MAN, considered as a creature, must necessarily be subject to the laws
of his creator, for he is entirely a dependent being. A being,
independent of any other, has no rule to pursue, but such as he
prescribes to himself; but a state of dependance will inevitably
oblige the inferior to take the will of him, on whom he depends, as
the rule of his conduct: not indeed in every particular, but in all
those points wherein his dependance consists. This principle therefore
has more or less extent and effect, in proportion as the superiority
of the one and the dependance of the other is greater or less,
absolute or limited. And consequently as man depends absolutely upon
his maker for every thing, it is necessary that he should in all
points conform to his maker's will.
THIS will of his maker is called the law of nature. For as God, when
he created matter, and endued it with a principle of mobility,
established certain rules for the perpetual direction of that motion;
so, when he created man, and endued him with freewill to conduct
himself in all parts of life, he laid down certain immutable laws of
human nature, whereby that freewill is in some degree regulated and
restrained, and gave him also the faculty of reason to discover the
purport of those laws.
CONSIDERING the creator only as a being of infinite _power_, he was
able unquestionably to have prescribed whatever laws he pleased to his
creature, man, however unjust or severe. But as he is also a being of
infinite _wisdom_, he has laid down only such laws as were founded in
those relations of justice, that existed in the nature of things
antecedent to any positive precept. These are the eternal, immutable
laws of good and evil, to which the creator himself in all his
dispensations conforms; and which he has enabled human reason to
discover, so far as they are necessary for the conduct of human
actions. Such among others are these principles: that we should live
honestly, should hurt nobody, and should render to every one it's due;
to which three general precepts Justinian[a] has reduced the whole
doctrine of law.
[Footnote a: _Juris praecepta sunt haec, honeste vivere, alterum non
laedere, suum cuique tribuere._ _Inst._ 1. 1. 3.]
BUT if the discovery of these first principles of the law of nature
depended only upon the due exertion of right reason, and could not
otherwise be attained than by a chain of metaphysical disquisitions,
mankind would have wanted some inducement to have quickened their
inquiries, and the greater part of the world would have rested content
in mental indolence, and ignorance it's inseparable companion. As
therefore the creator is a being, not only of infinite _power_, and
_wisdom_, but also of infinite _goodness_, he has been pleased so to
contrive the constitution and frame of humanity, that we should want
no other prompter to enquire after and pursue the rule of right, but
only our own self-love, that universal principle of action. For he has
so intimately connected, so inseparably interwoven the laws of eternal
justice with the happiness of each individual, that the latter cannot
be attained but by observing the former; and, if the former be
punctually obeyed, it cannot but induce the latter. In consequence of
which mutual connection of justice and human felicity, he has not
perplexed the law of nature with a multitude of abstracted rules and
precepts, referring merely to the fitness or unfitness of things, as
some have vainly surmised; but has graciously reduced the rule of
obedience to this one paternal precept, "that man should pursue his
own happiness." This is the foundation of what we call ethics, or
natural law. For the several articles into which it is branched in our
systems, amount to no more than demonstrating, that this or that
action tends to man's real happiness, and therefore very justly
concluding that the performance of it is a part of the law of nature;
or, on the other hand, that this or that action is destructive of
man's real happiness, and therefore that the law of nature forbids it.
THIS law of nature, being co-eval with mankind and dictated by God
himself, is of course superior in obligation to any other. It is
binding over all the globe, in all countries, and at all times: no
human laws are of any validity, if contrary to this; and such of them
as are valid derive all their force, and all their authority,
mediately or immediately, from this original.
BUT in order to apply this to the particular exigencies of each
individual, it is still necessary to have recourse to reason; whose
office it is to discover, as was before observed, what the law of
nature directs in every circumstance of life; by considering, what
method will tend the most effectually to our own substantial
happiness. And if our reason were always, as in our first ancestor
before his transgression, clear and perfect, unruffled by passions,
unclouded by prejudice, unimpaired by disease or intemperance, the
task would be pleasant and easy; we should need no other guide but
this. But every man now finds the contrary in his own experience; that
his reason is corrupt, and his understanding full of ignorance and
error.
