fuperadd any fresh obligation in foro confcientiae to abstain from 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 elfe 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 those fuperior laws; fuch, for inftance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpofe, and to make that action unlawful which before was not fo.

IF man were to live in a ftate of nature, unconnected with other individuals, there would be no occafion for any other laws, than the law of nature, 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 feparate ftates, 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 intercourse, 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 these several communities: in the conftruction also 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 subject: and therefore the civil law very juftly obferves, that quod naturalis ratio inter omnes bomines conftituit, vocatur jus gentium.

C

Puffendorf, l. 7. c. 1. compared with Barbey rac's commentary. c Ff. 1. 1. 9.

THUS

THUS much I thought it neceffary to premife concerning 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 Justinian", "jus civile eft "quod quifque fibi populus conftituit." I call it municipal law, in compliance with common fpeech; for, though strictly that expreffion denotes the particular customs 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 cuftoms.

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." Let us endeavour to explain it's feveral properties, as they arife out of this definition.

AND, firft, it is a rule: not a tranfient fudden 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 fpent 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 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 counsel, which we are at liberty to follow or not, as we fee proper, and to judge upon the reasonableness or unreasonablelefs 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: counfel acts only upon the willing, law upon the unwilling also,

d Inft. 1. 2. 1.

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 "fhalt, or fhalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of confcience to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promife 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 thefe accounts law is defined to be "a rule.”

MUNICIPAL law is also "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. Thefe 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. also as a citizen, and bound to other dutics towards his neighbour, than thofe 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 fubfiftence and peace of the fociety.

It 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 univerfal tradition and long practice, which fuppofes a previous publication, and is the cafe of the common law of England. It may be notified, viva você, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appoint

ed

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 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 Caffius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to enfnare 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 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 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 caufe to abstain from it; and all punishment for not abstaining muft of confequence be cruel and unjuft . All laws fhould be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term “prefcribed." 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 exercised 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 legiflature are indeed convertible terms; one cannot fubfift without the other.

THIS will naturally lead us into a fhort inquiry concerning the nature of fociety and civil government; and the natural, inherent right that belongs to the fovereignty of a state, whereever that fovereignty 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 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 weakneffes, individuals met together in a large plain, entered into an original contract, and chofe the tallest man present to be their governor. This notion, of an actually exifting 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 prefervation two thousand years afterwards; both which were effected by the means of fingle families. Thefe formed the first natural fociety, among themselves; which, every day extending it's limits, laid the firft though imperfect rudiments of civil or political fociety: and when it grew too large to fubfift 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 increafed, which employs and can maintain a much greater num ber of hands, migrations became lefs frequent: and various tribes, which had formerly feparated, 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 demonftrates 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 inftitution of a state, yet in nature and reafon muft always be understood and implied,

in