if Jephtah did sacrifice her, he sinned, not only against the Law of Nature, but also the written Law of Moses: For God gave no com∣mand, permission or toleration to any that we read of, but only to Abraham, to sacrifice with humane blood; and that Commandment was but to try him; for he would not suffer him to put him to death. Be∣sides God threatens ruine and destruction to such as did offer their children to Moloch; and shed their

blood. And their sin was not only because they of∣fered them to Idols and Devils, but also because they shed innocent blood, without any warrant or Com∣mission from God, the only supreme and absolute Lord of life. Further, how could the vow of man, which was but a voluntary Obligation, be above the Law of God, and make that lawful, which by a Su∣periour Law was unlawful? I verily believe, she was devoted only, not sacrificed. But suppose he did sa∣crifice her to God, to whom he had vowed her, yet he did not this as a Soveraign of her life, but as a sub∣ject to God.

The example of David murthering Ʋriah, can much less prove the absolute power of Soveraigns to take away the lives of their innocent subjects. For, David had no such power: for,

• 1. He was no ab∣solute Prince, but limited both by the written Laws of God, and also the Natural.
• 2. Neither he nor any other can have any such power, because man cannot, God doth not give any such power.
• 3. Da∣vid did not only iniquity, but injustice to Ʋriah.
  • 1. As his fellow-subject in respect of God.
  • 2. As his own subject, whom he was bound as innocent to pro∣tect, not to destroy.
  • 4. His proof out of Psal. 51.4. [Against thee only] is invalid. For,
    • 1. Though it be so translated by some, and so understood by Am∣brose and others who follow him, yet neither that translation, nor the interpretation thereon, can be evinced either out of the Original, or the Septuagint, or the vulgar, or Junius, or Vatablus.
    • 2. Gene∣brard, Vatablus, Junius, Ainsworth and others understand it, that God only was privy to, and knew of this sin: and the words following [And

• ...
  • ...
    • done this evil in thy sight] seem to confirm this sense.
  • 5. Yet suppose it should be turned [against thee on∣ly] yet others interpret [onely] to be principally, as supreme Law-giver and Judge, not only to me, but all others; who only hast the Original power of punishing and pardoning, not only me, but others, and that not only temporally, but spiritually and eternally. Yet the exposition of Ambrose is taken up, because Princes desire it, to be so absolute; and both Divines and other men are very ready to slatter such as are in present possession of power.

But to make the point more evident, let me digress a little, and search out the reason and cause of the power of life and death, as in the hands of civil Sove∣raigns. To this end observe, That no man hath abso∣lute power of his own life, as he hath of his goods: Man may have the use and possession, but not the propriety and dominion of it. Therefore its granted on all hands, that though a mans life be said to be his own, yet he may not be felo de se, and kill him∣self; he is not Master of his life so far, as to have any power or liberty to do any such thing. Its true that God, who is Lord of life and death, gives liberty to man in some cases to hazard, in some he commands to lay down his life. He may hazard it in a just war and defence of his own Countrey, and also of himself, against an unjust invader. He must lay down his life, and God commands it for the te∣stimony of Christ, in which case he that loseth it shall find it. From all this it follows, that no people can by making a Soveraign, give any absolute power of life and death unto him: For nothing can give that which it hath not: neither can they make them∣selves

Authors of the unjust acts of their Soveraign, much less of his murthers, and taking away the lives of their innocent subjects. Id enim quisque potest quod jure potest. If thus it be, then they must have power to take away life, from God who alone hath power of life: and this power he only gives in case the subject be guilty of such crimes as by his Laws are capital.

T. H. pag. 110. in the margent.

The liberty which writers praise, is the liberty of So∣veraigns, not of private men.

G. L.

By writers, he means the Roman and Greek Hi∣storians and Philosophers, who wrote so much of li∣berty; amongst the rest, especially Aristotle and Cicero. By this, it seems he never understood these Authors, though he accuse others of ignorance. The liberty which the English have challenged and ob∣tained with so much expence of blood, is not the power of Kings, much less of absolute Soveraigns, as he would make the world believe, but that which is due unto us by the constitution of the State, Magna Charta, the Laws, and the Petition of Right. Its but the liberty of subjects, not Soveraigns, when he hath said all he can; we are not willing to be slaves, or sub∣ject our selves to Kings as absolute Lords. Neither are we willing that either flattering. Divines, Court-Parasites, or Unjust Ministers of State should wind up the pretended prerogative so high, as to subject our

