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 cival law (c) very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.

*Thus much I thought it necessary to premise concerning the law of

[*44] 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 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.

66

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."(4) Let us endeavour to explain its several properties, as they arise out of this definition. And, first, it is a rule: not a

(4) [Though the learned judge treats this as a favorite 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 jus 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 is right, and whatever 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 ratio insita a natura 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: "The design and object of laws is to ascertain what is just, honorable and expedient; and, when that is discovered, it is proclaimed as a general 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. Aristogit.]

Those things which the supreme authority forbids, however innocent in themselves, abstractly considered, must be understood as inhibited, because, in view of the relations of the citizen to the state, or to some one or more of his fellow citizens, it is not proper, right or best that they should be done. The laws which forbade unqualified persons to destroy game, were based upon an assumed superior right in the privileged classes; and the regulation of trades has its foundation in the legislative judgment of what is best and most expedient for society at large. Viewed relatively, therefore, the acts forbidden are not perfectly right, but, in some of their relations, incidents or consequences, would work a wrong, which, assuming the premises to be correct, the legislative authority may properly prevent. See pp. 55 and 58, post

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; for a compact is a promise proceeding from us, law is a command directed [*45] 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 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 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 parliament as are appointed* to be publicly read in churches and [*46] 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 upon high pillars, the more effectually to ensnare 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 unjust. (e) All laws should be therefore made to commence in futuro, and be

(e) Such laws among the Romans were denominated privilegia, or private laws. of which Cicero (de leg. 3. 19. and in his oration pro domo, 17.) thus speaks: Vetunt leges sacratæ vetant duodecim tabulæ, leges privatis

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. (5)

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 concerning the nature

[*47] 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 extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes homnibus irrogari ; id enim est privilegium. Nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod minus hæc civitas ferre possit "

(5) By statute 33 Geo. III, c. 13, it is now provided, that acts of parliament shall take effect on the day of their passage, except when otherwise provided therein. In the American states there are commonly constitutional or statutory provisions fixing the time for statutes to take effect on some future day after their passage. Thus: In Illinois, in sixty days from the end of the session at which they are passed. Const. art. 3, 23. In Michigan, at the expiration of ninety days from the end of the session. Const. art. 4, § 20. In Mississippi, not until sixty days from the passage thereof. Const. art. 7, § 6. In Indiana, not until the same shall have been published and circulated in the several counties of the state by authority. Const. art. 4, § 28. In Wisconsin, not until "published." Const. art. 7, § 21. In Iowa, those passed at a regular session of the legislature, not until the fourth day of July thereafter, and those passed at a special session, ninety days after the adjournment. Const. art. 3, § 26.

The statutes of the United States take effect from their approval. 1 Kent, 426. See Gardner v. The Collector, 6 Wal. 499.

The constitution forbids congress to pass ex post facto laws, but it is well settled that this phrase has no reference to any other laws of a retrospective character than those relating to criminal matters. Mr. Justice Chase, in Calder v. Bull, 3 Dal. 386, has classified ex post facto laws as follows: 1. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was when committed. 3. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender. This definition and classification have been generally accepted since. See Fletcher v. Peck, 3 Cranch, 87; Ogden v. Saunders, 12 Wheat. 266; Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 110; Charles River Bridge v. Warren Bridge, 11 Pet. 421; Carpenter v. Pennsylvania, 17 How. 463; Cummings v. Missouri, 4 Wal. 277; Ex parte Garland, ibid, 333.

by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole

should protect all its parts, and that every part should pay obedience to [48]

the will of the whole, or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to

any.

For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? To this the general answer is easy: but the application of it to particular cases has occasioned one-half of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the Supreme Being; the three grand requisites, I mean of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government.

How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by *what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which [*49] the jura summi imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

The political writers of antiquity will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly consisting of all the free members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.

By the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases; by constituting one or a few, or many executive magistrates: and all the other powers of the state must obey the legis

lative power in the discharge of their several functions, or else the constitution is at an end. (6)

In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In *aristocracies there is more wisdom to be found, than in the [*50] other frames of government; being composed, or intended to be composed, of the most experienced citizens: but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any; for, by the entire conjunction of the legislative and executive powers, all the sinews of government are knit together, and united in the hand of the prince: but then there is imminent danger of his employing that strength to improvident or oppressive purposes.

Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero (f) declares himself of opinion, "esse optime constitutam rempublicam quæ ex tribus generibus illis, regali, optimo, et populari, sit modice confusa," yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure. (g)

But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy: and as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the

(f) In his fragments. de rep. 1. 2.

(g) Cunctas nationes et urbes populus aut primores, aut singuli regunt; delecta ex his et constituta republicœ forma laudari facilius quam evenire, vel, si evenit, haud diuturna esse potest.” Ann. 1. 4.

(6) The constitution of England may be said to consist of the unwritten rules and usages in accordance with which the powers of government are habitually exercised. By the theory of the British government, the exercise of sovereign powers rests in the parliament, which is so far supreme in action that by a strong figure of speech it is sometimes said to be "omnipotent." By this is to be understood that no other human power is placed over or made superior to it, or can question that what parliament declares to be law is law. From this theory of its powers it must follow that parliament is superior to the constitution itself, and may modify it at pleasure, as indeed has often been done. A very different theory prevails in America. According to the fundamental principles of both the Federal and State constitutions, the gov ernment, the supreme power or jura summi imperii, resides in the people, and it follows that it is the right of the people to make laws. But as the exercise of that right by the people at large would be equally inconvenient and impracticable, the constitution reposes the exercise of that power in a body of representatives of the people, but at the same time imposes upon them such restrictions as are deemed important for the general welfare or for the protection of individual rights. Whenever this body of representatives exceed the limits prescribed to their action by the fundamental law from which their whole authority is derived, or whenever they exercise their powers in a manner which the people, by the constitution, have not thought proper to allow, their action is not only censurable, but in point of law is void, and must not only be so declared by the courts where the point arises in litigation, but may be disregarded and disobeyed by any citizen. From this it will appear how broad is the difference between the constitution of Britain and those of the American states; the courts of the former country not venturing to declare that there are any legal limits to the legislative authority, except such as rest in the legislative will and discretion; while in America a considerable portion of the time of the courts is occupied with a discussion of questions respecting the constitutional limitations upon the power of the several departments of the government. See 1 Tucker's Blackstone, appendix A.; Cooley, Const. Lim. cc. 1 and 7.