The Elements of Law Natural and Politic [77]
impunity. How can he or they be said to be subject to the laws which they may abrogate at their pleasure, or break without fear of punishment? And this error seemeth to proceed from this, that men ordinarily understand not aright, what is meant by this word law, confounding law and covenant, as if they signified the same thing. But law implieth a command; covenant is but a promise. And not every command is a law, but only (Part I. chap. XIII, sect. 6) when the command is the reason we have of doing the action commanded. And then only is the reason of our actions in the command, when the omitting is therefore hurtful, because the action was commanded, not because it was hurtful of itself; and doing contrary to a command, were not at all hurtful, if there were not a right in him that commandeth to punish him that so doth. He or they that have all punishments in their own disposing, cannot be so commanded, as to receive hurt for disobeying, and consequently no command can be a law unto them. It is an error therefore to think: that the power which is virtually the whole power of the commonwealth, and which in whomsoever it resideth, is usually called supreme or sovereign, can be subject to any law but that of God Almighty. 7. The third. opinion: that the sovereign power may be divided, is no less an error than the former, as hath been proved, Part II. chap. XX, sect. 15. And if there were a commonwealth, wherein the rights of sovereignty were divided, we must confess with Bodin, Lib. II. chap. I. De Republica, that they are not rightly to be called commonwealths, but the corruption of commonwealths. For if one part should have power to make the laws for all, they would by their laws, at their pleasure, forbid others to make peace or war, to levy taxes, or to yield fealty and homage without their leave; and they that had the right to make peace and war, and command the militia, would forbid the making of other laws, than what themselves liked. And though monarchies stand long, wherein the right of sovereignty hath seemed so divided, because monarchy of itself is a durable kind of government; yet monarchs have been thereby divers times thrust out of their possession. But the truth is, that the right of sovereignty is such, as he or they that have it, cannot, though they would, give away any part thereof, and retain the rest. As for example: if we should suppose the people of Rome to have had the absolute sovereignty of the Roman state, and to have chosen them a council by the name of the senate, and that to this senate they had given the supreme power of making laws, reserving nevertheless to themselves, in direct and express terms, the whole right and title of the sovereignty (which may easily happen amongst them that see not the inseparable connexion between the sovereign power and the power of making laws), I say, this grant of the people to the senate is of no effect, and the power of making laws is in the people sill. For the senate understanding it to be the will and intention of the people, to retain the sovereignty, ought not to take that for granted, which was contradictory thereto, and passed by error. For, Part I. chap. XIII, sect. 9, in contradictory promises, that which is directly promised, is preferred before that which is opposite thereunto by consequence; because the consequence of a thing is not always observed, as is the thing itself. The error concerning mixed government hath proceeded from want of understanding of what is meant by this word body politic, and how it signifieth not the concord, but the union of many men. And though in the charters of subordinate corporations, a corporation be declared to be one person in law, yet the same hath not been taken notice of in the body of a commonwealth or city, nor have any of those innumerable writers of politics observed any such union. 8. The fourth opinion (viz.): that subjects have their meum, tuum, and suum, in property, not only by virtue of the sovereign power over them all, distinct from one another, but also against the sovereign himself, by which