SECTION 44
No People that is not free can substitute Delegates.

HOW full soever the power of any person or people may be, he or they are obliged to give only so much to their delegates, as seems convenient to themselves, or conducing to the ends they desire to attain; but the delegate can have none except what is conferred upon him by his principal. If therefore the knights, citizens and burgesses sent by the people of England to serve in parliament have a power, it must be more perfectly and fully in those that send them. But (as was proved in the last section) proclamations, and other significations of the king's pleasure, are not laws to us. They are to be regulated by the law, not the law by them. They are to be considered only so far as they are conformable to the law from which they receive all the strength that is in them, and can confer none upon it. We know no laws but our own statutes, and those immemorial customs established by the consent of the nation; which may be, and often are changed by us. The legislative power therefore that is exercised by the parliament, cannot be conferred by the writ of summons, but must be essentially and radically in the people, from whom their delegates and representatives have all that they have. But, says our author, They must only chuse, and trust those whom they chuse, to do what they list; and that is as much liberty as many of us deserve for our irregular elections of burgesses.[1] This is ingeniously concluded: I take what servant I please, and when I have taken him I must suffer him to do what he pleases. But from whence should this necessity arise? Why may not I take one to be my groom, another to be my cook, and keep them both to the offices for which I took them? What law does herein restrain my right? And if I am free in my private capacity to regulate my particular affairs according to my own discretion, and to allot to each servant his proper work, why have not I with my associates the freemen of England the like liberty of directing and limiting the powers of the servants we employ in our publick affairs? Our author gives us reasons proportionable to his judgment: This were liberty with a mischief; and that of chusing only is as much as many of us deserve. I have already proved, that as far as our histories reach, we have had no princes or magistrates, but such as we have made, and they have had no other power than what we have conferred upon them. They cannot be the judges of our merit, who have no power but what we gave them, through an opinion they did or might deserve it. They may distribute in parcels to particulars that with which they are entrusted in the gross. But 'tis impossible that the publick should depend absolutely upon those who are nothing above other men, except what they are made to be, for, and by the publick. The restrictions therefore of the people's liberty must be from themselves, or there can be none.

Nevertheless I believe, that the powers of every county, city and borough of England, are regulated by the general law to which they have all consented, and by which they are all made members of one political body. This obliges them to proceed with their delegates in a manner different from that which is used in the United Netherlands, or in Switzerland. Amongst these every province, city or canton making a distinct body independent from any other, and exercising the sovereign power within itself, looks upon the rest as allies, to whom they are bound only by such acts as they themselves have made; and when any new thing not comprehended in them happens to arise, they oblige their delegates to give them an account of it, and retain the power of determining those matters in themselves. 'Tis not so amongst us: Every county does not make a distinct body, having in itself a sovereign power, but is a member of that great body which comprehends the whole nation. 'Tis not therefore for Kent or Sussex, Lewis or Maidstone, but for the whole nation, that the members chosen in those places are sent to serve in parliament: and tho it be fit for them as friends and neighbours (so far as may be) to hearken to the opinions of the electors for the information of their judgments, and to the end that what they shall say may be of more weight, when everyone is known not to speak his own thoughts only, but those of a great number of men; yet they are not strictly and properly obliged to give account of their actions to any, unless the whole body of the nation for which they serve, and who are equally concerned in their resolutions, could be assembled. This being impracticable, the only punishment to which they are subject if they betray their trust, is scorn, infamy, hatred, and an assurance of being rejected, when they shall again seek the same honor. And tho this may seem a small matter to those who fear to do ill only from a sense of the pains inflicted; yet it is very terrible to men of ingenuous spirits, as they are supposed to be who are accounted fit to be entrusted with so great powers. But why should this be liberty with a mischief if it were otherwise? or how the liberty of particular societies would be greater, if they might do what they pleased, than whilst they send others to act for them, such wise men only as Filmer can tell us. For as no man, or number of men, can give a power which he or they have not, the Achaeans, Aetolians, Latins, Samnites and Tuscans, who transacted all things relating to their associations by delegates; and the Athenians, Carthaginians and Romans, who kept the power of the state in themselves, were all equally free. And in our days, the United Provinces of the Netherlands, the Switsers and Grisons, who are of the first sort, and the Venetians, Genoese, and Lucchesi, who are of the other, are so also. All men that have any degree of common sense, plainly see, that the liberty of those who act in their own persons, and of those who send delegates, is perfectly the same, and the exercise is, and can only be changed by their consent.

