laws and customs of every people. To question their authority, or to disobey their injunctions, will not in the same manner be considered as impious, as an offence against religion, which they have been accustomed to associate with all internal obligation, which to be efficacious is always a sentiment no less than a dictate of reason,-nay, which with the weak and uninformed often sets reason at defiance.

It is true, as before shewn, the civil compact induces a moral obligation to all laws made agreeable to that compact-that is, such laws as the common interest requires; but until positive laws have, from their obvious utility, or from long habit, obtained in the minds of the people the moral character of their ancient customs, the obligation will appear to rest in the compact, and not to arise from, or to be immediately united in, the law a distinction which will readily be perceived. Hence, perhaps, men first learn to make a distinction between the civil and the moral obligation. They find in their own minds a difference in the force of the obligation,-the question, however, is not of the degree of moral obligation to obey any particular law or class of laws, but of the reality of such obligation; for, while we admit different degrees in crimes, we must necessarily admit different degrees in obligation, and this is equally true of both positive and natural law. All laws, therefore, which come within the definition which we have given,- -a definition equally applicable to moral and positive law,a rule enjoining that which ought to be done, and prohibiting that which ought not to be done," and it would be absurd to suppose the author, notwithstanding he has adopted an exceptionable mode of expression, did not intend the same, carry with them a moral obligation.

It certainly was not the intention of the author, as it was not his business in this instance, to discuss what obligation, or whether any would attach to arbitrary and tyrannical laws. Taken in this view, the exception which he has admitted to his general position, and to which we have before alluded, at once annihilates his distinction: For, after having laid it down that a certain class of penal laws "do not make the transgression a moral offence or sin; the only obligation in conscience

is to submit to the penalty if levied ;"* he concludes the whole with this sentence,-" but where disobedience to the law involves in it also any degree of public mischief or private injury, it falls within our former distinction and is also an offence against conscience." What law can there be, "enjoining what ought to be done and prohibiting what ought not to be done," the violation of which does not necessarily involve some public mischief, or private injury?

As to the alternative said to be offered to every one to abstain from the violation or submit to the penalty; this is wholly to mistake the intention of the law-nor does the delinquent ever act on that intention. It is his great object while he transgresses the law to evade the penalty. Take away all hope of evasion, and the law will, never be deliberately violated. According to the author's expression, it concerns the conscience to submit to the penalty in case only of its being levied, that is, if the delinquent be taken and convicted. How fully and clearly a man may discharge his conscience by a compulsory submission to the penalty under the bolts and bars of a prison, bound under the lash of the beadle, or mounted a public spectacle on the pillory, let some nicer casuist decide. One thing, however, is certain, that however he may have discharged his conscience of the offence, he will ever after remain conscious of the infamy he incurred by the manner of that discharge.

On this subject it has been justly observed, "Punishments or penalties are never intended as an equivalent, or compensation for the commission of the offence; but they are that degree of pain or inconvenience, which are supposed to be sufficient to deter men from introducing that greater degree of inconvenience, which would result to the community from the commission of that act which the law prohibits. It is no recompense to a man's country for the consequences of an illegal act, that he should afterwards be whipped, or should stand in the pillory, or lie in jail."

Let us instance in a few of those laws which are generally considered as juris positivi. Those enacted for the prevention

* 1 Comm. 58.

of frauds in the collection and payment of the public revenue; -to prevent the introduction of pestilential diseases and the spreading of conflagrations. What compensation can the personal penalty or punishment of the delinquent be to the state for a sum of money withdrawn or purloined from the public treasury, either by smuggling or peculation? What compensation, what atonement can any penalty suffered by the offender, who by a violation of the laws on those subjects, has been the means of letting loose conflagration and pestilence to the destruction of the lives and property, perhaps of thousands of his fellow men, be either to the public or to the suffering individuals?

The moral reason which the author gives for permitting in penal law the alternative, that one may either obey the law or clear his conscience by submitting to the penalty, is altogether inadequate." That otherwise the multitude of penal laws in a state would not only be looked upon as impolitic, but a very wicked thing, if every such law were a snare for the conscience of the subject." Was it ever thought that the multitude of moral rules in any state of society ought to be looked upon as a very wicked thing, or that they were a snare to men's consciences, and not rather a safe guide? However complicated the state of society, and however numerous the rules, their application is left to be discovered as the result of situation, circumstances, and relations; nor is it thought a task too difficult. In matters that become the subject of positive law the difficulty is much less; many actions are considered as good only when enjoined, or as evil when prohibited.

