The Elements of Law/Part II/Chapter 21

From Wikisource
Jump to navigation Jump to search

Chapter 21: Of the Three Sorts of Commonwealth[edit]

1. Having spoken in general concerning instituted policy in the former chapter, I come in this to speak of the sorts thereof in special, how every one of them is instituted. The first in order of time of these three sorts is democracy, and it must be so of necessity, because an aristocracy and a monarchy, require nomination of persons agreed upon; which agreement in a great multitude of men must consist in the consent of the major part; and where the votes of the major part involve the votes of the rest, there is actually a democracy.

2. In the making of a democracy, there passeth no covenant, between the sovereign and any subject. For while the democracy is a making, there is no sovereign with whom to contract. For it cannot be imagined, that the multitude should contract with itself, or with any one man, or number of men, parcel of itself, to make itself sovereign; nor that a multitude, considered as one aggregate, can give itself anything which before it had not. Seeing then that sovereignty democratical is not conferred by the covenant of any multitude (which supposeth union and sovereignty already made), it resteth, that the same be conferred by the particular covenants of every several man; that is to say, every man with every man, for and in consideration of the benefit of his own peace and defence, covenanteth to stand to and obey, whatsoever the major part of their whole number, or the major part of such a number of them, as shall be pleased to assemble at a certain time and place, shall determine and command. And this is that which giveth being to a democracy; wherein the sovereign assembly was called of the Greeks by the name of Demus (id est, the people), from whence cometh democracy. So that where, to the supreme and independent court, every man may come that will and give his vote, there the sovereign is called the people.

3. Out of this that hath been already said, may readily be drawn: that whatsoever the people doth to any one particular member or subject of the commonwealth, the same by him ought not to be styled injury. For first, injury (by the definition, Part I. chap. XVI, sect. 2) is breach of covenant; but covenants (as hath been said in the precedent section) there passed none from the people to any private man; and consequently it (viz. the people) can do him no injury. Secondly, how unjust soever the action be, that this sovereign demus shall do, is done by the will of every particular man subject to him, who are therefore guilty of the same. If therefore they style it injury, they but accuse themselves. And it is against reason for the same man, both to do and complain; implying this contradiction, that whereas he first ratified the people's acts in general, he now disalloweth some of them in particular. It is therefore said truly, volenti non fit injuria. Nevertheless nothing doth hinder, but that divers actions done by the people, may be unjust before God Almighty, as breaches of some of the laws of nature.

4. And when it happeneth, that the people by plurality of voices shall decree or command any thing contrary to the law of God or nature, though the decree and command be the act of every man, not only present in the assembly, but also absent from it; yet is not the injustice of the decree, the injustice of every particular man, but only of those men by whose express suffrages, the decree or command was passed. For a body politic, as it is a fictitious body, so are the faculties and will thereof fictitious also. But to make a particular man unjust, which consisteth of a body and soul natural, there is required a natural and very will.

5. In all democracies, though the right of sovereignty be in the assembly, which is virtually the whole body; yet the use thereof is always in one, or a few particular men. For in such great assemblies as those must be, whereinto every man may enter at his pleasure, there is no means any ways to deliberate and give counsel what to do, but by long and set orations; whereby to every man there is more or less hope given, to incline and sway the assembly to their own ends. In a multitude of speakers therefore, where always, either one is eminent alone, or a few being equal amongst themselves, are eminent above the rest, that one or few must of necessity sway the whole; insomuch, that a democracy, in effect, is no more than an aristocracy of orators, interrupted sometimes with the temporary monarchy of one orator.

6. And seeing a democracy is by institution the beginning both of aristocracy and monarchy, we are to consider next how aristocracy is derived from it. When the particular members of the commonwealth growing weary of attendance at public courts, as dwelling far off, or being attentive to their private businesses, and withal displeased with the government of the people, assemble themselves to make an aristocracy; there is no more required to the making thereof but putting to the question one by one, the names of such men as it shall consist of, and assenting to their election; and by plurality of vote, to transfer that power which before the people had, to the number of men so named and chosen.

