The Elements of Law/Part II/Chapter 20

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PART II[edit]

Chapter 20: Of the Requisites to the Constitution of a Commonwealth[edit]

1. That part of this treatise which is already past, hath been wholly spent, in the consideration of the natural power, and the natural estate of man; namely of his cognition and passions in the first eleven chapters; and how from thence proceed his actions in the twelfth; how men know one another's minds in the thirteenth; in what estate men's passions set them in the fourteenth; what estate they are directed unto by the dictates of reason, that is to say, what be the principal articles of the law of nature, in the fifteenth, sixteenth, seventeenth, eighteenth, and lastly how a multitude of persons natural are united by covenants into one person civil or body politic. In this part therefore shall be considered, the nature of a body politic, and the laws thereof, otherwise called civil laws. And whereas it hath been said in the last chapter, and last section of the former part, that there be two ways of erecting a body politic; one by arbitrary institution of many men assembled together, which is like a creation out of nothing by human wit; the other by compulsion, which is as it were a generation thereof out of natural force; I shall first speak of such erection of a body politic, as proceedeth from the assembly and consent of a multitude.

2. Having in this place to consider a multitude of men about to unite themselves into a body politic, for their security, both against one another, and against common enemies; and that by covenants, the knowledge of what covenants, they must needs make, dependeth on the knowledge of the persons, and the knowledge of their end. First, for their persons they are many, and (as yet) not one; nor can any action done in a multitude of people met together, be attributed to the multitude, or truly called the action of the multitude, unless every man's hand, and every man's will, (not so much as one excepted) have concurred thereto. For multitude, though in their persons they run together, yet they concur not always in their designs. For even at that time when men are in tumult, though they agree a number of them to one mischief, and a number of them to another; yet, in the whole, they are amongst themselves in the state of hostility, and not of peace; like the seditious Jews besieged in Jerusalem, that could join against their enemies, and yet fight amongst themselves; whensoever therefore any man saith, that a number of men hath done any act: it is to be understood, that every particular man in that number hath consented thereunto, and not the greatest part only. Secondly, though thus assembled with intention to unite themselves, they are yet in that estate in which every man hath right to everything, and consequently, as hath been said, chap. XIV, sect. 10, in an estate of enjoying nothing: and therefore meum and tuum hath no place amongst them.

3. The first thing therefore they are to do, is expressly every man to consent to something by which they may come nearer to their ends; which can be nothing else imaginable but this: that they allow the wills of the major part of their whole number, or the wills of the major part of some certain number of men by them determined and named; or lastly the will of some one man, to involve and be taken for the wills of every man. And this done they are united, and a body politic. And if the major part of their whole number be supposed to involve the wills of all the particulars, then are they said to be a DEMOCRACY, that is to say a government wherein the whole number, or so many of them as please, being assembled together, are the sovereign, and every particular man a subject. If the major part of a certain number of men named or distinguished from the rest, be supposed to involve the wills of every one of the particulars, then are they said to be an OLIGARCHY, or ARISTOCRACY; which two words signify the same thing, together with the divers passions of those that use them; for when the men that be in that office please, they are called an aristocracy, otherwise an oligarchy; wherein those, the major part of which declare the wills of the whole multitude, being assembled, are the sovereign, and every man severally a subject. Lastly if their consent be such, that the will of one man, whom they name, shall stand for the wills of them all, then is their government or union called a MONARCHY; and that one man the sovereign, and every of the rest a subject.

4. And those several sorts of unions, governments, and subjections of man's will, may be understood to be made, either absolutely, that is to say, for all future time, or for a time limited only. But forasmuch as we speak here of a body politic, instituted for the perpetual benefit and defence of them that make it; which therefore men desire should last for ever, I will omit to speak of those that be temporary, and consider those that be for ever.

