conclude, that this obligation, in conscience, must be a perfect obliga tion of natural justice; and then we form a more general conclusion, that what we are obliged to do in cases of this sort, we are likewise obliged to do in all cases of void acts; even in those, where our acts, instead of being made void with a design of securing our own benefit, are made void with a design of hindering it, and of securing to others such benefit as the law, which makes our act void, requires us not to deprive them of. power. Effect of civil laws XIII. * When Grotius proposes to inquire, whether on the promises, kings can make void their own promises, or contracts, have legislative or oaths, in the same manner, as they can make void those of their subjects; he takes care to inform his readers, that he confines this question to kings, who are entrusted with legislative power. And, in fact, without such a limitation, here would be no question at all: because the acts of private persons are overruled or made void no otherwise, than by legislative power: and consequently, since they, who have not legislative power, cannot make void the acts of their subjects, they certainly cannot make void their own acts. In regard to such civil laws, as immediately affect the subject, whose promise, or oath, or contract, is made void; they are either antecedent or subsequent to such promise, contract or oath. The first question, therefore, concerning kings, who have legislative power, is, whether, by any antecedent law, declaring that all obligations entered into in such circumstances, or for such purposes, as the law describes, shall be void, they can make void their own acts, as well as the acts of their subjects. Here Grotius distinguishes between such acts, as they do in their kingly capacity, by which he means their legislative capacity, and such as they do in their private capacity. Laws of their own making have no authority over them in their legislative capacity: because, if in this capacity they could not act freely, notwithstanding their own laws, they could not repeal those laws, after they have once made them. But since no promise, or contract, or oath of any person, can be made void any otherwise, than by the act of a superior, which takes from him his liberty, or moral power of obliging himself; the consequence is, that the law of a king having legislative power, since he is not his own superior, when we consider him in his legislative capacity, cannot make void any promise, contract, or oath, in which he engages in this capacity. Thus, for instance, whatever exception there may be to the contract of a subject, upon account of the civil minority of the party contracting; that is, upon account of his being of less age, than the law requires to make him capable of binding himself; yet there is not the same exception against a contract of a king, if he has legislative power, and makes this contract in his sovereign capacity, for the purposes of the state; notwithstanding he should be under the age, which the civil law has fixed as the limit of minority. What has been here said proceeds upon a supposition, that no law has been prescribed by the society to their king, when he was called and appointed to his office, and was entrusted with legislative power. Any laws, which came originally from the legislative power of the * Grot. Lib. II. Cap. XIV. people, before they lodged the legislative power of the society in his hands, are binding upon him as compacts, to which, by accepting the crown under the limitations of these laws, he immediately and directly consented. Upon this account all promises, or contracts, or oaths of such king, if they are contrary to these laws, will be void. By this compact, he has given up his liberty or moral power of binding himself to do what these fundamental laws forbid: thus far, therefore, this compact may be considered as the act of a superior; because it is a standing check upon his power. But though a king having legislative power is not his own superior, in respect of such acts, as he does in his legislative capacity, and, consequently, is not affected in these acts by his own laws; yet, in respect of any other acts of a private nature; that is, of any acts, which he does as a part of the community, he is bound by his own laws. Grotius considers this obligation of a king having legislative power, as an indirect one. Natural equity, or the nature of a civil society, requires, that all the parts of such society should conform themselves to whatever, in the judgment of the common understanding, is for the general good. When, therefore, the matter of any law, and the reason of it, is the same, whether it is applied to the king or to the subjects; such law, though it is of his own making, is binding upon himself: because, in respect of this law, he can only be considered as a part of the society; and it is as much for the general good, that he should comply with it, as that any of his subjects should comply with it. When he is considered in his legislative or sovereign capacity, he is superior to every part of the society: whatever laws, therefore, he prescribes to the society in general, they will affect all the members of it, to whom the matter or the reason of the law relates: and, consequently, he must be understood to design, that these laws should extend to all acts of his own, which are done by him as a part of the community; that is, to all acts of his own, where the