felected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the houfe of commons, freely chofen by the people from among themfelves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interefts, compofes the British parliament, and has the fupreme difpofal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, fufficient to repel any innovation which it fhall think inexpedient or dangerous.

HERE then is lodged the fovereignty of the British conflitu tion; and lodged as beneficially as is poffible for fociety. For in no other shape could we be fo certain of finding the three great qualities of government fo well and fo happily united. It th fupreme power were lodged in any one of the three branches e parately, we must be expofed to the inconveniences of either abfolute monarchy, aristocracy, or democracy; and fo want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the king and house of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumfpection and mediatory caution, which the wisdom of the peers is to afford: if the fupreme rights of legislature were lodged in the two houfes only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally deftroy) the ftrength of the executive power. But the conflitutional government of this ifland is fo admirably tempered and compounded, that nothing can endanger or hurt it, but deftroying the equilibrium of power between one branch of the legislature and the reft. For if ever it fhould happen that the independence of any one of the three fhould be loft, or that it fhould become fubfervient to the views of either of the other two, there would

h

foon be an end of our conftitution. The legislature would be changed from that, which was originally fet up by the general confent and fundamental act of the fociety: and fuch a change, however effected, is according to Mr Locke (who perhaps carries his theory too far) at once an entire diflolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to conflitute to themfelves a new legillative power.

HAVING thus curforily confidered the three ufual fpecies of government, and our own lingular conftitution, felected and compounded from them all, I proceed to obferve, that, as the power of making laws conftitutes the fupreme authority, fo wherever the fupreine authority in any fiate refides, it is the right of that authority to make laws; that is, in the words of our definition, to prefcribe the rule of civil action. And this may be discovered from the very end and inftitution of civil ftates. For a ftate is a collective body, compofed of a multitude of individuals, united for their fafety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inafmuch as political communities are made up of many natural perfons, each of whom has his particular will and inclination, thefe feveral wills cannot by any natural union be joined together, or tempered and difpofed into a lafting harmony, fo as to conflitute and produce that one uniform will of the whole. It can therefore be no otherwife produced than by a political union; by the confent of all perfons to fubmit their own private wills to the will of one man, or of one or more aflemblies of men, to whom the fupreme authority is entrufted and this will of that one man, or aflemblage of men, is in different ftates, according to their different conftitutions, underflood to be law.

Thus far as to the right of the fupreme power to make laws; but farther, it is it's duty likewife. For fince the refpec

h On government, part, 2. 3. 2126

tive

tive members are bound to conform themfelves to the will of the ftate, it is expedient that they receive directions from the ftate declaratory of that it's will. But, as it is impoffible, in fo great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the ftate cftablishes general rules, for the perpetual information and direction of all perfons in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what abfolute and what relative duties are required at his hands; what is to be esteemed honeft, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the bencfits of fociety; and after what manner each perfon is to moderate the use and exercise of those rights which the state afligns 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 truft) fufficiently evident; that “municipal law is a rule of civil conduct preferibed by the fupreme power in a flate." I procced now to the latter branch of it; that it is a rule fo prefcribed, "commanding what is right, and “prohibiting what is wrong.

Now in order to do this completely, it is firft of all neceffary that the boundaries of right and wrong be cstablished and ascertained by law. And when this is once donc, it will follow of course that it is likewife the bufinefs 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 afcertain 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 faid to confift of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be efchewed, are clearly defined and laid down:

another.

another, directory; whereby the subject is inftructed and enjoined to observe those rights, and to abftain from the commiffion of thofe 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 fhall 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 legislator. 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, fuch 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 any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or deftroy them, unless the owner fhall himself commit fome act that amounts to a forfeiture. Neither do divine or natural duties (fuch as, for inftance, the worfhip of God, the maintenance of children, and the like) receive any stronger fanction from being alfo declared to be duties by the law of the land. The cafe is the fame as to crimes and mifdemcfnors, that are forbidden by the fuperior laws, and therefore ftiled mala in fe, fuch as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legillature. For that legiflature in all thefe cafes acts only, as was before obferved, in fubordination to the great lawgiver, tranfcribing and publifhing 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 intrinfically right or wrong.

BUT

BUT, with regard to things in themselves indifferent, the cafe is entirely altered. Thefe become either right or wrong, just or unjuft, duties or misdemefnors, 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 fometimes, where the thing itself has it's rise from the law of nature, the particular circumstances 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 furperiors is the doctrine of revealed as well as natural religion: but who thofe fuperiors ftall be, and in what circumstances, or to what degrees they fhall be obeyed, is the province of human haws to determine. And fo, as so injuries or crimes, it must be left to our own legislature to decide, in what cafes the feifing another's cattle fhall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by of diftrefs for rent. way

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 law that says, "thou shalt not “steal,” implies a declaration that stealing is a crime. And-we have seen 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 a law is fo neceffary a confequence of the former two, that laws must be very vague and imperfect without

j See pag. 43.