revelation, depend all human laws; that is to say, no human laws
should be suffered to contradict these. There is, it is true, a great
number of indifferent points, in which both the divine law and the
natural leave a man at his own liberty; but which are found necessary
for the benefit of society to be restrained within certain limits. And
herein it is that human laws have their greatest force and efficacy;
for, with regard to such points as are not indifferent, human laws are
only declaratory of, and act in subordination to, the former. To
instance in the case of murder: this is expressly forbidden by the
divine, and demonstrably by the natural law; and from these
prohibitions arises the true unlawfulness of this crime. Those human
laws, that annex a punishment to it, do not at all increase it's moral
guilt, or superadd any fresh obligation _in foro conscientiae_ to
abstain from it's perpetration. Nay, if any human law should allow or
injoin us to commit it, we are bound to transgress that human law, or
else we must offend both the natural and the divine. But with regard
to matters that are in themselves indifferent, and are not commanded
or forbidden by those superior laws; such, for instance, as exporting
of wool into foreign countries; here the inferior legislature has
scope and opportunity to interpose, and to make that action unlawful
which before was not so.
IF man were to live in a state of nature, unconnected with other
individuals, there would be no occasion for any other laws, than the
law of nature, and the law of God. Neither could any other law
possibly exist; for a law always supposes some superior who is to make
it; and in a state of nature we are all equal, without any other
superior but him who is the author of our being. But man was formed
for society; and, as is demonstrated by the writers on this
subject[b], is neither capable of living alone, nor indeed has the
courage to do it. However, as it is impossible for the whole race of
mankind to be united in one great society, they must necessarily
divide into many; and form separate states, commonwealths, and
nations; entirely independent of each other, and yet liable to a
mutual intercourse. Hence arises a third kind of law to regulate this
mutual intercourse, called "the law of nations;" which, as none of
these states will acknowlege a superiority in the other, cannot be
dictated by either; but depends entirely upon the rules of natural
law, or upon mutual compacts, treaties, leagues, and agreements
between these several communities: in the construction also of which
compacts we have no other rule to resort to, but the law of nature;
being the only one to which both communities are equally subject: and
therefore the civil law[c] very justly observes, that _quod naturalis
ratio inter omnes homines constituit, vocatur jus gentium_.
[Footnote b: Puffendorf, _l._ 7. _c._ 1. compared with Barbeyrac's
commentary.]
[Footnote c: _Ff._ 1. 1. 9.]
THUS much I thought it necessary to premise concerning the law of
nature, the revealed law, and the law of nations, before I proceeded
to treat more fully of the principal subject of this section,
municipal or civil law; that is, the rule by which particular
districts, communities, or nations are governed; being thus defined by
Justinian[d], "_jus civile est quod quisque sibi populus constituit_."
I call it _municipal_ law, in compliance with common speech; for, tho'
strictly that expression denotes the particular customs of one single
_municipium_ or free town, yet it may with sufficient propriety be
applied to any one state or nation, which is governed by the same laws
and customs.
[Footnote d: _Inst._ 1. 2. 1.]
MUNICIPAL law, thus understood, is properly defined to be "a rule of
civil conduct prescribed by the supreme power in a state, commanding
what is right and prohibiting what is wrong." Let us endeavour to
explain it's several properties, as they arise out of this definition.
AND, first, it is a _rule_; not a transient sudden order from a
superior to or concerning a particular person; but something
permanent, uniform, and universal. Therefore a particular act of the
legislature to confiscate the goods of Titius, or to attaint him of
high treason, does not enter into the idea of a municipal law: for the
operation of this act is spent upon Titius only, and has no relation
to the community in general; it is rather a sentence than a law. But
an act to declare that the crime of which Titius is accused shall be
deemed high treason; this has permanency, uniformity, and
universality, and therefore is properly a _rule_. It is also called a
_rule_, to distinguish it from _advice_ or _counsel_, which we are at
liberty to follow or not, as we see proper; and to judge upon the
reasonableness or unreasonableness of the thing advised. Whereas our
obedience to the _law_ depends not upon _our approbation_, but upon
the _maker's will_. Counsel is only matter of persuasion, law is
matter of injunction; counsel acts only upon the willing, law upon the
unwilling also.
