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stances which gave rise to so general a perversion. These circumstances will readily be perceived in the view taken in a former book, of the first rude state of society. It may be proper, however, to consider that state with a more particular view to this subject. Many tribes, and even considerable nations, even at this day, remain in that rude state in which we can scarcely discover any trace of civil institutions, and of civil subordination. Whatever may have been the original situation of mankind, we cannot find that any nation or tribe have been exempt from that rude and barbarous state. It is the state from which all nations have commenced their improvements in the arts of life, all their discoveries and refinements in social and civil institutions. Some nations, owing to peculiar circumstances, have made more rapid advances, and have more early than others attained a high degree of improvement in their institutions; yet early history, and the traditions of every people, whatever credit may be due to the marvellous accounts they furnish, generally hold up a faithful mirror of ancient manners, and clearly prove there was a time when the whole human race were found in the same barbarous state, when without any regular systems of laws, without any efficient government, every man in cases of personal violence, was left to be the sole judge and avenger of the wrongs he had suffered. such a state, every thing is left to be decided under the influence of some predominant passion, generally that of revenge, of all the most violent aud enduring, and the least susceptible of moral restraint. Causes of offence are constantly multiplied, and the passion of revenge kept always on the alert. Every one must depend on his own personal strength and resources. If these are insufficient, he must associate with others for mutual defence, or devote himself to some powerful chief, whose decisions become the measure of right to his followers, and his commands their sole law. Amid such scenes of violence, every man resorts to the law of force;-the right of the strongest. Right is confounded with might in the general mind, and becomes identified with power.

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Between neighboring nations, which in such state generally consist of petty tribes, the condition was still worse. The licentious aggressions of individuals, or of marauding chiefs,

for the purpose of plunder, or of avenging former injuries, which, handed down from father to son, were never forgotten, kept them in a perpetual state of hostility, so that the name of stranger and enemy became identified. So inveterate were their hostilities, that the destruction of an enemy was considered the only security against future danger. Accordingly we find that in the infancy of nations, all their wars were wars of extermination. The weaker party were in the end put to the sword, or forced to abandon their country. The conqueror was considered as having a full right, or rather I may say, it was deemed an indispensable duty which he owed to his tribe to take the life of the vanquished. Thus the conqueror was held, by his superior power, to have acquired a right not only to the life but to every thing that belonged to the vanquished; and when in after times the strict right was mitigated and their lives were yielded to them in exchange for hereditary slavery, or a weaker nation was spared in consideration of a perpetual tribute, humanity had little share in the motive. The utility of the conquerors, the augmentation of their power, and their public and private resources was the great inducement to this seeming lenity. In such state of irreconcilable hostility, it is evident that when one nation meditated the conquest of another, the justice of the measure made no part of the deliberation; the whole was reduced to a question of power. Thus all the circumstances of the times, both of nations and individuals, served to confound right with power and to identify them in the general opinion. If an opinion has been entertained by an individual until it has become habitual, he believes it to be founded on some natural principle. If an opinion has become general, is entertained by all, they with one consent pronounce it to be a law of nature. Thus on a fair and candid review of the whole subject, so far is the generality of the custom from proving it to be a genuine law of nature, it is a convincing proof to what a degree, a general perversity of situation and circumstances may serve to corrupt the sentiments and pervert the understanding of mankind in opposition to their true interest and happiness, the great end of all the genuine laws of nature.

It has been often observed that among independent states,

from the nature of their situation, no common superior can be admitted to dictate the law and enforce its observance. Although it is not the less obligatory in a moral view as a branch, and a very important branch of the law of nature, yet its observance is, in a great measure, voluntary between the parties; but such is not the case with respect to the individuals of a nation. Modern nations have adopted the law of nations in their respective civil codes, so far as that law may be affected by the conduct of individuals. The government of every state have the power and find it no less their interest than their duty to punish every unauthorised infraction of that law by their own citizens and subjects. Every state is within certain limits holden accountable for all aggressions of its subjects, especially of its public agents, against another state or its citizens. But if the government disavow the act, and punish or deliver up the aggressor, if in its power, it ought to satisfy the offended state.

СНАРТER III.

Of Municipal Laws and their Civil Obligation.

Municipal law is the civil law of a particular country. It has been defined by Judge Blackstone to be "a rule of civil conduct prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong."* This definition, was, I believe, first introduced into the English law by him, and has since been adopted by most of the succeeding writers upon that law. It is not given as a definition peculiar to the English law, but as a definition of universal application to the municipal law of every country. But from a conviction of its unsoundness, I feel it necessary to question its propriety.

The first branch of the definition is undoubtedly correct, "that municipal law is a rule of civil conduct prescribed," that is, its injunction must be made known to the citizens, or subjects before it can operate as a rule. That a rule should, by retrospect be applied to transactions which were passed before it existed, or was made known, is an absurdity, a violation of all the principles of natural justice, too palpable to require a comment. But that it is a rule prescribed by the supreme power in the state, in the sense of the author as here expressed, is, according to my apprehension, far from being correct. That we may fully comprehend his sense in this part of the definition, it will be necessary to recollect his depository of this supreme power, and the qualities which he supposes it inherently to possess. To this purpose, let us repeat some passages of the author, which have been before cited in

*1 Comm. 44.

treating of sovereignty. "Legislature is the greatest act of superiority that can be exercised by one being over another; wherefore it is necessary to the very essence of law, that it be made by the supreme power." Sovereignty and legislation are convertible terms, and cannot subsist one without the other." Speaking of the different forms of government, he says, however they began, or by what right soever they subsist, there must be in all, a supreme, irresistible, absolute and uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty reside;" and according to him, the residence of this supreme power is in the legislative organ of the state.

of

All this is true in terms, in a government absolute, arbitrary, and despotic where all the powers of the state are, whether by consent or by usurpation, concentrated in one man or body men ; but we have before seen, that in a free government, an absolute, uncontrolled, and unlimited power is not committed to any one of its organs, and that it does not actually subsist in the British legislature, for whom it is so strenuously claimed. Certainly such power does not belong to the legislature of every state. It is not vested in the legislature of the United States, nor in that of any state in the union. Each is limited by the constitution from which it derives its power. The constitution is the supreme law established by the people, the ultimate supreme power in every free country; a law which the legislature is bound to obey in all its acts. Every act not warranted by the constitution is void, and with us is so decided by the courts of law. So far we may, with propriety, apply the definition to the law of the constitution, the fundamental law, that it is a rule of political conduct prescribed by the supreme power in the state; but it wholly fails, when applied to the derivative, to the municipal law. The positive laws.

That

†The word "legislature," is here used in an unaccustomed sense. term is in the English language, appropriated to express the name of the organ vested with the power of making laws in a state, but the powers and the acts of that organ are appropriately expressed by the term " legislation;" thus we say the "power of legislation,”—the power of making laws,-“the act of legislation,❞—the act of making laws. †1 Comm. 46. 1 Comm. 49.

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