5. The end for which one man giveth up, and relinquisheth to another, or others, the right of protecting and defending himself by his own power, is the security which he expecteth thereby, of protection and defence from those to whom he doth so relinquish it. And a man may then account himself in the estate of security, when he can foresee no violence to be done unto him, from which the doer may not be deterred by the power of that sovereign, to whom they have every one subjected themselves; and without that security there is no reason for a man to deprive himself of his own advantages, and make himself a prey to others. And therefore when there is not such a sovereign power erected, as may afford this security; it is to be understood that every man's right of doing whatsoever seemeth good in his own eyes, remaineth still with him. And contrariwise, where any subject hath right by his own judgment and discretion, to make use of his force; it is to be understood that every man hath the like, and consequently that there is no commonwealth at all established. How far therefore in the making of a commonwealth, a man subjecteth his will to the power of others, must appear from the end, namely security. For whatsoever is necessary to be by covenant transferred for the attaining thereof, so much is transferred, or else every man is in his natural liberty to secure himself.

6. Covenants agreed upon by every man assembled for the making of a commonwealth, and put in writing without erecting of a power of coercion, are no reasonable security for any of them that so covenant, nor are to be called laws; and leave men still in the estate of nature and hostility. For seeing the wills of most men are governed only by fear, and where there is no power of coercion, there is no fear; the wills of most men will follow their passions of covetousness, lust, anger, and the like, to the breaking of those covenants, whereby the rest, also, who otherwise would keep them, are set at liberty, and have no law but from themselves.

7. This power of coercion, as hath been said chap. XV, sect. 3, of the former part, consisteth in the transferring of every man's right of resistance against him to whom he hath transferred the power of coercion. It followeth therefore, that no man in any commonwealth whatsoever hath right to resist him, or them, on whom they have conferred this power coercive, or (as men use to call it) the sword of justice; supposing the not-resistance possible. For (Part I. chapter XV, sect. 18) covenants bind but to the utmost of our endeavour.

8. And forasmuch as they who are amongst themselves in security, by the means of this sword of justice that keeps them all in awe, are nevertheless in danger of enemies from without; if there be not some means found, to unite their strengths and natural forces in the resistance of such enemies, their peace amongst themselves is but in vain. And therefore it is to be understood as a covenant of every member to contribute their several forces for the defence of the whole; whereby to make one power as sufficient, as is possible, for their defence. Now seeing that every man hath already transferred the use of his strength to him or them, that have the sword of justice; it followeth that the power of defence, that is to say the sword of war, be in the same hands wherein is the sword of justice: and consequently those two swords are but one, and that inseparably and essentially annexed to the sovereign power.

9. Moreover seeing to have the right of the sword, is nothing else but to have the use thereof depending only on the judgment and discretion of him or them that have it; it followeth that the power of judicature (in all controversies, wherein the sword of justice is to be used) and (in all deliberations concerning war, wherein the use of that sword is required), the right of resolving and determining what is to be done, belong to the same sovereign.

10. Farther: considering it is no less, but much more necessary to prevent violence and rapine, than to punish the same when it is committed; and all violence proceedeth from controversies that arise between men concerning meum and tuum, right and wrong, good and bad, and the like, which men use every one to measure by their own judgments; it belongeth also to the judgment of the same sovereign power, to set forth and make known the common measure by which every man is to know what is his, and what another's; what is good, and what bad; and what he ought to do, and what not; and to command the same to be observed. And these measures of the actions of the subjects are those which men call LAWS POLITIC, or civil. The making whereof must of right belong to him that hath the power of the sword, by which men are compelled to observe them; for otherwise they should be made in vain.

11. Farthermore: seeing it is impossible that any one man that hath such sovereign power, can be able in person to hear and determine all controversies, to be present at all deliberations concerning common good, and to execute and perform all those common actions that belong thereunto, whereby there will be necessity of magistrates and ministers of public affairs; it is consequent, that the appointment, nomination, and limitation of the same, be understood as an inseparable part of the same sovereignty, to which the sum of all judicature and execution hath been already annexed.

12. And: forasmuch as the right to Use the forces of every particular member, is transferred from themselves, to their sovereign; a man will easily fall upon this conclusion of himself: that to sovereign power (whatsoever it doth) there belongeth impunity.

