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 very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.

QUESTIONS.

What is law, in its most general sense?

What is the law of nature?

What are the three general principles to which the emperor Justinian reduced the whole doctrine of law?

What is the one paternal precept to which the law of nature may be reduced?

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What was it that rendered necessary the revealed or divine law? Which is of superior authenticity, the law of nature,' or the ' revealed law?' Why?

On what two foundations do all human laws rest?

What do you mean by the law of nations?

On what does the law of nations depend?

ON MUNICIPAL LAW.

THUS much it was necessary to premise concerning the law of nature, the revealed law, and the law of nations, before proceeding 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 "jus civile est quod quisque sibi populus constituit." It is called 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." Let us endeavour to explain its several properties, 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 unrea

sonableness 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 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 " rule."

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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 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 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. All laws should be therefore made to 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 further: municipal law is "a rule of civil conduct prescribed by the supreme power in a state." For legisla ture, 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 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 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, re-united again; sometimes by compulsion and conquest, sometimes 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 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