But whatever the law or custom of England be in this point, it cannot concern our question. The general proposition concerning a patriarchical power cannot be proved by a single example. If there be a general power everywhere, forbidding nations to give instructions to their delegates, they can do it nowhere. If there be no such thing, every people may do it, unless they have deprived themselves of their right, all being born under the same condition. 'Tis to no purpose to say that the nations before mentioned had not kings, and therefore might act as they did. For if the general thesis be true, they must have kings; and if it be not, none are obliged to have them, unless they think fit, and the kings they make are their creatures. But many of these nations had either kings, or other magistrates in power like to them. The provinces of the Netherlands had dukes, earls, or marquesses: Genoa and Venice have dukes. If any on account of the narrowness of their territories have abstained from the name, it does not alter the case; for our dispute is not concerning the name, but the right. If that one man, who is in the principal magistracy of every nation, must be reputed the father of that people, and has a power which may not be limited by any law, it imports not what he is called. But if in small territories he may be limited by laws, he may be so also in the greatest. The least of men is a man as well as a giant: And those in the West-Indies who have not above twenty or thirty subjects able to bear arms, are kings as well as Xerxes. Every nation may divide itself into small parcels as some have done, by the same law they have restrained or abolished their kings, joined to one another, or taken their hazard of subsisting by themselves; acted by delegation, or retaining the power in their own persons; given finite or indefinite powers; reserved to themselves a power of punishing those who should depart from their duty, or referred it to their general assemblies. And that liberty, for which we contend as the gift of God and nature, remains equally to them all.