IT is also called a _rule_, to distinguish it from a _compact_ or
_agreement_; for a compact is a promise proceeding _from_ us, law is a
command directed _to_ us. The language of a compact is, "I will, or
will not, do this;" that of a law is, "thou shalt, or shalt not, do
it." It is true there is an obligation which a compact carries with
it, equal in point of conscience to that of a law; but then the
original of the obligation is different. In compacts, we ourselves
determine and promise what shall be done, before we are obliged to do
it; in laws, we are obliged to act, without ourselves determining or
promising any thing at all. Upon these accounts law is defined to be
"_a rule_."
MUNICIPAL law is also "a rule _of civil conduct_." This distinguishes
municipal law from the natural, or revealed; the former of which is
the rule of _moral_ conduct, and the latter not only the rule of moral
conduct, but also the rule of faith. These regard man as a creature,
and point out his duty to God, to himself, and to his neighbour,
considered in the light of an individual. But municipal or civil law
regards him also as a citizen, and bound to other duties towards his
neighbour, than those of mere nature and religion: duties, which he
has engaged in by enjoying the benefits of the common union; and which
amount to no more, than that he do contribute, on his part, to the
subsistence and peace of the society.
IT is likewise "a rule _prescribed_." Because a bare resolution,
confined in the breast of the legislator, without manifesting itself
by some external sign, can never be properly a law. It is requisite
that this resolution be notified to the people who are to obey it. But
the manner in which this notification is to be made, is matter of very
great indifference. It may be notified by universal tradition and long
practice, which supposes a previous publication, and is the case of
the common law of England. It may be notified, _viva voce_, by
officers appointed for that purpose, as is done with regard to
proclamations, and such acts of parliament as are appointed to be
publicly read in churches and other assemblies. It may lastly be
notified by writing, printing, or the like; which is the general
course taken with all our acts of parliament. Yet, whatever way is
made use of, it is incumbent on the promulgators to do it in the most
public and perspicuous manner; not like Caligula, who (according to
Dio Cassius) wrote his laws in a very small character, and hung them
up upon high pillars, the more effectually to ensnare the people.
There is still a more unreasonable method than this, which is called
making of laws _ex post facto_; when _after_ an action is committed,
the legislator then for the first time declares it to have been a
crime, and inflicts a punishment upon the person who has committed it;
here it is impossible that the party could foresee that an action,
innocent when it was done, should be afterwards converted to guilt by
a subsequent law; he had therefore no cause to abstain from it; and
all punishment for not abstaining must of consequence be cruel and
unjust[e]. All laws should be therefore made to commence _in futuro_,
and be notified before their commencement; which is implied in the
term "_prescribed_." But when this rule is in the usual manner
notified, or prescribed, it is then the subject's business to be
thoroughly acquainted therewith; for if ignorance, of what he _might_
know, were admitted as a legitimate excuse, the laws would be of no
effect, but might always be eluded with impunity.
[Footnote e: Such laws among the Romans were denominated _privilegia_,
or private laws, of which Cicero _de leg._ 3. 19. and in his oration
_pro domo_, 17. thus speaks; "_Vetant leges sacratae, vetant duodecim
tabulae, leges privatis hominibus irrogari; id enim est privilegium.
Nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod
minus haec civitas ferre possit_."]
BUT farther: municipal law is "a rule of civil conduct prescribed _by
the supreme power in a state_." For legislature, as was before
observed, is the greatest act of superiority that can be exercised by
one being over another. Wherefore it is requisite to the very essence
of a law, that it be made by the supreme power. Sovereignty and
legislature are indeed convertible terms; one cannot subsist without
the other.
