XIV. Neither can any man give somewhat to himselfe; for he is already suppos'd to have what he can give himself; nor can he be oblig'd to himselfe, for the same party being both the obliged, and the Obliger, and the Obliger having power to release the obliged, it were meerly in vain for a man to be obliged to himselfe, because he can release himself at his own pleasure; and he that can doe this, is already actually free. Whence its plaine, that the City is not tyed to the Civill Lawes; for the Civill Lawes are the Lawes of the City, by which, if she were engag'd, she should be engag'd to her selfe. Neither can the City be oblig'd to her Citizen, because, if he will, he can free her from her obligation; and he will, as oft as she wills, (for the will of every Citizen is in all things comprehended in the will of the City); the City therefore is free when she pleaseth, that is, she is now actually free; but the will of a Councell, or one who hath the Supreme Authority given him, is the will of the City; he therefore containes the wills of all particular Citizens: Therefore neither is he bound to the Civill Lawes (for this is to be bound to himself) nor to any of his Citizens.
XV. Now because (as hath been shewn above) before the constitution of a City all things belong'd to all men, nor is there that thing which any man can so call his, as any other may not, by the same Right, claime as his own, (for where all things are common, there can be nothing proper to any man) it followes, that propriety receiv'd its beginning* when Cities receiv'd theirs, and that that onely is proper to each man which he can keep by the Lawes, and the power of the whole City, (that is) of him on whom its chief command is conferr'd. Whence we understand, that each particular Citizen hath a propriety, to which none of his fellow-Citizens hath Right, because they are tyed to the same Lawes; but he hath no propriety in which the Chief Ruler (whose Commands are the Lawes, whose will contains the will of each man, and who, by every single person, is constituted the Supreme Judge) hath not a Right. But although there be many things which the City permits to its Citizens, and therefore they may sometimes goe to Law against their Chief; yet is not that action belonging to Civill Right, but to Naturall Equity; neither is it concerning what by Right he may doe** who hath the Supreme power, but what he hath been willing should be done, and therefore he shall be judge himself, as though (the equity of the cause being well understood) he could not give wrong judgment.
[Propriety receiv'd its beginning, &c.] What's objected by some, That the propriety of goods, even before the constitution of Cities, was found in Fathers of Families, that objection is vaine, because I have already declar'd, That a Family is a little City. For the Sonnes of a Family have a propriety of their goods granted them by their Father, distinguisht indeed from the rest of the Sons 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,