CHAPTER VI. OF CIVIL LAWS. 1. Difference between a civil law and a compact.-II. Civil constitutions established partly by law and partly by compact.-III. Internal and external obligation of civil law.-IV. A civil law obliges internally, when it is made and promulgated.-V. The sanctions of civil law produce its external obligation.-VI. Penal sanctions not essential to civil laws.-VII. Proper matter of civil laws.-VIII. Matter of natural right and wrong may be matter of civil law.-IX. Civil laws not confined to matters of natural right or wrong.-X. Rights of mankind may be changed by civil laws.-XI. Effect of civil laws on promises, contracts, and oaths.-XII. What obligation to perform a void promise, contract, or oath.-XIII. Effect of civil laws on the promises, contracts, or oaths of kings, who have legislative power.-XIV. Effect of civil laws on marriage.-XV. Civil laws are written or unwritten.-XVI. Unwritten laws, how established.XVII. Unwritten law more difficult to be ascertained than written law.-XVIII. Unwritten laws, how repealed.-XIX. Written laws cannot be repealed by prescription.-XX. General division of civil laws.-XXI. In some constitutions the civil laws of succession to the crown cannot be fundamental laws.-XXII. Controverted succession may be settled by civil laws. be I. WHEN We consider only the general notion of a Difference law, there appears to be a plain difference between po- tween a civil law sitive laws and compacts. * A compact is an act of two and a compact. or more persons, which produces an obligation upon those who make themselves parties to it, by their own immediate or direct consent. †A law is an act of a superior, which obliges all who are under his authority, as far as they are concerned in the matter of the law, and as far as the legislator intended to oblige them; whether they immediately and directly consent to it or not. But the superiority of a civil legislator; that is, the right which a civil legislator has to prescribe laws to the members of a civil society, arises from their own consent: and, consequently, whatever difference there may be between a positive law and a compact, when we consider only the general notion of a positive law, the difference between a civil law and a compact is less apparent: because the obligation of civil laws, as well as the obligation of compacts, arises from the consent of those who are obliged by them. The mark of distinction between them consists in the different sort of consent from which their obligation arises. No person is obliged by a compact, besides those who make themselves parties to it, by some immediate or direct act of consent. But all persons are obliged by the laws of a civil society, whether they make themselves parties to them by any immediate and direct consent or not; if they have only made themselves parties to them by a remote or indirect consent. When a society is formed for the sake of carrying See Book I. Chap. I. § V. See Book I. Chap. XIII. § I. + See Book II. Chap. III. § I. Book I. Chap. X. § III. on some certain purpose, whether it is a civil society or a society of any other sort, the several individuals who join themselves to it, either consent expressly, or by the act of so joining themselves to it, are understood tacitly to consent to the carrying on this purpose by such measures as the common understanding shall approve and prescribe. Now the purpose for which a civil society is formed, is the general security and the general interest of the whole and of its several parts. Every man, therefore, by consenting to make himself a member of a civil society, agrees immediately or directly, that these purposes shall be carried on, and that he will concur in carrying them on, by such measures as the common understanding of the society shall approve of and prescribe. Thus far he is engaged only in a compact, which obliges him by means of his own immediate or direct consent: and without such immediate or direct consent, he would be no party to it, nor be any ways concerned in its obligation. But by this compact he gives the society a legislative power over him; that is, he gives it a right to prescribe such rules for his conduct, as the common understanding of the society shall judge to be necessary or conducive to the general good. And consequently, by the same compact, he obliges himself to observe these rules, when they are so prescribed; whether at the time of prescribing them he immediately and directly consents to them, or disapproves them, and even protests against them. In the meantime, the obligation of these rules, which are nothing else but the civil laws of the society, is ultimately derived from his own consent. Though he does not immediately and directly consent to the laws at the time of making them, yet he remotely and indirectly consented to them by becoming a party to the social compact. If he had not consented to make himself a party to that compact, the society would have had no legislative power over him; and consequently he would not have been obliged to observe any laws that it might prescribe. In some other instances the difference between that consent, which makes a law binding upon us, and that consent which makes us parties to a compact, lies nearer to view, and may perhaps be seen more clearly than in the complicated business of civil society. A number of individuals, suppose twenty, that have no particular connections with one another, have a design of engaging in some undertaking, which is to be carried on by their joint labour, and at their joint expense. When they meet to