lives and estates, and also our Religion to the arbi∣trary, absolute, and unreasonable will of one man, whom they did desire to advance so much for their own interest. There is a difference between the sub∣jects liberty, whereby in many things he may com∣mand himself, and supreme power which commands others under their Supremacy. By liberty, Aristotle & Cicero meant such a priviledge as every subject might have in a free-State, not that Soveraignty which be∣longed to the whole and universal body over several persons; where it is to be noted, that one and the same person, who is a subject, and at the best but a Magi∣strate, hath a share in the Soveraign power. Yet this he hath, not as a single person; but as one person joyntly with the whole body, or major part at least of the people. So in our Parliaments, every man there is as a single person, and all of them any waies considered but as the joynt Representative of the people in a certain place, at a certain time, acting according to a certain order, are but subjects; yet in the capacity and habitude of a Parliament, they are no subjects, but in the name of the people have a Legislative power, and exercise the highest acts of Government, excepting those of the Constitution. And this may be one reason, why our English An∣cestors have been so careful to maintain and preserve this great Court and Assembly of Parliaments, be∣cause they knew upon that depended their liberty, in the vacancy and intervals of Parliaments. For take away this, and our liberty is gone. And wise men know, that the liberty of the English subject de∣pends upon these great Assemblies. Some therefore have attempted, either the total extirpation of them,

according to the example of France and Spain; or a diminution of their power and priviledges, so as to make them meer shadows. If any say, and infer from all this, that therefore the form of our Government even under Kings is popular, and hath the nature of a free-State. I say, it hath much of a free-State in the Constitution, but not in the Administration. Yet its far different from those four kinds of popular Go∣vernments mentioned by Aristotle, Pol. lib. 6. c. 4. The constitution whereof is little better then level∣ling. The principal thing aimed at in such forms, as the Author alledgeth out of the Philosopher, cap. 2. Ejusdem libri, was liberty, supposing it could be had no where but in such Governments: and this liber∣ty was to do either what they pleased, or to govern by course, fearing lest any person or persons conti∣nued long in any eminent place of command, would in time ingross the power. Yet this supposition was false. For liberty might be had without levelling, and free-States might be, and have been better con∣stituted and regulated. For no constitution is good, where provision is not made, that Wisdom and Ju∣stice, rather then persons may govern: and the mul∣titude so kept under, as that they may be subjects, not rebels, and cast off all power. To return unto the matter proposed, and conclude this point.

• 1. The English liberty is their birth-right.
• 2. Its not the power of Soveraigns.
• 3. Its not unlimited, but bounded within reasonable bounds.
• 4. We do not learn it out of the Greek and Roman Histories, nor from the Athenians or Romans, but from our own Laws, which are far different from theirs, and far more agreeable to the written Laws of God, which left

• the people of Israel under their Judges the freest people of the world, and yet no Levellers.
• 5. Our learning out of Greek and Latine Authors, hath not been bought so dear, or cost so much blood, except out of the breech of School-hoyes: And most of those who have controlled the just acts of their So∣veraigns, never read, much less understood those Au∣thors.

T. H. pages 111, 112, 113.

The liberty of the subject is in such things as are neither determined by his first submission to the Sove∣raign power, nor by the laws.

G. L.

This is the substance of three pages, and amounts to so much as may easily be comprised in a few words. For when a subject is not bound either by the Laws of the Constitution or Administration, he is free according to Mr. Hobbs his judgement. Yet in proper sense in both these cases, he is no subject; but [Dominus] and far more then [liber]. The Ci∣vilians do better determine the liberty of the subject to be [potestatem agendi sub publicae defensionis prae∣sidio] though this be no perfect definition. As before, so now I say, that liberty here is not opposed to obligation but servitude. For ••o be subject to a wise Soveraign according to just Laws, is so much liberty as any reasonable man can desire: for in this respect he is rather subject to God then man; and to serve him is doubtless perfect freedom. As no Sove∣raign

should be denyed so much power as to protect the least, if innocent, and to punish the greatest, if guilty; so no subject should be bound to do evil, which is servitude and bondage indeed, or restrained from doing that good which God commands him. Civil government was never ordained by God, to be destructive either of moral or divine vertues, or of the noble condition of man as a rational creature. Therefore regular submission unto supreme power, will never stand with any obligation unto evil, or contract for protection except in innocency. Paul pleading before Festus saith, If I be an offender, or have committed any thing worthy of death, I refuse not to die, Acts 25.11. How this can stand with what this Author saith, when he affirmeth that its lawful for a man guilty and condemned to save him∣self if he can, I leave to others for to examine. From the Apostles words its evident, he desires no protecti∣on, even of himself, as worthy of death, neither hath God given any power to man to save in such a case. And though any person by the Law of nature may defend himself, yet this must be done cum mode∣ramine tutelae inculpatae. In case a subject hath made himself capitally guilty, he hath forfeited his life to his Soveraign as Gods Vicegerent, whom he must not resist in the execution of Justice, though he be not bound to kill himself: neither doth the multi∣tude or strength of any such capital offenders, any waies give them right to resist their Soveraign in their, own defence, as the Author would have it. For they cannot defend themselves as men, but they must de∣fend themselves in this case as guilty men, which is not lawful. How the offer of pardon should take

away the plea of self-defence, I understand not, see∣ing they had no right before it was offered. The offer of pardon indeed, if the party offering may be safely trusted, may take away all fear, and so all co∣lour of any plea by force to defend themselves from that death, which pardon will take away or re∣move.

