foon be an end of our constitution. The legislature would be changed from that, which was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is according to Mr Locke (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power. HAVING thus cursorily confidered the three usual species of government, and our own fingular constitution, selected and compounded from them all, I proceed to observe, that, as the power of making laws constitutes the fupreme authority, so wherever the fupreme authority in any ftate resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural perfons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the fupreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law. Thus far as to the right of the fupreme power to make laws; but farther, it is it's duty likewise. For fince the respec► On government, part 2. §. 212. tive tive members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that it's will. But since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honeft, dishoneft, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each perfon is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity. FROM what has been advanced, the truth of the former branch of our definition, is (I trust) fufficiently evident; that “ municipal law is a rule of civil conduct prescribed by the fupreme “ power in a state." I proceed now to the latter branch of it; that it is a rule so prescribed, “commanding what is right, and “prohibiting what is wrong." Now in order to do this completely, it is first of all necessary 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 likewise the business of the law, confidered as a rule of civil conduct, to enforce these rights and to restrain or redress these wrongs. It remains therefore only to confider in what manner the law is faid to ascertain 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 said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down : another, another, directory; whereby the subject is inftructed and enjoined to observe those rights, and to abstain from the commiffion of those 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, usually termed the fanction, or vindicatory branch of the law; whereby it is fignified what evil or penalty shall be incurred by fuch as commit any public wrongs, and tranfgrefs or neglect their duty. WITH regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was flightly touched, deserves 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 legiflature has power to abridge or destroy them, unless the owner shall himself commit some 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 stronger sanction from being also declared to be duties by the law of the land. The cafe is the fame as to crimes and mifdemesnors, that are forbidden by the superior laws, and therefore stiled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, 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 themselves indifferent, the cafe is entirely altered. These become either right or wrong, just or unjust, duties or mifdemesnors, according as the municipal legiflator fees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute 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 society. And fometimes, where the thing itself has it's rife from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, 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, is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legisflature to decide, in what cafes the seising another's cattle shall amount to the crime of robbery; 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 says, "thou shalt not "steal," implies a declaration that stealing is a crime. And we have seen that, in things naturally indifferent, the very effence of right and wrong depends upon the direction of the laws to do or to omit it. THE remedial part of a law is so necessary a confequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to 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 speak of the protection of the law. When, for instance, the declaratory part of the law has faid "that the field or inheritance, 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 interpose it's office; will make Gaius restore the poffeffion to Titius, and also pay him damages for the invafion. WІTH regard to the fanction of laws, or the evil that may attend the breach of public duties; it is observed, that human legiflators have for the most part chosen to make the sanction of their laws rather vindicatory than remuneratory, or to confist 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 consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal 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 exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the difcretion of the judges, and those who are entrusted with the care of putting the laws in execution. Locke, Hum. Und. b. 2. C.21. OF |