NO. 42. SATURDAY, AUGUST 26, 1721.
Considerations on the Nature of Laws.
T he mischiefs that are daily done, and the evils that are daily suffered in the world, are sad proofs, how much human malice exceeds human wisdom. Law only provides against the evils which it knows or foresees; but when laws fail, we must have
20. Galba's speech appears in Tacitus, Histonae, 1.15-16.
recourse to reason and nature, which are the only guides in the making of laws. Stirpem juris a natura repertam, says Cicero; 1 there never would have been any law against any crime, if crimes might have been safely committed, against which there was no law: For every law supposes some evil, and can only punish or restrain the evils which already exist.
But as positive laws, let them be ever so full and perspicuous, can never entirely prevent the arts of crafty men to evade them, or the power of great ones to violate them; hence new laws are daily making, and new occasions for more are daily arising: So that the utmost that wisdom, virtue, and law can do, is to lessen or qualify, but never totally abolish, vice and enormity. Law is therefore a sign of the corruption of man; and many laws are signs of the corruption of a state.
Positive laws deriving their force from the law of nature, by which we are directed to make occasional rules, which we call laws, according to the exigencies of times, places, and persons, grow obsolete, or cease to be, as soon as they cease to be necessary. And it is as much against the law of nature to execute laws, when the first cause of them ceases, as it is to make laws, for which there is no cause, or a bad cause. This would be to subject reason to force, and to apply a penalty where there is no crime. Law is right reason, commanding things that are good, and forbidding things that are bad; it is a distinction and declaration of things just and unjust, and of the penalties or advantages annexed to them.
The violation therefore of law does not constitute a crime where the law is bad; but the violation of what ought to be law, is a crime even where there is no law. The essence of right and wrong does not depend upon words and clauses inserted in a code or a statute-book, much less upon the conclusions and explications of lawyers; but upon reason and the nature of things, antecedent to all laws. In all countries reason is or ought to be consulted, before laws are enacted; and they are always worse than none, where it is not consulted. Reason is in some degree given to all men; and Cicero says, that whoever has reason, has right reason; that virtue is
1. "The foundation of the law was uncovered from nature itself." Cicero, De legibus, 1.6.20.
but perfect reason; and that all nations having reason for their guide, all nations are capable of arriving at virtue.2
From this reasoning of his it would follow, that every people are capable of making laws, and good laws; and that laws, where they are bad, are gained by corruption, faction, fear, or surprize; and are rather their misfortune, than the effects of their folly. The acts of Caesar were confirmed by the Senate and the people; but the Senate was awed, and the tribunes and people were bribed: Arms and money procured him a law to declare him lawless. But, as the most pompous power can never unsettle the everlasting land-marks between good and evil, no more than those between pleasure and pain; Caesar remained still a rebel to his country, and his acts remained wicked and tyrannical.
Let this stand for an instance, that laws are not always the measure of right and wrong. And as positive laws often speak when the law of nature is silent, the law of nature sometimes speaks when positive laws say nothing: Neque opinione, sed natura constitutum esse jus.3 That brave Roman, Horatius Cocles, was bound by no written law to defend the wooden bridge over the Tiber, against a whole army of Tuscans;4 nor was there any law, that I know of, in Rome, against adultery, when the younger Tarquin ravished Lucretia:5 And yet the virtue of Horatius was justly rewarded, and the vileness of Tarquin justly punished, by the Romans.
It is impossible to devise laws sufficient to regulate and manage every occurrence and circumstance of life, because they are often produced and diversified by causes that do not appear; and in every condition of life men must have, and will have, great allowances made to their own natural liberty and discretion: But
2. Cicero, De legibus, 1.6.18-19.
3. "Law is based, not on men's opinions, but on nature." Cicero, De legibus, 1. 10.28.
4. Publius Horatius Cocles is said to have single-handedly defended the Sublician bridge against the whole Etruscan army while the Romans behind him were destroying the bridge.
5. The beauty and nobility of spirit of Lucretia, a Roman, is reputed to have so inflamed the passions of Sextus Tarquinius, son of the Tarquin king, that when his entreaties proved futile he took her by force. Her suicide, added to the oppressions the Romans endured, was the signal for rebellion, and the Tarquin kings were expelled from Rome.
every man, who consents to the necessary terms of society, will also consent to this proposition, that every man should do all the good, and prevent all the evil, that he can. This is the voice of the law of nature; and all men would be happy by it, if all men would practice it. This law leads us to see, that the establishment of falsehood and tyranny (by which I mean the privilege of one or a few to mislead and oppress all) cannot be justly called law, which is the impartial rule of good and evil, and can never be the sanction of evil alone.