THIS has given manifold occasion for the benign interposition of
divine providence; which, in companion to the frailty, the
imperfection, and the blindness of human reason, hath been pleased,
at sundry times and in divers manners, to discover and enforce it's
laws by an immediate and direct revelation. The doctrines thus
delivered we call the revealed or divine law, and they are to be found
only in the holy scriptures. These precepts, when revealed, are found
upon comparison to be really a part of the original law of nature, as
they tend in all their consequences to man's felicity. But we are not
from thence to conclude that the knowlege of these truths was
attainable by reason, in it's present corrupted state; since we find
that, until they were revealed, they were hid from the wisdom of ages.
As then the moral precepts of this law are indeed of the same original
with those of the law of nature, so their intrinsic obligation is of
equal strength and perpetuity. Yet undoubtedly the revealed law is
(humanly speaking) of infinitely more authority than what we generally
call the natural law. Because one is the law of nature, expressly
declared so to be by God himself; the other is only what, by the
assistance of human reason, we imagine to be that law. If we could be
as certain of the latter as we are of the former, both would have an
equal authority; but, till then, they can never be put in any
competition together.
UPON these two foundations, the law of nature and the law of
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. §. 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.
WITH regard to the first of these, the _declaratory_ part of the
municipal law, this depends not so much upon the law of revelation or
of nature, as upon the wisdom and will of the legislator. This
doctrine, which before was slightly touched, deserves a more
particular explication. Those rights then which God and nature have
established, and are therefore called natural rights, such as are life
and liberty, need not the aid of human laws to be more effectually
invested in every man than they are; neither do they receive any
additional strength when declared by the municipal laws to be
inviolable. On the contrary, no human legislature has power to abridge
or destroy them, unless the owner shall himself commit some act that
amounts to a forfeiture. Neither do divine or natural _duties_ (such
as, for instance, the worship of God, the maintenance of children, and
the like) receive any stronger sanction from being also declared to be
duties by the law of the land. The case is the same as to crimes and
misdemesnors, that are forbidden by the superior laws, and therefore
stiled _mala in se_, such as murder, theft, and perjury; which
contract no additional turpitude from being declared unlawful by the
inferior legislature. For that legislature in all these cases acts
only, as was before observed, in subordination to the great lawgiver,
transcribing and publishing his precepts. So that, upon the whole, the
declaratory part of the municipal law has no force or operation at
all, with regard to actions that are naturally and intrinsically right
or wrong.
BUT with regard to things in themselves indifferent, the case is
entirely altered. These become either right or wrong, just or unjust,
duties or misdemesnors, according as the municipal legislator sees
proper, for promoting the welfare of the society, and more effectually
carrying on the purposes of civil life. Thus our own common law has
declared, that the goods of the wife do instantly upon marriage become
the property and right of the husband; and our statute law has
declared all monopolies a public offence: yet that right, and this
offence, have no foundation in nature; but are merely created by the
law, for the purposes of civil society. And sometimes, where the thing
itself has it's rise from the law of nature, the particular
circumstances and mode of doing it become right or wrong, as the laws
of the land shall direct. Thus, for instance, in civil duties;
obedience to superiors is the doctrine of revealed as well as natural
religion: but who those superiors shall be, and in what circumstances,
or to what degrees they shall be obeyed, is the province of human laws
to determine. And so, as to injuries or crimes, it must be left to our
own legislature to decide, in what cases the seising another's cattle
shall amount to the crime of robbery; and where it shall be a
justifiable action, as when a landlord takes them by way of distress
for rent.
THUS much for the _declaratory_ part of the municipal law: and the
_directory_ stands much upon the same footing; for this virtually
includes the former, the declaration being usually collected from the
direction. The law that says, "thou shalt not steal," implies a
declaration that stealing is a crime. And we have seen that, in things
naturally indifferent, the very essence of right and wrong depends
upon the direction of the laws to do or to omit it.
