interest and duty, and exposed its subjects to some cruel alternative. And though it was not to be expected their contemporaries in the social contract should openly excuse them, yet the more enlightened and impartial conscience of posterity has done justice to their sagacity and high standard of right by canonising their bones. Though martyrs themselves may at times err, they have also frequently been in the right. All legislatures have erred once and again in binding burdens too heavy to bear; for mistakes are incidental to legislatures as well as to individuals.1

So long as the distinction of malum in se is used in international law, as denoting some of the blackest crimes which are marked out for universal detestation in the family of civilised nations, such distinction may be convenient, but it is not founded in any clear principle sufficient to challenge any importance in a systematic treatment of the municipal law.2

Distinction of the divine law. The law of God is sometimes also appealed to by jurists and writers as a part of the substantive municipal law, or at least a source of part

1 Fox said "in this country we were governed by king, lords, and commons, but no man would contend that any of those powers was infallible."-29 Parl. Hist. 1374.

2 The distinction of malum in se and malum prohibitum was said by Bentham to be at best obscure.-1 Benth. Works, 193; and by Austin, one that leads to nothing.-2 Aust. Jur., 264.

The distinction was used in colonial law, where things mala in se accepted in the law of the colony were deemed blotted out, as against the law of the conquering country. But the distinction only resolves itself into the question whether one law is repugnant to the other: in short, the word malum in se is used only vaguely as denoting that the offence is morally bad.-Blanckard v Galdy, 2 Salk. 411; Anon, 2 P. Wms. 75; R. v Picton, 30 St. Tr. 906, 907; R v Macclesfield, 16 St. Tr. 1146.

LORD THURLOW said the distinction of an act not being malum in se could not be listened to, if the law has prohibited the thing to be done. Hanington v Du Chastel, 2 Swanst. 159 n.

"I do not know of any crime being punished because of its being malum in se.”—Per L. Ellenborough, 28 St. Tr. 401.

FOSTER used the word malum in se loosely to distinguish revenue offences from other offences, in cases of striking in anger or from malice.-Foster's Disc. ii. ch. 1.

ABBOTT, C. J., said the court was bound to consider every act to be unlawful, which the law has prohibited to be done.-Cannan v Bryce, 3 B. & Ald. 179.

of that law. Some old writers seem to treat it as the main source, and eminent judges, even of modern times, have encouraged that mode of speech. The connection between the municipal law of all countries and the divine law is marked by some peculiar features not easily explained, and the subject is interesting to all who choose to reflect.

Ancient codes professing a divine origin.-Milton expressed no new idea when he said, that all the ancient lawgivers were either truly inspired, as Moses, or were such men as, with authority enough, might give it out to be so, as Minos, Lycurgus, Numa, because they wisely forethought that men would never quietly submit to such a discipline as had not more of God's hand in it than man's.1 And at a later day it was said,2 to the same effect, that most of the ancient lawgivers and institutors of civil policy, having found it necessary for the carrying on their respective establishments to pretend to inspiration and the extraordinary assistance of some god, unavoidably mingled and confounded civil and religious interests with one another, so as to animadvert on actions not only as crimes against the state, but as sins against that god who patronised the foundation. And Homer says the things that kings receive from Jove are not engines for taking towns, or ships with brazen beaks, but law and justice; these they are to keep.

1 Milton, Reas. Ch. Gov.

2 4 Warburton, W. 43.

: BISHOP WARBURTON collects (Divine Legation of Moses, b. ii. s. 2) references to the ancients and to the Chinese, Peruvian, Gothic, and Mohammedan codes. DIODORUS SICULUS said the old legislators did this, "not only to beget a veneration of their laws, but likewise to establish the opinion of the superintendency of the gods over Roman affairs."-Diod. Sic. b. i. PLATO also says at the outset of his treatise on laws, "that legislation came from the gods."-De Leg. b. i. s. 1 ; and that it was so in Athens, Crete, and Lacedæmon. HERODOTUS says Lycurgus got his laws direct from the Pythian oracle.-Herod. b. 1. And PLUTARCH says he got them from Apollo, while Minos got his from Jupiter.-Plut. Lycurg. Not only the laws, but even the Court of Areopagus was deemed by the Athenians to be of divine origin, or, at all events, so ancient that its origin was unknown.-1 Thirlwall's Greece, 345; Plut. Pericl. The ancient Egyptians also thought the gods dictated their laws.-2 Wilk. Anc. Egyp. ch. 8. The laws of Upland, a Swedish code of 1295, purported to have a divine sanction.-6 Pink. Voy. 521.

* Hom. Il. b. i. 231. "The primitive Christians derived the institutions of civil government, not from the consent of the people, but from the decrees of Heaven. Every usurper, when holding the

The prevalence of the belief in the divine origin of their municipal laws either accounts for or is closely connected with the extraordinary reluctance of some nations to change their laws, which is only another phase of a belief in their superiority.1

And to the same tendency of the human mind may be ascribed the belief in barbarous tribes as to their original right to their own soil.2

sceptre, was deemed a vicegerent of the Deity."-Gibbon, Rom. Emp. ch. xx. The Incas always gave out, that any new law they issued had been originally sketched out, though not put in a detailed form, by the first of the Incas, in order to give greater authority to what they enjoined.Com. of Incas, b. ii. ch. ix. And they attributed their immunity from crime chiefly to the belief that the laws were made by the sun, and therefore divine.—Ib. b. ii. ch. xiii.

