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.

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

and necessary consequence of a state of society, and is legitimately founded in the principles arising out of the social nature of man. The laws of nature have ordained that men, brought together in society, shall seek to promote and secure their own happiness through civil institutions and laws, and thus in their several spheres concur in the end and design of the great original Law-giver, to promote the general utility,-the happiness of the whole human race. Although the laws of nature have ordained civil institutions, they have prescribed no particular forms, but have submitted them to the discretion of each society. These laws indeed, make it the duty of all to endeavor after perfection, but do not make its attainment, the condition of their concurrence and approbation. It is sufficient for each, that it in some degree secures and promotes the happiness of its members, at least without impeding the happiness of others.

Man is formed with dispositions and principles, that both allure and impel him to the adoption of civil institutions. Governments may originally be formed on different models; and each in a course of improvement may receive many and great alterations. There are, however, principles common to all arising from the general nature and end of all legitimate government. From a variety of circumstances, situation of country, different degrees of improvements in arts, science, and manners, they may have particular principles arising from the particular nature of each; but all governments have one common end in view, and all the members of each have in it a common interest. This consists in the means of securing to all, and mutually adjusting their social and individual rights. To effect this end, laws to regulate the general conduct of the members and direct their actions to the great object of society, the common good, are indispensably necessary. A power must therefore be somewhere intrusted to make such laws and enforce their observance. The mode of constituting this power must always be left to the wisdom of man, and will vary more or less, will be more or less perfect, according to the wisdom, integrity and means employed to effect the end; but the constitution of such a power, is, as we have shewn, not only permitted, but required by the law of nature. Surely then every civil law made in the spirit and

agreeable to the intent of such constitution, whether it relate to the security of individual rights and interests, to the security and improvement of social intercourse, internal or external, or to the support and maintenance of the state, is ultimately derived from the law of nature, has the sanction of that law and carries with it the force of moral obligation.

The author, in the passage above cited, appears to understand by natural duties and offences mala in se, that is, offences against natural rights, those duties that are required and those offences that are forbidden by the primary rules of the law of nature, which were in force before any human laws were in being, as he expresses it, that is, those primary rules which were discovered by all men in that state of society which is supposed to have existed, previous to the adoption of civil institutions and he calls those duties positive, and those offences mala prohibita which become such merely in consequence of the relations arising in civil society, and which are not comprehended in his first class. Thus, he calls the civil laws relating to the first class "auxiliary" to the laws of nature-those relating to the other class, "positive laws." This is, doubtless, a very proper, civil distinction, very proper in a treatise on civil law; but is, I think, insufficient to support the moral distinction which he has founded upon it. If pursued through all its consequences, it would reduce the law of nature, considered as a moral law within very narrow limits. Of this, from an exception he has made to his general rule, and which we shall notice presently, it appears the author was in some degree aware. It may be difficult to decide with precision, the dividing line between the two classes; but we may perhaps make an approximation sufficiently near.

Mr. Christian, who dissents from the doctrine of the author, observes that the principles of moral, that is natural, and positive law are the same, viz. utility, or the general happiness and true interest of mankind. But he farther observes, that the necessity of one set of laws is seen prior to experience; the other posterior. The first observation is as just as it is important; for although we may not allow utility to be the sole efficient of moral obligation, it is a sine qua nan, that without which it could not exist. It would be vain and useless, impos