[ 52 ]

united. If the fupreme power were lodged in any one of the three branches feparately, we must be expofed to the inconveniences of either abfolute monarchy, ariftocracy, or democracy; and fo want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for inftance, in the king and house of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumfpection and mediatory caution, which the wifdom of the peers is to afford: if the fupreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to incroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the ftrength of the executive power. But the conftitutional government of this ifland is fo admirably tempered and compounded, thatnothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the reft. For if ever it fhould happen that the independence of any one of the three should be loft, or that it fhould become subservient to the views of either of the other two, there would foon be an end of our constitution. The legislature would be changed from that, which (upon the fuppofition of an original contract, either actual or implied) is prefumed to have been originally set up by the general consent and fundamental act of the fociety: and such a change, however effected, is according to Mr. Locke (who perhaps carries his theory too far) at once an entire diffolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.

h

HAVING thus curforily confidered the three usual species of government, and our own fingular conftitution, felected

h On government, part 2. § 212.

and

and compounded from them all, I proceed to obferve, that, as the power of making laws conftitutes the fupreme authority, fo wherever the fupreme authority in any ftate refides, it is the right of that authority to make laws; that is, in the words of our definition, to prefcribe the rule of civil action. And this may be discovered from the very end and inftitution of civil ftates. For a ftate is a collective body, compofed of a multitude of individuals, united for their fafety 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, inafmuch 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 difpofed into a lafting harmony, fo 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 perfons to fubmit their own private wills to the will of one man, or of one or more affemblies of men, to whom the fupreme authority is entrusted: and this will of that one man, or affemblage of men, is in different ftates, according to the their different conftitutions, understood to be law.

THUS far as to the right of the fupreme power to make laws; but farther, it is it's duty likewife. For fince the respective members are bound to conform themselves to the [53] will of the ftate, 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 state to establish 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 du ties are required at his hands; what is to be efteemed honeft, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the

benefits

benefits of fociety; and after what manner each person is to moderate the ufe and exercise of thofe 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 preferibed, " commanding what is right, and prohibiting what is wrong."

Now in order to do this completely, it is first 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 courfe that it is likewife the bufinefs of the law, confidered as a rule of civil conduct, to enforce thefe rights and to reftrain or redrefs thefe 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 purpofe every law may be faid to confift of seve ral parts: one, declaratory; whereby the rights to be observ ed, and the wrongs to be efchewed, are clearly defined and [54] laid down: another, directory; whereby the fubject is in

ftructed and enjoined to obferve thofe 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 redrefs his private wrongs: to which may he added a fourth, ufually termed the fanction, or vindicatory branch of the law; whereby it is fignified what evil or pe nalty fhall be incurred by fuch as commit any public wrongs, and trangrefs or neglect their duty.

WITH regard to the first of these, the declaratory part of the municipal law, this depends not fo much upon the law

of

of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was flightly touched, deferves a more particular explication Thofe rights then which God and nature have established, and are therefore called natural rights, fuch 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 stronger 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 mur der, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legiflature. For that legislature in all thefe cafes acts only, as was before obferved, in fubordination to the great law giver, 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, with regard to things in themselves indifferent, the [55] cafe is entirely altered. Thefe 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 hufband; 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 sometimes, where the thing itself has it's rife from the

law

law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shalf direct. Thus, for inftance, in civil duties; obedience to fuperiors is the doctrine of revealed as well as natural religi on: but who thofe fuperiors fhall be, and in what circumftances, or to what degrees they fhall be obeyed, it is the province, of human laws to determine. And fo, as to injuries or crimes, it must be left to our own legislature 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 ufually collected from the direction. The law that fays, "thou "fhalt not steal," implies a declaration that stealing is a crime. And we have feeni that, in things naturally indiffer ent, 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 imperfect without it. For in vain would rights be declared, in vain directed to be obferved, 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 inftance, 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 Сс 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 invafion.

i See page 43.