THE _remedial_ part of a law is so necessary a consequence of the
former two, that laws must be very vague and imperfect without it. For
in vain would rights be declared, in vain directed to be observed, if
there were no method of recovering and asserting those rights, when
wrongfully withheld or invaded. This is what we mean properly, when we
speak of the protection of the law. When, for instance, the
_declaratory_ part of the law has said "that the field or inheritance,
which belonged to Titius's father, is vested by his death in Titius;"
and the _directory_ part has "forbidden any one to enter on another's
property without the leave of the owner;" if Gaius after this will
presume to take possession of the land, the _remedial_ part of the law
will then interpose it's office; will make Gaius restore the
possession to Titius, and also pay him damages for the invasion.
WITH regard to the _sanction_ of laws, or the evil that may attend the
breach of public duties; it is observed, that human legislators have
for the most part chosen to make the sanction of their laws rather
_vindicatory_ than _remuneratory_, or to consist rather in
punishments, than in actual particular rewards. Because, in the first
place, the quiet enjoyment and protection of all our civil rights and
liberties, which are the sure and general consequence of obedience to
the municipal law, are in themselves the best and most valuable of all
rewards. Because also, were the exercise of every virtue to be
enforced by the proposal of particular rewards, it were impossible for
any state to furnish stock enough for so profuse a bounty. And
farther, because the dread of evil is a much more forcible principle
of human actions than the prospect of good[i]. For which reasons,
though a prudent bestowing of rewards is sometimes of exquisite use,
yet we find that those civil laws, which enforce and enjoin our duty,
do seldom, if ever, propose any privilege or gift to such as obey the
law; but do constantly come armed with a penalty denounced against
transgressors, either expressly defining the nature and quantity of
the punishment, or else leaving it to the discretion of the judges,
and those who are entrusted with the care of putting the laws in
execution.
[Footnote i: Locke, Hum. Und. b. 2. c. 21.]
OF all the parts of a law the most effectual is the _vindicatory_. For
it is but lost labour to say, "do this, or avoid that," unless we also
declare, "this shall be the consequence of your noncompliance." We
must therefore observe, that the main strength and force of a law
consists in the penalty annexed to it. Herein is to be found the
principal obligation of human laws.
LEGISLATORS and their laws are said to _compel_ and _oblige_; not that
by any natural violence they so constrain a man, as to render it
impossible for him to act otherwise than as they direct, which is the
strict sense of obligation: but because, by declaring and exhibiting a
penalty against offenders, they bring it to pass that no man can
easily choose to transgress the law; since, by reason of the impending
correction, compliance is in a high degree preferable to disobedience.
And, even where rewards are proposed as well as punishments
threatened, the obligation of the law seems chiefly to consist in the
penalty: for rewards, in their nature, can only _persuade_ and
_allure_; nothing is _compulsory_ but punishment.
IT is held, it is true, and very justly, by the principal of our
ethical writers, that human laws are binding upon mens consciences.
But if that were the only, or most forcible obligation, the good only
would regard the laws, and the bad would set them at defiance. And,
true as this principle is, it must still be understood with some
restriction. It holds, I apprehend, as to _rights_; and that, when the
law has determined the field to belong to Titius, it is matter of
conscience no longer to withhold or to invade it. So also in regard to
_natural duties_, and such offences as are _mala in se_: here we are
bound in conscience, because we are bound by superior laws, before
those human laws were in being, to perform the one and abstain from
the other. But in relation to those laws which enjoin only _positive
duties_, and forbid only such things as are not _mala in se_ but _mala
prohibita_ merely, annexing a penalty to noncompliance, here I
apprehend conscience is no farther concerned, than by directing a
submission to the penalty, in case of our breach of those laws: for
otherwise the multitude of penal laws in a state would not only be
looked upon as an impolitic, but would also be a very wicked thing; if
every such law were a snare for the conscience of the subject. But in
these cases the alternative is offered to every man; "either abstain
from this, or submit to such a penalty;" and his conscience will be
clear, whichever side of the alternative he thinks proper to embrace.
Thus, by the statutes for preserving the game, a penalty is denounced
against every unqualified person that kills a hare. Now this
prohibitory law does not make the transgression a moral offence: the
only obligation in conscience is to submit to the penalty if levied.
