obligation, in respect of any other parts of the law of nature, whether it is the will of God, who has made happiness the natural effect of our obedience, and misery of our disobedience, or the suggestions of a moral sense, or the fitness and relations of things, or all these principles taken together, there is the same foundation of our obligation to obey the laws of our country.

Civil laws, like the law of nature, from which they are derived, might fail of producing their effect; that is, they might fail of securing and advancing the good of the society in general, and of its several members in particular, if it was wholly left to men's own consciences whether they would observe these laws or not. But wherever the law of nature gives a right to demand that any thing should be done or be avoided, it likewise gives a right to support this demand by the use of force. Thus, in a state of natural liberty, as the law of nature forbids doing an injury, so it gives individuals a right to defend themselves by force against an injury, which they are likely to suffer, and to obtain reparation or to inflict punishment upon account of an injury which they have suffered. In like manner, where mankind are united into a civil society, as the law of nature forbids the violation of the civil laws of such society, so it gives the society a right to make use of force for the support of them. The only difference in this respect between a state of nature and a state of society is, that in a state of nature this force is in the hands of individuals, and may be used at their discretion; whereas, in a state of society, it is in the hands of the public or of the executive body, and can only be used under the direction of the common understanding.

If either through want of skill, or through want of attention, we see no reasons in point of conscience for obeying the laws of our country; or if through malice, or through selfishness, we allow no weight to those reasons, when we do see them, obedience may still be obtained by means of the common force. The apprehension that this force will interpose in support of the laws, and will either prevent us from being gainers, or will perhaps make us losers, by breaking them, is such a reason for obeying them, as lies plain and open to the most unskilful and inattentive, and will be likely, in point of prudence, to get the better of our malice, and to give a turn to our selfishness in favour of obedience. The obligation to obey the laws, which arises from this apprehension, that the public force will interpose in support of them, is called their external obligation.

IV. The civil legislator makes or enacts a law, when A civil law obliges internally, when it he requires the subjects to do or to avoid this or that, is made and pro- which the law expresses. But the mere making of a mulgated. law does not produce any internal obligation, or bind the subjects, in conscience, to observe it. No man is naturally obliged to obey a law, any farther than he knows, or might know, if he pleases, what the law is: the will of the legislator can be no rule to him, till he is acquainted with it, or has such an opportunity of being acquainted with it, that, if he is ignorant of it, his ignorance must be owing to his own neglect. Civil laws, therefore, before they can produce any ternal obligation, must be promulgated or made known, as well as enacted.

in

V. What the legislator does farther, besides enacting The sanctions of and promulgating a law, in order to obtain obedience to civil law produce it, is called establishing it upon some sanction. The its external obliexternal obligation of the law arises from its sanctions, gation.

which are nothing else but the directions that the legislative gives to the executive, concerning the purposes for which the public force is to be used, or concerning the manner of using it, against those who break the law.

From hence it appears, that the external as well as the internal obligation of civil laws arises from the legislator. For though the public force is in the hands of the executive body, and the laws more immediately produce their external effect by the use of this force, or by the apprehension of its being used, yet the executive body, in this instance, acts only in conformity with the sanctions which the legislative has established.

civil law.