THIS will naturally lead us into a short enquiry concerning the nature
of society and civil government; and the natural, inherent right that
belongs to the sovereignty of a state, wherever that sovereignty be
lodged, of making and enforcing laws.
THE only true and natural foundations of society are the wants and the
fears of individuals. Not that we can believe, with some theoretical
writers, that there ever was a time when there was no such thing as
society; and that, from the impulse of reason, and through a sense of
their wants and weaknesses, individuals met together in a large plain,
entered into an original contract, and chose the tallest man present
to be their governor. This notion, of an actually existing unconnected
state of nature, is too wild to be seriously admitted; and besides it
is plainly contradictory to the revealed accounts of the primitive
origin of mankind, and their preservation two thousand years
afterwards; both which were effected by the means of single families.
These formed the first society, among themselves; which every day
extended it's limits, and when it grew too large to subsist with
convenience in that pastoral state, wherein the patriarchs appear to
have lived, it necessarily subdivided itself by various migrations
into more. Afterwards, as agriculture increased, which employs and can
maintain a much greater number of hands, migrations became less
frequent; and various tribes, which had formerly separated, re-united
again; sometimes by compulsion and conquest, sometimes by accident,
and sometimes perhaps by compact. But though society had not it's
formal beginning from any convention of individuals, actuated by their
wants and their fears; yet it is the _sense_ of their weakness and
imperfection that _keeps_ mankind together; that demonstrates the
necessity of this union; and that therefore is the solid and natural
foundation, as well as the cement, of society. And this is what we
mean by the original contract of society; which, though perhaps in no
instance it has ever been formally expressed at the first institution
of a state, yet in nature and reason must always be understood and
implied, in the very act of associating together: namely, that the
whole should protect all it's parts, and that every part should pay
obedience to the will of the whole; or, in other words, that the
community should guard the rights of each individual member, and that
(in return for this protection) each individual should submit to the
laws of the community; without which submission of all it was
impossible that protection could be certainly extended to any.
FOR when society is once formed, government results of course, as
necessary to preserve and to keep that society in order. Unless some
superior were constituted, whose commands and decisions all the
members are bound to obey, they would still remain as in a state of
nature, without any judge upon earth to define their several rights,
and redress their several wrongs. But, as all the members of society
are naturally equal, it may be asked, in whose hands are the reins of
government to be entrusted? To this the general answer is easy; but
the application of it to particular cases has occasioned one half of
those mischiefs which are apt to proceed from misguided political
zeal. In general, all mankind will agree that government should be
reposed in such persons, in whom those qualities are most likely to be
found, the perfection of which are among the attributes of him who is
emphatically stiled the supreme being; the three grand requisites, I
mean, of wisdom, of goodness, and of power: wisdom, to discern the
real interest of the community; goodness, to endeavour always to
pursue that real interest; and strength, or power, to carry this
knowlege and intention into action. These are the natural foundations
of sovereignty, and these are the requisites that ought to be found in
every well constituted frame of government.
HOW the several forms of government we now see in the world at first
actually began, is matter of great uncertainty, and has occasioned
infinite disputes. It is not my business or intention to enter into
any of them. However they began, or by what right soever they
subsist, there is and must be in all of them a supreme, irresistible,
absolute, uncontrolled authority, in which the _jura summi imperii_,
or the rights of sovereignty, reside. And this authority is placed in
those hands, wherein (according to the opinion of the founders of such
respective states, either expressly given, or collected from their
tacit approbation) the qualities requisite for supremacy, wisdom,
goodness, and power, are the most likely to be found.
THE political writers of antiquity will not allow more than three
regular forms of government; the first, when the sovereign power is
lodged in an aggregate assembly consisting of all the members of a
community, which is called a democracy; the second, when it is lodged
in a council, composed of select members, and then it is stiled an
aristocracy; the last, when it is entrusted in the hands of a single
person, and then it takes the name of a monarchy. All other species of
government, they say, are either corruptions of, or reducible to,
these three.
