it is

it will only amount to this; where we must do wrong either way, best to follow that course, in which we shall do the least wrong. But in this sense the maxim is so far from supporting the rule here laid down, that, where two laws interfere, and we are in doubt which is to be obeyed, it will afford us no help at all towards removing the doubt. For when we are in this situation, the very question is, whether we shall do the less evil by disobeying this, or by disobeying that law: and, consequently, to say here, that out of two evils, we should choose the least, cannot help to remove this doubt; because this maxim, since it contains nothing, but what is contained in the question, upon which we doubt, leaves the question just where it was. But if we take the maxim in the other sense, and consider it merely as a maxim of prudence, which directs us, where, out of two evils, we must suffer one, to follow that course, which will make us suffer the least, it is not ap plicable to the point which is now before us: because it supposes, that, whatever course we follow, we must suffer the penalty of one of the laws. Whereas, when two laws interfere, and it is impossible to obey both of them, if we choose rightly; that is, if we obey the law, which the legislator would, in such a case choose to have us obey, we shall avoid both the penalties. We comply with one of the laws, and, therefore, stand clear of the penalty, upon which it is established. And though we disobey the other, we cannot justly be punished for disobeying it; because, whilst we comply with that, it was impossible for us to comply with this. But the rule, which directs us, where two laws interfere, to give the preference to that, which is established upon the higher penalty, though it is not supported by the maxim, that out of two evils the least is to be chosen, may be supported by the same reason with the rule, which was last mentioned. The legislator has guarded that law the most carefully, which he has established upon the higher penalty: from whence we may presume, that he looked upon that as the law of the more importance, and, consequently, that he would choose to have us comply with that, if by any accident it becomes impossible for us to comply with both.

gym

Seventhly, where two laws interfere, we should follow that, which is recommended by the most honest or the most beneficial reasons. The question, concerning the woman's claim to have her statue in the nasium, is determined in her favour by Puffendorf: because the law, which gives her this claim, is recommended by a more beneficial reason than the other law, which opposes her claim. Another question which has already been mentioned, where the same law, by accident, interferes with itself, may be determined, by comparing the honesty or justice of the reasons on both sides. Where two women had been ravished by the same man, and the law gave any woman, who had been thus injured, her option, that the man should either be put to death, or be compelled to marry her; one of them claimed to have him put to death, and the other claimed to have him in marriage. She, who claims to marry him, would lose her husband, if he was put to death: whereas, she, who claims to have him put to death, does not properly lose any thing by his marrying the other. The claim, therefore, of the former, seems to be recommended by a more honest and just reason, than the claim of the latter.

XIII. There are scarce any laws, but what will na- Scarce any laws turally admit of rational or liberal interpretation; that is, turally admit of rabut what will naeither of being so enlarged, as to take some cases into tional interpretathe meaning of the law, which are not contained in the tion.

letter, or of being so restrained as to exclude some cases out of the meaning, which are contained in the letter. For the intention of the legislator is the natural measure of the extent of the law, whether that intention is collected from his words alone, by literal interpretation, or from his words, and some other signs, by mixed interpretation, or from such other signs alone by rational interpretation. In like manner, wills and contracts naturally admit of being interpreted rationally, of being so enlarged, as to extend beyond the letter, or of being so restrained, as to fall short of it: because the intention of the testator, or of the parties contracting, as far as it is known, is the natural measure of the claim arising from these acts; whether that intention appears plainly in their words, or is ascertained by the help of some other signs, and of their words taken together, when their words leave it doubtful; or is collected from such other signs alone, when their words do not express it perfectly.

The design of the legislator, in some civil laws, or in some clauses of them, is, indeed, confined to his words: and where it is so confined, nothing can either be taken into the meaning of the law, or be left out of it by rational interpretation. The design of an explanatory law, is to explain, by words, the meaning of the legislator in some antecedent law, which was expressed ambiguously or imperfectly. An explanatory law, therefore, will not admit of rational interpretation: as the design of the law is confined to the words of it, we must look for the meaning of it in the words only. For the same reason, all definitions in a law are to be interpreted closely: they are neither to be enlarged to any thing more, nor to be restrained to any thing less, than the words express. The legislator designs, in such definition, to explain, by his words, the term, which he defines: whatever, therefore, is more than these words express, is not within the design of the legislator; and whatever is less, falls short of his design.