matter and the reason of the law is the same, when applied to him, as when applied to any other part of the society. If the legislator, by any antecedent law of this sort, takes away from the other parts of the society, their power of obliging themselves by an act, which is contrary to such law; he is understood, by the same law, to take away his own power, or, at least, to renounce his own power, of obliging himself by a like act. Thus, though a king, with legislative power, would be obliged to pay any debts, which he contracted for the public use in his sovereign capacity, during his civil minority; yet his obligation to pay any debts which he contracted upon his own private account, would be void, in the same manner with the like obligation of any of his subjects; that is, there would be no obligation of strict justice, but only an imperfect obligation of honour or of benevolence. In like manner a civil law, which makes marriages void, upon account of some defect in the form of the contract, or of age in the parties, will make void the marriage of the king, though he had the sole legislative power; if he had not taken care expressly to except himself out of the law. * Grotius observes, that if a king having legislative power, has only an usufructuary right in the crown; that is, if the people have, by a * Grot. Lib. II. Cap. VI. § XI. fundamental law of the constitution, reserved to themselves the right to dispose of the crown by a new election upon every vacancy, or have, by a like law, determined the future succession; he has, whilst in possession, no right to alienate, by promise or contract, or otherwise, any part of the patrimony of the crown. By the patrimony of the crown, he means such lands or such revenues, as are annexed to the crown by some act of the society, for the support of the government, or for the public purposes of the state. Such usufructuary kings have no other right in this patrimony, than they have in the crown, to which it is annexed. They have a right to the use and profits of it: but in the meantime the property of it is in the society. And since all alienations of a thing, which is not the property of the person who makes the alienation, are void; any alienation of this patrimony will be void, if it is made by the king alone, without the consent of the society, signified either by itself, or by its representatives. Our author observes farther, that this general rule does not admit of an exception upon account of the small value of the thing, which is alienated. A man has no more right to alienate what is not his own, where the thing is of small value, than where it is of great value. The only difference arising from the value of the thing alienated, is, that where it is of small value, it is more reasonable to presume upon the consent of the people, from their silence, or their not opposing the alienation, than where it is of great value: because it is more likely, that the people are willing to part with the one, than with the other. But we are to distinguish between the patrimony of the crown, and the fruits or profits, which have accrued from that patrimony. For though the present possessor has no property in the patrimony itself, yet, since the use and profits are his, he will have property in such profits as have actually accrued. And thus, whilst the patrimony itself is not alienable without the consent of the society, such profits will be alienable by his own act. Thus the right to certain customs, duties, or tolls, may be a part of the patrimony: but the money, which has been already received from such customs, duties, or tolls, is the fruit or profit of it. The right to receive and obtain property in confiscated estates may be a part of the patrimony: but estates, which have been already confiscated, are amongst the profits. But whilst we say, that these profits are alienable; we should remember, that even in kingdoms, where the king has legislative power, such alienations may be prevented by fundamental laws; and in other kingdoms they may be prevented by laws, which are made by the legislative body. There is one contract, which Grotius says will be valid, notwithstanding the king has only an usufructuary right in the patrimony of the crown; though it is a contract, which seems to dispose of this patrimony. A mortgage of such patrimony, to raise money for the service of the state, will be so far binding, that the society will be obliged to redeem it. But then he rightly adds, that this contract produces such an effect only in those kingdoms, where the king alone has a constitutional right to tax the people for the public service. In such kingdoms, the society, as it is obliged to pay those taxes, which are laid upon it by the king, for the necessary purposes of government, will be obliged, Grot. Lib. II. Cap. VI. § XII. † Grot. Ibid. § XIII. likewise, to redeem the patrimony of the crown, when he has mortgaged it for these purposes: because such a redemption is, in effect, only the payment of such taxes. But this reason is plainly not applicable, where the king has no power to lay any taxes upon the subjects, besides what are proposed and consented to by themselves or their representatives. And, consequently, in such mixed constitutions of government, as he has no right to alienate the patrimony of the crown, so neither has he any right to mortgage it by his own act. Though a king, with legislative power, can, as we have seen, set aside the