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edge of these truths was attainable by reason, in its prefent corrupted ftate; fince we find that, until they were revealed, they were hid from the wifdom of ages. As then the moral precepts of this law are indeed of the fame original with thofe of the law of nature, fo their intrinfick obligation is of equal ftrength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral fyftem, which is framed by ethical writers, and denominated "The Natural Law." Because one is the law of nature, exprefsly declared fo to be by God himself.; the other is only what, by the affiftance 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 fay, no human laws fhould be suffered to contradict thefe. There are, it is true, a great number of indif ferent points, in which both the divine law and the nat ural leave a man at his own liberty; but which are found neceffary for the benefit of fociety to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to fuch points as are not indifferent, human laws are only declaratory of, and act in fubordination to, the former. To inftance in the cafe of murder: This is exprefsly forbidden by the divine, and demonftrably by the natural law; and from thefe prohibitions arises the true unlawfulness of this crime. Those human laws

that annex a punishment to it, do not at all increase its moral guilt, or fuperadd any fresh obligation in foro confcientiae to abstain from its perpetration. Nay, if any human law fhould allow or enjoin us to commit it, we are bound to tranfgrefs that human law, or elle we muft 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 fuperior laws; fuch, for inftance, as exporting of wool into foreign countries; here the inferior legislature has fcope and opportunity

portunity to interpofe, and to make that action unlawful which before was not fo.

If man were to live in a state of nature, unconnected with other individuals, there would be no occafion for any other laws, than the law of nature, and the law of God. Neither could any other law poffibly exift: For a law always supposes fome fuperior who is to make it; and in a state of nature we are all equal, without any other fuperior but him who is the author of our being. But man was formed for fociety; and, as is demonftrated by the writers on this fubject, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impoffible for the whole race of mankind to be united in one great fociety, they must neceffarily divide into many; and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arifes a third kind of law, to regulate this mutual intercourse, called "The Law of Nations;" which as none of these states will acknowledge a fuperiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law, or upon mutua! compacts, treaties, leagues, and agreements between these feveral communities: In the conftruction also of which compacts we have no other rule to refort to, but the law of nature; being the only one to which all the communities are equally fubject: And therefore the civil law very juftly obferves, that quod naturalis ratio inter omnes homines conftituit, vacatur jus gentium.

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Thus much I thought it neceffary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceed to treat more fully of the principal fubject of this fection, municipal or civil law; that is, the rule by which particular diftricts, communities, or nations are governed; being thus defined by Juftinian, jus civile eft quod quifque fibi populus confti"tuit." I call it municipal law, in compliance with common fpeech; for, though ftrictly that expreffion denotes the particular cuftoms of one fingle municipium or

free

Puffendorf, l. 7. c. 1. compared with Barbeyrac's commentary. d Inft. 1. 2. 1.

c Ff. 1. 1. 9.

free town, yet it may with fufficient propriety be applied to any one state or nation which is governed by the fame laws and customs.

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prefcribed by the fupreme "power in a state, commanding what is right, and "prohibiting what is wrong." Let us endeavour to explain its feveral properties, as they arise out of this definition.

And first, It is a rule: Not a tranfient fudden order from a fuperior, to or concerning a particular person; but fomething permanent, uniform, and univerfal. Therefore, a particular act of the legislature to confifcate the goods of Titius, or to attaint him of high treafon, 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 alfo called a rule, to diftinguifh it from advice or counfel, which we are at liberty to follow or not, as we fee 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 perfuafion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling alfo.

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It is alfo called a rule, to distinguish it from a compact or agreement; for a compact is a promife proceeding from us, law is a command directed to us. guage of a compact is, "I will, or will not, do this;" that of a law is," Thou fhalt, or fhalt not, do it." It is true, there is an obligation which a compact carries with it, equal in point of confcience 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 prom. ifing any thing at all. Upon these accounts law is defined to be a rule.

Municipal

Municipal law is alfo "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, confidered in the light of an individual. But municipal or civil law regards him also as a citizen, and 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 fociety.

It is likewife "a rule prefcribed." Because a bare refolution, confined in the breast of the legislature, without manifefting itself by fome external fign, can never be properly a law. It is requifite that this refolution 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 univerfal tradition and long practice, which supposes a previous publication, and is the cafe 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 fuch acts of parliament as are appointed to be publickly read in churches and other af femblies. It may laftly 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 ufe of, it is incumbent on the promulgators to do it in the most publick and perfpicuous manner; not like Caligula, who (according to Dio Caffius) wrote his laws in a very fmall character, and hung them up upon high pillars, the more effectually to eninare the people. There is ftill a more unreasonable method than this, which is called, "Making of laws ex poft fatto;" when, after an action (indifferent in itfelf) is committed, the legiflator then for the first time declares it to have been a crime, and inflicts a punishment upon the perfon who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done,

should

fhould be afterwards converted to guilt by a subsequent law He had therefore no cause to abftain from it; and all punishment for not abstaining muft of consequence be cruel and unjust . All laws fhould be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "prefcribed." But, when this rule is in the usual manner notified, or prescribed, it is then the fubject's business to be thoroughly acquainted therewith; for if ignorance of what he might know, were admitted as a legitimate excufe, the laws would be of no effect, but might always be eluded with impunity.

But farther: Municipal law is " a rule of civil con"duct prescribed by the fupreme power in a state." For legiflature, as was before obferved, is the greatest act of fuperiority that can be exercised by one being over another. Wherefore it is requifite to the very effence of a law, that it be made by the fupreme power. Sovereignty and legislature are indeed convertible terms; one cannot fubfift without the other.

This may lead us into a fhort inquiry concerning the nature of fociety and civil government; and the natural, inherent right that belongs to the fovereignty of a ftate, wherever that fovereignty be lodged, of making and enforcing laws.

The only true and natural foundations of fociety are the wants and fears of individuals. Not that we can believe with fome theoretical writers, that there ever was a time when there was no fuch thing as fociety, either natural or civil; but that, from the impulse of reason, and through a sense of their wants and weakneffes, individuals met together in a large plain, enter ed into an original contract, and chofe the tallest man present to be their governor. This notion of an actually exifting unconnected state of nature, is too wild to be seriously admitted; and besides it is plainly contradictory

e Such laws among the Romans were denominated privilegia, or private laws, of which Cicero (de leg. 3. 19. and in his oration pro dumo, 17.) thus speaks: "Vetant leges facratae, vetant "duodecim tabulae, leges privatis hominibus irrogari; id enim eft "privilegium. Nemo unquam tulit, nibil eft crudelius, nibil pernicio"fius, nibil quod minus baec civitas ferre poffit."

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