It has been often said, that virtue is its own reward; and it is very true, not only from the pleasure that attends the consciousness of doing well, and the fame that follows it, but in a more extensive sense, from the felicity which would accrue to every man, if all men would pursue virtue: But as this truth may appear too general to allure and engage particular men, who will have always their own single selves most at heart, abstracted from all the rest; therefore in the making of laws, the pleasures and fears of particular men, being the great engines by which they are to be governed, must be consulted: Vice must be rendered detestable and dangerous; virtue amiable and advantageous. Their shame and emulation must be raised; their private profit and glory, peril and infamy, laid before them. This is the meaning of Tully, when he says, Vitiorum emendatricem legem esse oportet, commendatricemque virtutum. 6
Rewards and punishments therefore constitute the whole strength of laws; and the promulgation of laws, without which they are none, is an appeal to the sense and interest of men, which of the two they will choose.
The two great laws of human society, from whence all the rest derive their course and obligation, are those of equity and self- preservation: By the first all men are bound alike not to hurt one another; by the second all men have a right alike to defend themselves: Nam jure hoc evenit, ut quod quisque ob tutelam corporis sui
fecerit, jure fecisse existimetur, 7 says the civil law; that is, "It is a maxim of the law, that whatever we do in the way and for the ends of self
6. "Law ought to be a reformer of vice and an incentive to virtue." Cicero, De
7. "For this comes from the law: that which someone does for the safety of his
_ body, let it be regarded as having been done legally." Justinian, 1.1.3, pr. 2.
defence, we lawfully do." All the laws of society are entirely reciprocal, and no man ought to be exempt from their force; and whoever violates this primary law of nature, ought by the law of nature to be destroyed. He who observes no law, forfeits all title to the protection of law. It is wickedness not to destroy a destroyer; and all the ill consequences of self-defence are chargeable upon him who occasioned them.
Many mischiefs are prevented, by destroying one who shews a certain disposition to commit many. To allow a licence to any man to do evil with impunity, is to make vice triumph over virtue, and innocence the prey of the guilty. If men be obliged to bear great and publick evils, when they can upon better terms oppose and remove them; they are obliged, by the same logick, to bear the total destruction of mankind. If any man may destroy whom he pleases without resistance, he may extinguish the human race without resistance. For, if you settle the bounds of resistance, you allow it; and if you do not fix its bounds, you leave property at the mercy of rapine, and life in the hands of cruelty.
It is said, that the doctrine of resistance would destroy the peace of the world: But it may be more truly said, that the contrary doctrine would destroy the world itself, as it has already some of the best countries in it. I must indeed own, that if one man may destroy all, there would be great and lasting peace when nobody was left to break it.
The law of nature does not only allow us, but oblige us, to defend ourselves. It is our duty, not only to ourselves, but to the society; Vitam tibi ipsi si negas, multis negas, says Seneca: 8 If we suffer tamely a lawless attack upon our property and fortunes, we encourage it, and involve others in our doom. And Cicero says, "He who does not resist mischief when he may, is guilty of the same crime, as if he had deserted his parents, his friends, and his
So that the conduct of men, who, when they are ill treated, use words rather than arms, and practice submission rather than
8. "If one denies life to oneself, one denies it to many." The Younger Seneca, Phoenissae, 294.
9. Cicero, De officiis, 1.7.23.
26, . . 2 . . 293
resistance, is owing to a prudential cause, because there is hazard in quarrels and war, and their cause may be made worse by an endeavour to mend it; and not to any confession of right in those that do them wrong. When men begin to be wicked, we cannot tell where that wickedness will end; we have reason to fear the worst, and provide against it.
Such is the provision made by laws: They are checks upon the unruly and partial appetites of men, and intended for terror and protection. But as there are already laws sufficient every where to preserve peace between private particulars, the great difficulty has hitherto been to find proper checks for those who are to check and administer the laws. To settle therefore a thorough impartiality in the laws, both as to their end and execution, is a task worthy of human wisdom, as it would be the cause and standard of civil felicity. In the theory nothing is more easy than this task: Yet who is able to perform it, if they who can will not?
No man in society ought to have any privilege above the rest, without giving the society some equivalent for such his privilege. Thus legislators, who compile good laws, and good magistrates, who execute them, do, by their honest attendance upon the publick, deserve the privileges and pay which the publick allows them; and place and power are the wages paid by the people to their own deputies and agents. Hence it has been well said, that a chief magistrate is major singulis, omnibus minor: 10 "He is above the private members of the community; but the community itself is above him."
Where-ever, therefore, the laws are honestly intended, and equally executed, so as to comprehend in their penalties and operation the great as well and as much as the small, and hold in awe the magistrates as much as the subject, that government is good, that people are happy.
10. "Above individuals, less than the whole.'
I am, &c.