SECTION 41
The People for whom and by whom the Magistrate is created, can only judge whether he rightly perform his Office or not.

'TIS 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, tho 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, 'tis a folly to tell me, I ought not to seek meat, drink, rest, shelter, refreshment, or physick, 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 publick, 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 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; or 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 judgment 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 Gaius and Seius in a matter of right, neither of them may determine the cause, but it must be referred to a judge superior to both; not because 'tis 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, tho 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 Gaius and Seius, receiving equal and mutual advantages from each other, no man could be judge of their differences, but such as they should set up for that end. This has been done by many nations. The ancient Germans referred the decision of the most difficult matters to their priests: the Gauls and Britains to the Druids: the Mohammedans for some ages to the caliphs of Babylon: the Saxons in England, when they had embraced the Christian religion, to their clergy. Whilst all Europe lay under the popish superstition, the decision of such matters was frequently assumed by the pope; men often submitted to his judgment, and the princes that resisted were for the most part excommunicated, deposed and destroyed. All this was done for the same reasons. These men were accounted holy and inspired, and the sentence pronounced by them was usually reverenced as the judgment of God, who was thought to direct them; and all those who refused to submit, were esteemed execrable. But no man, or number of men, as I think, at the institution of a magistrate did ever say, if any difference happen between you or your successors and us, it shall be determined by yourself or by them, whether they be men, women, children, mad, foolish, or vicious. Nay if any such thing had been, the folly, turpitude and madness of such a sanction or stipulation must necessarily have destroy'd it. But if no such thing was ever known, or could have no effect if it had been in any place, 'tis most absurd to impose it upon all. The people therefore cannot be deprived of their natural rights upon a frivolous pretence to that which never was and never can be. They who create magistracies, and give to them such name, form and power as they think fit, do only know, whether the end for which they were created, be performed or not. They who give a being to the power which had none, can only judge whether it be employ'd to their welfare, or turned to their ruin. They do not set up one or a few men, that they and their posterity may live in splendor and greatness, but that justice may be administered, virtue established, and provision made for the publick safety. No wise man will think this can be done, if those who set themselves to overthrow the law, are to be their own judges. If Caligula, Nero, Vitellius, Domitian, or Heliogabalus, had been subject to no other judgment, they would have compleated the destruction of the empire. If the disputes between Durstus, Evenus the third, Dardannus, and other kings of Scotland, with the nobility and people, might have been determined by themselves, they had escaped the punishments they suffer'd, and ruined the nation as they designed. Other methods were taken; they perished by their madness; better princes were brought into their places, and their successors were by their example admonished to avoid the ways that had proved fatal to them. If Edward the second of England, with Gaveston and the Spencers, Richard the second with Tresilian and Vere, had been permitted to be the judges of their own cases, they who had murdered the best of the nobility would have pursued their designs to the destruction of such as remained, the enslaving of the nation, the subversion of the constitution, and the establishment of a mere tyranny in the place of a mixed monarchy. But our ancestors took better measures: They who had felt the smart of the vices and follies of their princes, knew what remedies were most fit to be applied, as well as the best time of applying them. They found the effects of extreme corruption in government to be so desperately pernicious, that nations must necessarily perish, unless it be corrected, and the state reduced to its first principle, or altered. Which being the case, it was as easy for them to judge whether the governor who had introduced that corruption should be brought to order, removed if he would not be reclaimed, or whether he should be suffer'd to ruin them and their posterity, as it is for me to judge, whether I should put away my servant, if I knew he intended to poison or murder me, and had a certain facility of accomplishing his design; or whether I should continue him in my service till he had performed it. Nay the matter is so much the more plain on the side of the nation, as the disproportion of merit between a whole people, and one or a few men entrusted with the power of governing them, is greater than between a private man and his servant. This is so fully confirmed by the general consent of mankind, that we know no government that has not frequently either been altered in form, or reduced to its original purity, by changing the families or persons who abused the power with which they had been entrusted. Those who have wanted wisdom and virtue rightly and seasonably to perform this, have been soon destroy'd; like the Goths in Spain, who by omitting to curb the fury of Witiza and Rodrigo in time, became a prey to the Moors. [1] Their kingdom by this means destroy'd was never restored, and the remainder of that nation joining with the Spaniards whom they had kept in subjection for three or four ages, could not in less than eight hundred years, expel those enemies they might have kept out, only by removing two base and vicious kings. Such nations as have been so corrupted, that when they have applied themselves to seek remedies to the evils they suffered by wicked magistrates, could not fall upon such as were proportionable to the disease, have only vented their passions in destroying the immediate instruments of their oppression, or for a while delay'd their utter ruin. But the root still remaining, it soon produced the same poisonous fruit, and either quite destroy'd, or made them languish in perpetual misery. The Roman empire was the most eminent example of the first; many of the monsters that had tyrannized over them were killed, but the greatest advantage gained by their death, was a respite from ruin; and the government which ought to have been established by good laws, depending only upon the virtue of one man, his life proved to be no more than a lucid interval, and at his death they relapsed into the depth of infamy and misery: and in this condition they continued till that empire was totally subverted.

All the kingdoms of the Arabians, Medes, Persians, Moors, and others of the East are of the other sort. Common sense instructs them, that barbarous pride, cruelty and madness grown to extremity, cannot be borne: but they have no other way than to kill the tyrant, and to do the like to his successor if he fall into the same crimes. Wanting that wisdom and valour which is requir'd for the institution of a good government, they languish in perpetual slavery, and propose to themselves nothing better than to live under a gentle master, which is but a precarious life, and little to be valued by men of bravery and spirit. But those nations that are more generous, who set a higher value upon liberty, and better understand the ways of preserving it, think it a small matter to destroy a tyrant, unless they can also destroy the tyranny. They endeavour to do the work thoroughly, either by changing the government entirely, or reforming it according to the first institution, and making such good laws as may preserve its integrity when reformed. This has been so frequent in all the nations (both ancient and modern) with whose actions we are best acquainted, as appears by the foregoing examples, and many others that might be alleged, if the case were not clear, that there is not one of them which will not furnish us with many instances; and no one magistracy now in being which does not owe its original to some judgment of this nature. So that they must either derive their right from such actions, or confess they have none at all, and leave the nations to their original liberty of setting up those magistracies which best please themselves, without any restriction or obligation to regard one person or family more than another.

[1] Mariana. [Mariana, General History of Spain.]