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But if the discovery of these first principles of the law of nature depended oniy upon the due exertion of right reason, and could not otherwise be obtained: tan by a chain of metaphysical disquisitions, mankind would have wanted some inlucement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As, therefore, the Creator is a being not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he *has not perplexed the law of nature with a multitude of abstracted rules and
[*41 precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised, but has graciously reduced the rule of obedience to this one paternal precept, “ that man should pursue his own true and substantial happi. ness." This is the foundation of what we call ethics, or natural law; for the several articles into which it is branched in our systems, amount to no moro than demonstrating that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.*
are ruinous to society, and not by immediate but remote consequences, as drunkenness, debauchery, profaneness, extravagance, gaming, &c.—Christian.
There is in every moral being a faculty or sense by which he is enabled to distinguish right from wrong. There have been a great number of theories among those who have rejected the doctrine of a moral sense. They have succeeded each man in showing every other theory but his own to be baseless. The reductio ad absurdum of every other system, which ingenuity has ever framed, would alone seem to leave the advocates of a moral sense in possession of the field. The appeal, after all, must be made to every man's consciousness. And why not? Every other faculty is proved in the same way. Let any one attempt to demonstrate that there is in men å natural taste for beauty. HA will be met by precisely the same course of argument as that which attacks the existence of the moral sense, or, as it may well be termed, the taste for moral beauty. All men have it not in the same perfection. In some it is undeveloped, in some it is corrupted. Indeed, the same objections may be urged against the perceptions of the palate or of any other natural sense. That some men love the taste of tobacco by no means proves that there is not a natural faculty in all men which distinguishes between the qualities of sweet and bitter.
The commentator appears to have adopted the idea that utility is the standard of right and wrong; in other words, that we are determined in our judgment of the moral qualities of an action solely by a consideration of its effect on our happiness. Such a doctrine contradicts the common sense and feeling of mankind. If a gross instance of ingratitude to a benefactor-of filial impiety—of marital cruelty-is presented to the mind, no man stops to estimate its consequences before pronouncing judgment of condemnation or feeling a sense of detestation. If a grovelling miser were robbed of his treasure by a philanthropist in order to devote every cent of it to the relief of suffering humanity, nay, though the result should be peace and joy to many families, without one element of unhappiness to the sordid wretch whose property was thus wrested from him, the common sense and feeling of mankind would condemn the act as wrong. It would be right on the utilitarian scheme, even if you give the widest scope to the idea of utility, as Archdeacon Paley has done; for even the precedent, if we confine its authority (as all precedents must be) to the very case given, would not be bad.
“According to this view,” says the Rev. Dr. Alexander, “unless a man is persuaded that he shall gain something by keeping his word, he is under no obligation to do it. Even if God should clearly make known his will and lay upon him his command, he is under no obligation to obey, unless certain that he shall receive benefit by so doing. This is, indeed, to make virtue a mercenary thing and reduce all motives to a level. And, as self-love or the desire of happiness is the only rational motive, (and all men possess this in a sufficient degree of strength,) the only conceivable difference betweer
This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their author. ity, mediately or immediately, from this original."
But, in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life, by considering whát method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.
This has given manifold occasion for the benign interposition of divine Provi. dence, which, in compassion to the frailty, the imperfection, and the blindness *42]
of human reason, *hath been pleased, at sundry times and in divers man
ners, to discover and enforce its 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 scriptures. These precepts, when revealed, aro found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical
the good and the bad consists in the superior sagacity which the one has above the other to discern what will most contribute to happiness. And if what we call vice or sin could be made to contribute to happiness, then it would change its nature and become virtue."-Elements of Moral Science, p. 57.
Right and wrong, indeed, are words which are often employed in common speech in a much larger sense than is attached to them by moral science; and it is necessary to distinguish this popular from their strictly philosophical meaning. Right, in this popular sense, is synonymous with expediency,-fitness to an end. In the strict sense of the word, as a moral quality, right is conformity to that rule of moral conduct which the conscience approves; wrong, that which it disapproves. It is not the conscience, but the understanding, which is called into exercise when we judge of questions of expediency or utility,of the fitness of certain things or actions to certain ends. That feeling of complaceney which, in its higher or lower degrees, we term admiration or approbation, must always accompany a judgment of moral right; detestation or disapprobation, a judgment of moral wrong.-SHARSWOOD.
5 Mr. Justice Coleridge remarks that he understands the author to mean by this 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; and that, in this sense, the position seems unquestionable. He subsequently states that the burden of proof and the moral responsibility in case of error lie on him who disobeys; that is, on him who sets up his own understanding of the divine law as a ground in conscience for refusing to submit to the lawfully-constituted legislature of the country.
It appears to me, however, that, in such a case, the subject or citizen has only one of two alternatives: revolution,-an appeal to the ultimate power which exists in every society, after he has tried all the ordinary forms of the constitution to obtain a repeal of the obnoxious law,—or removal to another country. I cannot agree that when a law, decided to be constitutional, is in full force, its provisions can be conscientiously vio lated, even though its penalty be submitted to. It may be necessary to do so for a time, and such necessity may afford a sufficient justification in foro conscientia. I do not say that a man's circumstances, and especially his relation to his family, may not be such as to make this justification permanently a good one. All I mean to say is that he cught pot voluntarily to place himself, or remain, in such a position. SuarswOOD.
writers, and denominated the natural law; because one is the law of i ature, expressly declared so to be by God himself; the other is only what, by the assistance 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 should be suffered to contradict these. 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 necessary, 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 such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and, from these 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 *superadd any fresh obligation, in foro conscientiæ, to abstain from its perpetration. Nay, if any human law should
[*43 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.
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 surposes some superior who is to make it; and, in a state of nature, we are all equal, without any other 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,(6) 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, cannot 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 law(c) very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.'
