OF SYSTEMS SUBJECT, POLITICAL, AND PRIVATE.
[Sidenote: The divers sorts of systems of people.]
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.
[Sidenote: In all bodies politic the power of the representative is
limited.]
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.
[Sidenote: By letters patent:]
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.
[Sidenote: And the laws.]
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,
[Sidenote: When the representative is one man, his unwarranted acts are
his own only.]
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.
[Sidenote: When it is an assembly, it is the act of them that assented
only.]
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 procuration.
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
exempted all 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.
[Sidenote: When the representative is one man, if he borrow money, or
owe it, by contract, he is liable only, the members not.]
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 for 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.
[Sidenote: When it is an assembly, they only are liable that have
assented.]
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.
[Sidenote: If the debt be to one of the assembly, the body only is
obliged.]
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 treasure 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.
[Sidenote: Protestation against the decrees of bodies politic
sometimes lawful, but against sovereign power never.]
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.
[Sidenote: Bodies politic for government of a province, colony, or town]
The variety of bodies politic, 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 business it is,
committeth to another man, to be administered for, and under him; and
therefore when in one commonwealth there be divers countries, that have
their laws distinct one from another, or are far distant in place, the
administration of the government being committed to divers 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 prætors; 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
Sommer-islands; though the governments 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, chuse 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 a 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
appliable also to an assembly for the government of a town, an
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 particular member conceive
himself injured by the body itself, the cognizance of his cause
belongeth 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.
[Sidenote: Bodies politic for ordering of trade.]
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
merchandize, according to their own discretions, do nevertheless bind
themselves up in one corporation. It is true, there be few merchants,
that with the merchandize 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 merchandize, 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 handy-works 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
merchandize 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 if
they can do it by their own authority, they can by their own authority
give judgment that the debt is due; which is as much as to be judge in
their own cause.
[Sidenote: A body politic for counsel to be given to the sovereign.]
Those 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 representatives 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.
[Sidenote: A regular private body, lawful as a family.]
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.
[Sidenote: Private bodies regular, but unlawful.]
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, unite themselves in
another’s dominion, for the easier propagation of doctrines, and for
making a party, against the power of the commonwealth.
[Sidenote: Systems irregular, such as are private leagues.]
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.
[Sidenote: Secret cabals.]
If the sovereign power be in a great assembly, and a number of men, part
of the assembly, without authority, consult apart, 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.
[Sidenote: Feuds of private families.]
In all commonwealths, if private men 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
they had no commonwealth.
[Sidenote: Factions for government.]
And as factions for kindred, so also factions for government of
religion, as of Papists, Protestants, &c. 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.
[Sidenote: Concourse of people.]
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 to 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.
[Sidenote: Concourse of people.]
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
(_Acts_ xix. 38-40.) _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._ 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.
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