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moderate the use and exercise of those rights which the state affigns him, in order to promote and fecure the public tranquillity.

FROM what has been advanced, the truth of the former branch of our definition is (I trust) sufficiently evident; that "municipal law is a rule of civil conduct prefcribed by the fu"preme power in a flate." I proceed now to the latter branch of it; that it is a rule so prescribed,

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66 right, and prohibiting what is wrong."

commanding what is

Now, in order to do this completely, it is first of all neceffary that the boundaries of right and wrong be established and afcertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, confidered as a rule of civil conduct, to enforce these rights, and to restrain or redress these wrongs. It remains, therefore, only to confider in what manner the law is faid to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.

FOR this purpose every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, directory; whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commiffion of those wrongs: a third, remedial; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs: to which may be added a fourth, ufually termed the fanction, or vindicatory branch of the law; whereby it is fignified what evil or penalty shall be incurred by fuch as commit any public wrongs, and tranfgrefs or neglect their duty.

WITH regard to the first of these, the declaratory part of the municipal law, this depends not fo much upon the law

of revelation or of nature, as upon the wisdom and will of the legiflator. This doctrine, which before was flightly touched, deferves a more particular explication. Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive

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additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (fuch as, for inftance, the worship of God, the maintenance of children, and the like) receive any stronger fanction from being also declared to be duties by the law of the land. The cafe is the fame as to crimes and misdemefnors, that are forbidden by the fuperior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cafes acts only, as was before obferved, in fubordination to the great lawgiver, tranfcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

But, with regard to things in themselves indifferent, the cafe is entirely altered. These become either right or wrong, just or unjust, duties or misdemesnors, according as the municipal legislator fees proper, for promoting the welfare of the fociety, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do inftantly upon marriage become the property and right of the husband; and our ftatute law has declared all monopolies a public offence; yet that right and this offence have no foundation in nature; but are merely created by the law, for the purposes of civil fociety.

And

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And sometimes, where the thing itself has it's rife from the law of nature, the particular circumftances and mode of doing it become right or wrong, as the laws of the land fhall direct. Thus, for inftance, in civil duties; obedience to fuperiors is the doctrine of revealed as well as natural religion; but who those superiors fhall be, and in what circumstances, or to what degrees they shall be obeyed, it is the province of human laws to determine. And fo, as to injuries or crimes, it must be left to our own legislature to decide, in what cafes the feizing another's cattle fhall amount to a trespass or a theft; and where it fhall be a justifiable action, as when a landlord takes them by way of distress for rent.

THUS much for the declaratory part of the municipal law; and the directory stands much upon the fame footing; for this virtually includes the former, the declaration being usually collected from the direction. The laws that fays, "thou "fhalt not steal," implies a declaration that stealing is a crime. And we have feeni that, in things naturally indifferent, the very effence of right and wrong depends upon the direction of the laws to do or to omit them.

THE remedial part of the law is so neceffary a confequence of the former two, that laws must be very vague and im[56] perfect without it. For in vain would rights be declared, in

vain directed to be observed, if there were no method of recovering and afferting those rights, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has faid, "that the field or inhe"ritance, which belonged to Titius's father, is vested by his "death in Titius:" and the directory part has “forbidden (6 any one to enter on another's property, without the leave "of the owner:" if Gaius, after this, will prefume to take poffeffion of the land, the remedial part of the law will then

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interpofe its office; will make Gaius reftore the poffeffion to Titius, and alfo pay him damages for the invasion.

WITH regard to the fanction of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the fanction of their laws rather vindicatory than remuneratory, or to confist rather in punishments, than in actual particular rewards. Becaufe, in the firft place, the quiet enjoyment and protection of all our civil rights and liberties, which are the fure and general confequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because alfo, were the exercife of every virtue to be enforced by the propofal of particular rewards, it were impoffible for any state to furnish stock enough for fo profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human action than the profpect of good *. For which reasons, though a prudent beftowing of rewards is fometimes of exquifite ufe, yet we find that thofe civil laws, which enforce and enjoin our duty, do feldom, if ever, propose any privilege or gift to such as obey the law; but do conftantly come armed with a penalty denounced against tranfgreffors, either exprefsly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution.

Of all the parts of a law the most effectual is the vindi- [ 57 ] catory. For it is but loft labour to fay, "do this, or avoid "that," unless we alfo declare," this fhall be the confe66 quence of your non-compliance." We must therefore obferve, that the main ftrength and force of a law confifts in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

Locke, Hum. Und. b. 2. c. 21.

VOL. I.

F

LEGIS

LEGISLATORS and their laws are faid to compel and oblige ; not that by any natural violence they so constrain a man, as to render it impoffible for him to act otherwife than as they direct, which is the ftrict fenfe of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pafs that no man can eafily choofe to tranfgrefs the law; fince, by reafon of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are propofed as well as punishments threatened, the obligation of the law feems chiefly to confift in the penalty for rewards, in their nature, can only perfuade and allure; nothing is compulsory but punishment.

It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon men's confciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of confcience no longer to withhold or to invade it. So also in regard to natural duties, and fuch offences as are mala in fe here we are bound in conscience, because we are bound by fuperior laws, before thofe human laws were in being, to perform the one, and abstain from the other. But in relation to thofe laws which enjoin only positive duties, and forbid only such things as are not mala in fè, but mala prohibita merely, [58] without any intermixture of moral guilt, annexing a pe

nalty to non-compliance, here I apprehend confcience is no farther concerned, than by directing a submission to the penalty, in cafe of our breach of those laws: for otherwife the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every fuch law were a fnare for the conscience of the fubject. But in these cafes the alternative is

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