deliberate upon the proper measures which are to be pursued, each of them is at liberty to judge and to determine for himself concerning those measures: and though fifteen out of the twenty should agree in their judgment, yet no act of theirs would bind the other five. Nothing can bind all and each of them, but the immediate and direct consent of all and each. And such an act of consent is a compact. But suppose that these twenty individuals, before any particular measures were proposed, had formed themselves into a society for carrying on the undertaking which they have in view, and had entered into a general agreement to act jointly in carrying it on according to the common sense of the whole number, this agreement would likewise have been a compact; it would have obliged each of the individuals no otherwise, than as each of them had made himself a party to it by his own * See Book II. Chap. I. § II. Grot. Proleg. XV. immediate or direct consent. But the effect of such a compact will be, that when any measure is approved and prescribed by fifteen out of the twenty, the other five, though they dislike it and dissent from it, will be obliged to pursue it. Such measures, or such rules of acting, as are agreed upon by the majority, which speaks the common sense of the whole, are laws to the rest; they bind the rest, not as a compact does, upon account of their immediate and direct consent, but upon account of their remote and indirect consent, implied in a previous compact, by which they obliged themselves, in whatever relates to the common purpose, to observe such rules and to pursue such measures as the common understanding should approve and prescribe. The case of a civil society, in a perfect democracy, is exactly the same with this: each individual, by becoming a member of the society, consents to carry on the purposes of a civil society jointly with the rest; that is, in such a manner and by such means as shall be approved and prescribed by the joint understanding or common sense of the society. This immediate or direct act of his own consent, is what gives the society a general legislative power over him, or a general right to lay down rules for his conduct, in order to secure and advance the common good. Whatever particular rules, therefore, are approved and prescribed by the majority, which speaks the common sense of the whole society, he is obliged to follow these rules, whether he happens to be in the majority or not. On the one hand, therefore, they are not compacts; because, by the supposition of his voting with the minority, he does not make himself a party to them by any immediate or direct act of his own consent. But then, on the other hand, they do not oblige him without his own consent; because he remotely or indirectly consented to them, by consenting originally to pursue the proper purposes of a civil society, jointly with the other members, under the conduct of the common understanding. In such a perfect democracy, as we have here supposed, all the members of the society are equal to one another. It may, therefore, be asked, in what sense the civil laws of this society can be called the acts of a superior? But though in a perfect democracy no one individual is superior to any other individual, and much less to all the rest, yet the whole body considered jointly, is superior to any one of its members considered separately. The body of the society, when any individual has united himself to it, has a right to direct his actions for the general good, by the common understanding, and to compel him by the common force to observe its directions, if he is unwilling or refuses to observe them otherwise. Such a right as this, is all that we mean, when we say, that civil laws are the acts of a superior. And this superiority is as intelligible, when it belongs to a great number of individuals acting jointly; that is, to the collective body of a society, as when it belongs to a legislative body consisting only of a few, or perhaps only of one. II. The mere act of civil union, vests the civil le- Civil constitutions gislative power only in the collective body of the so- established partly ciety: no other laws will be binding upon each of the by law and partly members in consequence of this single act, besides those by compact. See Book II. Chao. IV. which are established by the whole or by the greater part of the whole. Wherever, therefore, any particular part of a civil society has an exclusive legislative power, this power must have been vested in such legislative body by some farther act of the society. And since no civil laws are binding upon the several individuals who are members of a civil society, but in consequence of their own consent, the act by which any legislative body, different from the collective body is established, must be an act of joint consent. *Sometimes we consider this act of joint consent as a law, and call it the law of the civil constitution. Sometimes we consider it as a compact, and say, that a king in monarchies, or the nobles in aristocracies, or the representatives of the people in democracies, which are administered by representatives, derive their power from compact. There is some reason for calling it by these different names; because, in respect of what passes between the collective body and the several members, it is a law; and in respect of what passes between the same collective body and the particular persons who are called to the office of civil legislation, and established into a legislative body, it is a compact. When a civil society, in view to the general