enacted by the legislature, are prescribed by a competent authority instituted and limited by the supreme political power.

Could the author for a moment have called off his attention from the transcendent power of his legislature, I think he would have clearly perceived the deficiency of his definition; that, upon his own principles, it could embrace the positive laws only expressly enacted by the legislature, and that it excludes the customary or common law and which, in fact, comprehends the greatest portion of the municipal laws of every country. So extensive is this branch of the law that it embraces all the common rights of the citizens, decides the manner of their enjoyment and punishes their infringement. By it is decided the validity and the effects of civil contracts in most instances. It furnishes principles for the decision of new cases as they arise, and rules for ordering and regulating the proceedings of courts. It furnishes also, rules and maxims for the construction of written instruments; rules for the interpretation of statute laws, and even of the constitution itself. Nay, in England, the constitution of the government lays its foundation in the common law. This law was not enacted by the legislature, was not prescribed by the supreme power in the sense of the definition. It came in by custom, and derives its authority as law, from a general and tacit consent of the people, and may justly be defined by itself to be a rule of civil conduct introduced by the tacit consent and agreement of the people ratified, prescribed and consecrated by long usage.

We may then, I think, without hesitation pronounce this part of the author's definition to be, not only deficient and unsatisfactory, but injurious in its consequences, leading to a misconception of the nature of our civil and political institutions. The following definition taken from the Institutes of Justinian, is in this point more correct,—at least it is not liable to the same objection. "That law, which any people have established for themselves, is the appropriate law of their state, and is called the civil law, as being the peculiar law of the civil state."

* Quod quisque populus sibi jus constituit, id ipsius proprium civitatis est, vocaturque jus civile, quasi jus proprium ipsius civitatis. Inst. B. 1. T. 2. § 1.

This definition comprehends as well the customary as the positive laws considering both as equally established by the people; the former, by a general and tacit consent, the latter by positive enactment either by the people themselves, or by some legislative organ, deriving its authority from them. Even the Roman Emperors, absolute and despotic as they held and exercised their powers, claimed the legislative authority as being derived from the same source, the people. For in the Institutes, after mention of various kinds of law-the plebiscita, or acts of the people, and the decrees of the senate; we find the following declaration of the constitution of the empire, "the ordinance of the Prince hath also the force of law; for the people by the lex regia, which was passed in relation to the empire, conceded to him. their whole power; therefore whatever the Emperor ordains by rescript, decree, or edict is law."*

With Mr. Christian, in his note on the above definition, I consider the latter branch that "municipal law is a rule-commanding what is right and prohibiting what is wrong,"-to be faulty. It leaves us in doubt whether the author meant to refer right and wrong to the rule itself or to the law of nature. If to the rule, it is, as observed, a useless tautology. If to the law of nature, it will be found to be incorrect; for there are many things, which the law of nature permits, generally, but which the municapal law may justly prohibit, because the general interest of the state requires such prohibition, and hence the distinction of those things which are mala in se,† and those which are mala prohibita. There are things that may be at least innocently done while not prohibited, but which cannot be so when prohibited. It may, for instance, be for the public interest that fish should be suffered to increase for food. It may therefore be just and expedient by law to prohibit the taking of them in their places of resort during the season of

* Sed quod principi placuit, legis habet vigorem: cum lege regia, quæ de ejus imperio lata est, populus ei et in eum, omne imperium suum et potestatem concedat. Quodcunque ergo imperator per epistolam constituit, vel cognoscens decrevit, vel edicto præcepit, legem esse constat. Inst. B. 1. S. 1. T. 2. § 6.

Wrong in themselves.

↑ Wrong as being prohibited.

their breeding. Before the prohibition, the taking is innocent; it is permited by the law of nature to all. The public interest, public expediency, renders the prohibition just and proper, and the prohibition renders the act of taking, criminal, a public wrong.

I have chosen this instance out of many, because the law in this case is not like the game laws, adduced by Mr. Christian, of an arbitrary or doubtful character,-if it be deemed necessary to embrace something of every branch of the definition in the commentaries, the following will, according to our principles, be unexceptionable.

Municipal law is a rule of civil conduct prescribed by a competent authority in the state, enjoining what ought to be done and prohibiting what ought not to be done. This definition refers the right and the wrong of the action commanded or prohibited to the laws of social nature, as applicable under existing relations; the situation, circumstances, and general interests of the community.

