and at all times: no human laws are of any validity, if contrary to this (3); and fuch of them as are valid derive all 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 ftill necessary to have recourse to reafon: whofe office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by confidering what method will tend the most effectually to our own substantial happiness. And if our reafon were always, as in our first ancestor before his tranfgreffion, clear and perfect, unruffled by paffions, unclouded by prejudice, unimpaired by disease or intemperance, the task would (3) Lord Chief Justice Hobart has also advanced, that even an act of parliament, made against natural justice, as to make a man a ́judge in his own cause, is void in itself, for jura naturæ funt immutabilia, and they are leges legum. (Hob. 87.) With deference to thefe high authorities, I should conceive that in no cafe whatever can a judge oppose his own opinion and authority to the clear will and declaration of the legislature. His province is to interpret and obey the mandates of the supreme power of the state. And if an act of parliament, if we could suppose such a case, should, like the edict of Herod, command all the children under a certain age to be flain, the judge ought to refign his office rather than be auxiliary to its execution; but it could only be declared void by the fame legislative power by which it was ordained. If the judicial power were competent to decide that an act of parliament was void because it was contrary to natural justice, upon an appeal to the House of Lords this inconfiftency would be the confequence, that as judges they must declare void what as legislators they had enacted fhould be valid. "if the parliament The learned judge himself declares in p. 91, "will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the conftitution that ❝is vefted with authority to control it." What has been done by parliament can only be undone by parliament. be be pleasant and eafy; we fhould need no other guide but this. But every man now finds the contrary in his own experience; that his reafon is corrupt, and his understanding full of ignorance and error. THIS has given manifold occafion for the benign interpofition of divine providence; which, in compaffion to the frailty, the imperfection, and the blindnefs of human reason, [42] hath been pleafed, at fundry times and in divers manners, to discover and enforce it's 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 fcriptures. 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 confequences to man's felicity. But we are not from thence to conclude that the knowledge 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 those of the law of nature, fo their intrinfic obligation is of equal ftrength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law. Becaufe one is the law of nature, expressly 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 say, no human laws fhould be fuffered to contradi&t thefe. 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 neceffary 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 fuch points as are not indifferent, human laws are only declaratory of, and act in subordination 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 these prohibitions arises the true unlawfulnefs of this crime. Those human laws that annex a punishment to it, do not at all increase it's moral guilt, or superadd any fresh obligation in foro confcientiae to abstain from [ 43 ] it's perpetration. Nay, if any human law fhould allow or enjoin us to commit it, we are bound to tranfgrefs 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 fuperior laws; fuch, for instance, as exporting of wool into foreign countries; here the inferior legislature has fcope and opportunity 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 (4), and the law of God. Neither could any other law poffibly exist; for a law always supposes some superior who is to make it; and in a state of (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 ftate of nature, to which the laws of nature or of morals more particularly refer, must signify the state of men when they affociate together previous to, or independent of, the inftitutions of regular government. The ideal equality of men in such a state no more precludes the idea of a law, than the fuppofed equality of subjects in a republic. The fuperior, who would prescribe and enforce the law in a state of nature, would be the collective force of the wife and good, as the superior in a perfect republic is a majority of the people, or the power to which the majority delegate their authority. VOL. I. E nature [ 44 ] nature we are all equal, without any other superior 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 feparate ftates, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourfe. Hence arifes a third kind of law to regulate this mutual intercourse, called "the law of nations :" which, as none of these ftates will acknowledge a fuperiority 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 thefe feveral 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 very justly obferves, that quod naturalis ratio inter omnes homines conftituit, vocatur jus gentium. THUS much I thought it neceffary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal subject of this fection, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Juftinian, "jus civile eft " quod quifque fibi populus conftituit." I call it municipal law, in compliance with common fpeech; for though, strictly, that expression denotes the particular customs of one fingle municipium or 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 prescribed by the supreme "power in a state, commanding what is right, and pro "hibiting what is wrong (5)." Let us endeavour to (5) Though the learned Judge treats this as a favourite definition, yet when it is examined, it will not perhaps appear so satisfactory, as the definition of civil or municipal law, or the law of the land, cited above from Juftinian's Inftitutes; viz. Quod quifque populus ipfe fibi jus conflituit, id ipfius proprium civitatis eft, vocaturque jus civile, quafi jus proprium ipfius civitatis. A municipal law is completely expreffed by the first branch of the definition · "A rule of civil conduct prescribed by the fupreme power in a state."-And the latter branch, "commanding "what is right and prohibiting what is wrong," must either be fuperfluous 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 infignificant 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 feldom or never command what is wrong, yet in ten thousand instances it forbids what is right.-It forbids an unqualified person to kill 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, Lex eft fumma ratio infita à natura que jubet ea, quæ facienda funt, prohibetque contraria. Cic. de Leg. lib. i. c. 6. The description of law given by Demofthenes is perhaps the moft perfect and fatisfactory that can either be found or conceived: Οἱ δὲ νόμοι τὸ δίκαιον καὶ τὸ καλὸν καὶ τὸ συμφέρον βούλονται, καὶ τῦτο ζητᾶσι. καὶ ἐπειδὰν εὑρεθῆ, κοινον τῦτο πρόταγμα ἀπεδείχθη, πᾶσιν ἴσον καὶ ὅμοιον. καὶ τοτ ̓ ἔτι νόμος, ᾧ πάντας προσήκει πείθεσθαι · διὰ πολλὰς καὶ μάλισθ', ἱτὶ πᾶς ἐςι νόμος, εύρημα μὲν καὶ δῶρον θεῶν δόγμα δ' ἀνθρώπων Φρονιμων, ἐπανόρθωμα δε των εκεσίων καὶ ἀκωσίων, ἁμαρτημάτων, πόλεως δὲ συνθήκη κοινης καθ ̓ ἣν πᾶσι προσήκει ζῆν τοῖς ἐν τη πόλει. "The defign and object of laws is to ascertain what "is juft, honourable, and expedient; and when that is difcovered, E 2 ❝ it |