good, has agreed to introduce and establish any particular form of civil government, the several members are obliged to submit to this form; though some of them might, perhaps, be of opinion, that it is not a proper or a beneficial form, and might publicly declare, that they do not agree to it. There is no more reason in the nature of the thing, why this act of the society should not be binding upon all its members, without the immediate and direct consent of each, than there is why any other act of the society should not be binding upon all, without a like consent of each. The original compact of civil union gives the collective body a power to oblige each of its members to conform to whatever the common understanding approves and prescribes for the general good. If, therefore, it should appear to the common understanding, that a legislative body of this or of that particular form will be conducive to the general good, and the majority of the society should agree to establish such a legislative body, each of the members, even those who are in the minority, will be obliged to comply with such establishment. Thus far the constitution of civil government is established by a law. The legislative body, which is to be introduced, does not, indeed, make this law; for no act of this body, till it is established, can be binding either upon the society in general, or upon the several members of it in particular. The law, therefore, which introduces and establishes the form of the legislative body, must be the joint act of the collective body. And this act, when we consider it in respect of the several members, may rather be called a law than a compact; because it obliges even those who immediately and directly dissent from it, at the time of making it; and this obligation arises from that remote and indirect consent which they gave to the future acts of the society, by making themselves parties to the social compact. But this act of the collective body, though it binds the several members of the society as a law, can be binding upon the collective body itself only as a compact: nothing but the immediate or direct consent of the collective body of a civil society, can take from See Book II. Chap. IV. such body the legislative power which it has by means of civil union, and lodge this power exclusively in some particular part. civil law. III. When the right, which a civil society, or the Internal and exterlegislative body of such society has to prescribe laws to nal obligation of the several members of it, is called a natural right or a right of the law of nature, it is necessary to observe in what sense we call it so. No right of this sort belongs either to any one man, or to any number of men, by the gift of nature. All mankind are placed by nature in a state of equality; and, consequently, whatever right any one man may have to prescribe laws to a number, or whatever right any number of men may have to prescribe laws to one, this right must be of the adventitious sort, and cannot, in the strictest sense of the words, be a natural right. But we frequently enlarge the sense of the word, and mean by the natural rights of mankind, not only such rights as belonged to them by the gift of nature, but such adventitious rights likewise, as either did subsist, or might have subsisted in a state of nature. However, the right which a civil society has to prescribe laws to its members, cannot be a natural right in this enlarged sense of the words; because the notion of this legislative right limits it to a state of civil society. There is still a third sense, in which the rights of mankind may be called natural rights, or rights of the law of nature: whatever rights are acquired by such means as are natural, or agreeable to the law of nature, are under the protection of this law, and may, therefore, be called natural rights, or rights of the law of nature, because this law forbids the violation of them. The legislative power of a civil society, or of the legislative body of such a society, is a right of this sort. The society acquires it by the immediate and direct consent of the several individuals who make themselves members of such society; and the legislative body acquires it, as by the immediate and direct consent of the collective body of the society, so by the remote and indirect consent of the several members. If, therefore, we trace the obligation of civil laws back to its highest source, we shall find that it is derived out of the law of nature. The immediate cause of the obligation of civil laws is the authority of the legislative body: this authority is vested in the legislative body, by a compact between such body and the collective body of the society: and this compact is binding upon the several members, in consequence of their having consented, and made themselves parties to the first social compact, which gave the society a right to bind all and each of them to whatever the common understanding should approve and prescribe for the security and advancement of the general good. But since obligations, arising from consent, are obligations of the law of nature, it follows, that the members of any civil society are obliged by the law of nature to obey the civil laws of it; because the obligation of these civil laws arises from their own consent. The obligation of civil laws, as it is thus derived from the law of nature, rests upon the consciences of mankind, and is called the internal obligation of such laws. § Whatever is the foundation of moral See Book I. Chap. X. § III. + See Book I. Chap. II. § VIII. |