CHAPTER XVI OF PERSONS, AUTHORS, AND THINGS PERSONATED
A PERSON is he ‘whose words or actions are considered, either as his own or as representing the words or actions of another man, or of any other thing, to whom they are attributed, whether truly or by fiction.’
When they are considered as his own, then is he called a ‘natural person’; and, when they are considered as representing the words and actions of another, then is he a ‘feigned’ or ‘artificial person.’
The word person is Latin; instead whereof the Greeks have πρóσωπον, which signifies the ‘face,’as persona in Latin signifies the ‘disguise’ or ‘outward appearance’ of a man, counterfeited on the stage, and sometimes more particularly that part of it which disguiseth the face, as a mask or vizard, and from the stage hath been translated to any representer of speech and action, as well in tribunals as theatres. So that a ‘person’ is the same that an ‘actor’ is, both on the stage and in common conversation; and to ‘personate’ is to ‘act,’ or ‘represent,’ himself or another; and he that acteth another is said to bear his person, or act in his name, in which sense Cicero useth it where he says: Unus sustineo tres personas; mei, adversarii, et judicis: I bear three persons: my own, my adversary's, and the judge's; and is called in diverse occasions, diversely: as a ‘representer’ or ‘representative,’ a ‘lieutenant,’ a ‘vicar,’ and ‘attorney,’ a ‘deputy,’ a ‘procurator,’ an ‘actor,’ and the like.
Of persons artificial some have their words and actions ‘owned’ by those whom they represent. And then the person is the ‘actor,’ and he that owneth his words and actions is the ‘author,’ in which case the actor acteth by authority. For that which in speaking of goods and possessions is called an ‘owner’ and in Latin dominus, in Greek χ'υριοs; speaking of actions is called author. And as the right of possession is called dominion, so the right of doing any action is called ‘authority.’ So that by authority is always understood a right of doing any act, and ‘done by authority,’ done by commission or license from him whose right it is.
From hence it followeth that, when the actor maketh a covenant by authority, he bindeth thereby the author no less than if he had made it himself, and no less subjecteth him to all the consequences of the same. And therefore all that hath been said formerly (chap. xiv) of the nature of covenants between man and man in their natural capacity is true also when they are made by their actors, representers, or procurators, that have authority from them, so far forth as is in their commission, but no further.
And therefore he that maketh a covenant with the actor or representer, not knowing the authority he hath, doth it at his own peril. For no man is obliged by a covenant whereof he is not author, nor consequently by a covenant made against or beside the authority he gave.
When the actor doth anything against the law of Nature by command of the author, if he be obliged by former covenant to obey him, not he but the author breaketh the law of Nature; for, though the action be against the law of Nature, yet it is not his; but, contrarily, to refuse to do it, is against the law of Nature, that forbiddeth breach of covenant.
And he that maketh a covenant with the author by mediation of the actor, not knowing what authority he hath, but only takes his word, in case such authority be not made manifest unto him upon demand, is no longer obliged, for the covenant made with the author is not valid without his counter-assurance. But if he that so covenanteth knew beforehand he was to expect no other assurance than the actor's word, then is the covenant valid, because the actor in this case maketh himself the author. And therefore, as when the authority is evident, the covenant obligeth the author, not the actor, so, when the authority is feigned, it obligeth the actor only, there being no author but himself.
There are few things that are incapable of being represented by fiction. Inanimate things, as a church, an hospital, a bridge, may be personated by a rector, master, or overseer. But things inanimate cannot be authors, nor therefore give authority to their actors; yet the actors may have authority to procure their maintenance, given them by those that are owners or governors of those things. And therefore such things cannot be personated before there be some state of civil government.
Likewise children, fools, and madmen, that have no use of reason, may be personated by guardians or curators, but can be no authors, during that time, of any action done by them longer than, when they shall recover the use of reason, they shall judge the same reasonable. Yet during the folly he that hath right of governing them may give authority to the guardian. But this again has no place but in a state civil, because before such estate there is no dominion of persons.
An idol, or mere figment of the brain, may be personated, as were the gods of the heathen, which, by such officers as the state appointed, were personated, and held possessions and other goods and rights, which men from time to time dedicated and consecrated unto them. But idols cannot be authors, for an idol is nothing. The authority proceeded from the state; and therefore before introduction of civil government the gods of the heathen could not be personated.
The true God may be personated. As He was, first, by Moses, who governed the Israelites, that were not his, but God's people, not in his own name, with hoc dicit Moses, but in God's name, with hoc dicit Dominus. Secondly, by the Son of man, His own Son, our blessed Saviour Jesus Christ, that came to reduce the Jews, and induce all nations into the kingdom of His Father, not as of Himself but as sent from His Father. And thirdly, by the Holy Ghost or Comforter, speaking and working in the Apostles, which Holy Ghost was a Comforter that came not of Himself, but was sent and proceeded from them both.
A multitude of men are made ‘one’ person when they are by one man or one person represented, so that it be done with the consent of every one of that multitude in particular. For it is the ‘unity’ of the representer, not the ‘unity’ of the represented, that maketh the person ‘one.’ And it is the representer that beareth the person, and but one person; and ‘unity’ cannot otherwise be understood in multitude.
And because the multitude naturally is not ‘one’ but ‘many,’ they cannot be understood for one, but many authors, of everything their representative saith or doth in their name, every man giving their common representer authority from himself in particular, and owning all the actions the representer doth, in case they give him authority without stint; otherwise, when they limit him in what and how far he shall represent them, none of them owneth more than they gave him commission to act.
And, if the representative consist of many men, the voice of the greater number must be considered as the voice of them all. For if the lesser number pronounce, for example in the affirmative, and the greater in the negative, there will be negatives more than enough to destroy the affirmatives; and thereby the excess of negatives, standing uncontradicted, are the only voice the representative hath.
And a representative of even number, especially when the number is not great, whereby the contradictory voices are oftentimes equal, is therefore oftentimes mute and incapable of action. Yet in some cases contradictory voices equal in number may determine a question, as in condemning or absolving, equality of votes, even in that they condemn not, do absolve, but not on the contrary condemn in that they absolve not. For when a cause is heard, not to condemn is to absolve; but, on the contrary, to say that not absolving is condemning is not true. The like it is in a deliberation of executing presently or deferring till another time; for when the voices are equal, the not decreeing execution is a decree of dilation.
Or if the number be odd, as three or more, men or assemblies, whereof every one has by a negative voice authority to take away the effect of all the affirmative voices of the rest, this number is no representative; because, by the diversity of opinions and interests of men, it becomes oftentimes, and in cases of the greatest consequence, a mute person and unapt, as for many things else; so for the government of a multitude, especially in time of war.
Of authors there be two sorts. The first simply so called; which I have before defined to be him that owneth the action of another simply. The second is he that owneth an action or covenant of another conditionally, that is to say, he undertaketh to do it if the other doth it not at or before a certain time. And these authors conditional are generally called ‘sureties,’ in Latin, fidejussores, and sponsores, and particularly for debt, praedes; and for appearance before a judge or magistrate, vades.