sanctions

VI. The first intention of the civil legislator in esta- Penal blishing a law by any sanction, is to procure obedience not essential to to such law; to prevent the harm which the law forbids; or to obtain the good which the law commands. But his intention does not stop here: if he fails of procuring obedience to the law, in the first instance, his farther intention is to remedy the harm that has been done by breaking it; and to hinder them, who have broken it once, from doing the like again. These intentions of the legislator may be obtained by two sorts of sanctions: by such as provide that he, who breaks the law, shall be no gainer, or shall not obtain the purposes which he had in view by breaking it; and by such, likewise, as provide that he, who breaks the law, shall be a loser by breaking it. If the law says, that all devises of lands or tenements, by will, shall be void, (unless the will is subscribed by the testator in the presence of three witnesses, and is attested by those witnesses,) the sanction of such a law consists in making the will void: the testator cannot obtain the purpose which he had in view, by making such a will; and the testamentary heir has no temptation to put the testator upon making such a will, and no motive to claim under such an one, if it is made; because the law will prevent him from being any gainer by it. When the law forbids doing a damage of any sort, and commands that reparation shall be made if such damage is done, the sanction of the law, which consists only in the command to make reparation, does nothing more than hinder any person from being a gainer by breaking the law: and such a sanction provides for obtaining the first intention of the legislator; that is, it secures obedience to the law, only by making it not worth any person's while to break it. Now, if by a penal sanction we mean the appointment of a punishment, such sanctions as these cannot be called penal sanctions: here is no appointment of a punishment; the legislator does not aim at securing obedience by threatening to make them losers, who break the law, or to take any right from them which they enjoyed before, but only by providing, that they shall be no gainers, or that they shall obtain no right by breaking it. As sanctions of this sort do not, in the first instance, aim at securing obedience to the law by threatening punishment, so neither do they operate afterwards by inflicting punishment, in order to prevent those who have broken the law once, from breaking it again. They do not look forward to what may be

done hereafter, but only backward upon what has been done already: they do not endeavour to prevent or restrain him who has done wrong once, from doing the same or the like wrong at another time; they only endeavour, as far as may be, to undo the wrong which is past. If, indeed, we call every interposition of the public force, to support a law, by the name of punishment, then even those laws which only aim at undoing the wrong that is past, may be said to be established by penal sanctions: because when any person, who has broken the law, will hold out against it, and will keep possession of what he has unjustly gained by breaking it; the law, which forbids making such unjust gain, gives those who have suffered by the wrong which he has done, a right to the assistance of the public force, in order to compel him to do them that justice which he refuses to do otherwise. But, certainly, where the sanction of a law produces only such interpositions of the public force as this, it can with no more propriety be called a penal sanction, than what an individual in a state of nature does by his own private force for obtaining reparation of damages, can be called a punishment. When the law makes a will void, it will take care that what is devised in such will shall go to the heir in intestate succession. If the testamentary heir takes possession of the lands and tenements devised by the void will, and keeps possession till the other obtains a judicial sentence, (though what he has done is contrary to the law,) yet if he submits to the sentence, after it is given, the law is satisfied. When the sanction looks no farther than the wrong that he did, without regarding the bad disposition that led him to do such wrong, it only requires him to undo his own act, and inflicts no evil upon him for having done it. Or suppose, that he holds out after sentence, and that the public force interposes to compel him to quit possession, yet if it interposes for no other purpose, this is no punishment. The design of such interposition is only to make the act void in fact, which the law had made void of right; that is, to undo what has been done already, and not to make him suffer any harm, in order to prevent him from doing the like again.

What has here been shown to be the case in one instance, is in general the case of all laws, which consider only the damage, that a man has done by an injury, without considering the disposition of mind that led him to do it. These laws inflict no punishment, if he is willing to make reparation: and even if he is unwilling, though the public force interposes in support of the law; yet the design of this interposition is only to compel him to do what is just, and not to punish him for having done what is unjust.

Penal sanctions are properly acts of the civil law, by which it appoints, that he, who behaves otherwise, than such law directs, shall be a loser, shall be deprived of some right, which otherwise belonged to him, or shall suffer some evil, from which he had otherwise a right to be free. But since the rules which the civil legislator prescribes for the general good, not only oblige the consciences of the subjects, but may and do, in many instances, produce their external effect without such appointments; the consequence is, that penal sanctions are not essential to civil laws.

If we enlarge the notion of penal sanctions, and include in it any interposition of the public force, whether this force interposes to compel men to do what is right, or to make them suffer some evil for having

done what is wrong; in this sense of the words, which seems, however, to be an improper one, civil laws must be allowed to depend upon penal sanctions for their external obligation. But still these sanctions are not so far essential to civil laws, as to make it impossible for any civil law to oblige without them: because the bare enacting and promulgating a law produces an internal obligation; though nothing, which can be called a penal sanction, should be added to the law. Unless, indeed, it should be said, after all, that the law of nature itself is supported by penal sanctions, and, consequently, that all civil laws, since their internal obligation is derived from the law of nature, must be ultimately supported by the same sanctions with the law of nature.

