HAVING spoken of the generation, form, and power of a Commonwealth, I am in order to speak next of the parts thereof. And first of systems, which resemble the similar parts or muscles of a body natural. By systems, I understand any numbers of men joined in one interest or one business. Of which some are regular, and some irregular. Regular are those where one man, or assembly of men, is constituted representative of the whole number. All other are irregular.
Of regular, some are absolute and independent, subject to none but their own representative: such are only Commonwealths, of which I have spoken already in the five last precedent chapters. Others are dependent; that is to say, subordinate to some sovereign power, to which every one, as also their representative, is subject.
Of systems subordinate, some are political, and some private. Political (otherwise called bodies politic and persons in law) are those which are made by authority from the sovereign power of the Commonwealth. Private are those which are constituted by subjects amongst themselves, or by authority from a stranger. For no authority derived from foreign power, within the dominion of another, is public there, but private.
And of private systems, some are lawful; some unlawful: lawful are those which are allowed by the Commonwealth; all other are unlawful. Irregular systems are those which, having no representative, consist only in concourse of people; which if not forbidden by the Commonwealth, nor made on evil design (such as are conflux of people to markets, or shows, or any other harmless end), are lawful. But when the intention is evil, or (if the number be considerable) unknown, they are unlawful.
In bodies politic the power of the representative is always limited: and that which prescribeth the limits thereof is the power sovereign. For power unlimited is absolute sovereignty. And the sovereign, in every Commonwealth, is the absolute representative of all the subjects; and therefore no other can be representative of any part of them, but so far forth as he shall give leave: and to give leave to a body politic of subjects to have an absolute representative, to all intents and purposes, were to abandon the government of so much of the Commonwealth, and to divide the dominion, contrary to their peace and defence, which the sovereign cannot be understood to do, by any grant that does not plainly and directly discharge them of their subjection. For consequences of words are not the signs of his will, when other consequences are signs of the contrary; but rather signs of error and misreckoning, to which all mankind is too prone.
The bounds of that power which is given to the representative of a body politic are to be taken notice of from two things. One is their writ, or letters from the sovereign: the other is the law of the Commonwealth.
For though in the institution or acquisition of a Commonwealth, which is independent, there needs no writing, because the power of the representative has there no other bounds but such as are set out by the unwritten law of nature; yet in subordinate bodies, there are such diversities of limitation necessary, concerning their businesses, times, and places, as can neither be remembered without letters, nor taken notice of, unless such letters be patent, that they may be read to them, and withal sealed, or testified, with the seals or other permanent signs of the authority sovereign.
And because such limitation is not always easy or perhaps possible to be described in writing, the ordinary laws, common to all subjects, must determine what the representative may lawfully do in all cases where the letters themselves are silent. And therefore
In a body politic, if the representative be one man, whatsoever he does in the person of the body which is not warranted in his letters, nor by the laws, is his own act, and not the act of the body, nor of any other member thereof besides himself: because further than his letters or the laws limit, he representeth no man's person, but his own. But what he does according to these is the act of every one: for of the act of the sovereign every one is author, because he is their representative unlimited; and the act of him that recedes not from the letters of the sovereign is the act of the sovereign, and therefore every member of the body is author of it.
But if the representative be an assembly, whatsoever that assembly shall decree, not warranted by their letters or the laws, is the act of the assembly, or body politic, and the act of every one by whose vote the decree was made; but not the act of any man that being present voted to the contrary; nor of any man absent, unless he voted it by procreation. It is the act of the assembly because voted by the major part; and if it be a crime, the assembly may be punished, as far forth as it is capable, as by dissolution, or forfeiture of their letters (which is to such artificial and fictitious bodies, capital) or, if the assembly have a common stock, wherein none of the innocent members have propriety, by pecuniary mulct. For from corporal penalties nature hath bodies politic. But they that gave not their vote are therefore innocent, because the assembly cannot represent any man in things unwarranted by their letters, and consequently are not involved in their votes.
If the person of the body politic, being in one man, borrow money of a stranger, that is, of one that is not of the same body (for no letters need limit borrowing, seeing it is left to men's own inclinations to limit lending), the debt is the representative's. For if he should have authority from his letters to make the members pay what he borroweth, he should have by consequence the sovereignty of them; and therefore the grant were either void, as proceeding from error, commonly incident to human nature, and an insufficient sign of the will of the granter; or if it be avowed by him, then is the representer sovereign, and falleth not under the present question, which is only of bodies subordinate. No member therefore is obliged to pay the debt so borrowed, but the representative himself: because he that lendeth it, being a stranger to the letters, and to the qualification of the body, understandeth those only for his debtors that are engaged; and seeing the representer can engage himself, and none else, has him only debtor, who must therefore pay him, out of the common stock, if there be any, or, if there be none, out of his own estate.
