force, and all their authority, mediately or immediately, from this original.

Bur in order to apply this to the particular exigencies of each individual, it is still neceffary to have recourse to reafon: whofe office it is to difcover, as was before obferved, what the law of nature directs in every circumstance of life; by confidering, what method will tend the most effectually to our own fubftantial happiness. And if our reason were always, as in our first ancestor before his tranfgreffion, clear and perfect, unruffled by paffions, unclouded by preju. dice, unimpaired by difeafe or intemperance, the task would be pleasant and eafy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reafon is corrupt, and his understanding full of ig.

norance and error.

THIS has given manifold occafion for the benign interpofition of divine providence; which, in compaffion to the frailty, the imperfection, and the blindness of human reafon, [42] hath been pleafed, at fundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy fcriptures. These precepts, when revealed, are found upon

edict of Herod, command all the children under a certain age to be flain, the judge ought to refign his office rather than be auxiliary to it's execution; but it could only be declared void by the fame legislative power by which it was ordained. If the judicial power were competent to decide that an act of parliament was void because it was contrary to natural juftice, upon an appeal to the houfe of lords this inconfiftency would be the confequence, that as judges they must declare void, what as legislators they had enacted fhould be valid.

The learned judge himfelf declares in p. 91, " if the parliament "will pofitively enact a thing to be done which is unreasonable, I "know of no power in the ordinary forms of the conftitution, that "is vefted with authority to control it."

comparison

comparison to be really a part of the original law of nature, as they tend in all their confequences to man's felicity. But we are not from thence to conclude that the knowlege of these truths was attainable by reason, in it's prefent corrupted state; fince we find that, until they were revealed, they were hid from the wifdom of ages. As then the moral precepts of this law are indeed of the fame original with thofe of the law of nature, fo their intrinfic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law. Because one is the law of nature, exprefsly declared fo to be by God himfelf; the other is only what, by the affiftance of human reafon, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority: but, till then, they can never be put in any competition together.

UPON these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws fhould be fuffered to contradict thefe. There are, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found neceflary for the benefit of fociety to be reftrained within certain limits. And herein it is that human laws have their greatest force and efficacy ; for, with regard to fuch points as are not indifferent, human laws are only declaratory of, and act in fubordination to, the former. To inftance in the cafe of murder: this is expreffly forbidden by the divine, and demonftrably by the natural law; and from these prohibitions arifes the true unlawfulnefs of this crime. Thofe human laws that annex a punishment to it, dot at all increase it's moral guilt, or fuperadd any fresh obligation in foro confeientiae to abstain from [ 43 ] 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 else 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 thofe

fuperior

fuperior laws; fuch, for instance, 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 fö.

If man were to live in a state of nature, unconnected with other individuals, there would be no occafion for any other laws, than the law of nature (4), 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 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 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 thefe 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 feveral communities: in the

b Puffendorf, l. 7. c. 1. compared with Barbeyrac's commentary.

(4) The law of nature, or morality, which teaches the duty towards one's neighbour, would fcarce be wanted in a folitary ftate, where man is unconnected with man. A ftate of nature, to which the laws of nature, or of morals, more particularly refer, muft fig nify the state of men when they affociate together previous to, or independent of, the inftitutions of regular government. The ideal equality of men in fuch a ftate no more precludes the idea of a law, than the fuppofed equality of fubjects in a republic.The fuperior, who would prefcribe and enforce the law in a ftate of nature, would be the collective force of the wife and good, as the fuperior in a perfect republic is a majority of the people, or the power to which the majority delegate their authority.

construction

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 homines conftituit, vocatur jus gentium.

d

THUS much I thought it neceffary to premife concerning [ 44 ] 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 districts, communities, or nations are governed; being thus defined by Juftinian ", " 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 cuftoms 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 prefcribed by the fupreme power "in a state, commanding what is right and prohibiting what " is wrong (5)." Let us endeavour to explain its feveral properties, as they arife 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 so satisfactory, as the definition of civil or municipal law, or the law of the land, cited above from Juftinian's Inftitutes; viz. Quod quifque populus ipfe fibi jus conftituit, id ipfius proprium civitatis eft, vocaturque jus civile, quafi jus proprium ipfius civitatis.

A municipal law is completely expreffed by the first branch of the definition-" A rule of civil conduct prescribed by the fu"preme power in a state."-And the latter branch, "commanding "what is right and prohibiting what is wrong," muft either be fuperfluous, or convey a defective idea of a municipal law; for if right and wrong are referred to the municipal law itself, then, VOL. I. whatever

E

AND, first, 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 confiscate 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 general;

whatever it commands is right, and what it prohibits is wrong, and this 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 perfon 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. Though the latter part of Cicero's definition of a law of nature is fomething fimilar, yet, when it is confidered, it will be found to be free from the objections here fuggefted. Lex eft fumma ratio infita à naturâ que jubet ea, quæ facienda funt prohibetque contraria. Cic. de Leg. lib. i. c. 6.

The defcription of law given by Demofthenes is perhaps the moft perfect and fatisfactory that can be conceived: O τὸ δίκαιον καὶ τὸ καλὸν καὶ τὸ συμφέρον βούλονται, καὶ τῦτο ζητᾶσι. καὶ ἐπειδὴν εὐςεθῆς κοινὸν τέτο πρόταγμα ἀπεδείχθη, πᾶσιν ἴσον καὶ ὅμοιον. καὶ τοτ ̓ ἔσι νόμος, ᾧ πάντας προσήκει πείθεσθαι διὰ πολλὰ, καὶ μάλισθ', ὅτι πᾶς ἔτι νόμος εὕρημα μεν καὶ δῶρον θεῶν, δόγμα δ' ἀνθρώπων φρονίμων, ἐπανόρθωμα δε των ἱκεσίων καὶ ἀκεσίων ἁμαξλημάτων, πόλεως δὲ συνθήκη κοινη· καὶ ἣν πᾶσι προσήκει ζῆν τοῖς ἐν τῇ πόλει. “ The delign and ob"ject of laws is to afcertain what is juft, honourable, and expe"dient; and when that is difcovered, it is proclaimed as a general "ordinance, equal and impartial to all. This is the origin of law, "which, for various reafons, all are under an obligation to obey, "but efpecially because all law is the invention and gift of Heaven, "the refolution 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. Ariflugit.