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AND, first, it is a rule: not a transient sudden order from a fuperior to or concerning a particular perfon; but fomething permanent, uniform, and univerfal. Therefore a particular act of the legislature to confifcate the goods of Titius, or to attaint him of high treafon, 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 gene

whatever it commands is right, and what it prohibits is wrong, and the claufe would be infignificant 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 feldom or never command what is wrong, yet in ten thousand inftances it forbids what is right.-It forbids an unqualified person to kill a hare or a partridge; it forbids a man to exercife a trade without having ferved feven years as an apprentice; it forbids a man to keep a horse or a fervant without paying the tax. Now all these acts were perfectly right before the prohibition of the municipal law. The latter clause of this definition feems to have been taken from Cicero's definition of a law of nature, though perhaps it is there free from the objections here fuggefted, Lex eft fumma ratio infita à naturâ quæ jubet ea, quæ facienda funt prohibetque contraria. Cic. de Leg. lib. i. c. 6.

The defcription of law given by Demofthenes is perhaps the most perfect and fatisfactory that can either be found or conceived : Οἱ δὲ νόμοι τὸ δίκαιον καὶ τὸ καλὸν καὶ τὸ συμφέρον βούλονται, καὶ τότο ζητῶσι, καὶ ἐπειδὰν εὐριθῆ, κοινὸν τῶ το πρόταγμα απεδείχθη, πᾶσιν ἴσον καὶ ὅμοιον. καὶ τἔτ ̓ ἔσι νόμος, ᾧ πάντας προσήκει πείθεσθαι διὰ πολλὰ, καὶ μάλισθ', ὅτι πᾶς ἔτι νόμος εὕρημα μὲν καὶ δῶρον θεῶν, δόγμα δ' ἀνθρώπων φρονίμων, ἐπανόρθωμα δε των εκυσίων καὶ ἀκοσίων ἁμαρτημάτων, πόλεως δὲ συνθήκη κοινης και ἣν πᾶσι προσήκει ζηλοῖς ἐν τῇ Tú. "The defign and object of laws is to afcertain what is juft, "honourable, and expedient; and when that is discovered, it is

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proclaimed as a general ordinance, equal and impartial to all. "This is the origin of law, which, for various reafons, all are un"der an obligation to obey, but especially because all law is the "invention and gift of Heaven, the fentiment of wife 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 fociety." Orat. 1. cont. Ariftogit.

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tal; it is rather a fentence than a law. But an act to declare that the crime of which Titius is accufed fhall be deemed high treafon; this has permanency, uniformity, and univerfality, and therefore is properly a rule. It is alfo called a rule, to diftinguish it from advice or counfel, which we are at liberty to follow or not, as we fee proper, and to judge upon the reasonableness or unreasonablenefs of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the maker's will. Counfel is only matter of perfuafion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling alfo.

It is also called a rule, to distinguish it from a compact or [ 45 ]. agreement; for a compact is a promife 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 pro mife what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promifing any thing at all. Upon these accounts law is defined to be " a rule."

MUNICIPAL law is alfo "a rule of civil conduct." This diftinguishes 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, confidered in the light of an individual. But municipal or civil law regards him alfo 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 fociety.

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Ir is likewife" a rule prefcribed." Because a bare refolution, confined in the breaft of the legiflator, without manifefting itself by fome external fign, can never be properly a law. It is requifite that this refolution 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 fuppofes 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 fuch acts of parliament as are appoint[46]ed to be publicly read in churches and other affemblies. It may laftly be notified by writing, printing, or the like; which is the general courfe taken with all our acts of parlia ment. Yet, whatever way is made ufe of, it is incumbent on the promulgators to do it in the most public and perfpicuous manner; not like Caligula, who (according to Dio Caffius) wrote his laws in a very mall character, and hung them upon high pillars, the more effectually to ensnare the people. There is ftill a more unreasonable method than this, which is called making of laws ex poft facto; when after an action (indifferent in itfelf) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the perfon who has committed it. Here it is impoffible that the party could foresee that an action, innocent when it was done, fhould be afterwards converted to guilt by a fubfequent law; he had therefore no cause to abstain from it; and all punishment for not abftaining must of confequence be cruel and unjust. All laws fhould be

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e Such laws among the Romans were denominated privilegia (5), or private laws, of which Cicero (de leg. 3, 19. and in his oration pro domo, 17.) thus fpeaks: "Vetant leges facratae, vetant duedecim

"tabulae, leges privatis hominibus irro"gari; id enim ft privilegium. Noma "unquam tulit, nibil eft crudelius, nibil "perniciofius, nibil quod minus baec ciui"tas ferre poffit."

(5) An ex poft facto law may be either of a public or of a private nature; and when we fpeak generally of an ex post facto law, we perhaps always mean a law which comprehends the whole community.

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therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "preferibed." But when this rule is in the ufual 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 excufe, the laws would be of no effect, but might always be eluded with impunity.

BUT farther: municipal law is "a rule of civil conduct "prefcribed by the fupreme power in a flate." For legislature, as was before obferved, is the greatest act of fuperiority that can be exercifed by one being over another. Wherefore it is requifite to the very effence of a law, that it be made by the fupreme power. Sovereignty and legislature are indeed con‐ vertible terms; one cannot fubfift without the other.

THIS will naturally lead us into a fhort inquiry concerning [ 47 ] the nature of society and civil government; and the natural, inherent right that belongs to the fovereignty of a state, wherever that fovereignty be lodged, of making and enforc ing laws.

THE only true and natural foundations of fociety are the wants and the fears of individuals. Not that we can believe, with fome theoretical writers, that there ever was a time when there was no fuch thing as fociety either natural or civil; and that, from the impulfe of reafon and through a fenfe of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chofe the tallest man prefent to be their governor. This notion, of an actually exifting unconnected ftate of nature, is too wild to be seriously admitted: and befides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their prefervation two thousand years afterwards; both which

The Roman privilegia feem to correfpond to our bills of attainder, and bills of pains and penalties, which, though in their nature they are ex poft facto laws, yet are never called fo.

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were effected by the means of fingle families. These formed the first natural fociety, among themfelves; which, every day extending it's limits, laid the first though imperfect rudiments of civil or political fociety: and when it grew too large to subfist with convenience in that paftoral state, wherein the patriarchs appear to have lived, it neceffarily fubdivided 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; fometimes by compulfion and conqueft, fometimes by accident, and fometimes perhaps by compact. But though fociety had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the fenfe of their weaknefs and imperfection that keeps mankind together; that demonstrates the neceffity of this union; and that therefore is the folid and natural foundation, as well as the, cement of civil fociety. And this is what we mean by the original contract of fociety; which, though perhaps in no inftance it has ever been formally expreffed at the first institution of a state, yet in nature and reason must always be understood and implied, [48] in the very act of affociating together: namely, that the whole fhould protect all it's parts, and that every part should pay obedience to the will of the whole, or, in other words, that the community fhould guard the rights of each individual member, and that (in return for this protection) each individual fhould fubmit to the laws of the community; without which fubmiffion of all it was impoffible that protection could be certainly extended to any.

For when civil fociety is once formed, government at the fame time refults of course, as necessary to preserve and to keep that fociety in order. Unlefs fome fuperior be constituted, whofe commands and decifions 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 feveral rights, and redress their several wrongs. But, as all the members which compofe this fociety were naturally equal,

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