I HAVE now gone through the definition laid down of a municipal law;
and have shewn that it is "a rule--of civil conduct--prescribed--by
the supreme power in a state--commanding what is right, and
prohibiting what is wrong:" in the explication of which I have
endeavoured to interweave a few useful principles, concerning the
nature of civil government, and the obligation of human laws. Before I
conclude this section, it may not be amiss to add a few observations
concerning the _interpretation_ of laws.
WHEN any doubt arose upon the construction of the Roman laws, the
usage was to state the case to the emperor in writing, and take his
opinion upon it. This was certainly a bad method of interpretation. To
interrogate the legislature to decide particular disputes, is not only
endless, but affords great room for partiality and oppression. The
answers of the emperor were called his rescripts, and these had in
succeeding cases the force of perpetual laws; though they ought to be
carefully distinguished, by every rational civilian, from those
general constitutions, which had only the nature of things for their
guide. The emperor Macrinus, as his historian Capitolinus informs us,
had once resolved to abolish these rescripts, and retain only the
general edicts; he could not bear that the hasty and crude answers of
such princes as Commodus and Caracalla should be reverenced as laws.
But Justinian thought otherwise[k], and he has preserved them all. In
like manner the canon laws, or decretal epistles of the popes, are all
of them rescripts in the strictest sense. Contrary to all true forms
of reasoning, they argue from particulars to generals.
[Footnote k: _Inst._ 1. 2. 6.]
THE fairest and most rational method to interpret the will of the
legislator, is by exploring his intentions at the time when the law
was made, by _signs_ the most natural and probable. And these signs
are either the words, the context, the subject matter, the effects and
consequence, or the spirit and reason of the law. Let us take a short
view of them all.
1. WORDS are generally to be understood in their usual and most known
signification; not so much regarding the propriety of grammar, as
their general and popular use. Thus the law mentioned by
Puffendorf[l], which forbad a layman to _lay hands_ on a priest, was
adjudged to extend to him, who had hurt a priest with a weapon. Again;
terms of art, or technical terms, must be taken according to the
acceptation of the learned in each art, trade, and science. So in the
act of settlement, where the crown of England is limited "to the
princess Sophia, and the heirs of her body, being protestants," it
becomes necessary to call in the assistance of lawyers, to ascertain
the precise idea of the words "_heirs of her body_;" which in a legal
sense comprize only certain of her lineal descendants. Lastly, where
words are clearly _repugnant_ in two laws, the later law takes place
of the elder: _leges posteriores priores contrarias abrogant_ is a
maxim of universal law, as well as of our own constitutions. And
accordingly it was laid down by a law of the twelve tables at Rome,
_quod populus postremum jussit, id jus ratum esto_.
[Footnote l: L. of N. and N. 5. 12. 3.]
2. IF words happen to be still dubious, we may establish their meaning
from the context; with which it may be of singular use to compare a
word, or a sentence, whenever they are ambiguous, equivocal, or
intricate. Thus the proeme, or preamble, is often called in to help
the construction of an act of parliament. Of the same nature and use
is the comparison of a law with other laws, that are made by the same
legislator, that have some affinity with the subject, or that
expressly relate to the same point. Thus, when the law of England
declares murder to be felony without benefit of clergy, we must resort
to the same law of England to learn what the benefit of clergy is:
and, when the common law censures simoniacal contracts, it affords
great light to the subject to consider what the canon law has adjudged
to be simony.
3. AS to the subject matter, words are always to be understood as
having a regard thereto; for that is always supposed to be in the eye
of the legislator, and all his expressions directed to that end. Thus,
when a law of our Edward III. forbids all ecclesiastical persons to
purchase _provisions_ at Rome, it might seem to prohibit the buying of
grain and other victual; but when we consider that the statute was
made to repress the usurpations of the papal see, and that the
nominations to vacant benefices by the pope were called _provisions_,
we shall see that the restraint is intended to be laid upon such
provisions only.
4. AS to the effects and consequence, the rule is, where words bear
either none, or a very absurd signification, if literally understood,
we must a little deviate from the received sense of them. Therefore
the Bolognian law, mentioned by Puffendorf[m], which enacted "that
whoever drew blood in the streets should be punished with the utmost
severity," was held after long debate not to extend to the surgeon,
who opened the vein of a person that fell down in the street with a
fit.
