a state of anarchy, with liberty to constitute to themselves a new legislative power.

Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety 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, inasmuch as political communities are made up of natural permany sons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is intrusted and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.

Thus far as to the right of the supreme power to make laws; but farther, it is its duty likewise. For since the respective members are bound to con[*58 form themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will. But, as it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, it is therefore incumbent on the state to establish general rules, for the perpetual information and direction of all persons 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 absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure 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 prescribed by the supreme power in a state." I proceed now to the latter branch of it; that it is a rule so prescribed, "commanding what is right, and prohibiting what is wrong."

Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights, and to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is said 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 sub[*54 ject is instructed and enjoined to observe those rights, and to abstain from the commission 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, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.

With regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves 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 any 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 (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemesnors, that are forbidden by the superior 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 cases acts only, as was before observed, in subordination to the great lawgiver, transcribing 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.

*55] *But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemesnors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute 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 society. And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the law of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion but who those superiors shall be, and in what circumstances or to what degrees they shall be obeyed, it is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seizing another's cattle shall amount to a trespass or a theft; and where it shall 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 same 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 essence of right and wrong depends upon the direction of the laws to do or to omit them.

*

The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain *56] would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting these 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 said, "that the field or inheritance, which belonged to Titius's father, is vested by his death in Titius;" and the directory part has "forbidden any one to enter on another's property, without the leave of the owner:" if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose its office; will make Gaius restore the possession to Titius, and also pay hin damages for the invasion.

With regard to the sanction 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 sanction of their laws rather vindicatory than remuneratory, or to consist rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the muni

(1) See page 43.

cipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good.(k) For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are intrusted with the care of putting the laws in execution.

*Of all the parts of a law the most effectual is the vindicatory. For it [*57 is but lost labour to say, "do this, or avoid that," unless we also declare, "this shall be the consequence of your non-compliance." We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

Legislators and their laws are said to compel and oblige: not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty; for rewards, in their nature, can only persuade 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 consciences. 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 conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are mala in se here we are bound in conscience; because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, [*58 *annexing a penalty to non-compliance,(7) here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise 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 such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty:" and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto," for not burying the dead in woollen, for not performing the statute-work on the public roads, and for innumerable other positive misdemesnors. Now these prohibitory laws do not make the transgression a moral offence, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must however be observed, that we are here

(*) Locke, Hum. Und., b. ii. c. 21.

(1) See book ii. page 420.

14 By stat. 54 Geo. III., c. 96, this law, and by stat. 54 Geo. III., c. 108 that for not burying in woollen, are repealed.-CHITTY.

speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offence. But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience.(m)

I have now gone through the definition laid down of a municipal law; and (m) Lex pure poenalis obligat tantum ad poenam, non item poenam. (Sanderson de conscient, obligat. prael. viii. 217, ad culpam: lex poenalis mixta et ad culpam obligat, et ad 24.)

15 This is a doctrine to which the editor cannot subscribe. It is an important question, and deserves a more extensive discussion than can conveniently be introduced into a note. The solution of it may not only affect the quiet of the minds of conscientious men, but may be the foundation of arguments and decisions in every branch of the law. To form a true judgment upon this subject, it is necessary to take into consideration the nature of moral and positive laws. The principle of both is the same,-viz., utility, or the general happiness and true interests of mankind, “atque ipsa utilitas justi prope mater et æqui."

But the necessity of one set of laws is seen prior to experience; of the other, posterior. A moral rule is such, that every man's reason, if not perverted, dictates it to him as soon as he associates with other men. It is universal, and must be the same in every part of the world. Do not kill, do not steal, do not violate promises, must be equally obligatory in England, Lapland, Turkey, and China. But a positive law is discovered by experience to be useful and necessary only to men in certain districts, or under peculiar circumstances. It is said that it is a capital crime in Holland to kill a stork, because that animal destroys the vermin which would undermine the dykes, or banks, upon which the existence of the country depends. This may be a wise law in Holland; but the life of a stork in England would be of no more value than that of a sparrow, and such a law would be useless and cruel in this country.

By the laws of nature and reason, every man is permitted to build his house in any manner he pleases; but, from the experience of the destructive effects of fire in London, the legislature, with great wisdom, enacted that all party-walls should be of a certain thickness; and it is somewhat surprising that they did not extend this provident act to all other great towns. (14 Geo. ÎII., c. 78.)