13. The sum of these rights of sovereignty, namely the absolute use of the sword in peace and war, the making and abrogating of laws, supreme judicature and decision in all debates judicial and deliberative, the nomination of all magistrates and ministers, with other rights contained in the same, make the sovereign power no less absolute in the commonwealth, than before commonwealth every man was absolute in himself to do, or not to do, what he thought good; which men that have not had the experience of that miserable estate, to which men are reduced by long war, think so hard a condition that they cannot easily acknowledge, such covenants and subjection, on their parts, as are here set down, to have been ever necessary to their peace. And therefore some have imagined that a commonwealth may be constituted in such manner, as the sovereign power may be so limited, and moderated, as they shall think fit themselves. For example: they suppose a multitude of men to have agreed upon certain articles (which they presently call laws), declaring how they will be governed; and that done to agree farther upon some man, or number of men to see the same articles performed, and put in execution. And to enable him, or them thereunto, they allot unto them a provision limited, as of certain lands, taxes, penalties, and the like, than which (if mis-spent), they shall have no more, without a new consent of the same men that allowed the former. And thus they think they have made a commonwealth, in which it is unlawful for any private man to make use of his own sword for his security; wherein they deceive themselves.

14. For first, if to the revenue, it did necessarily follow that there might be forces raised, and procured at the will of him that hath such revenue; yet since the revenue is limited, so must also be the forces; but limited forces, against the power of an enemy, which we cannot limit, are unsufficient. Whensoever therefore there happeneth an invasion greater than those forces are able to resist, and there be no other right to levy more, then is every man, by necessity of nature, allowed to make the best provision he can for himself; and thus is the private sword, and the estate of war again reduced. But seeing revenue, without the right of commanding men, is of not use, neither in peace, nor war; it is necessary to be supposed, that he that hath the administration of those articles, which are in the former section supposed, must have also right to make use of the strengths of particular men; and what reason soever giveth him that right over any one, giveth him the same over them all. And then is his right absolute; for he that hath right to all their forces, hath right to dispose of the same. Again: supposing those limited forces and revenue, either by the necessary, or negligent use of them, to fail; and that for a supply, the same multitude be again to be assembled, who shall have power to assemble them, that is to compel them to come together? If he that demandeth the supply hath that right (viz.) the right to compel them all; then is his sovereignty absolute: if not, then is every particular man at liberty to come or not; to frame a new commonwealth or not; and so the right of the private sword returneth. But suppose them willingly and of their own accord assembled, to consider of this supply; if now it be still in their choice, whether they shall give it or not, it is also in their choice whether the commonwealth shall stand or not. And therefore there lieth not upon any of them any civil obligation that may hinder them from using force, in case they think it tend to their defence. This device therefore of them that will make civil laws first, and then a civil body afterwards, (as if policy made a body politic, and not a body politic made policy) is of no effect.

15. Others to avoid the hard condition, as they take it, of absolute subjection, (which in hatred thereto they also call slavery) have devised a government as they think mixed of the three sorts of sovereignty. As for example: they suppose the power of making laws given to some great assembly democratical, the power of judicature to some other assembly; and the administration of the laws to a third, or to some one man; and this policy they call mixed monarchy, or mixed aristocracy, or mixed democracy, according as any of these three sorts do most visibly predominate. And in this estate of government they think the use of the private sword excluded.

16. And supposing it were so: how were this condition which they call slavery eased thereby? For in this estate they would have no man allowed, either to be his own judge, or own carver, or to make any laws unto himself; and as long as these three agree, they are as absolutely subject to them, as is a child to the father, or a slave to the master in the state of nature. The ease therefore of this subjection, must consist in the disagreement of those, amongst whom they have distributed the rights of sovereign power. But the same disagreement is war. The division therefore of the sovereignty, either worketh no effect, to the taking away of simple subjection, or introduceth war; wherein the private sword hath place again. But the truth is, as hath been already shewed in 7, 8, 9, 10, 11, 12 precedent sections: the sovereignty is indivisible; and that seeming mixture of several kinds of government, not mixture of the things themselves, but confusion in our understanding, that cannot find out readily to whom we have subjected ourselves.

