1.3. 3. Of Positive Laws.
As soon as man enters into a state of society he loses the sense of
his weakness; equality ceases, and then commences the state of war.
Each particular society begins to feel its strength, whence arises a
state of war between different nations. The individuals likewise of each
society become sensible of their force; hence the principal advantages
of this society they endeavour to convert to their own emolument, which
constitutes a state of war between individuals.
These two different kinds of states give rise to human laws.
Considered as inhabitants of so great a planet, which necessarily
contains a variety of nations, they have laws relating to their mutual
intercourse, which is what we call the law of nations. As members of a
society that must be properly supported, they have laws relating to the
governors and the governed, and this we distinguish by the name of
politic law. They have also another sort of law, as they stand in
relation to each other; by which is understood the civil law.
The law of nations is naturally founded on this principle, that
different nations ought in time of peace to do one another all the good
they can, and in time of war as little injury as possible, without
prejudicing their real interests.
The object of war is victory; that of victory is conquest; and that
of conquest preservation. From this and the preceding principle all
those rules are derived which constitute the law of nations.
All countries have a law of nations, not excepting the Iroquois
themselves, though they devour their prisoners: for they send and
receive ambassadors, and understand the rights of war and peace. The
mischief is that their law of nations is not founded on true principles.
Besides the law of nations relating to all societies, there is a
polity or civil constitution for each particularly considered. No
society can subsist without a form of government. "The united strength
of individuals," as Gravina
[4]
well observes, "constitutes what we call the body politic."
The general strength may be in the hands of a single person, or of
many. Some think that nature having established paternal authority, the
most natural government was that of a single person. But the example of
paternal authority proves nothing. For if the power of a father relates
to a single government, that of brothers after the death of a father,
and that of cousins-german after the decease of brothers, refer to a
government of many. The political power necessarily comprehends the
union of several families.
Better is it to say, that the government most conformable to nature
is that which best agrees with the humour and disposition of the people
in whose favour it is established.
The strength of individuals cannot be united without a conjunction
of all their wills. "The conjunction of those wills," as Gravina again
very justly observes, "is what we call the civil state."
Law in general is human reason, inasmuch as it governs all the
inhabitants of the earth: the political and civil laws of each nation
ought to be only the particular cases in which human reason is applied.
They should be adapted in such a manner to the people for whom they
are framed that it should be a great chance if those of one nation suit
another.
They should be in relation to the nature and principle of each
government; whether they form it, as may be said of politic laws; or
whether they support it, as in the case of civil institutions.
They should be in relation to the climate of each country, to the
quality of its soil, to its situation and extent, to the principal
occupation of the natives, whether husbandmen, huntsmen, or shepherds:
they should have relation to the degree of liberty which the
constitution will bear; to the religion of the inhabitants, to their
inclinations, riches, numbers, commerce, manners, and customs. In fine,
they have relations to each other, as also to their origin, to the
intent of the legislator, and to the order of things on which they are
established; in all of which different lights they ought to be
considered.
This is what I have undertaken to perform in the following work.
These relations I shall examine, since all these together constitute
what I call the Spirit of Laws.
I have not separated the political from the civil institutions, as I
do not pretend to treat of laws, but of their spirit; and as this spirit
consists in the various relations which the laws may bear to different
objects, it is not so much my business to follow the natural order of
laws as that of these relations and objects.
I shall first examine the relations which laws bear to the nature
and principle of each government; and as this principle has a strong
influence on laws, I shall make it my study to understand it thoroughly:
and if I can but once establish it, the laws will soon appear to flow
thence as from their source. I shall proceed afterwards to other and
more particular relations.
Footnotes
[4]
Italian poet and jurist, 1664-1718.