7. And from this manner of erecting an aristocracy it is manifest that the few or optimates, have entered into no covenant, with any of the particular members of the commonwealth whereof they are sovereign; and consequently cannot do any thing to any private man that can be called injury to him, howsoever their act be wicked before Almighty God, according to that which hath been said before, section 3. Farther it is impossible that the people, as one body politic should covenant with the aristocracy or optimates, on whom they intend to transfer their sovereignty; for no sooner is the aristocracy erected, but the democracy is annihilated, and the covenants made unto them void.

8. In all aristocracies, the admission of such as are from time to time to have vote in the sovereign assembly, dependeth on the will and decree of the present optimates; for they being the sovereign, have the nomination (by the eleventh section of the former chapter) of all magistrates, ministers, and counsellors of state whatsoever, and may therefore choose either to make them elective, or hereditary, at their pleasure.

9. Out of the same democracy, the institution of a political monarch proceedeth in the same manner, as did the institution of the aristocracy (viz.) by a decree of the sovereign people, to pass the sovereignty to one man named, and approved by plurality of suffrage. And if this sovereignty be truly and indeed transferred, the estate or commonwealth is an absolute monarchy, wherein the monarch is at liberty, to dispose as well of the succession, as of the possession; and not an elective kingdom. For suppose a decree be made, first in this manner: that such a one shall have the sovereignty for his life; and that afterward they will choose a new; in this case, the power of the people is dissolved, or not. If dissolved, then after the death of him that is chosen, there is no man bound to stand to the decrees of them that shall, as private men, run together to make a new election: and consequently, if there be any man, who by the advantage of the reign of him that is dead, hath strength enough to hold the multitude in peace and obedience, he may lawfully, or rather is by the law of nature obliged so to do. If this power of the people were not dissolved, at the choosing of their king for life; then is the people sovereign still, and the king a minister thereof only, but so, as to put the whole sovereignty in execution; a great minister, but no otherwise for his time, than a dictator was in Rome. In this case, at the death of him that was chosen, they that meet for a new election, have no new, but their old authority for the same. For they were the sovereign all the time, as appeareth by the acts of those elective kings, that have procured from the people, that their children might succeed them. For it is to be understood, when a man receiveth any thing from the authority of the people, he receiveth it not from the people his subjects, but from the people his sovereign. And farther, though in the election of a king for his life, the people grant him the exercise of their sovereignty for that time; yet if they see cause, they may recall the same before the time. As a prince that conferreth an office for life, may nevertheless, upon suspicion of abuse thereof, recall it at his pleasure; inasmuch as offices that require labour and care, are understood to pass from him that giveth them as onera, burthens to them that have them; the recalling whereof are therefore not injury, but favour. Nevertheless, if in making an elective king with intention to reserve the sovereignty, they reserve not a power at certain known and determined times and places to assemble themselves; the reservation of their sovereignty is of no effect, inasmuch as no man is bound to stand to the decrees and determinations of those that assemble themselves without the sovereign authority.

10. In the former section is showed that elective kings, that exercise their sovereignty for a time, which determines with their life, either are subjects and not sovereigns; and that is, when the people in election of them reserve unto themselves the right of assembling at certain times and places limited and made known; or else absolute sovereigns, to dispose of the succession at their pleasure; and that is, when the people in their election hath declared no time nor place of their meeting, or have left it to the power of the elected king to assemble and dissolve them at such times, as he himself shall think good. There is another kind of limitation of time, to him that shall be elected to use the sovereign power (which whether it hath been practised anywhere or not, I know not, but it may be imagined, and hath been objected against the rigour of sovereign power), and it is this: that the people transfer their sovereignty upon condition. As for example: for so long as he shall observe such and such laws, as they then prescribe him. And here as before in elected kings, the question is to be made, whether in the electing of such a sovereign, they reserved to themselves a right of assembling at times and places limited and known, or not; if not, then is the sovereignty of the people dissolved, and they have neither power to judge of the breach of the conditions given him, nor to command any forces for the deposing of him, whom on that condition they had set up; but are in the estate of war amongst themselves, as they were before they made themselves a democracy; and consequently: if he that is elected, by the advantage of the possession he hath of the public means, be able to compel them to unity and obedience, he hath not only the right of nature to warrant him, but also the law of nature to oblige him thereunto. But if in electing him, they reserved to themselves a right of assembling, and appointed certain times and places to that purpose, then are they sovereign still, and may call their conditional king to account, at their pleasure, and deprive him of his government, if they judge he deserve it, either by breach of the condition set him, or otherwise. For the sovereign power can by no covenant with a subject, be bound to continue him in the charge he undergoeth by their command, as a burden imposed not particularly for his good, but for the good of the sovereign people.

