spective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the ftate declaratory of that it's will. But, as it is impoffible, in fo great a multitude, to give injunctions to every particular man, relative to each particular action, it is therefore incumbent on the ftate to eftablifh general rules, for the perpetual information and direction of all perfons in all points, whether of pofitive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what abfolute and what relative duties are required at his hands; what is to be esteemed honest, difhoneft, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of fociety; and after what manner each perfon is to moderate the use and exercife of those rights which the ftate affigns him, in order to promote and fecure the public tranquillity.

FROM what has been advanced, the truth of the former branch of our definition is (I truft) fufficiently evident; that "municipal law is a rule of civil conduct prescribed by the "fupreme power in a flate." I proceed now to the latter branch of it; that it is a rule fo prefcribed, "commanding "what is right, and prohibiting what is wrong."

Now in order to do this completely, it is firft of all neceffary that the boundaries of right and wrong be established and afcertained by law. And when this is once done, it will follow of course that it is likewife the bufinefs of the law, confidered as a rule of civil conduct, to enforce these rights and to reftrain or redrefs these wrongs. It remains therefore only to confider in what manner the law is faid to afcertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.

For this purpose every law may be faid to confift of feveral parts: one, declaratory; whereby the rights to be observed, and the wrongs to be efchewed, are clearly defined and

D 3

laid

laid down: another, directory; whereby the fubject is inftructed and enjoined to observe those rights, and to abstain from the commiffion of thofe wrongs: a third, remedial ; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs: to which may be added a fourth, ufually termed the fanction, or vindicatory branch of the law; whereby it is fignified what evil or penalty fhall be incurred by fuch as commit any public wrongs, and tranfgrefs or neglect their duty.

WITH regard to the firft of thefe, the declaratory part of the municipal law, this depends not fo much upon the law of revelation or of nature, as upon the wifdom and will of the legiflator. This doctrine, which before was slightly touched, deferves a more particular explication. Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or deftroy them, unlefs the owner fhall himself commit fome act that amounts to a forfeiture. Neither do divine or natural duties (fuch as, for instance, the worship of God, the maintenance of children, and the like) receive any ftronger fanction from being alfo declared to be duties by the law of the land. The cafe is the fame as to crimes and mifdemefnors, that are forbidden by the fuperior laws, and therefore ftiled mala in fe, fuch as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legiflature. For that legiflature in all these cafes acts only, as was before obferved, in fubordination to the great lawgiver, tranfcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinfically right or wrong.

BUT,

BUT, with regard to things in themfelves indifferent, the cafe is entirely altered. These become either right or wrong, just or unjust, duties or mifdemefnors, according as the municipal legiflator fees proper, for promoting the welfare of the fociety, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do inftantly upon marriage become the property and right of the husband; and our ftatute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil fociety. And fometimes, where the thing itfelf has it's rife from the law of nature, the particular circumftances and mode of doing it become right or wrong, as the laws of the land fhall direct. Thus, for inftance, in civil duties; obedience to fuperiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances or to what degrees they shall be obeyed, it is the province of human laws to determine. And fo, as to inju ries or crimes, it must be left to our own legiflature to decide, in what cafes the feifing another's cattle fhall amount to a trespass or a theft; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.

THUS much for the declaratory part of the municipal law : and the directory stands much upon the fame footing; for this virtually includes the former, the declaration being usually collected from the direction, The law that fays, "thou "fhalt not fteal," implies a declaration that stealing is a crime. And we have feeni that, in things naturally indifferent, the very effence of right and wrong depends upon the direction of the laws to do or to omit them.

THE remedial part of a law is fo neceffary a confequence of the former two, that laws must be very vague and imper

fect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and afferting those rights, when wrongfully withheld or invaded. This is what we mean properly, when we fpeak of the protection of the law. When, for instance, the declaratory part of the law has faid, "that the field or inhe"ritance, which belonged to Titius's father, is vested by his "death in Titius;" and the directory part has "forbidden "< any one to enter on another's property, without the leave "of the owner:" if Gaius after this will prefume to take poffeffion of the land, the remedial part of the law will then interpofe it's office; will make Gaius reftore the poffeffion to Titius, and alfo pay him damages for the invasion.

WITH regard to the fanction of laws, or the evil that may attend the breach of public duties; it is obferved, that human legiflators have for the most part chofen to make the fanction of their laws rather vindicatory than remuneratory, or to confift rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the fure and general confequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because alfo, were the exercise of every virtue to be enforced by the propofal of particular rewards, it were impoffible for any state to furnish stock enough for fo profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good. For which reasons, though a prudent bestowing of rewards is sometimes of exquifite ufe, yet we find that thofe civil laws, which enforce and enjoin our duty, do feldom, if ever, propose any privilege or gift to fuch as obey the law; but do conftantly come armed with a penalty denounced against tranfgreffors, either exprefsly defining the nature and quantity of the punishment, or else leaving it to the difcretion of the judges, and thofe who are entrusted with the care of putting the laws in execution.

k Locke, Hum. Und. b. 2. c. 21.

OF

Of all the parts of a law the most effectual is the vindica tory. For it is but loft labour to fay, "do this, or avoid "that," unless we alfo declare, "this fhall be the confe

quence of your non-compliance." We must therefore obferve, that the main ftrength and force of a law confifts in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

LEGISLATORS and their laws are faid to compel and oblige; not that by any natural violence they fo conftrain a man, as to render it impoffible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pafs that no man can easily choofe to tranfgrefs the law; fince, by reafon of the impending correction, compliance is in a high degree preferable to difobedience, And, even where rewards are propofed as well as punishments threatened, the obligation of the law feems chiefly to consist in the penalty for rewards, in their nature, can only perfuade and allure; nothing is compulfory but punishment.

Ir is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon mens confciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would fet them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of confcience no longer to withhold or to invade it. So alfo in regard to natural duties, and fuch offences as are mala in fe: here we are bound in confcience, because we are bound by fuperior laws, before thofe human laws were in being, to perform the one and abftain from the other. But in relation to those laws which enjoin only pofitive duties, and forbid only fuch things as are not mala in fe but mala prohibita merely,

without