it is rather a fentence 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 counfel, which we are at liberty to follow or not, as we fee proper, and to judge upon the reasonableness or unreasonableness 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; counsel acts only upon the willing, law upon the unwilling alfo.

Ir is alfo called a rule, to diftinguish it from a compact or [ 45 ] 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 these accounts law is defined to be "a rule.”

MUNICIPAL law is alfo "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 alfo as a citizen, and bound to other duties 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 breast of the legiflator, without manifesting 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 case of the common law of England. It may be notified, viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and fuch acts of parliament as are appoint[46]ed to be publicly read in churches and other affemblies. It may lastly 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 ufe of, it is incumbent on the promulgators to do it in the moft public and perfpicuous manner; not like Caligula, who (according to Dio Caffius) wrote his laws in a very fmall character, and hung them upon high pillars, the more effectually to ensnare 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 perfon 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 cause to abstain from it; and all punishment for not abstaining muft of confequence be, cruel and unjuft. All laws fhould be

(6) An ex poft faão law may be either of a public or of a prirate nature: and when we speak generally of an ex poft facto law, we perhaps always mean a law which comprehends the whole com

munity

therefore made to commence in futuro, and be notified before their commencement; which is implied in the term “pres. fcribed." But when this rule is in the usual 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 state." 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 legislature are indeed convertible terms; one cannot fubfift without the other.

THIS will naturally lead us into a fhort inquiry concerning [ 47 ] the nature of fociety and civil government; and the natural, inherent right that belongs to the fovereignty, of a state, wherever that fovereignty be lodged, of making and en-, forcing 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 açtually existing unconnected state of nature, is too wild to be feriously admitted: and befides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their prefervation two thousand years afterwards; both which

munity. The Roman privilegia feem to correfpond to our bills of attainder, and bills of pains and penalties, which, though in their nature they are ex poft facto laws, yet are feldom called fo.

were effected by the means of fingle families. These formed the first natural fociety, among themfelves; which, every day extending its limits, laid the first 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 subdivided itself by various migrations into more. Afterwards, as agriculture-increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had formerly feparated, reunited again; fometimes by compulfion and conquest, sometimes by accident, and fometimes perhaps by compact. But though fociety had not its 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 demonstrates 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 institution of a state, yet in nature and reafon must always be understood and implied, [48] in the very act of affociating together: namely, that the whole fhould protect all its parts, and that every part should pay obedience to the will of the whole, or, in other words, that the community fhould guard the rights of each individual member, and that (in return for this protection) each indi vidual fhould fubmit to the laws of the community; without which fubmiffion of all it was impoffible that protection" could be certainly extended to any.

FOR when civil fociety is once formed, government at the fame time refults of course, as neceffary to preferve and to keep that fociety in order. Unlefs fome fuperior be conftituted, whofe commands and decifions all the members are bound to obey, they would ftill remain as in a state of nature, without any judge upon earth to define their feveral rights, and redrefs their feveral wrongs. But, as all the members which compofe this fociety were naturally equal,

it

may

be asked, in whofe hands are the reins of government to be entrusted? To this the general anfwer is easy; but the application of it to particular cafes has occafioned one half of those mischiefs, which are apt to proceed from mifguided political zeal. In general, all mankind will agree that government should be repofed in fuch perfons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically ftiled the fupreme being; the three grand requifites, I mean of wisdom, of goodnefs, and of power: wifdom, to difcern the real intereft of the community; goodness, to endeavour always to pursue that real intereft; and strength, or power, to carry this knowlege and intention into action. These are the natural foundations of fovereignty, and these are the requifites that ought to be found in every well constituted frame of government.

How the feveral forms of government we now fee in the world at first actually began, is matter of great uncertainty, and has occafioned infinite difputes. It is not my bufiness or intention to enter into any of them. However they began, or by what right foever they fubfift, there is and must be in all [ 49 ] of them a fupreme, irrefiftible, abfolute, uncontrolled authority, in which the jura fummi imperii, or the rights of fovereignty, refide. And this authority is placed in those hands, wherein (according to the opinion of the founders of fuch refpective ftates, either exprefsly given, or collected from their tacit approbation) the qualities requifite for fupremacy, wifdom, goodness, and power, are the most likely to be found.

THE political writers of antiquity will not allow more than three regular forms of government; the first, when the fovereign power is lodged in an aggregate affembly confifting of all the free members of a community, which is called a democracy; the fecond, when it is lodged in a council, compofed of felect members, and then it is ftiled an aristocracy; the laft, when it is entrufted in the hands of a fingle perfon, and then it takes the name of a monarchy. All other species