of the same Family, but not from the propriety of the Father himself; but the Fathers of diverse Families, who are subject neither to any common Father, nor Lord, have a common Right in all things.
[What by Right he may doe, &c.] As often as a Citizen is granted to have an action of Law against the Supreme, i.e. against the City, the question is not in that action, whether the City may, by Right, keep possession of the thing in controversie, but whether by the Lawes formerly made she would keep it; for the Law is the declared will of the Supreme: since then the City may raise money from the Citizens under two Titles, either as Tribute, or as Debt, in the former case there is no action of Law allowed; for there can be no question whether the City have Right to require Tribute: in the latter it is allowed, because the City will take nothing from its Citizens by fraud, or cunning, and yet if need require, all they have, openly; and therefore he that condemnes this place, saying, That by this doctrine it is easie for princes to free themselves from their Debts, he does it impertinently.
XVI. Theft, further, AduLtery, and all injuries are forbid by the Lawes of nature; but what is to be called Theft, what further, what Adultery, what injury in a Citizen, this is not to be determined by the naturall, but by the civill Law: for not every taking away of the thing which another possesseth, but onely another mans goods is theft; but what is ours, and what anothers, is a question belonging to the civill Law. In like manner, not every killing of a man is further, but onely that which the civill Law forbids; neither is all encounter with women Adultery, but onely that which the civill Law prohibits. Lastly, all breach of promise is an injury, where the promise it selfe is lawfull, but where there is no Right to make any compact, there can be no conveighance of it, and therefore there can no injury follow, as hath been said in the second Chapter, Artic. 17. Now what we may contract for, and what not, depends wholly upon the civill Lawes. The City of Lacedoemon therefore rightly ordered that those young men who could so take away certain goods from others as not to be caught, should goe unpunisht; for it was nothing else, but to make a Law that what was so acquired should be their own, and not anothers. Rightly also is that man every where slain, whom we kill in warre, or by the necessity of selfe-defence. So also that copulation which in one City is Matrimony, in another will be judged Adultery. Also those contracts which make up Marriage in one Citizen, doe not so in another, although of the same City. because that he who is forbidden by the City (that is by that one man, or Councell, whose the supreme power is) to contract ought, hath no Right to make any contract, and therefore having made any, it is not valid, and by consequence, no Marriage. But his contract which received no prohibition, was therefore of force, and so was Matrimony: neither addes it any force to any unlawfull contracts, that they were made by an Oath, or Sacrament*, for those adde nothing to the strengthning of the contract, as hath been said above Chap. 2. Artic. 22. What therefore Theft, what Murther, what Adultery, and in generall what injury is, must be known by the civill Lawes, that is, the commands of him who hath the supreme authority.
[That they were made by an Oath or Sacrament, &c.] Whether Matrimony bee a Sacrament (in which sense that word is used by some Divines) or not, it is not my purpose to dispute: Onely I say, that the legitimate contract of a man and woman to live together, i.e. granted by the civill Law, whether it be a Sacrament, or not, is surely a legitimate Marriage; but that copulation which the City hath prohibited is no marriage, since it is of t he essence of Marriage to be a legitimate contract. There were legitimate marriages in many places, as among the Jewes, the Grecians, the Romans, which yet might be dissolved. But with those who permit no such contracts, but by a Law that they shall never be broke, Wedlock cannot be dissolved; and the reason is, because the City hath commanded it to be indissoluble, not because Matrimony is a Sacrament. Wherefore the ceremonies which at weddings are to be performed in the Temple, to blesse, or (if I may say so) to consecrate the husband and wife, will perhaps belong only to the office of Clergy-men; all the rest, namely who, when, and by what contracts Marriages may be made, pertains to the Lawes of the City.
XVII. This same supreme command, and absolute power, seems so harsh to the greatest part of men, as they hate the very naming of them; which happens chiefly through want of knowledge, what humane nature, and the civill Lawes are, and partly also through their default, who when they are invested with so great authority, abuse their power to their own lust. That they may therefore avoyd this kind of supreme authority, some of them will have a City well enough constituted, if they who shall be the Citizens convening, doe agree concerning certaine Articles propounded, and in that convent agitated and approved; and doe command them to be observed, and punishments prescribed to be inflicted on them who shall break them: to which purpose, and also to the repelling of a forraign enemy, they appoint a certain and limited return, with this condition, that if that suffice not, they may call a new convention of estates. Who sees not in a City thus constituted, that the Assembly who prescribed those things had an absolute power? If therefore the assembly continue, or from time to time have a certain day, and place of meeting, that power will be perpetuall. But if they wholly dissolve, either the City dissolves with them, and so all is returned to the state of War, or else there is somewhere a power left to punish those who shall transgresse the Lawes, whosoever, or how many soever they be that have it, which cannot possibly be without an absolute power: for he that by right hath this might given, by punishments to restrain what Citizens he pleaseth, hath such a power, as a greater cannot possibly be given by any Citizens.
XVIII. It is therefore manifest, that in every City there is some one man, or Councell, or Court, who by Right hath as great a power over each single Citizen, as each man hath over himselfe considered out of that civill state, that is, supreme and absolute, to be limited onely by the strength and forces of the City it selfe, and by nothing else in the world: for if his power were limited, that limitation must necessarily proceed from some greater power; For he that prescribes limits, must have a greater power then he who is confin'd by them; now that confining power is either without limit, or is again restrained by some other greater then it selfe, and so we shall at length arrive to a power which hath no other limit, but that which is the terminus ultimus of the forces of all the Citizens together. That same is called the supreme command, and if it bee committed to a councell, a supreme councell, but if to one man, the supreme Lord of the City. Now the notes of supreme command are these, To make and abrogate Lawes. To determine War and peace, to know, and judge of all controversies, either by himselfe, or by Judges appointed by him; to elect all Magistrates; Ministers, and Counsellors. Lastly, if there be any man who by Right can doe some one action which is not lawfull for any Citizen or Citizens to doe beside himselfe, that man hath obtained the supreme power: For those things which by Right may not be done by any one or many Citizens, the City it selfe can onely doe: He therefore that doth those things useth the Cities Right, which is the supreme power.
XIX. They who compare a City and its Citizens, with a man and his members, almost all say, that he who hath the supreme power in the City, is in relation to the whole City, such as the head is to the whole man; But it appeares by what hath been already said, that he who is endued with such a power, (whether it be a man, or a Court) hath a relation to the City, not as that of the head, but of the soule to the body. For it is the soule by which a man hath a will, that is, can either will, or nill; so by him who hath the supreme power, and no otherwise, the City hath a will, and can either will or nill. A Court of Counsellors is rather to be compared with the head, or one Counsellor, whose only Counsell (if of any one alone) the chief Ruler makes use of in matters of greatest moment: for the office of the head is to counsell, as the soules is to command.
XX. Forasmuch as the supreme command is constituted by vertue of the compacts which each single Citizen, or subject, mutually makes with the other. but all contracts, as they receive their force from the contractors, so by their consent they lose it again, and are broken; perhaps some may inferre hence, that by the consent of all the subjects together, the supreme authority may be wholly taken away. Which inference if it were true, I cannot discerne what danger would thence by Right arise to the supreme Commanders. For since it is supposed, that each one hath obliged himselfe to each other, if any one of them shall refuse, whatsoever the rest shall agree to doe, he is bound notwithstanding; neither can any man without injury to me, doe that which by contract made with me, he hath obliged himselfe not to