11. The controversies that arise concerning the right of the people, proceed from the equivocation of the word. For the word people hath a double signification. In one sense it signifieth only a number of men, distinguished by the place of their habitation; as the people of England, or the people of France; which is no more, but the multitude of those particular persons that inhabit those regions, without consideration of any contracts or covenants amongst them, by which any one of them is obliged to the rest. In another sense, it signifieth a person civil, that is to say, either one man, or one council, in the will whereof is included and involved the will of every one in particular; as for example: in this latter sense the lower house of parliament is all the commons, as long as they sit there with authority and right thereto; but after they be dissolved, though they remain, they be no more the people, nor the commons, but only the aggregate, or multitude of the particular men there sitting; how well soever they agree, or concur, in opinions amongst themselves; whereupon they that do not distinguish between these two significations, do usually attribute such rights to a dissolved multitude, as belong only to the people virtually contained in the body of the commonwealth or sovereignty. And when a great number of their own authority flock together in any nation, they usually give them the name of the whole nation. In which sense they say the people rebelleth, or the people demandeth, when it is no more than a dissolved multitude, of which though any one man may be said to demand or have right to something, yet the heap, or multitude, cannot he said to demand or have right to any thing. For where every man hath his right distinct, there is nothing left for the multitude to have right unto; and when the particulars say: this is mine, this is thine, and this is his, and have shared all amongst them, there can be nothing whereof the multitude can say: this is mine; nor are they one body, as behoveth them to be, that demand anything under the name of mine or his; and when they say ours, every man is understood to pretend in several, and not the multitude. On the other side, when the multitude is united into a body politic, and thereby are a people in the other signification, and their wills virtually in the sovereign, there the rights and demands of the particulars do cease; and he or they that have the sovereign power, doth for them all demand and vindicate under the name of his, that which before they called in the plural, theirs.

12. We have seen how particular men enter into subjection, by transferring their rights; it followeth to consider how such subjection may be discharged. And first, if he or they have the sovereign power, shall relinquish the same voluntarily, there is no doubt but every man is again at liberty, to obey or not; likewise if he or they retaining the sovereignty over the rest, do nevertheless exempt some one or more from. their subjection, every man so exempted is discharged. For he or they to whom any man is obliged, hath the power to release him.

13. And here it is to be understood: that when he or they that have the sovereign power, give such exemption or privilege to a subject, as is not separable from the sovereignty, and nevertheless directly retain the sovereign power, not knowing the consequence of the privilege they grant, the person or persons exempted or privileged are not thereby released. For in contradictory significations of the will (Part I. chap. XIII, sect. 9), that which is directly signified, is to be understood for the will, before that which is drawn from it by consequence.

14. Also exile perpetual, is a release of subjection, forasmuch as being out of the protection of the sovereignty that expelled him, he hath no means of subsisting but from himself. Now every man may lawfully defend himself, that hath no other defence; else there had been no necessity that any man should enter into voluntary subjection, as they do in commonwealths.

15. Likewise a man is released of his subjection by conquest; for when it cometh to pass, that the power of a commonwealth is overthrown, and any particular man, thereby lying under the sword of his enemy yieldeth himself captive, he is thereby bound to serve him that taketh him, and consequently discharged of his obligation to the former. For no man can serve two masters.

16. Lastly, ignorance of the succession dischargeth obedience; for no man can be understood to be obliged to obey he knoweth not whom.