BY the sovereign power, as was before observed, is meant the making of
laws; for wherever that power resides, all others must conform to, and
be directed by it, whatever appearance the outward form and
administration of the government may put on. For it is at any time in
the option of the legislature to alter that form and administration by
a new edict or rule, and to put the execution of the laws into
whatever hands it pleases: and all the other powers of the state must
obey the legislative power in the execution of their several
functions, or else the constitution is at an end.
IN a democracy, where the right of making laws resides in the people
at large, public virtue, or goodness of intention, is more likely to
be found, than either of the other qualities of government. Popular
assemblies are frequently foolish in their contrivance, and weak in
their execution; but generally mean to do the thing that is right and
just, and have always a degree of patriotism or public spirit. In
aristocracies there is more wisdom to be found, than in the other
frames of government; being composed, or intended to be composed, of
the most experienced citizens; but there is less honesty than in a
republic, and less strength than in a monarchy. A monarchy is indeed
the most powerful of any, all the sinews of government being knit
together, and united in the hand of the prince; but then there is
imminent danger of his employing that strength to improvident or
oppressive purposes.
THUS these three species of government have, all of them, their
several perfections and imperfections. Democracies are usually the
best calculated to direct the end of a law; aristocracies to invent
the means by which that end shall be obtained; and monarchies to carry
those means into execution. And the antients, as was observed, had in
general no idea of any other permanent form of government but these
three; for though Cicero[f] declares himself of opinion, "_esse optime
constitutam rempublicam, quae ex tribus generibus illis, regali,
optimo, et populari, sit modice confusa_;" yet Tacitus treats this
notion of a mixed government, formed out of them all, and partaking of
the advantages of each, as a visionary whim; and one that, if
effected, could never be lasting or secure[g].
[Footnote f: In his fragments _de rep._ _l._ 2.]
[Footnote g: "_Cunctas nationes et urbes populus, aut primores, aut
singuli regunt: delecta ex his, et constituta reipublicae forma
laudari facilius quam evenire, vel, si evenit, haud diuturna esse
potest._" _Ann._ _l._ 4.]
BUT happily for us of this island, the British constitution has long
remained, and I trust will long continue, a standing exception to the
truth of this observation. For, as with us the executive power of the
laws is lodged in a single person, they have all the advantages of
strength and dispatch, that are to be found in the most absolute
monarchy; and, as the legislature of the kingdom is entrusted to three
distinct powers, entirely independent of each other; first, the king;
secondly, the lords spiritual and temporal, which is an aristocratical
assembly of persons selected for their piety, their birth, their
wisdom, their valour, or their property; and, thirdly, the house of
commons, freely chosen by the people from among themselves, which
makes it a kind of democracy; as this aggregate body, actuated by
different springs, and attentive to different interests, composes the
British parliament, and has the supreme disposal of every thing; there
can no inconvenience be attempted by either of the three branches, but
will be withstood by one of the other two; each branch being armed
with a negative power, sufficient to repel any innovation which it
shall think inexpedient or dangerous.
HERE then is lodged the sovereignty of the British constitution; and
lodged as beneficially as is possible for society. For in no other
shape could we be so certain of finding the three great qualities of
government so well and so happily united. If the supreme power were
lodged in any one of the three branches separately, we must be exposed
to the inconveniences of either absolute monarchy, aristocracy, or
democracy; and so want two of the three principal ingredients of good
polity, either virtue, wisdom, or power. If it were lodged in any two
of the branches; for instance, in the king and house of lords, our
laws might be providently made, and well executed, but they might not
always have the good of the people in view: if lodged in the king and
commons, we should want that circumspection and mediatory caution,
which the wisdom of the peers is to afford: if the supreme rights of
legislature were lodged in the two houses only, and the king had no
negative upon their proceedings, they might be tempted to encroach
upon the royal prerogative, or perhaps to abolish the kingly office,
and thereby weaken (if not totally destroy) the strength of the
executive power. But the constitutional government of this island is
so admirably tempered and compounded, that nothing can endanger or
hurt it, but destroying the equilibrium of power between one branch of
the legislature and the rest. For if ever it should happen that the
independence of any one of the three should be lost, or that it should
become subservient to the views of either of the other two, there
would soon be an end of our constitution. The legislature would be
changed from that, which was originally set up by the general consent
and fundamental act of the society; and such a change, however
effected, is according to Mr Locke[h] (who perhaps carries his theory
too far) at once an entire dissolution of the bands of government; and
the people would be reduced to a state of anarchy, with liberty to
constitute to themselves a new legislative power.