It was also discovered, by experience, that dreadful consequences ensued when seafaring people, who returned from distant countries infected with the plague, were permitted immediately to come on shore and mix with the healthy inhabitants. It was, therefore, a wise and merciful law, though restrictive of natural right and liberty, which compelled such persons to be purified from all contagion by performing quarantine. (Book iv., 161.)

He who, by the breach of these positive laws, introduces conflagration and pestilence, is surely guilty of a much greater crime than he is who deprives another of his purse or

his horse.

The laws against smuggling are entirely juris positivi; but the criminality of actions can only be measured by their consequences; and he who saves a sum of money by evading the payment of a tax does exactly the same injury to society as he who steals so much from the treasury, and is therefore guilty of as great immorality, or as great an act of dishonesty. Or, smuggling has been compared to that species of fraud which a man would practise who should join with his friends in ordering a dinner at a tavern, and, after the festivity and gratifications of the day, should steal away and leave his companions to pay his share of the reckoning.

Punishments or penalties are never intended as an equivalent or a composition for the commission of the offence; but they are that degree of pain or inconvenience which is supposed to be sufficient to deter men from introducing that greater degree of inconvenience which would result to the community from the general permission of that act which the law prohibits. It is no recompense to a man's country for the consequences of an illegal act that he should afterwards be whipped, or should stand in the pillory, or lie in a jail. But in positive laws, as in moral rules, it is equally false that omnia peccata paria sunt. If there are laws (such as the game-laws) which, in the public opinion, produce little benefit or no salutary effect to society, a conscientious man will feel, perhaps, no further regard for the observance of them than from the consideration that his example may encourage others to violate those laws which are certainly beneficial to the community. Indeed, the last sentence of the learned judge upon this subject is an answer to his own doctrine; for the disobedience of any law in existence must be presumed to involve in it either public mischief or private injury. It is related of Socrates

have shown that it is "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong;" in the explication of which I have endeavoured to interweave a few useful principles concerning the nature of civil government, and the obligation of human laws. Before I conclude this section, it may not be amiss to add a few observations concerning the interpretation of laws.

When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legis lature to decide particular disputes is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished by every rational civilian from those general constitutions which had only the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us, had once resolved to *abolish these rescripts, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and [*59 Caracalla should be reverenced as laws. But Justinian thought otherwise,(n) and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf(o) which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon. Again, terms of art, or technical terms, must be taken accord

(n) Inst. 1, 2, 6.

(0) L. of N. and N. 5, 12, 3.

that he made a promise with himself to observe the laws of his country; but this is nothing more than what every good man ought both to promise and perform; and he ought to promise, still further, that he will exert all his power to compel others to obey them. As the chief design of established government is the prevention of crimes and the enforcement of the moral duties of man, obedience to that government necessarily becomes one of the highest of moral obligations; and the principle of moral and positive laws being precisely the same, they become so blended that the discrimination between them is frequently difficult or impracticable, or, as the author of "The Doctor and Student" has expressed it with beautiful simplicity, "In every law positive well made is somewhat of the law of reason and of the law of God; and to discern the law of God and the law of reason from the law positive is very hard." 1 Dial. c. 4. An eloquent modern divine has also said, "Let the great general duty of submission to civil authority be engraven on our hearts, wrought into the very habit of the mind, and made a part of our elementary morality." Hall's Sermon, Oct. 1803.-CHRISTIAN.

The morality of this position of the learned commentator has been well questioned. Its soundness as a legal principle, though it once had sway in the courts, has been since repudiated. With all the qualifications which have been cautiously annexed to it in the text.-namely, that the thing forbidden or enjoined is wholly a matter of indifference, and the penalty inflicted an adequate compensation for the civil inconvenience supposed to arise from the offence, it must be admitted to be fraught with practical danger to society. There is a moral obligation resting on every individual to obey the laws of that community in which he lives. The breach of any known law is a violation of that obligation. If the laws be so multiplied that the citizen cannot be expected to know or understand them, then, although in the eye of the law he may not be excused, -legis ignorantia neminem excusat, yet it is different in foro conscientia. This is the answer to the suggestion that such laws would be a snare to the conscience. But if the subject knows, or ought to know, the law, if he had exercised ordinary diligence, he has no right to set up his own judgment as to the indifference of the action which the legislature has prohibited or enjoined. Every penalty implies a prohibition, even if not expressed. It is now well settled that every contract to do a thing made penal by