In the close of this discourse concerning liberty of the subject, he grants it a part of this liberty, That the subject may sue his Soveraign, and before a Judge appointed by the said Soveraign. If this be so, then

• 1. The subject hath propriety of goods.
• 2. That he and his Soveraign are two distinct parties, and in this case the Soveraign represents him not as one per∣son.
• 3. That the Law in this respect is above the su∣preme Governor.
• 4. Therefore the Soveraign is not absolute.
• 5. That the subject may complain of some actions and injustice of the Soveraign, contrary to the Authors fourth right of Soveraigns.
• 6. That to him belongs not all Judicature, in all Causes, as in the eighth, right of majesty he did affirm.

Yet he distinguisheth of the Soveraigns demand as twofold, either by vertue of a Law, or by force; if he de∣mand or take away any thing by power or pretence thereof, there lyeth in that case no action of Law, because the subject is made Author of the Soveraigns acts, and therefore the suit against him, is against the Plantiff himself, being his subject. If this answer be good, then the Soveraign may do what he can and will, not what he ought; he may rule according to his strength and power, and not according to Justice: he may borrow, and promise to repay; take away, and engage to restore, and yet do no such thing, but

violate his promise and engagement, contrary to the very Law of Nature. He hath a liberty to be unjust and wicked, and that more then any of his subjects, as he hath greater power. I leave him to be a subject of such a Soveraign, and wish all good men a better. The true reason, why a Soveraign may be sued, is, 1. Because in the institution of a Soveraign, especi∣ally of administration, the subjects may reserve the propriety of their goods, which may be done with∣out any diminution of a lawful supreme power; and in this case, when a Soveraign takes away or detains that which is his subjects, and an action is brought against him, the subject is not his subject, nor he his Soveraign in that respect. Both of them in this par∣ticular are but private persons; and he that is subject to him as he is just in his Government, questions him as he is unjust in his actions. Again, propriety belongs unto the Law of nature, which is above civil power. But he proceeds.

T. H.

If a Monarch, or Soveraign Assembly, grant a li∣berty 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 his Sove∣raignty to another.

G. L.

By this we easily understand to what purpose the Treaty in the Isle of Wight with the King was. For though the Parliament had voted his concessions to

be satisfactory, in some respect that of Bishops, and he was ready to close with them, yet in the judge∣ment of this man, and all that party adhering to the King, the Parliament was accounted no Parliament, the King an absolute Monarch, and the Concessions, ipso facto, void: and for this reason, because the King had disabled himself by granting the Militia to protect his subjects. And the issue of this Treaty to be expected was this, so far as the King had obtained liberty and opportunity, he would declare his Con∣cessions void and unreasonable, and so possess himself of the Militia, and proceed against the Treators, as Rebels and Enemies; for so they were account∣ed.

Yet this was not a meer grant of liberty, but of power, which in the Treaty is presupposed to be his, though confined and a prisoner, and vanquished in a civil war. But if we will speak properly, the grant of liberty may be such as it may amount to an ex∣emption from a sufficient degree of subjection, but it doth not transfer the Soveraign power to another; And this must needs be granted, that to pass away any of the greater rights, is to dethrone. In the conclusion of this Cap. we are informed when the obligation of the subject to the Soveraign doth cease; and it is then when his power to protect doth cease. And there is great reason for it. For whatso∣ever his title may be, and how unjustly soever it may be taken away, and howsoever his subjects may stand well affected towards him, yet seeing there can be no protection from wrong within, nor from inva∣sion of enemies without, nor administration of Ju∣stice, without which any people returns unto the

confusion of Anarchy, except there be actual pos∣session of power; therefore Obligation for the present must cease, or at least be suspended. There be many waies, whereby a Soveraign may cease to be a Soveraign, as by conquest, death, resignation, cession, &c. and when the Soveraign ceaseth to be such, the Obligation must needs determine, as to such a particular Governor. And here I might take occasion to treat of subalternate Governments, and fiduciary Princes, who are Soveraigns in respect of their subjects, yet acknowledge a superiour, from whom they hold their territory. But seeing he is silent, I will be so too.