VII. As the purposes, for which men unite them- Proper matter of selves into civil societies, determine the nature and civil laws terms of the social compact; so the nature and terms of this compact, which is the foundation of civil legislative power, determine what are the proper objects of this power. Each individual is led by a view to his own security and benefit to associate with the rest; and they, by receiving him amongst them, as a member of the body politic, agree to aid him in pursuing this end. But since each and all of them have the same end in view; they cannot be supposed to receive him upon any other terms, but those of his consenting to join with them in maintaining their security and benefit. And, consequently, he, by the act of joining himself to them, must be understood to agree to these terms. Thus, the particular interest of each member is taken under the protection of the whole; so that the whole obliges itself to act for his security and benefit: but at the same time, a common interest of the whole is formed; and each member obliges himself to act jointly with the rest for this common interest. The claim of each member upon the society, is limited by the obligation that he lays himself under towards the society, and by the obligation that the society is under towards each. of the other members. He can have no claim upon the society to act for his security and benefit, where it interferes with the common security and benefit of the whole; because he is obliged to act with the society for this common security and benefit: and whilst he lays himself under this obligation, he cannot be understood to acquire any claim which is inconsistent with it. He can, likewise, have no claim upon the society to act for his security and benefit, where it is inconsistent with the security and benefit of any of the other members: because the society is under the same obligation in respect of the others, that it is under in respect of him: and, consequently, it could not engage to advance his interest at the expense of theirs.

Upon the whole, therefore, a number of individuals, by joining in a social 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 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 such society consists in this right, it follows, that

whatever is necessary 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 consistent with the common good of all, and with the particular good of others, is the proper object of legislative 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 legisla tive power, is likewise the proper matter of civil laws.

civil law.

Matter of natural VIII. From hence it appears, that the matter of civil right and wrong, laws is not confined to such things as the law of nature may be matter of has left indifferent, by neither commanding nor forbidding them. The law of nature commands whatever is necessary or conducive to the security and benefit of mankind, in general, and forbids the contrary. As far, therefore, as what is necessary or conducive to the security and benefit of mankind in general, is necessary or conducive likewise to the security and benefit of that particular part of mankind, which is united into the same civil society; and as far as what is inconsistent with the security and benefit of mankind in general, is inconsistent likewise with the security and benefit of that particular part of mankind, which is thus united; the civil legislator is employed about the proper objects of his legislative power, when he commands the former or forbids the latter. His laws, therefore, contain what is a proper matter of civil law, when they command such actions as the law of nature has commanded, or forbid such actions as the law of nature has forbidden.

Mankind are, indeed, obliged to do what the law of nature commands, and to avoid what this law forbids, without the aid of civil institutions. But we cannot conclude from hence, that it is needless, and much less that it is improper, for civil laws to command what is naturally a duty, or to forbid what is naturally a crime. For though the members of a civil society are obliged to observe the law of nature, whether its rules and precepts are transcribed into the civil law, and adopted by it or not; yet, till they are thus transcribed and adopted, the obligation to observe them rests only upon the conscience.

It may, perhaps, be asked, whether the law of nature has not an external, as well as an internal sanction in a state of nature; whether mankind have not a natural right, where any injury has been done by breaking this law, to make use of their private force to obtain reparation and to inflict punishment? And if such an external sanction takes place in a state of nature, it may be farther asked, whether the law of nature is not naturally supported in a state of civil society by the like sanction, without being made a part of the civil law of the society?

In answer to these questions we may observe, that this external sanction of private force, reaches in a state of nature no farther than the duties of justice; and that the duties of imperfect obligation are supported only by the internal sanctions of the law of nature. The law of nature obliges mankind to promote the good of one another: but this obligation, in a state of nature, is of the internal sort: no man has a right to compel others, by force, to do any thing which is matter of favour; however reasonable it may be in him to expect the favour from

* See Book I. Chap. XVII. § III. Chap. XVIII. § IX.