inating. They readily admit the author's doctrine, and refer the violation of the primary class of duties in society to the class of mala in se, the others to the class of mala prohibita. Probably, however, no two men in any community will be found to agree in the classification. Laws which violate the principles, or neglect the interest of the society for which they are made, will be resisted, or will be obeyed with reluctance.Obedience will sometimes be considered as a matter of prudence; never as a matter of conscience. Men would be in a deplorable situation, if the law of morals inforced obedience to every act of legislation. The laws when once enacted would be received with veneration. The facility of execution would supersede the necessity of repeated examination, and frequent recurrence to the principles of the government, and the rights, interests, and sentiments of the people, without which the best intention of the legislature can afford no sufficient security against the danger of tyrannical laws.

CHAPTER V.

THE SAME SUBJECT CONTINUED.

Principles of the Government as they affect the Moral Obligation of Laws.

From the different nature or constitution of governments, their principles and the spirit of their laws will be different. Fear, supported by terror of punishments, or a superstitious veneration for the reigning family, or both, are the principles, that is, the great object of the laws and the sole motive of obedience, in a despotic government.

Monarchy does not lose sight of the principle of fear, but blends with it, chiefly in regard to the order of nobility, the principle of honor, a sentiment merely personal and devoted to all the caprices of opinion. The principle of an aristocracy, as it relates to the people, differs little from that of despotism. Republican, or rather, popular and representative governments have for their principle, that is, the end of their institution and the motive of obedience, a sentimental attachment of the people to the community, its institutions, its laws and government. A mixed government partakes of all these principles, each of which predominates in proportion to the prevalence of one or other of its constituent parts. Where fear is the governing motive of every social action, all happiness in social intercourse, all social improvements are not neglected only, but opposed by the genius of the government. Blended with fear, however, honor that principle of all the most capricious, sometimes irradicates, but more frequently obscures the social horizon. Neither of them have any principal regard to the happiness of

the people, or the interests of morality. The principle of a popular government, a sentimental attachment to the community, its institutions and laws, need not,-neither can it-endure the intervention of the other two principles, as they are usually understood by writers on government :-principles, which regard the whole society as constituted to gratify the passions and appetites of one, or a few individuals. Such a mixture of heterogeneous principles, in a government with pains adjusted, must of necessity have a very considerable effect upon its legislation, upon the interpretation and the execution of its laws. It will have a tendency to dictate acts and rules of civil conduct, which can in no view claim the sanction of the moral sense. The spirit of the laws is directed by the effective principle, the principle by the constitution, or nature of the government. Perhaps the laws of England are the best that can consist with the mixed principles of that government. If this be true, Judge Blackstone's distinction between those laws that are morally binding, and those that are only politically so, is, so far as it applies to English laws, just and necessary; but he should not have considered it as he has done, a common and necessary distinction in every code. It is, however, a severe, though an undesigned stroke at the principles of that government.

Can there be a more sure, a more safe criterion for deciding the goodness of any government than the tendency of its principles in legislation? That government, that constitution of society, the principles of which dictate those laws and those only, that are adapted to the present state of men and manners, and tend to social improvement, which induce a moral obligation under the sentence of the laws of nature, not of savage solitary nature, but of social nature in its improved and improvable state, is incontrovertibly good; so far as it deviates it is clearly faulty. Upon a candid examination, upon a fair comparison, it will be found that a representative republic is pre-eminently, if not alone, capable of these principles to their fullest extent. It is true, that in any government, circumstances foreign to its principles, may—and in this state of imperfection frequently will-concur to the adoption of bad laws; but if the constitution and principles be good, such laws will not have a long continuance.

The governments of the several American states, as well as that of the Union, are of the representative kind, We ought to know their principles, to study well their tendency, and to be able, both in theory and practice, to exclude all foreign principles.

Judge Blackstone was a British subject, high in favor with the government. He was enamored with the principles of their constitution; he has emblazoned them with all his rhetoric, and not the least some that are the most faulty; and probably to this, not less than to his great talents, he was indebted for the great reputation he enjoyed in that country. Unhappily his Commentaries contain the only general treatise of law, to which the law students in these States have access. In every section of the criminal code, and in all questions of a civil nature, where the prerogatives of the crown or the privileges. of the peers intervene, the principles of the government have given a cast to his reasonings. I wish not to detract from the merit of the author, as a British subject; a writer, who has in a masterly manner delineated the laws and jurisprudence of a great nation, but under a government very different from our own. There are many things in his Commentaries which accord with the principles of our own governments, and which are founded on the universal principles of jurisprudence. These will, however, be found mostly to be derived from the popular part of the British constitution. The student should carefully learn to distinguish those principles, which are peculiar to that government, or governments of a similar constitution; to distinguish the reasons which are accommodated to those principles, or solely dictated by them. He ought to know that they are not universal; that in a repesentative republic they are wholly inadmissible. This is not enough; he ought to be led through a system of laws founded on the principles: of our own governments, and a train of reasoning congenial to those principles. Such a system is yet a desideratum.*

*Since this was written that desideratum has been most amply and happily supplied by the publication of "Commentaries on American Law, BY JAMES KENT." In 4 Vols.

CHAPTER V.

Of Penal Laws.

Penal laws and laws relating to taxation, or for the purpose of raising a revenue to government, merit more particular attention, because they more than others immediately affect the lives, liberty, and property of the subjects. In treating of them, I shall consider the right and power of government, and the legitimate end to be attained in each.

1

Under penal laws I comprehend all those laws which inflict a penalty, whether it be capital, pecuniary, or personal, for the violation or neglect of any duty enjoined, either by the primary laws of nature, or the positive laws of society.

The right to punish individuals for crimes against society is not an arbitrary institution of civil policy. It has its foundation in the moral and social nature of man and is derived to government from that source through the civil compact. We have already seen that man was not formed for individual independence, but for society, for civil union in government. All the liberty of an individual, all his rights which can any way effect the rights and liberty of others are placed in an accommodation, a mutual compromise with the rights and liberties of all and every member of the society. To facilitate this accommodation and to render a compromise practicable, mutual and safe, is the object of civil institutions and laws.

If man be by nature a social being, it is an obvious conclusion that it is his duty to forbear any injury to the society of which he is a member; and that the violation of this duty is a violation of the laws of his nature. It may, perhaps, be here