In treating of the general principles of municipal law, I shall consider the subject under a three-fold division. The first division will comprehend those laws which regulate the general intercourse, provide for the security of rights, and for the administration of justice between the citizens of the state, which may, by way of eminence, be denominated the civil code,-under this head I shall also treat of the civil and the moral obligation of laws. The second will comprehend the laws relating to crimes and punishments, which belong to the criminal code. The third division will include the laws which relate to taxation. In the remainder of the present chapter after treating of the principles of the civil code, which embraces principles common to all, I shall discuss the civil obligation of laws. After having so fully treated of rights, natural, civil and political, in the former part of this work, I may well be permitted to indulge brevtiy on the first part of this article.

The principles of the laws ought to coincide with the principles of the constitution. They are the detail of what the constitution contains, the outlines under general heads, and ought to be made in the same spirit. They ought, in the manner prescribed by that instrument to pursue the same end; the

interest and happiness of the citizens as inseparably connected with the prosperity of the state. It is the business and duty of the legislature in forming a system of laws, which are to be general rules to all in their social and civil intercourse, to provide for a full and equal enjoyment of rights, and to guard against their abuse, and to harmonize, as far as the nature of things will permit, public and private interests; the interest of the state with the private interests of the citizens. It is not supposed, however, that the legislature are to adapt their laws to the interest of each individual. The laws must of necessity be general, and ought to be so framed that all, by a steady observance of the rules, which they establish, may find their several interests in accordance with each other, and consequently in unison with the interest of the public. This, next to a code of good and wholesome laws, is to be effected by a provision for an able and impartial administration of justice between man and man, and between the state and its citizens. I will content myself with these general observations, and proceed to examine the civil obligation of municipal laws.

There is a passage in one of the orations of Demosthenes, in which he has given, not, indeed, a definition, but a just and beautiful description of the laws, and pointed us to the immediate efficient of its civil obligation. "The design and object of the law is to ascertain what is just, honorable, and expedient; and when that is discovered, it is proclaimed as a general ordinance equal and impartial to all. This is the origin of laws which for various reasons all are under obligation to obey; but especially, because all law is the invention and gift of heaven. The resolution of wise men, the correction of every offence, and the general compact of the state, to live in conformity with which, is the duty of every citizen."* This is not less

*Οι δε νομοι το δικαιον καὶ το καλον καὶ το συμφερον βούλονται, καὶ τατο ζητεσι, καὶ ἐπειδαν ευρέθη, κοινον τετο προςαγμα απεδείχθη, πασιν ἴσον καὶ ομοιον, και τετ ̓ ἔςι νόμος, ᾧ παντας προσηκει πείθεσθαι δια πολλα, καὶ μεγισθ' ότι πας ἐςι νόμος ευρημα μεν καὶ δωρον θεων, δογμα δ' ανθρωπων φρονιμων, ἐπανόρθωμα δε των ἐκεσίων καὶ ακασίων αμαρτηματων, πόλεως δε συνθηκη κοινη καθ' ην πασι προσηκει ζην rois ev ty no'lɛi.-Orat. 1. cont. Aristogit.

just, than elegant and forcible. It gives us the true ground of our obligation, both civil and moral, to obey the law, "because it is the invention and gift of heaven" that is sanctioned by the laws of nature. "The resolution of wise men," the proper organ of legislation: "The correction of every error,”—necessary to preserve the peace and happiness of society: "The compact of the state," what all the citizens have solemnly agreed to observe as the rule of their civil conduct. In this is exhibited the only true ground on which it is possible to rest the civil obligation. The wisest of the ancients considered the law as a solemn compact, to which all the citizens were parties, and to observe and obey which, all were mutually pledged to each other, and to the state. Upon this they rested the binding force of the laws.-Some modern writers upon general law have wholly rejected this principle of compact.

Baron Puffendorf, whose high reputation appears to have had great influence on the opinions of the first English jurists, and to have involved them in some very palpable inconsistencies, tells us that "Law, though it ought not to want its reasons, yet these reasons are not the cause why obedience is paid to it, but the power of the exactor, who, when he has signified his pleasure, lays an obligation on the subject to act in conformity to his decree. We obey the laws, principally, not on account of the matter of them, but on account of the maker's will.”* Here is found the germ of the definition in the Commentaries. In the next section he adds,Neither are they accurate enough in their expressions, who frequently apply to the laws the names of common agreements. The points of distinction between a compact or covenant, and a law, are obvious. For a compact is a promise, but a law is a command. In a compact the manner of speaking is, I will do so; but in a law, the form runs thus, Do thou so, after an imperative manner." Let us examine these positions, and see how far they are true, how far they support the inferences which have been deduced from them.

We need not question their propriety, when applied to an

*B. 1. Ch. 6. § 1.