We may obferve by the way, that no perfon can inflict any punishment lefs than death by his own separate right, under the notion of a failure of civil jurifdiction in fact for the present inftant. For if the punifher had the criminal fo much in his power, as to be able to chufe what fort of punishment he would inflict; he certainly had an opportu⚫nity of applying to the civil magiftrate, and consequently civil jurifdiction did not ceafe. But whoever ventures to punish ⚫ a criminal with death, upon a fuppofition, that civil jurif• diction does ceafe; ought to be well affured, that the crime deferves death: for if it does not, however the laws of his * country might acquit him of murder, he could not acquit < himself of it in his own confcience,

Where civil jurifdiction ceafes in fact for any length of time, as it does when the subjects are in a state of rebellion; thofe, who are in fuch ftate, are not under the protection of the public and though a man may be reftrained by civil laws from punishing them for any crime which they commit, yet if we look no farther than the obligations arifing immediately out of civil union, he would be at liberty to punish ⚫ them.

Where civil jurifdiction fails of right, the natural liberty of punishing is governed by the fame rules with the natural liberty of defence or of obtaining reparation for damages. And as thefe rules have been already explained at large, it is • needless to repeat them here.'

The fixth chapter treats of civil laws, which are the acts of a fuperior; whereas a compact is an act of two or more perfons, which produces an obligation upon those who make themfelves parties to it by their own immediate or direct confent.

He obferves, that a number of individuals, by joining in focial compact, oblige themselves to act together, for the 'purposes of obtaining the common good of all, and the particular good of each; as far as the particular good of any ⚫ one is confiftent with the common good of all, and with the particular good of others. But where a number of perfons bind themfelves to act jointly for any purposes, the common understanding of fuch fociety is their guide, in refpect of what they are to do, and what they are to avoid, in order

to obtain those purposes. A civil fociety therefore has a right, by its common understanding,, thus to guide itself and its several members. And fince the legislative power of fuch fociety confifts in this right, it follows, that whatever is neceffary or conducive to the common good of the society, or to the particular good of the several members, as far as the particular good of any one is confiftent with the common good of all, and with the particular good of others, is the pro• per object of legislative power. Now civil laws are nothing elfe but fuch rules, as the legislative power of a civil fociety • establishes for the direction of all and of each of its members. • Whatever therefore is the proper object of civil legislative 'power, is likewife the proper matter of civil laws.'

Having exhausted a great deal of curious argument in demonftrating that civil laws are not confined to matters of natural right and wrong; and that the rights of mankind may be changed by civil laws; he enquires into the effect of civil laws on promifes, contracts, and oaths. He afferts, that the civil law can make void the obligation of a promife, contract, or oath, either by fuch an act as affects the promifer, contracter, or juror immediately; or by fuch an act as immediately affects thofe to whom the promise, contract, or oath relates, and in the mean time affects him only remotely; and farther, this act of the civil law, may be either antecedent or fubfequent to the promife, contract, or oath.

When the civil laws (fays he) have antecedently forbidden • the members of any fociety to promife, or agree, or fwear that they will do this or that, which the law expreffes; no pro• mife, or contract, or oath, which is contrary to fuch laws, 'can be binding upon them. Notwithstanding, where they ⚫ are under an obligation by any of these acts, the law of na⚫ture and of God requires performance; yet this law requires no performances of what is contained in fuch promifes, or 'contracts, or oaths, as the civil laws have forbidden; be• cause the members of the fociety are in these inftances incapable of obliging themfelves. They, who are under the • authority of another, have no liberty or moral power of binding themselves to do what this other forbids, or to • neglect what he commands. As far therefore as the jurif • diction

• diction or authority of the civil legislator extends; the fub jects are incapable of obliging themselves in oppofition to his laws. They have indeed the natural power of repeating the words of fuch promifes, or contracts, or oaths, as his laws have forbidden. And cuftom may lead us, or the want ⚫ of another name may force us, to call the mere repeating • of these words a promise or a contract or an oath. But "they, from whom the civil laws have taken the liberty or • moral power of acting for themselves, do nothing by repeat⚫ing them : the words alone without fuch liberty or moral 'power produce no obligation.

