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perior laws; fuch, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that adlion unlawful which before was not fo.
If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature (4), and the law of God. Neither could any other law possibly exist: for a law always fupposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. But man was formed for fociety; and, as is demonstrated by the writers on this subject", is neither capable of living alone, nor indeed has the courage to do it. However, as it is impoflible 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 itates will acknowlege 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
b Puffendorf, 1. 7.61. compared with Barbeyrac's commentary.
(4) The law of nature, or morality, which teaches the duty towards one's neighbour, would scarce be wanted in a solitary state, where man is unconnected with man. A state of nature, to which the laws of nature, or of morals, more particularly refer, muft sige nify the state of men when they associate together previous to, or independent of, the institutions of regular government. The idcal equality of men in such a state no more precludes the idea of a law, than the supposed equality of subjects in a republic.The superior, who would prescribe and enforce the law in a state of nature, would be the collective force of the wise and good, as the superior in a perfect republic is a majority of the people, or the power to which the majority delegate their authority.
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 e very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium..
Thus much I thought it necessary to premise concerning [ 44 ] the law of 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 Juftinian“, “ jus civile eft “quod quifque fibi populi's conftituit.” I call it municipal law, in compliance with common speech; for, though firictly . that expression denotes the particular customs of one Gingle 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 prohibit“ ing what is wrong (5).” Let us endeavour to explain it's several properties, as they arise 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 lo fatif. factory, as the definition of civil or municipal law, or the law of the land, cited above from Justinian's Institutes; viz. Quod quisque populus ipfe fibi jus constituit, id ipsius proprium civitatis eft, vocatur. que jus civile, quasi jus proprium ipfius civitatis.
A municipal law is completely expressed by the first branch of the definition-" A rule of civil conduct prescribed by the fue " preme power in a state.” – And the latter branch,“ commanding "what is right and prohibiting what is wrong," muft either be flan perfuous, or convey a defective idea of a municipal law; for if right and wrong are referred to the municipal law itself, then, VOL. I.
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 gene
whatever it commands is right, and what 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 defini. tion 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 unqua. lified person to kill a hare or a partridge ; it forbids a man to ex. ercise 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 prohibi. tion of the municipal law. The latter clause of this definition seems to have been taken from Cicero's definition of a law of na. ture, though perhaps it is there free from the objections here fuggested, Lex eft fumma ratio infita à naturâ quæ jubet ea, quæ facienda funt 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 : Oi di vócios Trò dixer:y vai tò ranèv xai tò ovu Digor Boudertas, xa: Tro Careơi xa. issha 2:9%, xonvoy TaTo Tessarta Tits, nãow To cv xai Lonovo rzi tèt' iso vouoso e tártas apcoxat taideo Soi δια πολλα, και μάλισθ', ότι πας εσι νόμος εύρημα μεν και δωρον θεών, δόγμα δ' ανθρώπων φρονίμων, επανόρθωμα δε των εκασίων και ακοσίων αμαρτημάτων, πόλεως δε συνθήκη κοινη" καθ ήν πασι προσήκει ζηλούς ενη Tróis. " The design and object of laws is to ascertain what is just, « honourable, 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 varioụs reasons, all are un. “ der an obligation to obey, but especially because all law is the “ invention and gift of Heaven, the sentiment 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. I. cont. Ariftogit.
tal; it is rather a sentence than a law. But an a&t to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and univers fality, 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 riot 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 [ 45 ] . 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 “ fhalt, 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. mise 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 conduët.” 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 mote, than that he do con. tribute, on his part, to the sublistence and peace of the society.
It is likewise “ a rule prescrived." Because a bare refolua tion, 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 appoint[ 46 ] ed 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, whatcver way is made use of, it is incumbent on the promulgators to do it in the most public and perspi
cuous 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 inficts a punishment upon the person who has committed it. Here it is impollible 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
e Such laws among the Romans were denominared privilegia (5), or private laws.of which Cicero ( de ing: 3,19. and in his oration prodomo, 17.) thus speaks: « Vetunt leges fairatae, vitant ducdecim
« tabulae, legis privatis bominibus irroa “ gari; id enim. f privilegium. Nonna “ unquam tulit, nibil eft crudelius, nibil “ perniciofius, nihil quod minus baec civi« las ferre poffit."
(6) An ex post facto law may be either of a public or of a private nature; and when we speak generally of an ex pof facto law, we perhaps always mean a law which comprehends the whole community.