promises, contracts or oaths of his subjects, by a subsequent law forbidding performance; yet he cannot make his own acts void in the same manner: because this power, in respect of his subjects, arises from a principle which cannot be applied to himself. A subject, as far as the ends of entering into civil society extend, has no moral power of obliging himself, but under a condition, either express or tacit, that performance shall not be afterwards forbidden by the civil legislator. But this condition cannot be supposed to be contained in the promise, contract or oath of a king, having legislative power: because, he is not under the authority of any such legislator. His acts, therefore, when he has once engaged in them, if they were not invalid from the beginning, must stand good; as far as they are consistent with the law of nature, and the compact by which he holds his power. We have, indeed, distinguished above, between the private and the legislative, or sovereign capacity of such a king. But this distinction is of no use here: for the condition, which is the ground of the invalidity of promises, contracts or oaths, when they are once engaged in, consistently with the laws then in being, can be no otherwise made intelligible, than by supposing the promiser, contractor or juror, and the superior, who forbids performance, to be different persons: two different characters of one and the same person will not be sufficient to reconcile this condition with common sense. If we suppose the same person, acting in different characters, to have a power of undoing, in his legislative character, what he has done in his private character, his promise, contract or oath, with the tacit condition, in consequence of which it is supposed liable to be rendered invalid by some subsequent act of his own, will be to this effect:-I consent in my private capacity to be obliged, if I consent hereafter in my legislative capacity; which amounts only to saying, that I now consent to be obliged, if I consent hereafter. But a civil legislator, can release the members of the society from their promises, contracts or oaths, not only by a direct act, which affects them immediately, but likewise by an act, which in respect of them is an indirect one, as it immediately affects the persons to whom they are obliged, and affects them only remotely. This act of the legislator consists in taking away the claim, which arises from the promise, contract or oath. It may, therefore, be asked, whether a king, with legislative power, cannot release himself by a like indirect act from his own promises, contracts or oaths; that is, whether he cannot by a law of his own making, deprive the subjects of any claims which they have acquired by his consent. Grotius replies to this question, that a king, with legislative power, has no right, by virtue of such * Grot. Lib. II. Cap. XIV. § III. power, to deprive his subjects of their claims; whether they are claims upon himself, or upon one another; unless for the purpose of punishing those who have deserved it, or for some other purpose of public utility. And if, for any such purpose of public utility, he deprives any particular subjects of their claims, he is to take care that the society 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 slave 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 pri vate benefit of the master. But a king, whose power is as absolute 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 no 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 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 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 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 this general good, can never give him a right to deprive them of any claims which they have acquired by his promises, contracts or oaths; unless where these claims are inconsistent with the ends of civil society. Effect of civil laws XIV. The law of God, concerning marriage, whether on marriage. we collect this law from the principles of right reason, or from his revealed word, has made this contract something different from others. It may, therefore, be proper to consider it separately, in order to determine how far the civil law can make it void, either for want of age in the parties, or for want of some particular ceremonies, either preceding or attending the contract itself. Most of the questions that arise upon this head, will be easily resolved, upon the same principles with these two, which follow: First, it is a question whether the civil law is consistent with the law of nature and of God, if it fixes the age of consent for marriage at twenty-one years, or at any other particular period of life; and enacts, that all marriages which are solemnized without consent of parents or guardians, where both or either of the parties are under this age, shall be nullities from the beginning, or shall be void to all intents and purposes whatsoever. And, secondly, it is a question, whether the civil law is consistent with the law of nature and of God, if it enacts, in like manner, that all marriages shall be nullities, or be void from the beginning, to all intents and purposes whatsoever; unless previous notice is given, that such marriages are intended to be solemnized, and unless they are solemnized in a church, or in some other particular place which the law appoints. The same principles that are to be made use of for resolving these two questions, |