17. But though the sovereignty be not mixed, but be always either simple democracy, or simple aristocracy, or pure monarchy; nevertheless in the administration thereof, all those sorts of government may have place subordinate. For suppose the sovereign power be democracy, as it was sometimes in Rome, yet at the same time they may have a council aristocratical, such as was the senate; and at the same time they may have a subordinate monarch, such as was their dictator, who had for a time the exercise of the whole sovereignty, and such as are all generals in war. So also in a monarchy there may be a council aristocratical of men chosen by the monarch; or democratical of men chosen by the consent (the monarch permitting) of all the particular men of the commonwealth. And this mixture is it that imposeth; as if it were the mixture of sovereignty. As if a man should think, because the great council of Venice doth nothing ordinarily but choose magistrates, ministers of state, captains, and governors of towns, ambassadors, counsellors, and the like; that therefore their part of the sovereignty is only choosing of magistrates; and that the making of war, and peace, and laws, were not theirs, but the part of such councillors as they appointed thereto; whereas it is the part of these to do it but subordinately, the supreme authority thereof being in the great council that choose them.

18. And as reason teacheth us, that a man considered out of subjection to laws, and out of all covenants obligatory to others, is free to do, and undo, and deliberate as long as he listeth; every member being obedient to the will of the whole man; that liberty being nothing else but his natural power, without which he is no better than an inanimate creature, not able to help himself; so also it teacheth us: that a body politic of what kind soever, not subject to another, nor obliged by covenants, ought to be free, and in all actions to be assisted by the members, every one in their place, or at the least not resisted by them. For otherwise, the power of a body politic (the essence whereof is the not-resistance of the members) is none, nor a body politic of any benefit. And the same is confirmed by the use of all nations and commonwealths in the world. For what nation is there or commonwealth wherein that man or council, which is virtually the whole, hath not absolute power over every particular member? or what nation or commonwealth is there, that hath not power and right to constitute a general in their wars? But the power of a general is absolute; and consequently there was absolute power in the commonwealth, from whom it was derived. For no person, natural or civil, can transfer unto another more power than himself hath.

19. In every commonwealth where particular men are deprived of their right to protect themselves, there resideth an absolute sovereignty, as I have already shewed. But in what man or in what assembly of men the same is placed, is not so manifest, as not to need some marks whereby it may be discerned. And first it is an infallible mark of absolute sovereignty in a man, or in an assembly of men, if there be no right in any other person natural or civil to punish that man, or to dissolve that assembly. For he that cannot of right be punished, cannot of right be resisted; and he that cannot of right be resisted, hath coercive power over all the rest, and thereby can frame and govern their actions at his pleasure; which is absolute sovereignty. Contrariwise he that in a commonwealth is punishable by any, or that assembly that is dissolvable, is not sovereign. For a greater power is always required to punish and dissolve, than theirs who are punished or dissolved; and that power cannot be called sovereign, than which there is a greater. Secondly, that man or assembly, that by their own right not derived from the present right of any other, may make laws, or abrogate them, at his, or their pleasure, have the sovereignty absolute. For seeing the laws they make, are supposed to be made by right, the members of the commonwealth to whom they are made, are obliged to obey them; and consequently not to resist the execution of them; which not-resistance maketh the power absolute of him that ordaineth them. It is likewise a mark of this sovereignty, to have the right original of appointing magistrates, judges, counsellors, and ministers of state. For without that power no act of sovereignty, or government, can be performed. Lastly, and generally. whosoever by his own authority independent can do any act, which another of the same commonwealth may not, must needs be understood to have the sovereign power. For by nature men have equal right; this inequality therefore must proceed from the power of the commonwealth. He therefore that doth any act lawfully by his own authority, which another may not, doth it by the power of the commonwealth in himself; which is absolute sovereignty.