If he come into debt by contract, or mulct, the case is the same.
But when the representative is an assembly, and the debt to a stranger; all they, and only they, are responsible for the debt that gave their votes to the borrowing of it, or to the contract that made it due, or to the fact for which the mulct was imposed; because every one of those in voting did engage himself for the payment: for he that is author of the borrowing is obliged to the payment, even of the whole debt, though when paid by any one, he be discharged.
But if the debt be to one of the assembly, the assembly only is obliged to the payment, out of their common stock, if they have any: for having liberty of vote, if he vote the money shall be borrowed, he votes it shall be paid; if he vote it shall not be borrowed, or be absent, yet because in lending he voteth the borrowing, he contradicteth his former vote, and is obliged by the latter, and becomes both borrower and lender, and consequently cannot demand payment from any particular man, but from the common treasury only; which failing, he hath no remedy, nor complaint but against himself, that being privy to the acts of the assembly, and to their means to pay, and not being enforced, did nevertheless through his own folly lend his money.
It is manifest by this that in bodies politic subordinate, and subject to a sovereign power, it is sometimes not only lawful, but expedient, for a particular man to make open protestation against the decrees of the representative assembly, and cause their dissent to be registered, or to take witness of it; because otherwise they may be obliged to pay debts contracted, and be responsible for crimes committed by other men. But in a sovereign assembly that liberty is taken away, both because he that protesteth there denies their sovereignty, and also because whatsoever is commanded by the sovereign power is as to the subject (though not so always in the sight of God) justified by the command: for of such command every subject is the author.
The variety of bodies is almost infinite: for they are not only distinguished by the several affairs for which they are constituted, wherein there is an unspeakable diversity; but also by the times, places, and numbers, subject to many limitations. And as to their affairs, some are ordained for government; as first, the government of a province may be committed to an assembly of men, wherein all resolutions shall depend on the votes of the major part; and then this assembly is a body politic, and their power limited by commission. This word province signifies a charge or care of business, which he whose it is committeth to another man to be administered for and under him; and therefore when in one Commonwealth there be diverse countries that have their laws distinct one from another, or are far distant in place, the administration of the government being committed to diverse persons, those countries where the sovereign is not resident, but governs by commission, are called provinces. But of the government of a province, by an assembly residing in the province itself, there be few examples. The Romans, who had the sovereignty of many provinces, yet governed them always by presidents and praetors; and not by assemblies, as they governed the city of Rome and territories adjacent. In like manner, when there were colonies sent from England to plant Virginia, and Summer Islands, though the government of them here were committed to assemblies in London, yet did those assemblies never commit the government under them to any assembly there, but did to each plantation send one governor: for though every man, where he can be present by nature, desires to participate of government; yet where they cannot be present, they are by nature also inclined to commit the government of their common interest rather to a monarchical, than a popular, form of government: which is also evident in those men that have great private estates; who, when they are unwilling to take the pains of administering the business that belongs to them, choose rather to trust one servant than an assembly either of their friends or servants. But howsoever it be in fact, yet we may suppose the government of a province or colony committed to an assembly: and when it is, that which in this place I have to say is this: that whatsoever debt is by that assembly contracted, or whatsoever unlawful act is decreed, is the act only of those that assented, and not of any that dissented, or were absent, for the reasons before alleged. Also that an assembly residing out of the bounds of that colony whereof they have the government cannot execute any power over the persons or goods of any of the colony, to seize on them for debt, or other duty, in any place without the colony itself, as having no jurisdiction nor authority elsewhere, but are left to the remedy which the law of the place alloweth them. And though the assembly have right to impose mulct upon any of their members that shall break the laws they make; yet out of the colony itself, they have no right to execute the same. And that which is said here of the rights of an assembly for the government of a province, or a colony, is applicable also to an assembly for the government of a town, a university, or a college, or a church, or for any other government over the persons of men.
And generally, in all bodies politic, if any if any particular member conceive himself injured by the body itself, the cognizance of his cause belonged to the sovereign, and those the sovereign hath ordained for judges in such causes, or shall ordain for that particular cause; and not to the body itself. For the whole body is in this case his fellow subject, which, in a sovereign assembly, is otherwise: for there, if the sovereign be not judge, though in his own cause, there can be no judge at all.