If men who delight in cavilling should say, that great kingdoms are not to be regulated by the examples of small states, I desire to know when it was, that God ordained great nations should be slaves, and deprived of all right to dispose matters relating to their government; whilst he left to such as had, or should divide themselves into small parcels, a right of making such constitutions as were most convenient for them. When this is resolved, we ought to be informed, what extent of territory is required to deserve the name of a great kingdom. Spain and France are esteemed great, and yet the deputies or procuradores of the several parts of Castile did in the cortes held at Madrid, in the beginning of Charles the fifth's reign, excuse themselves from giving the supplies he desired, because they had received no orders in that particular from the towns that sent them; and afterwards receiving express orders not to do it, they gave his majesty a flat denial. [2] The like was frequently done during the reigns of that great prince, and of his son Philip the second. And generally those procuradores never granted anything of importance to either of them, without particular orders from their principals. The same way was taken in France, as long as there were any general assemblies of estates; and if it do not still continue, 'tis because there are none. For no man who understood the affairs of that kingdom, did ever deny, that the deputies were obliged to follow the orders of those who sent them. And perhaps, if men would examine by what means they came to be abolished, they might find, that the cardinals de Richelieu and Mazarin, with other ministers who have accomplished that work, were acted by some other principle than that of justice, or the establishment of the laws of God and nature. In the general assembly of estates held at Blois in the time of Henry the third, Bodin then deputy for the third estate of Vermandois, by their particular order, proposed so many things as took up a great part of their time. Other deputies alleged no other reason for many things said and done by them, highly contrary to the king's will, than that they were commanded so to do by their superiors. [3] These general assemblies being laid aside, the same custom is still used in the lesser assemblies of estates in Languedoc and Brittany. The deputies cannot without the infamy of betraying their trust, and fear of punishment, recede from the orders given by their principals; and yet we do not find that liberty with a mischief is much more predominant in France than amongst us. The same method is every day practised in the diets of Germany. The princes and great lords, who have their places in their own right, may do what they please; but the deputies of the cities must follow such orders as they receive. The histories of Denmark, Sweden, Poland and Bohemia, testify the same thing: and if this liberty with a mischief do not still continue entire in all those places, it has been diminished by such means as suit better with the manners of pirates, than the laws of God and nature. If England therefore do not still enjoy the same, we must have been deprived of it either by such unjustifiable means, or by our own consent. But thanks be to God, we know no people who have a better right to liberty, or have better defended it than our own nation. And if we do not degenerate from the virtue of our ancestors, we may hope to transmit it entire to our posterity. We always may, and often do give instructions to our delegates; but the less we fetter them, the more we manifest our own rights: for those who have only a limited power, must limit that which they give; but he that can give an unlimited power must necessarily have it in himself. The great treasurer Burleigh said, the parliament could do anything but turn a man into a woman. Sir Thomas More, when Rich solicitor to K. Henry the 8th asked him, if the parliament might not make R. Rich king, said, that was casus levis , [4] taking it for granted that they might make or unmake whom they pleased. The first part of this, which includes the other, is asserted by the statute of the 13th of Q. Elizabeth, denouncing the most grievous punishments against all such as should dare to contradict it. But if it be in the parliament, it must be in those who give to parliament-men the powers by which they act; for before they are chosen they have none, and can never have any if those that send them had it not in themselves. They cannot receive it from the magistrate, for that power which he has is derived from the same spring. The power of making and unmaking him cannot be from himself; for he that is not, can do nothing, and when he is made can have no other power than is conferred upon him by those that make him. He who departs from his duty desires to avoid the punishment, the power therefore of punishing him is not from himself. It cannot be from the house of peers as it is constituted, for they act for themselves, and are chosen by kings: and 'tis absurd to think that kings, who generally abhor all restriction of their power, should give that to others by which they might be unmade. If one or more princes relying upon their own virtue and resolutions to do good, had given such a power against themselves, as Trajan did, when he commanded the prefect to use the sword for him if he governed well, and against him if he governed ill, it would soon have been rescinded by their successors. If our Edward the first had made such a law, his lewd son would have abolished it, before he would have suffered himself to be imprisoned and deposed by it. He would never have acknowledged his unworthiness to reign, if he had been tied to no other law than his own will, for he could not transgress that; nor have owned the mercy of the parliament in sparing his life, if they had acted only by a power which he had conferred upon them. This power must therefore be in those who act by a delegated power, and none can give it to their delegates but they who have it in themselves. The most certain testimony that can be given of their unlimited power is, that they rely upon the wisdom and fidelity of their deputies, so as to lay no restrictions upon them: they may do what they please, if they take care ne quid detrimenti respublica accipiat, that the commonwealth receive no detriment . This is a commission fit to be granted by wise and good men, to those they chuse through an opinion that they are so also, and that they cannot bring any prejudice upon the nation, that will not fall upon themselves and their posterity. This is also fit to be received by those, who seeking nothing but that which is just in itself, and profitable to their country, cannot foresee what will be proposed when they are all together; much less resolve how to vote till they hear the reasons on both sides. The electors must necessarily be in the same ignorance; and the law which should oblige them to give particular orders to their knights and burgesses in relation to every vote, would make the decision of the most important affairs to depend upon the judgment of those who know nothing of the matters in question, and by that means cast the nation into the utmost danger of the most inextricable confusion. This can never be the intention of that law which is sanctio recta , [5] and seeks only the good of those that live under it. The foresight therefore of such a mischief can never impair the liberties of the nation, but establish them.

[1] [Patriarcha, ch. 30.]

[2] Vida de Carlos 5 de Sandoval. [Prudencio de Sandoval, Historia de la Vida y Hechos del Emperador Carlos V (1604-06).]

[3] Hist. Thuan. [De Thou, History of His Time, bk. 63.]

[4] [An easy case.]

[5] [A right sanction.]