Sivut kuvina

should allow or enjoin us to commit it, we are bound to transgress that human law, 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 or 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.

(3) That we are bound to disobey every human law which allows or enjoins us to commit a breach of the law of nature, will appear indisputable if we reflect that (according to Sir James Mackintosh's excellent definition of the Law of Nature) a law contradictory thereto would promote, and, if obeyed, must ever promote the misery of man so long as he remains a being of the same nature with which he is at present endowed; is undiscoverable by natural reason, and unsuitable to our natural constitution; and obedience to which would be avenged by natural punishments, and by the yet more awful penalties of a future state. It would be too absurd for the most strenuous advocate of passive obedience and non-resistance to contend that any rule prescribed by the supreme power in a state, having these characteristics, ought to be obeyed by any rational or responsible being.

On this doctrine depends the "lawfulness" of the Revolution of 1688 (Sacheverell's case, 15 St. Tr.). "The municipal laws of a country," said Stanhope, "are only made for the common course of things, and can never be understood to have been designed to defeat the end of all laws whatever, which would be the consequence of a nation's submitting to a violation of all their divine and human rights." The language of the other members of the House of Commons in that celebrated case is still stronger upon this point: "If the transgressions of any given law against common rights and the ends of just government be considerable in their nature and spreading in their effects, as this objection goes to the root and principle of the law, it renders it void in its obligatory quality on the mind. It can not be said to have the properties of genuine law, even in its imperfections and defects. Such a law, though made not virtually, but actually, by the people, not representatively, but even collectively, would be null and void; because it would be against the principle of a superior law, which it is not in the power of any com

munity, or of the whole race of man, to alter. I mean the will of Him who gave us our nature, and, in giving, impressed an invariable law upon it."(BURKE, Tracts on the Popery Laws.) Nor do Episcopal ethics always inculcate passive obedience and non resistance. In the Debate on the Church Discipline Bill (July 26, 1838), the Bishop of Exeter said, "I speak advisedly, but I speak not in a spirit of defiance, when I say, that should this bill pass, Í shall not feel myself at liberty to obey its main instructions or directions. To other laws I will cheerfully conform, but this will be a law that will strike at the very root of the essential discipline of our Christian Church. I plainly and openly, then, declare, that, should this bill pass, if a clergyman in my diocese conducts himself criminally, I shall call on that clergyman to answer to me for his actions, and if he will not obey my remonstrances, I shall proceed to that sentence which this bill tells me I shall not pass-I shall proceed to excommunicate him."-(Mir. of Parl.) Mr. Justice Coleridge (note 2, p. 41) understands Blackstone to mean merely, that a human law against the law of nature has no binding force on the conscience; and that, if a man submits to the penalty of disobedience, he stands acquitted. It seems to the present editor, that laws which are void in se must be void in toto; and, consequently, that we are not bound to pay any penalties which are annexed to the breach of them. Moreover, the Legislature might declare death to be the penalty of a breach of such laws, as in the instances cited above; and thus be able to annihilate the power, though unable to take away the right, of resistance.

"The practical conclusion is, that disobedience is always presumptively wrong in morals, though it may be justifiable in the one case supposed of a contradiction between divine and human laws; but that it stands, in all cases, upon the serious responsibility of the party disobeying."-[COLERIDGE.]*

* See note *, post, p. 92.

Law of na tions.


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 nature 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 state of nature we are all equal, without any 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, can not 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 lawe very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.*

[ 44 ] Thus much I thought necessary to premise concerning the Municipal 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

Puffendorff, 1. 7, c. 1, compared with Barbeyrac's Commentary.

(4) The law of nations corresponds in its topics more nearly with the jus feciale, than with the jus gentium, of the Romans; the latter is rather what we call the law of nature. The rights and duties of nations inter se seem to have been the subject of very little consideration with that people, and not much more regarded among the Greeks. The latter seem, however, to have had certain well-recognized rules upon some of its topics, more especially with regard to the burial of the slain in battle, the erection of trophies, and the privileges of sanctuary. The first and fifth books of Thucydides contain many traces of express rules on the rights of embassadors; and the title of Aristotle's lost treatise on the rights of war (dikaiwμara Toleμov) would even seem to indicate something of a complete and comprehensive system.

