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• We may observe by the way, that no person can inflict 6 any punishment less than death by his own separate right,
under the notion of a failure of civil jurisdiction in fact • for the present inftant. For if the punisher had the criminal • so much in his power, as to be able to chufe what sort of • punishment he would inflict; he certainly had an opportu
nity of applying to the civil magistrate, and consequently civil • jurifdi&tion did not ceafe. But whoever ventures to punish • a criminal with death, upon a fupposition, that civil juris• diction does ceafe; ought to be well assured, 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 conscience,
Where civil jurisdiction ceases in fact for any length of time, as it does when the subjects are in a state of rebellion ; " those, who are in fuch state, are not under the protection of the public : and though a man may be restrained by civil laws from punishing them for any crime which they commit, yet if we look no farther than the obligations arising imme• diately out of civil union, he would be at liberty to punish • them.
"Where civil jurisdi&tion fails of right, the natural liberty • of punishing is governed by the same rules with the natural li«berty of defence or of obtaining reparation for damages. And 6 as these rules have been already explained at large, it is needless to repeat them here.'
The sixth chapter treats of civil laws, which are the acts of a superior ; 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 consent.
He observes, that “a number of individuals, by joining in • social compact, oblige themselves to act together, for the
purposes of obtaining the common good of all, and the par«ticular good of each ; as far as the particular good of any • one is consistent with the common good of all, and with the ( particular good of others. But where a number of persons • bind themselves to act jointly for any purposes, the common « understanding of such society is their guide, in respect of & what they are to do, and what they are to avoid, in order
to obtain those purposes. A civil society therefore has a (right, by its common understanding,, thus to guide itself and
its several members. And since the legislative power of fuch fociety confifts in this right, it follows, that whatever is necessary or conducive to the comminon 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 legiflative power. Now civil laws are nothing • else but such rules, as the legislative power of a civil society • establishes for the direction of all and of each of its members. • Whatever therefore is the proper object of civil legislative * power, is likewise the proper matter of civil laws.' .
Having exhausted a great deal of curious argument in demonstrating 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 promise, contract, or oath, either by fuch an act as affe&s the promiser, contracter, or juror immediately; or by such 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 subsequent to the promise, contract, or oath.
. When the civil laws (fays be ) have antecedently forbidden the members of any society to promise, or agree, or swear that • they will do this or that, which the law expreffes; no pro.. mise, 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 promises, or contracts, or oaths, as the civil laws have forbidden; be• cause the members of the society are in these instances inca« pable of obliging themselves. 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 thereforç as the jurif
<diction or authority of the civil legislator extends ; the fub's
jects are incapable of obliging themselves in opposition to his « laws. They have indeed the natural power of repeating
the words of such promises, or contracts, or oaths, as his • laws have forbidden. And custom 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 e moral power of acting for themselves, do nothing by repeat
ing them : the words alone without such liberty or moral power produce no obligation.
· The Mofaic law indeed gave the husband a power to make void any vow of the wife; or rather it placed the • wife in such a state of subjection, that no vow of hers
could be binding, if the husband declared that he disallowed it. * But without such a positive law, as this, many acts of a < wife are naturally free from the jurisdiction of her husband; o so that she is capable of binding herself without his concur
rence. Now civil subjection is in its own nature a limited one : the members of a civil society are subject to the legisla<tive power of it: but the purposes of the social compact, < from which this subjection arises, determine it to extend only « to such things, as are necessary or conducive to the com(mon security 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 society are free to act for themselves, and « consequently 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 some obligation of the social compact, there is no reason for supposing, either that any concurrence of the civil legislator is • necessary to make the act binding, or that any want of such
concurrence would make it void. The civil legislator however, though he cannot make the act void by a mere decla
ration of his not consenting to it, may produce this effect by • forbidding performance. When we are under any antece« dent obligation, we have no moral power of binding our«selves to do what is contrary to this obligation. The law • forbidding performance is here indeed supposed to follow the
act, which it invalidates. But every member of a civil fo• ciety is obliged by the social compact to obey all the laws of
it, at what time soever those laws are made. And consequent«ly, as we are members of a civil society, all our acts must be • done, though not under a condition of their being binding • if the civil legislator consents 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 durselves 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 some purpose of public utility, he deprives any particular • subjects of their claims; he is to take care, that the fociety • should contribute towards making them amends : because,
by the social compact, the obligation of advancing the public (utility rests equally upon all; and consequently the burden of
advancing it cannot justly be thrown upon any one or upon a - few. The master of a llave may, by the right of private
despotism, deprive him of such 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 ab« solute, as the nature of civil power will admit it to be, • has no such right: for though we speak of legislative power,
when it is vested in one single person, as if it was absolute • power, we only mean, that it is subject to nu instituted
or external restraints. It cannot be absolute in the full sense of the word, so as to mean a power of doing whatever the
person, in whom it is vested, has a mind to do: because . it is in its own nature a limited power ; it is only a power
of governing a civil society, that is, of directing such a so
ciety and all its members to what is for the general good, 6 and of securing them in the enjoyment of all their rights,
which are consistent 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 certain• ly a power of directing a civil society and all its members
to what is for the general good, and of securing them in the • enjoyment of all their rights, which are consistent with . 4
* this general good, can acver give him a right to deprive
thern of any claims, which they have acquired by his pros « mises, contracts, or oaths ; unless where these clains are « inconsistent with the ends of civil society:
The Doctor's inquiry concerning the effect of civil laws on marriage, we recommend as a curious investigation, whichi he concludes in these words : :
The only difference between the marriage contract and other contracts is, that other contracts, though they are S valid from the beginning, may be rescinded or made void 6 afterwards by some subsequent civil law, which forsibids performance : whereas, when a marriage is folem• nized in such a manner, as to be once binding, no fuble. quent civil law can refcind it afterwards by farbidding per• formance, consistently with the natural and revealed law of « God, which has made this contract perpetual. When civil • laws rescind other contracts by a subsequent act of the legi• Slator forbidding performance, they produce this effect, con• sistently with the law of nature, by means of a condition, « which is included in the obligation of every member of a
civil society. This condition is, that he consents to be obliged by his contract, if the civil law does not forbid performance. The social compact, in which, as a member of the society, he is a party, makes such a condition natu
ral: because by this compact he obliged himself to submit • all his alienable rights to whatever restraints and regulations • the common understanding Thould judge to be necessary for
the general good. He cannot therefore, whilst he is under this obligation, that is, whilft he continues in the society, ·lay himself under any other obligation, which does not in• clude this as a necessary condition. If our right, in respect
of the marriage contract, was a right of full liberty; if we
were originally free to chuse for ourselves, whether we I would make this contract temporary and precarious, or perpetual and constant; this right amongst others of the
same fort would be alienable ; the social compact would sub•ject it to the civil power; and as members of a civil society ( we could only bind ourselves in marriage by a perpetual • contract, upon condition that the civil law should not rescind