[Footnote h: On government, part 2. Sec. 212.]
HAVING thus cursorily considered the three usual species of
government, and our own singular constitution, selected and compounded
from them all, I proceed to observe, that, as the power of making laws
constitutes the supreme authority, so wherever the supreme authority
in any state resides, it is the right of that authority to make laws;
that is, in the words of our definition, _to prescribe the rule of
civil action_. And this may be discovered from the very end and
institution of civil states. For a state is a collective body,
composed of a multitude of individuals, united for their safety and
convenience, and intending to act together as one man. If it therefore
is to act as one man, it ought to act by one uniform will. But,
inasmuch as political communities are made up of many natural persons,
each of whom has his particular will and inclination, these several
wills cannot by any _natural_ union be joined together, or tempered
and disposed into a lasting harmony, so as to constitute and produce
that one uniform will of the whole. It can therefore be no otherwise
produced than by a _political_ union; by the consent of all persons to
submit their own private wills to the will of one man, or of one or
more assemblies of men, to whom the supreme authority is entrusted:
and this will of that one man, or assemblage of men, is in different
states, according to their different constitutions, understood to be
_law_.
THUS far as to the _right_ of the supreme power to make laws; but
farther, it is it's _duty_ likewise. For since the respective members
are bound to conform themselves to the will of the state, it is
expedient that they receive directions from the state declaratory of
that it's will. But since it is impossible, in so great a multitude,
to give injunctions to every particular man, relative to each
particular action, therefore the state establishes general rules, for
the perpetual information and direction of all persons in all points,
whether of positive or negative duty. And this, in order that every
man may know what to look upon as his own, what as another's; what
absolute and what relative duties are required at his hands; what is
to be esteemed honest, dishonest, or indifferent; what degree every
man retains of his natural liberty; what he has given up as the price
of the benefits of society; and after what manner each person is to
moderate the use and exercise of those rights which the state assigns
him, in order to promote and secure the public tranquillity.
FROM what has been advanced, the truth of the former branch of our
definition, is (I trust) sufficiently evident; that "_municipal law is
a rule of civil conduct prescribed by the supreme power in a state_."
I proceed now to the latter branch of it; that it is a rule so
prescribed, "_commanding what is right, and prohibiting what is
wrong_."
NOW in order to do this completely, it is first of all necessary that
the boundaries of right and wrong be established and ascertained by
law. And when this is once done, it will follow of course that it is
likewise the business of the law, considered as a rule of civil
conduct, to enforce these rights and to restrain or redress these
wrongs. It remains therefore only to consider in what manner the law
is said to ascertain the boundaries of right and wrong; and the
methods which it takes to command the one and prohibit the other.
FOR this purpose every law may be said to consist of several parts:
one, _declaratory_; whereby the rights to be observed, and the wrongs
to be eschewed, are clearly defined and laid down: another,
_directory_, whereby the subject is instructed and enjoined to observe
those rights, and to abstain from the commission of those wrongs: a
third, _remedial_; whereby a method is pointed out to recover a man's
private rights, or redress his private wrongs: to which may be added a
fourth, usually termed the _sanction_, or _vindicatory_ branch of the
law; whereby it is signified what evil or penalty shall be incurred by
such as commit any public wrongs, and transgress or neglect their
duty.