NATURAL LAW. 



14.7 



which of the.se periods is the true one, or which of 

 these privileges is the proper one ? 



5. Another great object of society is the protec- 

 tion, not only of property in things, but of property 

 (if we may so say) in actions. A great portion of the 

 business of human sociely is founded upon contracts, 

 express or implied; and these contracts, especially 

 in modern times, constitute the bulk of the fortunes 

 and acquisitions of many persons, from the humblest 

 mechanic up to the most opulent stockholder. The 

 obligation of contracts, or, in other words, the duty 

 of performing them, may, indeed, be deduced from 

 the plainest elements of natural law, that is, if such 

 contracts are just and moral, and founded upon 

 mutuality of consideration. It is indispensable to the 

 social intercourse of mankind. It is conformable to 

 the will of God, which requires all men to deal with 

 good faith, and truth, and sincerity, in their inter- 

 course with others. It is indispensable, in order to 

 prevent injuries to others, whose acts, and interests, 

 and property, may depend upon a strict fulfilment of 

 such contracts. But, in a state of nature, the obli- 

 gation of contracts, however perfect in itself, cannot 

 ordinarily be enforced upon the other contracting 

 party to its just extent. The only remedy is positive 

 force ; and this, in many cases, is impracticable, and is 

 generally inconvenient. The institution of political 

 society brings the moral, as well as the physical 

 power of the whole in aid of the natural obligation of 

 contracts. The remedy is generally peaceable, per- 

 fect, and easy. But it muy be naturally asked, what 

 contracts are really obligatory. The true answer, in 

 civil societies, is, all such contracts as the Jaw of the 

 land declares to be obligatory, or of which it permits 

 the obligation to be enforced. The true answer, 

 independent of the positive recognitions of civil 

 society, is, all such contracts as are moral, just, 

 practicable, and have not been extinguished in any 

 lawful manner. Contracts which are immoral, or 

 which have resulted from fraud or oppression ; con- 

 tracts which require impossible things, or are repug- 

 nant to natural justice ; or which are founded in 

 essential mistakes, as to persons, characters, or 

 things ; or which involve the breach of other para- 

 mount obligations, cannot, upon the principles of 

 eternal justice, be obligatory. 



6. Without going more at large into the origin 

 and objects of political society, it will be seen, that 

 these objects require the delegation (as has been 

 already intimated) of certain powers and authorities 

 to those, who are to administer the government. 

 The ends required are the preservation of the gene- 

 ral rights and the general welfare of the community ; 

 and the means to accomplish these ends must be 

 given by the express or implied assent of the govern- 

 ment. The civil powers, which, in every well con- 

 stituted society, seem indispensable for this purpose, 

 are the legislative, executive, and judicial powers. 

 In order to secure the safety and happiness of the 

 society, it is indispensable, that there should be some- 

 where lodged a power to make laws for the punish- 

 ment of wrongs, and for the protection of rights, and 

 for the promotion of the peace, health, and good 

 order of the society. And, as there is a perpetual 

 change in human affairs, and laws and institutions, 

 which are adapted to one age, are frequently unfit for 

 another, there must exist in the government a power 

 to alter, amend, and modify existing laws ; and, as 

 human legislation must necessarily be imperfect, the 

 power to improve it may always be presumed to be 

 useful, since experience often points out mistakes 

 and deficiencies. The power of legislation must, 

 therefore, in its nature, include the power of abol- 

 ishing, as well as of enacting laws. Again, as the 

 exigencies of the society must require expenses to 



be incurred, and revenues to be raised to defray 

 those expenses, the power of taxation naturally be- 

 longs to the power of legislation, as a means to 

 accomplish the appropriate ends of society. But, if 

 laws exist, they soon become a dead letter, unless 

 obedience to them can be enforced ; for it is found 

 that moral obligation alone is not sufficient to insure 

 a perfect performance of duty. The existence of an 

 executive authority, to which is intrusted the due 

 and vigilant execution of the laws, seems indispen- 

 sable. And, as controversies may arise, in a great 

 variety of cases, as to what is the right of one party, 

 and the duty of another ; whether property belongs 

 to one party, or to another ; whether a contract has 

 or has not been performed ; whether a wrong has or 

 has not been done ; whether a crime has or has not 

 been committed, it seems also indispensable, that a 

 power should exist, whose jurisdiction should extend 

 over all controversies of this sort, and should finally 

 decide upon them. This power is the judicial power ; 

 and its free, independent, and honest exercise is as 

 important to the safety and happiness of society, as 

 either of the other two. In short, without a due 

 administration of civil and criminal justice, society is, 

 and can be, of little value. The merit of every 

 government must, therefore, be subjected to this, as 

 the truest test of its real excellence. 



7. In what manner these various powers, legisla- 

 tive, executive, and judicial, are to be exercised, and 

 to what functionaries they are to be intrusted, de- 

 pends upon the particular organization of each 

 society or nation, or what is usually called its form 

 or constitution of government. Where the society is 

 small, and within a very limited extent of territory, 

 it is possible to have them all exercised in an assem- 

 bly of the whole people by the whole people. This 

 would be a pure democracy. But it is obvious, that 

 though possible, in an exact sense it is scarcely prac- 

 ticable ; for all the people of even a small territory 

 can rarely be assembled ; some %vill be absent from 

 accidental circumstances of illness, and age, and 

 more pressing duties. And, probably, in no society 

 whatever were these powers ever, in fact, exercised 

 by the whole people, in any single assembly ; for 

 idiots, madmen, infants, have been universally ex- 

 cluded ; and married women, and persons guilty of 

 crimes, have been usually excluded. The most 

 simple form, in which the powers of government 

 have ever been actually administered, probably is by 

 a majority of that part of the people, which has actu- 

 ally been assembled for such a purpose. And this 

 is, in fact, though in its humblest form, a delegation 

 of the sovereign power of the whole, since it intrusts 

 the authority of the whole to the part, which is 

 assembled. It is also, though in its humblest form, 

 a representative government ; for the whole are repre- 

 sented by those, who are present. We ordinarily 

 call such a government a democracy, or government 

 of the whole people. But in societies, which are 

 composed of large masses of population, such a form 

 of government is unwieldy, and burthensome, and in- 

 efficient. The people, are, therefore, driven to a 

 delegation of their authority to a smaller number of 

 persons, who can act as their representatives in the 

 discharge of the legislative, executive, and judicial 

 functions. Sometimes all these powers are con- 

 centred in a single person ; and then the government 

 assumes the form of a pure despotism ; sometimes 

 they are all exercised by one and the same select 

 body, composed of a few select persons, and then the 

 government is, in form, a pure aristocracy. Some- 

 times the powers are divided, and distributed among 

 various functionaries, and then the government be- 

 comes a mixed form of government. If the execu- 

 tive power, in such a case, is delegated to a single 



K2 