In a body politic, for the well ordering of foreign traffic, the most commodious representative is an assembly of all the members; that is to say, such a one as every one that adventureth his money may be present at all the deliberations and resolutions of the body, if they will themselves. For proof whereof we are to consider the end for which men that are merchants, and may buy and sell, export and import their merchandise, according to their own discretions, do nevertheless bind themselves up in one corporation. It is true, there be few merchants that with the merchandise they buy at home can freight a ship to export it; or with that they buy abroad, to bring it home; and have therefore need to join together in one society, where every man may either participate of the gain, according to the proportion of his adventure, or take his own, and sell what he transports, or imports, at such prices as he thinks fit. But this is no body politic, there being no common representative to oblige them to any other law than that which is common to all other subjects. The end of their incorporating is to make their gain the greater; which is done two ways: by sole buying, and sole selling, both at home and abroad. So that to grant to a company of merchants to be a corporation, or body politic, is to grant them a double monopoly, whereof one is to be sole buyers; another to be sole sellers. For when there is a company incorporate for any particular foreign country, they only export the commodities vendible in that country; which is sole buying at home, and sole selling abroad. For at home there is but one buyer, and abroad but one that selleth; both which is gainful to the merchant, because thereby they buy at home at lower, and sell abroad at higher, rates: and abroad there is but one buyer of foreign merchandise, and but one that sells them at home, both which again are gainful to the adventurers.
Of this double monopoly one part is disadvantageous to the people at home, the other to foreigners. For at home by their sole exportation they set what price they please on the husbandry and handiworks of the people, and by the sole importation, what price they please on all foreign commodities the people have need of, both which are ill for the people. On the contrary, by the sole selling of the native commodities abroad, and sole buying the foreign commodities upon the place, they raise the price of those, and abate the price of these, to the disadvantage of the foreigner: for where but one selleth, the merchandise is the dearer; and where but one buyeth, the cheaper: such corporations therefore are no other than monopolies, though they would be very profitable for a Commonwealth, if, being bound up into one body in foreign markets, they were at liberty at home, every man to buy and sell at what price he could.
The end then of these bodies of merchants, being not a common benefit to the whole body (which have in this case no common stock, but what is deducted out of the particular adventures, for building, buying, victualling and manning of ships), but the particular gain of every adventurer, it is reason that every one be acquainted with the employment of his own; that is, that every one be of the assembly that shall have the power to order the same; and be acquainted with their accounts. And therefore the representative of such a body must be an assembly, where every member of the body may be present at the consultations, if he will.
If a body politic of merchants contract a debt to a stranger by the act of their representative assembly, every member is liable by himself for the whole. For a stranger can take no notice of their private laws, but considereth them as so many particular men, obliged every one to the whole payment, till payment made by one dischargeth all the rest: but if the debt be to one of the company, the creditor is debtor for the whole to himself, and cannot therefore demand his debt, but only from the common stock, if there be any.
If the Commonwealth impose a tax upon the body, it is understood to be laid upon every member proportionably to his particular adventure in the company. For there is in this case no other common stock, but what is made of their particular adventures.
If a mulct be laid upon the body for some unlawful act, they only are liable by whose votes the act was decreed, or by whose assistance it was executed; for in none of the rest is there any other crime but being of the body; which, if a crime, because the body was ordained by the authority of the Commonwealth, is not his.
If one of the members be indebted to the body, he may be sued by the body, but his goods cannot be taken, nor his person imprisoned by the authority of the body; but only by authority of the Commonwealth: for they can do it by their own authority, they can by their own authority give judgement that the debt is due; which is as much as to be judge in their own cause.
These bodies made for the government of men, or of traffic, be either perpetual, or for a time prescribed by writing. But there be bodies also whose times are limited, and that only by the nature of their business. For example, if a sovereign monarch, or a sovereign assembly, shall think fit to give command to the towns and other several parts of their territory to send to him their deputies to inform him of the condition and necessities of the subjects, or to advise with him for the making of good laws, or for any other cause, as with one person representing the whole country, such deputies, having a place and time of meeting assigned them, are there, and at that time, a body politic, representing every subject of that dominion; but it is only for such matters as shall be propounded unto them by that man, or assembly, that by the sovereign authority sent for them; and when it shall be declared that nothing more shall be propounded, nor debated by them, the body is dissolved. For if they were the absolute representative of the people, then were it the sovereign assembly; and so there would be two sovereign assemblies, or two sovereigns, over the same people; which cannot consist with their peace. And therefore where there is once a sovereignty, there can be no absolute representation of the people, but by it. And for the limits of how far such a body shall represent the whole people, they are set forth in the writing by which they were sent for. For the people cannot choose their deputies to other intent than is in the writing directed to them from their sovereign expressed.
Private bodies regular and lawful are those that are constituted without letters, or other written authority, saving the laws common to all other subjects. And because they be united in one person representative, they are held for regular; such as are all families, in which the father or master ordereth the whole family. For he obligeth his children, and servants, as far as the law permitteth, though not further, because none of them are bound to obedience in those actions which the law hath forbidden to be done. In all other actions, during the time they are under domestic government, they are subject to their fathers and masters, as to their immediate sovereigns. For the father and master being before the institution of Commonwealth absolute sovereigns in their own families, they lose afterward no more of their authority than the law of the Commonwealth taketh from them.