1 So great was the aversion of the Locrians to any new law, that the man who ventured to propose one appeared in public with a rope round his neck, which was at once tightened if he failed to convince the assembly of his improvement.-Demosth. cont. Timoc., p. 744; Polyb. xii. 10. And the same was said of the Thurians and the laws of Zaleucus and Charondas.-Diod. Sic. Solon was more liberal, but the Athenians themselves punished those who proposed a new law inconsistent with existing laws, forgetting that it was the very object of a new law to be so far inconsistent." Paronomon," Smith's Dict. The peasants of Livonia were so infatuated in favour of their old laws that they besought the king of Poland not to substitute a milder punishment for the old one, which was whipping till the blood flowed.-13 Univ. Mod. Hist. 125.

The laws of the Medes and Persians had the reputation among the ancients of "altering not."-Dan. vi. 12.

In Japan it was said any functionary, however exalted, who attempted an innovation, was reported to headquarters and capitally executed. And in the supreme council he, who proposed an alteration which was rejected, was requested to disembowel himself as a matter of course.-Perry's Japan. Exped. i. 16, 17.

In China, where the laws were unchangeable, it was recorded as a fearful and wonderful example of innovation, that the Emperor Venti had once abolished the rule, which required that in punishing a criminal his whole family and relatives must be involved in one and the same common ruin with him.-Du Halde's China.

2 In all the countries boasting of the earliest civilisation the belief of the nation attributed to itself the immemorial possession of its own soil, and to its progenitors or to the gods the invention of the arts and sciences. Egypt seems in antiquity of civilisation to have surpassed India and China, Babylon and Assyria.-Lepsius, Chron. der Egypt. Gen. xiv. 1. From Egypt civilisation passed to Greece, thence to Rome, and thence to the western nations. The Athenians wore grasshoppers in their hair, in testimony of this

There are traces of a kindred spirit in the law of England. Fortescue, in discoursing on the origin of our customs, says they are the most venerable in the world for their antiquity, and therefore they are good.1 And Popham, C. J., gravely propounded the view that the laws of England had continued unchanged through all the vicissitudes of Roman, Danish, Saxon, and Norman sway. And Coke surpasses these speculations in his extravagance.2 Later and more critical eyes have come to other conclusions. The English common law was chiefly based on the Roman law, and Bracton scarcely introduces a new principle not found there. The compiler of the laws of Henry I. evidently had before him a copy of the Theodosian Code, or the Breviarium. The Summary of Roman Law, by Vacarius, who was Professor of Civil Law at Oxford in 1149, became well known to the English judges and lawyers of the time.5 And Edward I., on his way to the Holy Land, attended and admired Accursius, whom he invited to England.

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Though all the facts of history contradict the theory, that every chapter and verse of a law giving remedies for all the wrongs that can happen, must have been elaborated by

notion. Many ancient nations had a tradition of some foreigner or messenger from heaven having instructed them-Prometheus, Triptolemus, Cadmus. The Peruvians had a similar tradition about one Mancocapac. Each tribe of American Indians is said to believe itself superior to all others in virtue and humanity. The Indians of Florida believe that the great Spirit brought them from the ground, and that they are its rightful possessors.-1 Schoolcr. Ind. 266; 2 Ibid. 170, 194.

1 Fortesc. De Laud. c. 17.

"And here it is worthy of consideration how the laws of England are not derived from any foreign law, either canon, civil, or other, but a special law appropriated to this kingdom, and most accommodate and apt for the good government thereof, under which it hath wonderfully flourished when this law hath been put in due execution; and therefore, as by situation, so by law, it is truly said, -et penitus toto divisos orhe Britannos."-2d Inst. 100. And LORD CHANCELLOR COWPER, at a more advanced stage, when he pronounced sentence on Lord Derwentwater, told the latter that he had "attempted to raze the very foundations of a government the best suited in the world to perfect the happiness and support the dignity of human nature."-R. v Derwentwater, 15 St. Tr. 797. 31 Spence, Eq. Jur. 132. 51 Spence, Eq. Jur. 109.

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Savigny, tom. i. 102. • Post, p. 127.

some far-seeing and masterly legislature at a period hid in prehistoric ages, yet there is no more common assumption than this put forward. The Barons of Runnymede pointed to the time before them in order to give emphasis to their demands. Pym and his compeers resolutely contended that all they asked-that each and every article of the Petition of Right-had been included, or at least implied, in older precedents and in Magna Charta. Old statutes also bear reference to this perpetual harking back to some golden age of laws forgotten or disregarded. And yet much of the legislation of the last two centuries has consisted of efforts to undo what had been done before, and to retreat from much untenable ground taken up in error by former legislators.1

All these phases of the same fundamental idea tend to show that human nature is so constituted, that one's own lineage, tribe, country, and laws, for some unknown reason, are more warmly appreciated than those of strangers, and that law is often nothing else but a manifestation of wisdom for the time being. It seems to come to this, that wisdom is always divine, by whomsoever spoken, whencesoever derived, and by whomsoever demonstrated.

known and recognised, when it appears, in all times and situations, and by the most depraved beings, just as at the coming of the Gospel, it was said, sorcerers, acting under some unconscious presentiment, burnt their books.2

How far Christianity is part of municipal law.—In connection with the same subject there has long been current in the law of England a doctrine, or dictum, that Christianity is part of the municipal law. The old judges vied with each other in wide and sweeping language on this subject.3 Coke said that all laws which are contrary

1 MACKINTOSH observes that both Whig and Tory antiquaries in the seventeenth century agreed in the mistaken notion, that the Saxon government was well ordered, and that through all the changes of the previous six hundred years the same political and legal institutions had existed. They forgot that a government is not framed like a model, but grows out of occasional acts.—1 Mack. Hist. Eng. 72. 2 Acts xix. v. 19. Scripture is common law, on which all manner of laws are founded."-Prisot, C. J., 24 Hen. VI. Year-Bk. 40. Per Jermin, J. (4 St. Tr. 1289- “The law of England is the law of God; it is pure primitive reason, uncorrupted and unpolluted by human

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