The Mofaic law indeed gave the hufband a power to make void any vow of the wife; or rather it placed the • wife in such a state of fubjection, that no vow of hers • could be binding, if the husband declared that he disallowed it. • But without fuch a pofitive law, as this, many acts of a wife are naturally free from the jurifdiction of her husband; fo that she is capable of binding herself without his concurrence. Now civil fubjection is in its own nature a limited one the members of a civil fociety are subject to the legislative power of it: but the purposes of the focial compact, from which this fubjection arifes, determine it to extend only to fuch things, as are neceflary or conducive to the com'mon fecurity or benefit of the whole or of its several parts. In all things, which have no relation to these purposes, the ⚫ members of a civil fociety are free to act for themselves, and • confequently have a moral power of binding themselves, • without the concurrence of the civil legislator. If therefore the promise, contract, or oath is not contrary to fome obligation of the focial compact, there is no reafon for fuppofing, either that any concurrence of the civil legislator is • necessary to make the act binding, or that any want of fuch • concurrence would make it void. The civil legislator however, though he cannot make the act void by a mere decla⚫ration of his not confenting to it, may produce this effect by • forbidding performance. When we are under any antecedent obligation, we have no moral power of binding ourfelves to do what is contrary to this obligation. The law forbidding performance is here indeed fuppofed to follow the

act,

act, which it invalidates. But every member of a civil society is obliged by the focial compact to obey all the laws of it, at what time foever those laws are made. And confequently, as we are members of a civil fociety, all our acts must be done, though not under a condition of their being binding if the civil legiflator confents to them, yet under a condition of their being binding if he does not forbid them; because we have no moral power, or are not at liberty, to bind ourfelves otherwise."

In treating of the effect of civil laws on the promises, contracts, or oaths of kings who have legislative power, he says, If, for fome purpose of public utility, he deprives any particular fubjects of their claims; he is to take care, that the fociety 'fhould contribute towards making them amends: because, < by the focial compact, the obligation of advancing the public utility refts equally upon all; and confequently the burden of • advancing it cannot justly be thrown upon any one or upon a few. The mafter of a flave may, by the right of private defpotifm, deprive him of fuch claims, as are contrary to his own benefit: because the end of this right is the private • benefit of the master. But a king, whose power is as abfolute, as the nature of civil power will admit it to be, has no fuch right: for though we speak of legislative power, when it is vefted in one fingle perfon, as if it was abfolute power, we only mean, that it is fubject to no inftituted or external restraints. It cannot be abfolute in the full fenfe of the word, fo as to mean a power of doing whatever the perfon, in whom it is vefted, has a mind to do: because it is in its own nature a limited power; it is only a power of governing a civil fociety, that is, of directing such a society and all its members to what is for the general good, and of fecuring them in the enjoyment of all their rights, which are confiftent with this general good. Whatever 'therefore a king with legislative power might be inclined to ⚫ do, and whatever, with the help of executive power joined to legislative, he might in fact be able to do; yet certainly a power of directing a civil fociety and all its members to what is for the general good, and of securing them in the enjoyment of all their rights, which are confiftent with

4

• this

this general good, can never give him a right to deprive ⚫ them of any claims, which they have acquired by his promifes, contracts, or oaths; unless where thefe claims are • inconfiftent with the ends of civil fociety.'

The Doctor's inquiry concerning the effect of civil laws on marriage, we recommend as a curious investigation, which he concludes in thefe words:

The only difference between the marriage contract and ⚫ other contracts is, that other contracts, though they are valid from the beginning, may be refcinded or made void afterwards by fome fubfequent civil law, which forbids performance: whereas, when a marriage is folem•nized in fuch a manner, as to be once binding, no subsequent civil law can refcind it afterwards by forbidding performance, confiftently with the natural and revealed law of "God, which has made this contract perpetual. When civil laws refcind other contracts by a fubfequent act of the legi'flator forbidding performance, they produce this effect, confiftently with the law of nature, by means of a condition, which is included in the obligation of every member of a civil fociety. This condition is, that he consents to be obliged by his contract, if the civil law does not forbid per'formance. The focial compact, in which, as a member of the fociety, he is a party, makes fuch a condition natural: because by this compact he obliged himself to submit all his alienable rights to whatever reftraints and regulations ⚫ the common understanding should judge to be neceffary for the general good. He cannot therefore, whilft he is under this obligation, that is, whilst he continues in the fociety, ⚫lay himself under any other obligation, which does not in⚫clude this as a neceffary condition. If our right, in respect

of the marriage contract, was a right of full liberty; if we were originally free to chufe for ourselves, whether we would make this contract temporary and precarious, or 'perpetual and conftant; this right amongst others of the fame fort would be alienable; the focial compact would fub'ject it to the civil power; and as members of a civil fociety we could only bind ourselves in marriage by a perpetual ་ contract, upon condition that the civil law fhould not refcind