their force, and all their authority, mediately or immediately, from this original./ But, in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life, by considering what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error. This has given manifold occasion for the benign interposition of divine Providence, which, in compassion to the frailty, the imperfection, [42] and the blindness of human reason, hath been pleased, at sun dry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.) These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. (Yet undoubtedly the revealed law is infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law; because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together. Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points in which both the divine law and the natural leave a man at his own liberty, but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and, from these prohibitions, arises the true unlawfulness of this crime. Those hu man laws that annex a punishment to it do not at all increase its [43] moral guilt, or superadd any fresh obligation, in foro conscientiæ, to` abstain from its perpetration. Nay, if any human law should allow or injoin us to commit it, we are bound to transgress that human law, the children of a certain age to be slain, the judge ought to resign his office rather than be auxiliary to its execution: but it could only be declared void by the high authority by which it was ordained. The learned judge himself is also of tt's opinion in p. 91.-C } or else we must offend both the natural and the divine. But, with regard to matters that are in themselves indifferent, and are not commanded ot forbidden by those superior laws,-such, for instance, as exporting of wool into foreign countries,-here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so. if man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of na ture (4), and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and, in a stat of nature, we are all equal, without any other superior but Him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject (b), is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations," which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject and therefore the civil law (c) very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium. Thus much I thought it necessary to, premise concerning the [44] law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations, are governed; being thus defined by Justinian, (d) "jus civile est quod quisque sibi populus constituit." I call it municipal law, in compliance with common speech; for, though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs. Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." (5) Let us endeavour to explain 'ffendorf, & 7, c. 1. compared with Barbeyc's Commentary. (4). The law of nature, or morality, which teaches the duty towards one's neighbour, would scarce be wanted in a solitary state, where man is unconnected with man. A state of nature, to which the laws of nature, or of morals, more particularly refer, must signify the state of men, when they associate together previous to, or independent of, the institutions of regular government. The ideal equality of men in such a state no more precludes the idea of a law, than the supposed equality of subjects in a republic. The superior, who would prescribe and enforce the law in a state of na ure, would be the collective force of the wise VOL. I. 1 its several properties, as they arise out of this definition. And, first, it is a rule not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no re lation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused still be deemed high treason: this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we sec proper, and to judge upon the reasonableness or unreasonableness of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the maker's will. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also. [*45] *It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, "I will, or will not. do this;" that of a law is, "thou shalt, or shalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising any thing at all. Upon these accounts law is defined to be "a rule." Municipal law is also "a rule of civil conduct." This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and facienda sunt prohibetque contraria,—Cic. de Leg, lib. i. c. 6. the first branch of the definition: "A rule of civil conduct prescribed by the supreme power in a state." And the latter branch, " commanding what is right, and prohibiting what is wrong," must either be superfluous, or convey a defective idea of a municipal law; for if right and wrong are referred to the municipal law itself, then whatever it commands is right, and what it prohibits is wrong, and the clause would be insignificant tautology. But if right and wrong are to be referred to the law of nature, then the definition will become deficient or erroneous ; for though the municipal law may seldom or never command what is wrong, yet in ten thousand instances it forbids what is right. It forbids an unqualified person to ki" a hare or a partridge; it forbids a man to exercise a trade without having served seven years as an apprentice; it forbids a man to keep a horse or a servant without paying the tax. Now all these acts were perfectly right before the prohibition of the municipal law. The latter clause of this definition seems to have been taken from Cicero's definition of a law of nature, though perhaps it is there free from the objections here suggested: Ler est summa ratio insita à naturá quæ jubet ea, que The description of law given by Demosthe nes is perhaps the most perfect and satifactory that can either be found or conceived; Of δὲ νόμοι τὸ δίκαιον καὶ τὸ καλὸν καὶ τὸ συμφέρον βούλονται, καὶ τᾶτο ζητέσι. καὶ ἐπειδὰν εὑρεθῆ, και τὸν τῶ το πρόταγμα ἀπεδείχθη, πᾶσιν ἴσον καὶ ὅμοι ον. καὶ τότ' ἔςι νόμος, ᾧ πάντας προσήκει πείθεσθαι διὰ πολλὰ καὶ μάλισθ', ὅτι πᾶς ἐςι νόμος εὔρημα μὲν καὶ δῶρον θεῶν, δόγμα δ' ἀνθρώποι φρονίμων, ἐπανόρθωμα δε των έκεσίων καὶ ἀκεσίων ἁμαρτη μάτων, πόλεως δὲ συνθήκη κοινῆς καθ ἣν πᾶσι προσήκει ζῆν τοῖς ἐν τῇ πόλει, “The design and object of laws is to ascertain what is just, honourable, and expedient; and, when that is discovered, it is proclaimed as a general ordinance, equal and impartial to all. This is the origin of law, which, for various reasons, all are under an obligation to obey, but es pecially because all law is the invention and gift of heaven, the sentiment of wise men, the correction of every offence, and the general compact of the state; to live in conformity with which is the duty of every individual in society." Orat 1. cont. Aristog.-CH. bound to other duties towards his neighbour than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more than that he do contribute, on his part, to the subsistence and peace of the society. It is likewise "a rule prescribed. Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified, viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may [46] lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is committed the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust (e). (All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "prescribed." But when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity (6). But farther: municipal law is " a rule of civil conduct prescribed by the supreme power in a state." For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. (e) Such laws among the Romans were denominated privilegia*, or private laws, of which Cicero (de leg. 3. 19, and in his oration, pro domo, 17.) thus speaks: "Vetant leges sacrate, vetant duodecim An ez post facto law may be either of a public er of a private nature; and when we speak generally of an ez post facto law, we perhaps always inean a law which comprehends the whole community. (6) Many instances formerly occurred of acts of parliament taking effect prior to the passing thereof, by legal relation from the first day of the session, sec. 1. Lev. 91. 4. T. R. 660: but this is remedied by 33 Geo. 3. c. 13. and frequently it is provided, that the act shall cornmence at a future nained day. In New-York, every law, unless a different Dune is prescribed therein, takes effect on the wentieth day after the day of its final passage. R. S. 157. The statutes of the United States take ef tabulæ, leges privatis hominibus irrogari ; id enim est privilegium. Nemo unquam tulit, nihil est cru delius, nihil perniciosius, nihil quod minus hæc civi tas ferre possit." The Roman privilegia seem to correspond to em bills of attainder, and bills of pains and penalties, which, though in their nature they are ex post fucto laws, yet are never called so.-Ch. fect from their date. 1 Kent's Com. 4261 Gallis, 62-7 Wheat. 164. The constitution of the United States prevents Congress from passing any er post facto law article 1. sect. 2. § 3-so article I. sect. 10. 1. prevents any state from passing any ex post facto law or law impairing the obligation of contracts. By ex post facto laws, is only meant, laws relating to criminal not civil matters. R. 477. 3 Dallas 386. See, however, 2 Peters 681, Mr. Justice Johnson's opinion. 7 Johns. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power., Sovereignty and legislature are indeed convertible terms · one cannot subsist without the other. [*47] *This will naturally lead us into a short quiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws. ✓ The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society, among themselves; which, every day extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet [48] in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole, or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection should be certainly extended to any. J 1 For when civil society is once formed, government at the same time re sults of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and te dress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? To this the general answer is easy: out the application of it to particular cases has occasioned one half of those mischiefs, which are apt to proceed from misguided political zeal. In ge |