Hence, the duty of the subject arises on the requisition of the law, and is clearly explained in the law itself. Not that the positive law creates, if I may use the expression, but induces the moral obligation, and that in perfect consistence with the definition given of municipal law. It is presupposed that in the existing situation, the actions which are to be the subject of the law, are such as public good-the general interest-requires should be enjoined or prohibited according to their nature and tendency. It is here with the public right, the same as in the case of an individual, who may, by his acquiescence, suffer others to reap advantage from the use of his rights or property. So

the government may suffer the citizens or subjects, to do, or neglect to do things, which it may have become the public interest either to enjoin, or to prohibit; and from the nature of civil liberty the permission continues until a law be interposed by public authority. In the former case, if the individual interpose his rightful claim, for others to persist in, the use becomes a private wrong; in the latter, if government interpose a law, to persist in opposition to the law, becomes a public wrong, a moral no less that a civil wrong.

The author, seemingly, to prepare the way for his doctrine, bas supposed there are many matters in themselves indifferent and which are not commanded or prohibited by those superior laws, the primary laws of nature of which he had been speaking; here, he says, the inferior legislature has scope and opportunity to interpose and to make that action unlawful which before was not so. It may, perhaps be difficult to fix the precise. meaning of the word indifferent as here intended. That there are things indifferent, in the sense that they are neither right or wrong, considered independent of the relation under which they exist, and that they take their moral quality from those relations is true; but it is equally true, that independent of those relations they can never be a proper subject of legislation. They become such from their relation to the public interest; and when from that relation, the public good requires the interposition of a law on any matter it is no longer a matter of indifference.

For the legislature to interpose a law on a matter, if any such could be found, totally indifferent, would be an unnecessary and wanton restraint both of the civil and natural liberty of the subject. It is also true that when a necessary end is sought to be effected by a law proposed, several subjects may be presented, and it may appear to the legislature a matter of indifference, or rather, of serious deliberation which shall be preferred; but when the choice is made, that indifference is not transferred to the law to interrupt the moral, any more than the civil obligation. Nor does it affect the reality of the obligation that the choice has been made of a subject less proper than another to attain the end sought,

We may here repeat what has been said, at least in substance.

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 concur in the end and design of the great Lawgiver, to promote the general utility, the happiness of mankind. But although the laws of nature have ordained civil institutions generally, yet they have not ordained any particular forms, or specific civil rules. These are left to the wisdom and discretion of each society; and though they make it the duty of all to endeavor after perfection, they do not make its attainment a condition of their approbation. It is sufficient to induce their moral obligation in each society, that its civil institutions and laws in some degree tend to promote the happiness of its members at least without impeding the happiness of others, and thus concur in the original design of promoting human happiness.

Thus, in every view which can be taken of the subject, it is clearly proved, that all municipal laws, whether civil or criminal, that is, penal, which the public interest, the general happiness require, and which in their tendency promote that happiness, are, in addition to the obligation of the civil compact, of strict moral obligation, and are inforced by the general moral law, the law of nature. In fact, they are rules of that law discovered by the wisdom of man as applicable to the existing situation of the civil state. To erect crimes upon actions wholly indifferent to the interest of the society, if any such are to be found, to gratify the pride and caprice of one class of citizens by allowing to them what is forbidden to others; to inflict penalties to support a system of monopoly, or the mere purpose of revenue, is to confound every idea of right and wrong in a criminal code. Such laws are to be found in many states. Such, perhaps, are the English laws to which the author has referred, the game laws and some others; but if they discover this character, they do not as we have shewn come within the definition of municipal law, or the purview of his subject—it demands a different discussion. Harrassed with such laws, and unable to find any moral restraint, men learn to make a distinction between what is morally wrong and what is only partially so.

Among a great variety of laws, some arbitrary and some not, their minds are wearied with the difficulties of discrim