and could not otherwife be obtained than by a chain of metaphysical difquifitions, mankind would have wanted fome inducement to have quickened their inquiries, and the greater part of the world would have refted content in mental indolence, and ignorance it's infcparable companion. As therefore the creator is a being, not only of infinite power, and wisdom, but alfo of infinite goodness, he has been pleased fo to contrive the conftitution and frame of humanity, that we should want no other prompter to inquire after and purfue the rule of right, but only our own felf-love, that univerfal principle of action. For he has fo intimately connected, so infeparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by obferving the former; and, if the former be punctually obeyed, it cannot but induce the latter. In confequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a [ 41 ] multitude of abstracted rules and precepts, referring merely to the fitnefs or unfitnefs of things, as fome have vainly furmifed; but has graciously reduced the rule of obedience to this one paternal precept, " that man fhould pursue his own "true and substantial happiness." This is the foundation of what we call ethics, or natural law. For the feveral articles into which it is branched in our fyftems, amount to no more than demonftrating, that this or that action tends to man's real happiness, and therefore very juftly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is deftructive of man's real happiness, and therefore that the law of nature forbids it.

THIS law of nature, being coeval with mankind and dictated by God himself, is of courfe fuperior in obligation to any other. It is binding over all the globe in all countries,and at all times: no human laws are of any validity, if contrary to this (3); and fuch of them as are valid derive all their

(3) Lord chief justice Hobart has also advanced, that even an act of parliament made against natural juftice, as to make a man a

judge

force, and all their authority, mediately or immediately, from this original.

BUT in order to apply this to the particular exigencies of each individual, it is ftill neceffary to have recourse to reafon: whofe office it is to difcover, as was before obferved, what the law of nature directs in every circumstance of life; by confidering, what method will tend the most effectually to our own fubftantial happinefs. And if our reason were always, as in our first ancestor before his tranfgreffion, clear and perfect, unruffled by paffions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleafant and eafy; we fhould need no other guide but this. But every man now finds the contrary in his own experience; that his reafon is corrupt, and his understanding full of ignorance and error.

THIS has given manifold occafion for the benign interpofition of divine providence; which, in compaflion to the frailty, the imperfection, and the blindness of human reason, [42] hath been pleased, at fundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy fcriptures. Thefe precepts, when revealed, are found upon

judge in his own caufe,is void in itfelf, for jura naturae funt immutabilia, and they are leges legum. (Hob. 87.) With deference to thefe high authorities, I fhould conceive that in no cafe whatever can a judge oppofe his own opinion and authority to the clear will and declaration of the legislature. His province is to interpret and obey the mandates of the fupreme power of the state. And if an act of parliament, if we could fuppofe fuch a case, should, like the edict of Herod, command all the children under a certain age to be flain, the judge ought to refign his office rather than be auxiliary to it's execution; but it could only be declared void by the high authority by which it was ordained. The learned judge himfelf is alfo of this opinion in p. 91.

comparison

comparison to be really a part of the original law of nature, as they tend in all their confequences to man's felicity. But we are not from thence to conclude that the knowlege of thefe truths was attainable by reafon, in it's prefent corrupted ftate; fince we find that, until they were revealed, they were hid from the wifdom of ages. As then the moral precepts of this law are indeed of the fame original with those of the law of nature, fo their intrinfic obligation is of equal ftrength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral fyftem, which is framed by ethical writers, and denominated the natural law. Becaufe one is the law of nature, exprefsly declared fo to be by God himself; the other is only what, by the affiftance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority: but, till then, they can never be put in any competition together.

UPON these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws fhould be fuffered to contradict these. There are, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found neceffary for the benefit of fociety to be restrained within certain limits. And herein it is that human laws have their greateft force and efficacy; for, with regard to fuch points as are not indifferent, human laws are only declaratory of, and act in fubordination to, the former. To inftance in the cafe of murder: this is exprefsly forbidden by the divine, and demonftrably by the natural law; and from thefe prohibitions arifes the true unlawfulnefs of this crime. Thofe human laws that annex a punishment to it, do not at all incrcafe it's moral guilt, or fuperadd any fresh obligation in foro confcientiae to abstain from [ 43 ] it's perpetration. Nay, if any human law fhould allow or injoin us to commit it, we are bound to tranfgrefs that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent,and are not commanded or forbidden by thofe fu

4

perior

perior laws; fuch, for inftance, as exporting of wool into foreign countries; here the inferior legiflature has scope and opportunity to interpofe, and to make that action unlawful which before was not fo.

IF man were to live in a state of nature, unconnected with other individuals, there would be no occafion for any other laws, than the law of nature (4), and the law of God. Neither could any other law poffibly exift: for a law always fuppofes fome fuperior who is to make it; and in a state of nature we are all equal, without any other fuperior but him who is the author of our being. But man was formed for fociety; and, as is demonftrated by the writers on this fubject, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impoffible for the whole race of mankind to be united in one great fociety, they must neceffarily divide into many; and form separate states,. commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourfe. Hence arifes a third kind of law to regulate this mutual intercourfe called the law of nations:" which, as. none of these ftates will acknowlege a fuperiority 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 thefe feveral communities: in the

b Puffendorf, l. 7. c. 1. compared with Barbeyrac's commentary.

(4) The law of nature, or morality, which teaches the duty towards one's neighbour, would fcarce be wanted in a folitary ftate, where man is unconnected with man. A ftate of nature, to which the laws of nature, or of morals, more particularly refer, muft fignify the state of men when they affociate together previous to, or independent of, the inftitutions of regular government. The ideal equality of men in such a state no more precludes the idea of a law, than the fuppofed equality of fubjects in a republic.The fuperior, who would prefcribe and enforce the law in a ftate of nature, would be the collective force of the wife and good, as the fuperior in a perfect republic is a majority of the people, or the power to which the majority delegate their authority.

conftruction

conftruction alfo of which compacts we have no other rule. to refort to, but the law of nature; being the only one to which all the communities are equally fubje&: and therefore the civil law very juftly obferves, that quod naturalis ratio inter omnes homines conftituit, vocatur jus gentium..

THUS much I thought it neceffary to premife concerning [ 44 ] the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal fubject of this fection municipal or civil law; that is, the rule by which particular diftricts, communities, or nations are governed; being thus defined by Juftinian, "jus civile est “quod quifque fibi populus conftituit." I call it municipal law, in compliance with common fpeech; for, though frictly that expreffion denotes the particular cuftoms of one fingle municipium or free town, yet it may with fufficient propriety be applied to any one state or nation, which is governed by the fame laws and customs.

MUNICIPAL law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the fupreme power in a state, commanding what is right and prohibiting what is wrong (5)." Let us endeavour to explain it's feveral properties, as they arife out of this definition.

(5) Though the learned Judge treats this as a favourite definition, yet when it is examined, it will not perhaps appear fo fatiffactory, as the definition of civil or municipal law, or the law of the land, cited above from Juftinian's Inftitutes; viz. Quod quifque populus ipfe fibi jus conftituit, id ipfius proprium civitatis eft, vocatur que jus civile, quafi jus proprium ipfius civitatis.

A municipal law is completely expreffed by the first branch of the definition-"A rule of civil conduct prefcribed by the fu"preme power in a state." And the latter branch," commanding "what is right and prohibiting what is wrong," muft either be faperfluous, or convey a defective idea of a municipal law; for if right and wrong are referred to the municipal law itfelf, then, VOL. I. whatever

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