(%) Puffendorf, 1. 7, c. 1, compared with Barboyrac's Commentary.
() Ff. i. 1,9
* 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 state of nature, to which the laws of nature, or of morals, more particularly refer, must signify the state of men, when they associate together previous to, or independent of, the institutions of regular government. The ideal equality of men in such a state no more precludes the idea of a law, than the supposed equality of subjects in a republic. The superior, who would prescribe and enforce the law in a state of nature, would be the collective force of the wise 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.—CARISTIAN.
Modern writers have agreed that the term International Law is more proper than Law of Nations. Jus gentium is rather what Adam Smith has called natural jurisprudence, which he says is a theory of the principles which ought to run through, and to be the foundation of, the laws of all nations.". The two phrases jus naturæ and jus gentium are used by the Roman lawyers almost indiscriminately. Jus feciale more properly was employed to express among the Romans what we mean by the law of nations. They had
*Thus much I thought it necessary to premise concerning the law of
nature, the revealed law, and the law of nations, before I proceeded to treat inore fully of the principal subject of this section, municipal or civil law; that 's, the rule by which particular districts, communities, or nations, are governed ; being 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 “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.'
.8 Let us endeavour to explain its several proper
(~) Inst. i. 3 1.
a college of heralds, by whose ministry the declaration of war was always announced to the enemy, and by whom occasionally, no doubt, questions connected with the relation of states were considered. The history of Rome is a history of continual wars. From Numa to Augustus, the gates of the temple of Janus were never closed. Hence most of the questions which arose must necessarily have been connected with a state of war. On the other hand, the definition of jus gentium by the Digest is, Quod naturalis ratio inter omnes homines constituit, idque apud omnes peræque custoditur vocaturque jus gentium.—Dig. i. 9. What is termed the Law of Nations was more accurately called the jus inter gentes—the law between or among nations—by Dr. Zouch, an English civilian, distinguished in the celebrated controversy between the civil and common lawyers, during the reign of Charles II., as to the extent of the admiralty jurisdiction. He suggested this term as more appropriate to express the real scope and object of the law. An equivalent term in the French fanguage was subsequently proposed by Chancellor D'Aguesseau, as better adapted to express the idea properly annexed to that system of jurisprudence commonly called le droit des gens, but which, according to him, ought to be called le droit entre les gens. The term International Law has since been advocated by Mr. Bentham, as well adapted to express in our language, “in a more significant manner, that branch of jurisprudence which goes under the name of law of nations,--a denomination (he remarks) so uncharacteristic, that, were it not for the force of custom, it would rather seem to refer to internal or municipal jurisprudence.” The terms International Law and Droit international have now taken root in our legal nomenclature, and are constantly used in all discussions connected with this important science.-SHARSWOOD.
8 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 Justinian's Institutes, viz. Quod quisque popu. lus ipse sibi jus constituit, id ipsitus proprium civitatis est vocaturque jus civile, quasi jus proprium ipsius civitatis.
A municipal law is completely expressed by the first branch of the definition: "A rule of civil conduct prescribed by the supreme power in a state.” And the latter branch, "commanding what is right, and prohibiting what is wrong," must either be superfluous, 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 insignificant 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 seldom 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 est summa ratu insita à naturâ quæ jubet ea, quæ facienda sunt prohibetque contraria.-Cic. de Leg. lib, i. c. 6.
The description of law given by Demosthenes is perhaps the most perfect and satisfactory that can either be found or conceived: Οι δε νόμοι το δίκαιον και το καλόν και το συμφέρον βούλονται, και τούτο ζητούσι. και επειδάν ευρεθή, κοινών τουτο πδόςαγμα απεδείχθη, πάσιν ίσον και ρμοιον, και τούτ', έςι νόμος, ώ πάντας προσήκει πείθεσθαι δια πολλά και μάλισθ', ότι πας εςι νόμος είρημα μεν και δώρον θεών, δόγμα δ' ανθρώπον φρονίμων, επανόρθωμα δε των εκουσίων και άκουσίων αμαρτηκάτων, πόλεως δε συνθήκη κοινή και την πάσι προσήκει ζήν τοίς εν τη πόλει. «The design and object of the laws is to ascertain what is just, honourable, and expedient; and, when that is discovered, it is proclaimed as a general ordinance, equal and impartial to all. This
ties, as they arise out of this definition. And, first, it is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint 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 agreement;
[ *15 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 coinpact 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 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, considered 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 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 bo 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
is the origin of law, which, for various reasons, all are under an obligation to obey ; but especially because all law is the invention and gift of heaven, the sentiment of wise men, the correction of every offence, and the general compact of the state ; to live in conformity with which is the duty of every individual in society.”-Orat. 1, cont. Aristogit.CHRISTIAN.
It has been justly observed that the last clause of this definition is surplusage, if the meaning be that what the law commands is therefore right, and what it prohibits wrong, But mere law, the command of a superior, cannot per se annex the moral quality of right or wrong to the action in itself considered, commanded or prohibited. Right or wrong are abstract moral qualities, resulting necessarily from the relations of persons or things. No law can make that right which is itself wrong. The definition of Cicero certainly avoids this objectionable feature of Blackstone's language :-Lex est summa ratio insita à natura, quae jubet ea, quae facienda sunt prohibetque contraria. If the definition of the text were modified so as to conform to this idea, it would be better:-"Municipal law is a rule of civil conduct prescribed by the supreme power in a state, commanding what is to be done, and forbidding the contrary.'
."-SAARSWOOD. 9 The act to confiscate the goods of Titius would, in Latin, be lex, not jus; in French Ici, not droit: in English, however, it is called law. Public and private acts of the legislature are indiscriminately termed laws.-SHARSWOOD.