[Footnote m: _l._ 5. _c._ 12. §. 8.]
5. BUT, lastly, the most universal and effectual way of discovering
the true meaning of a law, when the words are dubious, is by
considering the reason and spirit of it; or the cause which moved the
legislator to enact it. For when this reason ceases, the law itself
ought likewise to cease with it. An instance of this is given in a
case put by Cicero, or whoever was the author of the rhetorical
treatise inscribed to Herennius[n]. There was a law, that those who in
a storm forsook the ship should forfeit all property therein; and the
ship and lading should belong entirely to those who staid in it. In a
dangerous tempest all the mariners forsook the ship, except only one
sick passenger, who by reason of his disease was unable to get out and
escape. By chance the ship came safe to port. The sick man kept
possession and claimed the benefit of the law. Now here all the
learned agree, that the sick man is not within the reason of the law;
for the reason of making it was, to give encouragement to such as
should venture their lives to save the vessel: but this is a merit,
which he could never pretend to, who neither staid in the ship upon
that account, nor contributed any thing to it's preservation.
[Footnote n: _l._ 1. _c._ 11.]
FROM this method of interpreting laws, by the reason of them, arises
what we call _equity_; which is thus defined by Grotius[o], "the
correction of that, wherein the law (by reason of its universality) is
deficient." For since in laws all cases cannot be foreseen or
expressed, it is necessary, that when the general decrees of the law
come to be applied to particular cases, there should be somewhere a
power vested of excepting those circumstances, which (had they been
foreseen) the legislator himself would have excepted. And these are
the cases, which, as Grotius expresses it, "_lex non exacte definit,
sed arbitrio boni viri permittit_."
[Footnote o: _de aequitate._]
EQUITY thus depending, essentially, upon the particular circumstances
of each individual case, there can be no established rules and fixed
precepts of equity laid down, without destroying it's very essence,
and reducing it to a positive law. And, on the other hand, the liberty
of considering all cases in an equitable light must not be indulged
too far, lest thereby we destroy all law, and leave the decision of
every question entirely in the breast of the judge. And law, without
equity, tho' hard and disagreeable, is much more desirable for the
public good, than equity without law; which would make every judge a
legislator, and introduce most infinite confusion; as there would then
be almost as many different rules of action laid down in our courts,
as there are differences of capacity and sentiment in the human mind.
SECTION THE THIRD.
OF THE LAWS OF ENGLAND.
THE municipal law of England, or the rule of civil conduct prescribed
to the inhabitants of this kingdom, may with sufficient propriety be
divided into two kinds; the _lex non scripta_, the unwritten, or
common law; and the _lex scripta_, the written, or statute law.
THE _lex non scripta_, or unwritten law, includes not only _general
customs_, or the common law properly so called; but also the
_particular customs_ of certain parts of the kingdom; and likewise
those _particular laws_, that are by custom observed only in certain
courts and jurisdictions.
WHEN I call these parts of our law _leges non scriptae_, I would not
be understood as if all those laws were at present merely _oral_, or
communicated from the former ages to the present solely by word of
mouth. It is true indeed that, in the profound ignorance of letters
which formerly overspread the whole western world, all laws were
intirely traditional, for this plain reason, that the nations among
which they prevailed had but little idea of writing. Thus the British
as well as the Gallic druids committed all their laws as well as
learning to memory[a]; and it is said of the primitive Saxons here, as
well as their brethren on the continent, that _leges sola memoria et
usu retinebant_[b]. But with us at present the monuments and evidences
of our legal customs are contained in the records of the several
courts of justice, in books of reports and judicial decisions, and in
the treatises of learned sages of the profession, preserved and handed
down to us from the times of highest antiquity. However I therefore
stile these parts of our law _leges non scriptae_, because their
original institution and authority are not set down in writing, as
acts of parliament are, but they receive their binding power, and the
force of laws, by long and immemorial usage, and by their universal
reception throughout the kingdom. In like manner as Aulus Gellius defines the _jus non scriptum_ to be that, which is "_tacito et illiterato hominum consensu et moribus expressum_." |
|
댓글 없음:
댓글 쓰기