Private bodies regular, but unlawful, are those that unite themselves into one person representative, without any public authority at all; such as are the corporations of beggars, thieves and gipsies, the better to order their trade of begging and stealing; and the corporations of men that by authority from any foreign person themselves in another's dominion, for the easier propagation of doctrines, and for making a party against the power of the Commonwealth.
Irregular systems, in their nature but leagues, or sometimes mere concourse of people without union to any particular design, not by obligation of one to another, but proceeding only from a similitude of wills and inclinations, become lawful, or unlawful, according to the lawfulness, or unlawfulness, of every particular man's design therein: and his design is to be understood by the occasion.
The leagues of subjects, because leagues are commonly made for mutual defence, are in a Commonwealth (which is no more than a league of all the subjects together) for the most part unnecessary, and savour of unlawful design; and are for that cause unlawful, and go commonly by the name of factions, or conspiracies. For a league being a connexion of men by covenants, if there be no power given to any one man or assembly (as in the condition of mere nature) to compel them to performance, is so long only valid as there ariseth no just cause of distrust: and therefore leagues between Commonwealths, over whom there is no human power established to keep them all in awe, are not only lawful, but also profitable for the time they last. But leagues of the subjects of one and the same Commonwealth, where every one may obtain his right by means of the sovereign power, are unnecessary to the maintaining of peace and justice, and, in case the design of them be evil or unknown to the Commonwealth, unlawful. For all uniting of strength by private men is, if for evil intent, unjust; if for intent unknown, dangerous to the public, and unjustly concealed.
If the sovereign power be in a great assembly, and a number of men, part of the assembly, without authority consult a part to contrive the guidance of the rest, this is a faction, or conspiracy unlawful, as being a fraudulent seducing of the assembly for their particular interest. But if he whose private interest is to be debated and judged in the assembly make as many friends as he can, in him it is no injustice, because in this case he is no part of the assembly. And though he hire such friends with money, unless there be an express law against it, yet it is not injustice. For sometimes, as men's manners are, justice cannot be had without money, and every man may think his own cause just till it be heard and judged.
In all Commonwealths, if a private man entertain more servants than the government of his estate and lawful employment he has for them requires, it is faction, and unlawful. For having the protection of the Commonwealth, he needeth not the defence of private force. And whereas in nations not thoroughly civilized, several numerous families have lived in continual hostility and invaded one another with private force, yet it is evident enough that they have done unjustly, or else that they had no Commonwealth.
And as factions for kindred, so also factions for government of religion, as of Papists, Protestants, etc., or of state, as patricians and plebeians of old time in Rome, and of aristocraticals and democraticals of old time in Greece, are unjust, as being contrary to the peace and safety of the people, and a taking of the sword out of the hand of the sovereign.
Concourse of people is an irregular system, the lawfulness or unlawfulness whereof dependeth on the occasion, and on the number of them that are assembled. If the occasion be lawful, and manifest, the concourse is lawful; as the usual meeting of men at church, or at a public show, in usual numbers: for if the numbers be extraordinarily great, the occasion is not evident; and consequently he that cannot render a particular and good account of his being amongst them is to be judged conscious of an unlawful and tumultuous design. It may be lawful for a thousand men to join in a petition to be delivered to a judge or magistrate; yet if a thousand men come to present it, it is a tumultuous assembly, because there needs but one or two for that purpose. But in such cases as these, it is not a set number that makes the assembly unlawful, but such a number as the present officers are not able to suppress and bring to justice.
When an unusual number of men assemble against a man whom they accuse, the assembly is an unlawful tumult; because they may deliver their accusation to the magistrate by a few, or by one man. Such was the case of St. Paul at Ephesus; where Demetrius, and a great number of other men, brought two of Paul's companions before the magistrate, saying with one voice, "Great is Diana of the Ephesians"; which was their way of demanding justice against them for teaching the people such doctrine as was against their religion and trade. The occasion here, considering the laws of that people, was just; yet was their assembly judged unlawful, and the magistrate reprehended them for it, in these words, "If Demetrius and the other workmen can accuse any man of any thing, there be pleas, and deputies; let them accuse one another. And if you have any other thing to demand, your case may be judged in an assembly lawfully called. For we are in danger to be accused for this day's sedition, because there is no cause by which any man can render any reason of this concourse of people."25 Where he calleth an assembly whereof men can give no just account, a sedition, and such as they could not answer for. And this is all I shall say concerning systems, and assemblies of people, which may be compared, as I said, to the similar parts of man's body: such as be lawful, to the muscles; such as are unlawful, to wens, biles, and apostems, engendered by the unnatural conflux of evil humours.
25 Acts, 19. 40
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