The law of nations, or "international

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law," as this branch of jurisprudence is more correctly designated (BENTH., Mor. and Leg., vol. 2), comprehends the principles of national independence, the intercourse of nations in peace, the priv ileges of embassadors, consuls, and inferior ministers; the commerce of the subjects of each state with those of the others; the grounds of just war, and the modes of conducting it; the mutual duties of belligerent and neutral powers; the limits of lawful hostility; the rights of conquest; the faith to be observed in warfare; the force of an armistice, of safe-conducts, and passports; the nature and obligation of alliances; the means of negotiation, and the authority and interpretation of treaties. Its rules are deduced from the natural law of equity, from the approved usage of civ ilized nations, and from the adjudications of international tribunals.

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 Definition of "a rule of civil conduct prescribed by the supreme power in law. municipal a state, commanding what is right, and prohibiting what is wrong." Let us endeavor to explain its several properties, as they arise out of this definition.


branch of

nicipal law.

And, first, it is a rule; not a transient sudden order from a On the first superior to or concerning a particular person; but something the definipermanent, uniform, and universal. Therefore, a particular act tion of muof the Legislature to confiscate the goods of Titius, or to at- It is "a rule taint 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 relation 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 shall 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 see 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.

It is also called a rule, to distinguish it from a compact or [ 45 ] 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 dis- of civil con. tinguishes 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

d Inst., 1. 2, 1.

(5) There is no single word in the English language which will include every prescribed rule of civil conduct de

hors the law of nature and the revealed
will of God. The Greek word vopos
most nearly has this signification.


"prescrib. ed"

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regard man as a creature, and point out his duty to God, to himself, and to his neighbor, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties toward his neighbor 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 [46] churches and other assemblies. It may, 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 up 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 Legislature 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 afterward 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. 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

• 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 sacratæ, vetant duodecim

tabula, leges privatis hominibus irrogari; id enim est privilegium. Nemo unquam tulit: nihil est crudelius, nihil perniciosius, nihil qnod minus hæc civitas ferre possit."

*Ex post facto laws, and laws impairing the obligation of contracts, are prohibited by the Constitution of the U. S. (Art. 1, § 9, 10). The prohibition to the passage of ex post facto laws applies to criminal, and not to civil matters.-(1 Kent's Comm., 408; 2 Peters's R., 413; 8 Id., 88.)

were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity."

preme pow


But, further: municipal law is "a rule of civil conduct pre- "by the su scribed 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. 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 can not subsist without the other.

This may lead us into a short inquiry concerning the nature [ 47 ] 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.

nature of

The only true and natural foundations of society are the Origin and wants and the fears of individuals. Not that we can believe, society. with some theoretical writers, that there ever was a time when there was no such thing as society, either natural or civil; but 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 afterward; 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. Afterward, 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 acci

(6) A session of Parliament (like a session of the peace, 1 M. & S., 481) being considered as one day in law, to whatever period it might be extended in fact, statutes, in which no day was fixed for their commencement, were held to take effect from the first day of the session in which they passed.-(4 Inst., 25.) Many statutes were, consequently, ex post facto laws. By 33

Geo. III., c. 13, this legal fiction was
abolished, and it was enacted that acts
of Parliament, in which no specific day
was fixed for their commencement,
should take effect from the date of the
day on which they received the royal
assent, which date the clerk of the Par-
liament must indorse on every act of
Parliament at the time.*

An act of Congress takes effect from the time of its approval by the President of the U. S., when no time is fixed for the commencement of its operation.-(1 Kent's Comm., 454; Matthews v. Jane, 7 Wheaton, 104.) An act of the Legislature of New York goes into operation on the twentieth day after its passage, unless a different day be prescribed in it.--(1 R. S., 157, § 12.)

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