king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the House of Commons, ["51] freely chosen by the people from among themselves, which makes it a kind of democracy: as this aggregate body, actuated by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal 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, sufficient to repel any innovation which it shall think inexpedient or dangerous.

Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so 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 circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses 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 destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. (7) The legislature [*52] would be changed from that, which (upon the supposition of an original contract, either actual or implied) is presumed to have been originally set up by the general consent and fundamental act of the society; and such a change, however effected, is, according to Mr. Locke, (h) (who perhaps carries his theory too far,) at once an entire dissolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.

Having thus cursorily considered the usual three 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

(k) On government, part 2. sec. 212.

(7) [If it be true that there would be an end of the constitution if at any time any one of the three should become subordinate to the views of the other branches, then assuredly the constitution is at an end; for it would be difficult to contend that in the times of Henry the Eighth and Elizabeth, the two houses of parliament were not subservient to the crown, or that before the reform act the house of lords had not the ascendancy, or that since that act the house of commons have not had it. Indeed, it does not seem easy to name any eventful period of our constitutional history when the exact equilibrium of power, referred to by Blackstone, existed. That this supposed theory of our constitution is now denied by political writers of different parties, is at any rate indisputable.-STEWART.]

The fact here pointed out is made still more prominent by the circumstances attending the passage of the bill for the disestablishment of the Irish church, when the lords were, a second time, from fear of the consequences to their own order induced to surrender their will to that of the house of commons, and to assent to a bill which, to a large majority of their number, was exceedingly distasteful and obnoxious. And as now the executive department, that is to say, the cabinet or ministry, must be in accord with the majority of the commons on all leading measures, it is difficult to say that there is any longer, even in theory, an equilibrium of powers in the British government. See May, Const. Hist. ch. 5, Todd, Parl. Gov. vol. 1, pp. 30, 66.

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. (8) 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 many natural persons, 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 entrusted; 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. (9) For since the *respective members are bound [*53] to conform 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 tranquility. 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.

(8) But in America the supreme authority-the people-only make the fundamental law or constitution of the state, and create a department to which they intrust the exercise of the ordinary powers of legislation. The law making power, therefore, in the popular sense, is not the supreme authority, but exercises a trust within prescribed limits.

(9) From the performance of this duty the legislative department cannot relieve itself by devolving it upon any other authority, nor even by referring it back to the people themselves. The legislature has no power to submit a proposed law to the people, nor have the people power to bind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. Per Ruggles, Ch. J., in Barto v. Himrod, 8 N. Y. 489. And see Rice v. Foster, 4 Harr. 479; Parker v. Commonwealth, 6 Penn. St. 507; Commonwealth v. McWilliams, 11 Penn. St. 61; Thorne v. Cramer, 15 Barb. 112; Bradley v. Baxter, ibid. 122; People v. Stout, 23 Barb. 349; Sauto v. State, 2 Iowa, 165; Gebrick v. State, 5 Iowa, 491; State v. Beneke, 9 Iowa, 203; Maize v. State, 4 Ind. 342; Meshmeier v. State, 11 Ind. 482; State v. Parker, 26 Vt. 362; State v. Copeland, 3 R. I. 33; State v. Swisher, 17 Texas, 441; State r. Wilcox, 45 Mo. 458. For qualifications or seeming exceptions to this principle, see Cooley, Const. Lim. 117 to 122, and cases cited.

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 subject is instructed and enjoined to observe those rights, and to abstain [*54] 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 misdemeanors, 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. *But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or [*55] misdemeanors, 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; (10) 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 purpose 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 becomes right or wrong, as the laws 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

(10) This rule is very generally abrogated in American law by statutory or constitutional provisions, under which the real and personal property of the wife, possessed by her at the time of the marriage, or acquired afterwards by gift, grant, devise or otherwise, remains her property to the same extent as if she were unmarried, with restrictions, however, in some of the states, upon the control which she may exercise over it, or her power to dispose of it. Many of these provisions are collected in 1 Pars. on Cont. 370.

seen (i) that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or 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 those 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 him 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 municipal 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 entrusted with the care of putting the laws in execution.

[*57] *Of all the parts of a law the most effectual is the vindicatory. For it 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 punish

ment.

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 (i) See page 43. (k) Locke, Hum. Und. b. 2. c. 21,

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, *annexing a penalty to non-compliance, (7) here I apprehend conscience is no farther [*58] 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, which ever 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, (11) for not burying the dead in woollen, for not performing the statute-work on the public roads, and for innumerable other positive misdemeanors. 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 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) (12)

(1) See Book II, p. 420.

(m) Lex pure pœnalis obligat tantum ad pœnam, non item ad culpam lex pœnalis mixta et ad culpam obligat, et ad poenam. (Sanderson de conscient, obligat, prael. viii. § 17. 24.)

(11) [By stat. 54 Geo. III, c. 96, this law, and, by stat. 54 Geo. III, c. 108, that for not burying in woolen, are repealed.]

(12) In a note upon this passage Mr. Christian has shown, that it is implied in every case in which an act is forbidden under a penalty, that "some degree of public mischief or private injury" is involved in it, and is the occasion of the prohibition.

"I perfectly agree," says Mr. Justice Rooke, "with my brother Heath in reprobating any distinction between malum prohibitum and malum in se, and consider it as pregnant with mischief. Every man is as much bound to obey the civil law of the land as the law of nature." Aubert v. Maze, 2 B. and P. 375. 'It is contended," says Gilchrist, J., "that there is a distinction between malum prohibitum and malum in se; between things intrinsically and morally wrong, and things which are made so merely by legislation. The inference [of counsel] from this distinction is, that when an act is merely malum prohibitum, it may conscientiously be done, provided only the party is willing to incur the penalty. He considers it optional with the party to do or to refrain from doing the act in question, and that the alternative is presented him by the legislature to abstain from the act, or to do it and pay the penalty. If these premises and this reasoning be correct, the courts, he says, cannot declare the act to be illegal, for that would be the infliction of a penalty beyond that imposed by the statute. But any person who should attempt to put this theory into practice, and to regulate his conduct by it, would find his path filled with difficulties. In the first place he must assume to judge for himself what is right and what is wrong, irrespective of the law. He must test his obligation to obey the law by a standard which exists in his own bosom. His moral sense must be so acute that he would never be in danger of mistaking his duty, and of sacrificing it to considerations of private advantage. Men differ in their views of right and wrong; the moral sense of one man is more acute than that of another. And just in proportion to his obtuseness will he be liable to overstep the line that separates right from wrong, and his reasoning may lead him into the commission of a felony when he fancies himself to be merely a trespasser, and that the payment of a fine which the statute might impose in a given case would make the balance even. The subtle casuistry which self interest teaches us is a most unsafe guide in questions of morals, and particularly so in relation to those things which have been called duties of imperfect obligation, and whose performance might be enforced by penalties. The law would be extremely unequal in its operation if its prohibitions were imperative on those only who should choose to be bound by it. If obedience to the law should depend entirely on the conscience of the individual, all legal restraints would soon be abolished." Lewis v. Welch, 14 N. H. 296.

The doctrine of some early cases, that where a statute merely inflicts a penalty for doing a particular act, or making a particular contract, without also prohibiting the act or contract, 33

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