Томас Гоббс - Leviathan

And because I find by divers English Books lately printed, that the Civill warres have not yet sufficiently taught men, in what point of time it is, that a Subject becomes obliged to the Conquerour; nor what is Conquest; nor how it comes about, that it obliges men to obey his Laws: Therefore for farther satisfaction of men therein, I say, the point of time, wherein a man becomes subject of a Conquerour, is that point, wherein having liberty to submit to him, he consenteth, either by expresse words, or by other sufficient sign, to be his Subject. When it is that a man hath the liberty to submit, I have showed before in the end of the 21. Chapter; namely, that for him that hath no obligation to his former Soveraign but that of an ordinary Subject, it is then, when the means of his life is within the Guards and Garrisons of the Enemy; for it is then, that he hath no longer Protection from him, but is protected by the adverse party for his Contribution. Seeing therefore such contribution is every where, as a thing inevitable, (notwithstanding it be an assistance to the Enemy,) esteemed lawfull; as totall Submission, which is but an assistance to the Enemy, cannot be esteemed unlawfull. Besides, if a man consider that they who submit, assist the Enemy but with part of their estates, whereas they that refuse, assist him with the whole, there is no reason to call their Submission, or Composition an Assistance; but rather a Detriment to the Enemy. But if a man, besides the obligation of a Subject, hath taken upon him a new obligation of a Souldier, then he hath not the liberty to submit to a new Power, as long as the old one keeps the field, and giveth him means of subsistence, either in his Armies, or Garrisons: for in this case, he cannot complain of want of Protection, and means to live as a Souldier: But when that also failes, a Souldier also may seek his Protection wheresoever he has most hope to have it; and may lawfully submit himself to his new Master. And so much for the Time when he may do it lawfully, if hee will. If therefore he doe it, he is undoubtedly bound to be a true Subject: For a Contract lawfully made, cannot lawfully be broken.

By this also a man may understand, when it is, that men may be said to be Conquered; and in what the nature of Conquest, and the Right of a Conquerour consisteth: For this Submission is it implyeth them all. Conquest, is not the Victory it self; but the Acquisition by Victory, of a Right, over the persons of men. He therefore that is slain, is Overcome, but not Conquered; He that is taken, and put into prison, or chaines, is not Conquered, though Overcome; for he is still an Enemy, and may save himself if hee can: But he that upon promise of Obedience, hath his Life and Liberty allowed him, is then Conquered, and a Subject; and not before. The Romanes used to say, that their Generall had Pacified such a Province, that is to say, in English, Conquered it; and that the Countrey was Pacified by Victory, when the people of it had promised Imperata Facere, that is, To Doe What The Romane People Commanded Them: this was to be Conquered. But this promise may be either expresse, or tacite: Expresse, by Promise: Tacite, by other signes. As for example, a man that hath not been called to make such an expresse Promise, (because he is one whose power perhaps is not considerable;) yet if he live under their Protection openly, hee is understood to submit himselfe to the Government: But if he live there secretly, he is lyable to any thing that may bee done to a Spie, and Enemy of the State. I say not, hee does any Injustice, (for acts of open Hostility bear not that name); but that he may be justly put to death. Likewise, if a man, when his Country is conquered, be out of it, he is not Conquered, nor Subject: but if at his return, he submit to the Government, he is bound to obey it. So that Conquest (to define it) is the Acquiring of the Right of Soveraignty by Victory. Which Right, is acquired, in the peoples Submission, by which they contract with the Victor, promising Obedience, for Life and Liberty.

In the 29th Chapter I have set down for one of the causes of the Dissolutions of Common–wealths, their Imperfect Generation, consisting in the want of an Absolute and Arbitrary Legislative Power; for want whereof, the Civill Soveraign is fain to handle the Sword of Justice unconstantly, and as if it were too hot for him to hold: One reason whereof (which I have not there mentioned) is this, That they will all of them justifie the War, by which their Power was at first gotten, and whereon (as they think) their Right dependeth, and not on the Possession. As if, for example, the Right of the Kings of England did depend on the goodnesse of the cause of William the Conquerour, and upon their lineall, and directest Descent from him; by which means, there would perhaps be no tie of the Subjects obedience to their Soveraign at this day in all the world: wherein whilest they needlessely think to justifie themselves, they justifie all the successefull Rebellions that Ambition shall at any time raise against them, and their Successors. Therefore I put down for one of the most effectuall seeds of the Death of any State, that the Conquerours require not onely a Submission of mens actions to them for the future, but also an Approbation of all their actions past; when there is scarce a Common–wealth in the world, whose beginnings can in conscience be justified.

And because the name of Tyranny, signifieth nothing more, nor lesse, than the name of Soveraignty, be it in one, or many men, saving that they that use the former word, are understood to bee angry with them they call Tyrants; I think the toleration of a professed hatred of Tyranny, is a Toleration of hatred to Common–wealth in general, and another evill seed, not differing much from the former. For to the Justification of the Cause of a Conqueror, the Reproach of the Cause of the Conquered, is for the most part necessary: but neither of them necessary for the Obligation of the Conquered. And thus much I have thought fit to say upon the Review of the first and second part of this Discourse.

In the 35th Chapter, I have sufficiently declared out of the Scripture, that in the Common–wealth of the Jewes, God himselfe was made the Soveraign, by Pact with the People; who were therefore called his Peculiar People, to distinguish them from the rest of the world, over whom God reigned not by their Consent, but by his own Power: And that in this Kingdome Moses was Gods Lieutenant on Earth; and that it was he that told them what Laws God appointed to doe Execution; especially in Capitall Punishments; not then thinking it a matter of so necessary consideration, as I find it since. Wee know that generally in all Common–wealths, the Execution of Corporeall Punishments, was either put upon the Guards, or other Souldiers of the Soveraign Power; or given to those, in whom want of means, contempt of honour, and hardnesse of heart, concurred, to make them sue for such an Office. But amongst the Israelites it was a Positive Law of God their Soveraign, that he that was convicted of a capitall Crime, should be stoned to death by the People; and that the Witnesses should cast the first Stone, and after the Witnesses, then the rest of the People. This was a Law that designed who were to be the Executioners; but not that any one should throw a Stone at him before Conviction and Sentence, where the Congregation was Judge. The Witnesses were neverthelesse to be heard before they proceeded to Execution, unlesse the Fact were committed in the presence of the Congregation it self, or in sight of the lawfull Judges; for then there needed no other Witnesses but the Judges themselves. Neverthelesse, this manner of proceeding being not throughly understood, hath given occasion to a dangerous opinion, that any man may kill another, is some cases, by a Right of Zeal; as if the Executions done upon Offenders in the Kingdome of God in old time, proceeded not from the Soveraign Command, but from the Authority of Private Zeal: which, if we consider the texts that seem to favour it, is quite contrary.