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ties : 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.

Thus much I thought it necessary to premise con- [44] cerning 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 section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed ; being thus defined by Justiniand, “ 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


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 (5).” Let us endeavour to explain its several properties, as they arise out of this definition.

0 F. 1. 1. 9.

d Inst. 1. 2. 1.

(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 Justinian's Institutes ; viz. Quod quisque populus ipse sibi jua constituit, id ipsius 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 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;

is right, and what it prohibits is wrong, and this 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 erro. neous; 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 prohition of the municipal law. Though the latter part of Cicero's definition of a law of nature is something similar, yet, when it is considered, it will be found to be free from the objections here suggested. Lex est summa ratio 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 be conceived: ο: δε νόμοι το δικαιον και το καλόν και το συμφέρον βούλονται, και τετο ζητεσι, και επειδαν ευρεθη, κοινόν τετο προςαγμα απεδείχθη, πάσιν ίσον και ο κοιον. και τοτ' έσι νόμος, ω παντας προσηκει πείθεσθαι δια πολλά, και μάλισ9', ότι πας εσι νόμος εύρημα μεν και δώρον θεών, δόγμα δ' ανθρώπων φρονίμων, επανόρθωμα δε των εκατίων, και ακεσίων αμαρτημάτων, πόλεως δε συνθηκη κοινη" καθ ην πάσι προσηκει ζην τοίς εν TA

πόλει. . “ The de. sign and object of laws is to ascertain what is just, honourable, and $ expedient; and when that is discovered, it is proclaimed as a gene“ral ordinance, equal and impartial to all. This 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 “resolution 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. Aristngit.

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 com- [45] pact or agreement; 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 compact 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 lat. ter 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 mani. festing 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 be 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 acts of parlia[46] ment as are appointed to be publicly read in churches

and other assemblies. It may lastly 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 use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up on high pillars, the more effectually to insnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjuste. All laws should be therefore made to

e Such laws among the Romans were denominated privilegia (6), or private laws, of which Cicero (de leg. 3. 19. and in his oration pro domo, 17.) thus speaks: “ Vetant leges sacratae, vetant duodecim tabulae, leges

“privatis hominibus irrogari; id enim est “ privilegium. Nemo unquam tulit, nihil est "crudelius, nibil pernicifius, nihil quod minus * haec civitas ferre possit."

(6) An ex post facto law may be either of a public or of a private nature: and when we speak generally of an ex post facto law,

commence in futuro, and be notified before their commencement; which is implied in the term prescribed,But when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

But farther: municipal law is.“ a rule of civil conduct “ prescribed by the supreme power in a state.” For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.

This will naturally lead us into a short inquiry con- [47] cerning the nature of society, and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society, either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted : and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society, among themselves; which, every day

we perhaps always mean a law which comprehends the whole community. The Roman privilegia seem to correspond to our bills of attainder, and bills of pains and penalties, which, though in their nature they are ex post facto laws, yet are seldom called so.

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