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absolute, despotic government, provided we may be allowed to substitute terror for will, and compulsion for obligation. But in a free government, the legislature consists of agents appointed by the people, and empowered under certain restrictions, to agree for all, including the agents themselves, on certain rules for their government, which rules so agreed, the people have bound themselves, in their original compact, the constitution, to observe and keep; and have also provided the means of compelling the observance, should any be found to neglect or disobey. Whatever tone or form the rule may assume, it is clearly a compact, but a compact of a peculiar nature, mutual between the individuals of the society and the aggregate. The consideration is no less than the protection, security, and happiness of each and of all. That a man may be as firmly bound by a contract made by his agent, as one made in his own person, is agreeable to the common sentiments of mankind, and is adopted in the laws and practice of every people on the globe, and that an agent may bind himself jointly with his principals, is known and adopted in every partnership concern.

But, says the author last mentioned, "It is a maxim that a man cannot bind himself," and this maxim he tells us, is not confined to single individuals, but extends to whole societies. And further, "for a person to oblige himself under the notion of a law-giver is impossible." That notion of a superior in this case, in the sense of the author, has been before shown to be unfounded. But instead of theoretical notions, let us resort to practical instances. He might not have known or not have recollected, that in England, the members of the legislature, were, as they still are, bound by the laws made by that body as fully as any other subject. The king is indeed not bound unless he is specially named in the act; if named, he is also bound in virtue of his assent.

But is it possible, that the author, writing on general law, should have overlooked not only the laws and customs of private partnerships, but of public incorporated companies, known in every country, and as old as the civil law itself, in which he was deeply versed, the great object of which laws and customs has always been, to enable the society or company by itself or its agents to bind the whole body by their contracts?

There were, and are, beside, numerous corporations of various descriptions which have the power of making certain laws, each binding on its own members. That a man cannot bind himself to himself, in the common acceptation of the term, is indeed true. In whatever form of words a person may to himself express his intention to perform some certain acts, it is but an intention or resolution, from the nature of the thing still holden under consideration, and the performance still remains optional; but let the intention, being in itself lawful, be expressed by way of promise to another person upon a good and lawful consideration, surely the person so promising binds himself to the performance, and by the same act gives that other a full right to demand the performance. To every obligation or duty on the one part, there is a corresponding right on the other. This right is voluntarily conferred by the obligor, and cannot be arbitrarily assumed by the obligee. This is a first principle of universal law,-the law of nature.

To support the doctrine of an absolute sovereignty, an arbitrary, despotic power in the legislature, whether that legislature consist of a single man or body of men, the principle is reversed. Instead of the right of the obligee originating in the voluntary act of the obligor, it is made to originate in the arbitrary will and pleasure of the obligee. The advocates for this doctrine act consistently, in clothing their legislature with omnipotence, for certainly nothing short of that power could effect such a reversal of the law of nature. Power or force may impose a necessity, but can never impose an obligation, in any intelligible sense of the term. Necessity, arising from compulsion by force, and the duty arising from obligation, civil or moral, can no more coalesce than the veriest opposites in nature. But it is said there is an obvious distinction between the language of a compact and the language of a law. The language of a compact is,-" I will do so;" but the language of a law is," thou shalt do so." This language is, from the When one of the parties

nature of the case, very proper. enters into a bond, the language is," I acknowledge myself bound to do so;" or if a simple contract,-"I promise to do But when a compact is pronounced by a third person mutually empowered by the parties, it is often expressed in the imperative style of a law,-such is the case of an award.

so."

Two persons having a controversy, submit the decision to a third person, an arbitrator, who having heard the parties, pronounces his award in the usual style of command. "I do award and order that A. B.-one of the parties, pay the other such a sum, and that the other release. Here the language is after an imperative manner, and yet if the party against whom the award has been made, neglect to perform, the other may have an action, as on contract either of debt or assumpsit,-a promise, according to the nature of the submission.

Notwithstanding the imperative language of the award, it is still a contract, or rather consummation of a contract, inchoate in the submission of the parties from which it derives its binding force. Frequently a person by agreement binds himself to obey the commands of his employer, and in virtue of such agreement, and that only, he is bound to obey the commands according to his stipulation, with this proviso,-that the commands be lawful, and such as are usual and customary in the employment.

It may appear trifling and beneath the dignity of the subject to descend to the refutation of agreements drawn from the mere forms of expression; but let it be recollected that those arguments having been adopted and urged with great gravity by authors of high reputation, in those writings from which are universally taught the rudiments of jurisprudence, and from which the student, the future law-giver and statesman collects his principles as from an infallible source, they assume an importance, to which they would not otherwise be entitled.

Thus on a full and fair investigation of principles, it may safely be pronounced, that, in a free government, the civil obligation to obey the law immediately originates in compact ;*

*If it should be decided, that a law itself is not in any strict sense a compact, still the argument and the conclusion, that the obligation to obey the law originates in compact, will remain in full force; for it will not be denied, that, in all free governments, the constitution by which the legislative power is authorised, is established by compact, to which the people are the parties, and in forming which it is explicitly understood, that all shall be bound by that constitution, and by all the laws made under and in pursuance of its authority. Still farther, the people, through their representatives, give

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

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