But either an explanatory law, which has reference to some antecedent law, or a definition in a law, which has reference to some term made use of in the same law, though they do not admit of rational or free interpretation, may possibly be ambiguous: and when they are, we must ascertain the meaning of the legislator by mixed interpretation. If the ambiguity in these laws arises, as it frequently does in other laws, from a word or a sentence, which will admit either of a more extensive, or of a more confined sense; we must have recourse to the topics of mixed interpretation, to determine in which of these two senses such word or such sentence was used by the legislator. For though explanatory laws are to be interpreted closely, and will not admit of any meaning, but what is contained and expressed in the words of them; yet no argument can be drawn from the nature of such laws, to prove, that, where the words themselves admit both of a strict and of a large sense, we must necessarily adhere to the former. We must, indeed, keep to the letter of the law: but there is no natural reason, why we must follow the narrowest and most confined sense, that the letter of the law is capable of.

Rational interpretation, both such as enlarges the meaning of the writer beyond his words, and such as restrains it to a less extent than what his words import, may be expressly precluded by some positive declaration of the writer himself. If the lawmaker, or the contractors, or the testator have directed that the law, or the contract, or the will, shall be construed according to the literal and grammatical sense of the words; this direction is a bar to all interpretation, which is purely rational: it shows, that the intention of the writer came fully up to his words, and went no farther; and, consequently, that whatever meaning we give to the writing, which either falls short of the words or goes beyond them, such meaning is not agreeable to his intention. But though a declaration of this sort precludes all interpretation, which is purely rational, and obliges us to interpret the writing strictly, or ra ther closely; that is, to adhere, in our interpretation of it, precisely to the words; yet, if the words themselves are ambiguous, if in their li teral and grammatical construction they will admit of more senses than one, we may, notwithstanding such declaration, have recourse to mixed interpretation, and may argue from rational conjectures to determine, in which of these several senses the writer used them. For mixed interpretation is not inconsistent with the writer's declaration: because this sort of interpretation, whilst it proceeds upon rational conjectures, keeps to the literal and grammatical sense of the words. Now, amongst other causes of ambiguity, one is, that the words of a writing, in the common acceptation of them, are sometimes used in a more narrow, and sometimes in a more comprehensive sense. And since either of these senses may be called a literal and grammatical sense; because both of them are equally authorized by common usage; the consequence is, that, though the writer has required us, in our interpretation, to adhere to the literal and grammatical sense, there is no more reason, upon account of what he has said about this matter, to adhere rather to the narrow or strict sense, than to follow the comprehensive or large sense: notwithstanding his direction about following the literal and grammnatical sense, we must make use of probable conjectures drawn from other topics, besides his words, to determine in which of the literal and grammatical senses he used the words, whether in their narrow and strict sense, or in their comprehensive and large sense. Thus, a declara tion or direction of this sort, though it obliges us to interpret the writing strictly, in one sense of the word-strictly, does not oblige us to interpret it strictly in another sense of the same word: it obliges us to keep strictly to the words of the writing without deviating from them, either so as to leave any thing out of his meaning, which the words express, or so as to take any thing into his meaning, which they do not express. But it does not oblige us, whilst we keep strictly to the words, to follow the most narrow, or the strict sense of those words: it leaves us at liberty to follow either this sense, or the more comprehensive and large sense, according to what we find by rational conjectures to have been, most probably, his meaning.

