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! upon the whole matter concluded, that if she was still permitted to live, it was not on account of her innocence, or any exemption from the penalties of the law, but from the mercy and clemency of the people, who, contenting themselves with a resignation of her right and power to her son, had spared her. This discourse, which is set down at large by the historian cited on the margin, being of such strength in itself as never to have been any otherwise answered than by railing, and no way disapproved by Queen Elizabeth, or her council, to whom it was made, either upon a general account of the pretensions of princes to be exempted from the penalties of the law, or any pretext that they had particularly misapplied them in relation to their queen, I may justly say, that when nations fall under such princes as are either utterly uncapable of making a right use of their power, or do maliciously abuse that authority with which they are entrusted, those nations stand obliged, by the duty they owe to themselves and their posterity, to use the best of their endeavour to remove the evil, whatever danger or difficulties they may meet with in the performance. Pontius the Samnite said as truly as bravely to his countrymen, that "those arms were just and pious, that were necessary; and necessary, when there was no hope of safety by any other way." This is the voice of mankind, and is disliked only by those princes, who fear the deserved punishments that may
* Justa piaque; sunt arma; quibus necessaria, quibus nulla nisi in armis spes est salutis. T. Liv. lib. ix. c. 1.
fall upon them; or by their servants and flatterers, who, being for the most part the authors of their crimes, think they shall be involved in their ruin.
THE PEOPLE, FOR WHOM AND BY WHOM THE MAGISTRATE IS CREATED, CAN ONLY JUDGE WHETHER HE RIGHTLY PERFORM HIS OFFICE OR NOT.
It is commonly said, that no man ought to be the judge of his own case; and our author lays much weight upon it as a fundamental maxim, though, according to his ordinary inconstancy, he overthrows it in the case of kings, where it ought to take place, if in any; for it often falls out, that no men are less capable of forming a right judgment than they. Their passions and interests are most powerful to disturb or pervert them. No men are so liable to be diverted from justice by the flatteries of corrupt servants. They never act as kings, except for those by whom and for whom they are created; and acting for others, the account of their actions cannot depend upon their own will. Nevertheless, I am not afraid to say, that naturally and properly a man is the judge of his own concernments. No one is or can be deprived of this
privilege, unless by his own consent, and for the good of that society into which he enters. This right, therefore, must necessarily belong to every man in all cases, except only such as relate to the good of the community, for whose sake he has divested himself of it. If I find myself afflicted with hunger, thirst, weariness, cold, heat, or sickness, it is a folly to tell me, I ought not to seek meat, drink, rest, shelter, refreshment, or physic, because I must not be the judge of my own case. The like may be said in relation to my house, land, or estate; I may do what I please with them, if I bring no damage upon others. But I must not set fire to my house, by which my neighbour's house may be burnt. I may not erect forts upon my own lands, or deliver them to a foreign enemy, who may by that means infest my country. I may not cut the banks of the sea, or those of a river, lest my neighbour's ground be overflown, because the society into which I am incorporated, would by such means receive prejudice. My land is not simply my own, but upon condition that I shall not thereby bring damage upon the public by which I am protected in the peaceable enjoyment and innocent use of what I possess. But this society leaves me a liberty to take servants, and put them away, at my pleasure. No man is to direct me, of what quality or number they shall be, or can tell me whether I am well or ill served by them. Nay, the state takes no other cognizance of what passes between me and them, than to oblige me to perform the contracts I make, and not to do that
to them which the law forbids; that is to say, the power to which I have submitted myself, exercises that jurisdiction over me, which was established by my consent, and under which I enjoy all the benefits of life, which are of more advantage to me than my liberty could have been, if I had retained it wholly in myself. The nature also and the measure of this submission must be determined by the reasons that induced me to it. The society in which I live cannot subsist, unless by rule; the equality in which men are born is so perfect, that no man will suffer his natural liberty to be abridged, except others do the like: I cannot reasonably expect to be defended from wrong, unless I oblige myself to do none; nor to suffer the punishment prescribed by the law, if I perform not my engagement. But, without prejudice to the society into which I enter, I may and do retain to myself the liberty of doing what I please in all things relating peculiarly to myself, or in which I am to seek my own convenience.
Now if a private man is not subject to the judg ment of any other, than those to whom he submits himself for his own safety and convenience; and, notwithstanding that submission, still retains to himself the right of ordering according to his own will all things merely relating to himself, and of doing what he pleases in that which he does for his own sake; the same right must more certainly belong to whole nations. When a controversy happens between Caius and Seius in a matter of right, neither of them may determine the cause, but it must be refer
red to a judge superior to both; not because it is not fit that a man should be judge of his own case, but because they have both an equal right, and neither of them owes any subjection to the other. But if there be a contest between me and my servant concerning my service, I only am to decide it: he must serve me in my own way, or be gone, if I think fit, though he serve me never so well; and I do him no wrong in putting him away, if either I intend to keep no servant, or find that another will please me better. I cannot therefore stand in need of a judge, unless the contest be with one who lives upon an equal foot with me. No man can be my judge, unless he be my superior; and he cannot be my superior, who is not so by my consent, nor to any other purpose than I consent to. This cannot be the case of a nation, which can have no equal within itself. Controversies may arise with other nations, the decision of which may be left to judges chosen by mutual agreement; but this relates not to our question. A nation, and most especially one that is powerful, cannot recede from its own right; as a private man, from the knowledge of his own weakness, and inability to defend himself, must come under the protection of a greater power than his own. The strength of a nation is not in the magistrate, but the strength of the magistrate is in the nation. The wisdom, industry, and valour of a prince may add to the glory and greatness of a nation, but the foundation and substance will always be in itself. If the magistrate and people were upon equal terms, as Caius and Seius, receiving equal and mutual advantages from each other, no man could be