CHAPTER 4
Source of a Law
Source of a Law
The will of which it is the expression must, as the definition intimates, be the will of the sovereign in a state. Now by a sovereign I mean any person or assemblage of persons to whose will a whole political community are (no matter on what account) supposed to be in a disposition to pay obedience: and that in preference to the will of any other person. Suppose the will in question not to be the will of a sovereign, that is of some sovereign or other; in such case, if it come backed with motives of a coercive nature, it is not a law, but an illegal mandate: and the act of issuing it is an offence. . . .
Now a given will or mandate may be the will or mandate of a given person in either of two ways: in the way of conception . . . (that is of original conception) or 2. in the way of adoption. A will or mandate may be said to belong to a sovereign in the way of conception when it was he himself ... who first issued it, in the words or other signs in which it stands expressed: it may be said to belong to him by adoption when the person from whom it immediately comes is not the sovereign himself ... but some other person: insomuch that all the concern which he to whom it belongs by adoption has in the matter is the being known to entertain a will that in case such or such another person should have expressed . . . a will concerning the act or sort of act in question, such will should be observed and looked upon as his....
The mandates of the master, the father, the husband, the guardian, are all of them the mandates of the sovereign: if not, then neither are those of the general nor of the judge. Not a cook is bid to dress a dinner, a nurse to feed a child, an usher to whip a school boy, an executioner to hang a thief, an officer to drive the enemy from a post, but it is by his orders. If anyone should find a difficulty in conceiving this, he has only to suppose the several mandates in question to meet with resistance: in one case as well as in another the business of enforcing them must rest ultimately with the sovereign. To deny it is as much as to say that it is God Almighty indeed that keeps up the race of elephants, but it is somebody else that keeps up the race of mites. Nor is there anything of fiction in all this: if there were, this is the last place in which it should he found.
Fiction, the bane of science, which is frequently wickedness and which is at best but nonsense, can never be requisite for explanation. . . .
It is in this very way that conveyances and covenants acquire all the validity they can possess, all the connection they have with the System of the laws: adopted by the sovereign, they are converted into mandates. If you give your coat to a man, and the gift is valid, and nobody else has a right to meddle with your coat, it is because a mandate subsists on the part of the sovereign, commanding all persons whatever to refrain from meddling with it, he to whom you gave it alone excepted, upon the event of your declaring such to be your pleasure. If a man engages or covenants to mend your coat for you, and such an engagement is valid, it is because on the part of the sovereign a mandate hath been issued, commanding any person upon the event of his entering into any engagement, (exceptions excepted) and thereby that particular person in consequence of his having entered into that particular engagement, (it not being within the exceptions) to perform it: in other words to render you that particular service which is rendered to you by performance of the act which he has engaged for....