a compact of a high and sacred nature, entered into on a high and valuable consideration; that hence, both customary and positive laws derive their binding force; that a statute law, whatever may be its form of expression, is a rule of civil conduct, which the people have agreed to observe, an agreement inchoate in the civil compact and consummated by the same people through their representatives. Although the civil obligation to obey the law, immediately originates in compact, yet the law of nature, which has rendered civil government necessary to man, necessary to the attainment in any considerable degree of that happiness which he is destined to seek in society, and which is the great object of all, attaches a peculiar sacredness to that obligation, and to the civil, adds the force of moral obligation, which I shall proceed to consider in the next chapter.

their assent to every law that is passed. Whatever force therefore, of obligation can arise from compact, contract, agreement, or assent, for they are in fact the same, that force the law has as an obligation, and no other. Compulsion may be superinduced, but that is a thing distinct from obligation in the sense here intended.

CHAPTER IV.

Moral Obligation of Civil Laws.

In the preceding chapter we treated of the civil obligation of municipal law only and the ground of compact; on which that was established, so closely connects the civil with the moral obligation, it might be thought that little could remain to be said on the subject of this chapter; but as a distinction has been taken that some laws are binding, and that others, although necessary and expedient for the public good, are not binding on the conscience, I shall treat the subject more fully. In doing this it will be necessary to recite at some length, those passages in the Commentaries, in which the author has endeavored to establish that distinction.

After having briefly treated of the law of nature, and the law of revelation, he tells us "upon these two foundations,the law of nature, and the law of revelation,-depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points in which the divine law and the natural, leave a man at his liberty; but which are found necessary for the benefit of society to be restrained within certain limits; and herein it is that human laws have their greatest force, and efficacy; for with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to the power. To instance in the case of murder, this is expressly forbidden by the divine, and demonstrably by the natural laws; and from these two prohibitions, arises the true unlawfulness of the crime. Those human laws which annex

a punishment to them, do not at all increase the moral guilt, or add any fresh obligations in foro conscientia to abstain from the perpetration. Nay, if any human laws should allow or enjoin us to commit it, we are bound to transgress that human law, or else we offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded by those superior laws, such, for instance, as exporting wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that unlawful which before was not so."* Again, "Where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty; for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment."

Here it is evident the author has confounded the obligation to obey the law with the external force provided to compel that obedience. It is true he is speaking of the external obligation of the law, which alone is the direct concern of human laws and human tribunals; and does not here in any case, discharge the internal obligation. But in the following passage he is very explicit...

"It is true, it hath been holden and very justly by the principal of our ethical writers, that human laws are binding on men's consciences. But if that were the only or most forcible obligation the good only would regard the laws, and the bad would set them at defiance and true as this principle is, it must still be understood with some restriction. It holds I apprehend as to rights; and that when the law has determined the field to belong to Titius, it is a matter of conscience no longer to withhold or invade it-so also in natural duties, and such offences as are mala in se, here we are bound in conscience, because we are bound by superior laws, before these human laws were in being, to perform the one and abstain from the other. But in relation to these laws, which only enjoin positive duties and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of mor

al guilt, annexing a penalty to noncompliance; here I apprehend conscience is no farther concerned than by decreeing a submission to the penalty, in case of our breach of those laws. For, otherwise, the multitude of penal laws would not only be looked upon as impolitic, but would also be a very wicked thing, if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man, either to do this or submit to the penalty, and his conscience will be clear, whichever side of the alternative he thinks proper to take."

The author might have been induced to this conclusion, partly from a consideration of that unlimited, arbitrary, and despotic power, with which he had thought it necessary to invest his legislature, a power to impose on the subject an equally unlimited civil obligation to obey all laws by them enacted, be they ever so absurd, violent, and oppressive. He could not but be sensible that such laws, whatever prudence might dictate, could never be felt as binding on conscience, and partly from a view of the criminal and penal code as it then stood and perhaps still stands in Great Britain. It was not his principal design to improve the laws of England, but to facilitate the study; not to write a criticism, or to examine their merits, but to exhibit in a connected system a body of laws already formed. Had his subject led him to consider the extent of moral obligation, and the nature of all human laws, as founded in the principles of society and the only end that can be admitted in a free government, he would probably have found reason for a different opinion. Much deference is due to the author of the Commentaries as a luminous, and with few exceptions, a correct law-writer; but the doctrine he has here advanced is certainly erroneous and dangerous to be admitted in society.

The question which this doctrine involves respecting the moral obligation of positive and penal law is important and requires a more extensive discussion than the limits prescribed to this portion of the work would permit, had not the greater part of the principles on which a correct decision depends, been as I apprehend already settled, in treating the subjects which have preceded. By the assistance and application of

these principles, I shall hope to bring the question to a full and fair decision without transgressing those limits.

An opinion once advocated by many, although not admitted by the author, seems nevertheless to have influenced his reasonings. That a state of individual independence, or very little in advance of that condition is the natural state of man, and that all social improvements, as they are called, beyond that state, are a departure from nature. And that in an advanced state of social and civil improvement it becomes necessary, if not right, for the support of the community and protection of its members to make many laws, which-if not contrary to the original law of nature, yet have not the sanction of that law, and although allowed to be civilly binding, are not morally so,do not effect the conscience.

But we have before seen there is by nature, implanted in man, a capacity for improvement. A state of nature may be a state of weakness and ignorance; but a state of knowledge and improvement, is not therefore a departure from a state of nature; as well might we make the assertion of the infant and the adult. An endeavor after knowledge, an improvement of his powers, individual and social, is indicated to him,-nay is imposed upon him by the very laws of his nature. That rude state so often immagined, if ever it did exist, is a state forced and unnatural. It cannot exist without a violation or dereliction of almost all the laws constituted by God in the formation of man. It must be either a state of brute violence, in which there can be no law but the law of the strongest; or it must be a state of seclusion, in which the solitary individual has almost no use of any of the laws of his nature, scarcely have any of his powers, his mental faculties, his passion or appetites, either excitement or object;-he is indeed exempted from some of the evils, and some of the vices found in a state of society; but he is also excluded from all its endearing charities, -all its enjoyments. In a word, he is not entitled to the rank of man. He is in possession of himself, and entitled to his rank in society only. It is the state to which all his powers and faculties are adapted, to which the laws of his nature bind him, and which gives him the full privilege of those laws.

Civil government, as we have already shewn, is the natural