If there are any other civil laws, in which we are not allowed to make use of rational interpretation, besides such as are merely explanatory; that is, if in the interpretation of any other laws, besides these, we are not allowed to take either more or less into the meaning of them than what the words express; this restraint arises, not from the nature

of the laws themselves, but from some positive institution. And this positive institution may either be contained in the particular law, which will not admit of rational interpretation, as we have just now observed, that it is, where the legislator directs us to follow the literal and grammatical sense of the words; or else it may be introduced by a general law, which has been made concerning interpretation by the civil legislator of the society to which we belong. For the rules of interpretation are under the authority of the civil legislator, and are, therefore, to be applied in such a manner, and upon such occasions, as he shall prescribe, in view to the general benefit, either by a written law, or by usage and custom; the former of which is an express act, and the latter is a tacit act of his authority.

In like manner, where any words or sentences in a law or a contract, have two senses in common acceptation, one of which is more confined, and the other more comprehensive, there is not any particular sort of laws or contracts, which will naturally require such ambiguous words or sentences to be taken in the more confined sense; nor is there, on the contrary, any particular sort which will naturally require them to be taken in the more comprehensive sense. The intention of the legislator is the natural measure of the obligation arising from the law; and the intention of the parties contracting, is the natural measure of the claim arising from the contract. This intention is to be collected from the same topies of interpretation in laws and contracts of all sorts: unless the civil legislator of the society, in which the law is made, or to which the contractors belong, has expressly prescribed some particular rules of interpretation, or some particular method of applying the rules suggested by natural reason; or unless such particular rules, or such particular method of application have been introduced and established by long and uninterrupted usage, which has the same effect as if the civil legislator had expressly prescribed them.

CHAPTER VIII.

OF CIVIL SUBJECTION AND CIVIL LIBERTY.

I. General notion of subjection.-II. Subjection private and public.— III. Different degrees and sorts of private subjection.-IV. Different degrees and sorts of public subjection.-V. Civil subjection of the parts and of the whole.-VI. What sort of subjection implied in the notion of a province.-VII. Civil liberty, what.-VIII. Civil liberty of the parts and of the whole.-IX. Slaves why incapable of being members of a civil society.-X. Where subjection ceases, right of resistance begins.-XI. Relation of governor and subject is a limit ed one.-XII. Resistance to the supreme power, how to be under- · stood.-XIII. Right of resistance does not imply supreme civil power in the people.-XIV. Opinion of Grotius, explained.-XV. Civil judge not necessary to fix the point where right of resistance begins.XVI. Treason and rebellion, how guarded against, notwithstanding right of resistance.

General notion of I. EVERY compact, in which a man consents to lay subjection. himself under an obligation of doing, or of avoiding what the law of nature had not otherwise obliged him to do or to avoid, is a diminution of his liberty. Before he had engaged in the compact, or had laid himself under the obligation, he was at liberty either to have done or to have avoided what is contained in the compact. But after he has consented to be thus obliged, he is no longer possessed of the same liberty: he cannot be obliged to do or to avoid what is contained in the compact, and at the same time be at liberty either to do it or to avoid it, as he pleases.

But every compact, which implies a diminution of liberty, does not imply likewise a state of subjection. The notion of subjection consists in the obligation of one or more persons to act at the discretion, or according to the judgment and will of others. When, therefore, the matter of an obligation, which arises from compact, is so precisely settled from the beginning as to leave nothing to the judgment or will of those to whom we are obliged, the obligation, though it diminishes our liberty, does not place us in a state of subjection. Such a compact gives them a claim upon us, without giving them any authority over us. Their claim is so limited from first to last, by our own act, and according to our own discretion and choice, as never to extend beyond such limitation. This claim, therefore, is all along rather the effect of the power, which we have over ourselves, than the effect of any power which they have over us. But when the compact is such from the beginning, as gives them a general demand upon us, and leaves the precise matter of the obligation to be in any respect determined by their discretion and choice, as far as it thus gives them a right to judge for us, and to prescribe to us, it gives them an authority over us, and places us in a state of subjection to this authority.

Subjection private and public.

II. Subjection is commonly divided into private and public. By private subjection, is meant subjection to