WITH regard to the fanction of laws, or the evil that may attend the breach of public duties; it is obferved, that human legislators have for the most part chofen to make the fanction of their laws rather vindicatory than remuneratory, or to confift rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the fure and general confequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because alfo, were the exercife of every virtue to be enforced by the propofal of particular rewards, it were impoffible for any state to furnish stock enough for fo profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good. For which reafons, though a prudent bestowing of rewards is fometimes of exquifite ufe, yet we find that thofe civil laws, which enforce and enjoin our duty, do feldom, if ever, propose any privilege or gift to fuch as obey the law; but do conftantly come armed with a penalty denounced against tranfgreffors, either exprefsly defining the nature and quantity of the punishment, or elfe leaving it to the difcretion of the judges, and thofe who are entrusted with the care of putting the laws in execution.

Of all the parts of a law the most effectual is the vindica- [57] tery. For it is but loft labour to fay, "do this, or avoid "that," unless we alfo declare," this fhall be the confe"quence of your non-compliance." We muft therefore observe, that the main ftrength and force of a law confifts in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

LEGISLATORS and their laws are faid to compel and oblige; not that by any natural violence they so constrain a man, as to render it impoffible for him to act otherwife than as they direct, which is the ftrict fenfe of obligation; but because,

* Locke, Hum. Und. b. 2. c. 21,

INTROD. by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to trangrefs the law; fince, by reafon of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are propofed as well as punishments threatened the obligation of the law feems chiefly to confift in the penalty. for rewards, in their nature can only perfuade and allure; nothing is compulfory but punishment.

:

IT is true, it hath been holden, and very juftly, by the principal of our ethical writers, that human`laws are binding upon men's confciences. But if that were the only, or most forcible obligation the good only would regard the laws, and the bad would fet them at défiance. 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 matter of confcience no longer to withhold or to invade it. So alfo in regard to natural duties, and fuch offences as are mala in fe here we are bound in confcience, because we are bound by fuperior laws, before thofe human laws were in being, to perform the one and abftain from the other. But in relation to those laws which enjoin only pofitive duties, and forbid only fuch things as are not mala in fe but mala prohibita merely, [58] without any intermixture of moral guilt, annexing a penalty to non-compliance, here I apprehend confcience is no farther concerned, than by directing a fubmiffion to the penalty, in cafe of our breach of thofe laws: for otherwife the multitude of penal laws in a ftate would not only be looked upon as an impolitic, but would also be a very wicked thing; if every fuch law were a fnare for the confcience of the fubject. But in thefe cafes the alternative is offered to every man; "either abstain from this, or submit "to fuch a penalty" and his confcience will be clear, which ever fide of the alternative he thinks proper to embrace. Thus, by the ftatutes for preferving the game, a penalty is denounced againft every unqualified perfon that kills a hare,

1 See Vol. II. page 420.

and against every person who poffeffes a partridge in August. And fo too, by other ftatutes, pecuniary penalties are inflicted for exercifing trades without ferving an apprenticeship thereto, for not burying the dead in woollen, for not performing the ftatute-work on the public roads, and for innumerable other pofitive mifdemefnors. Now thefe prohi bitory laws do not make the tranfgreffion a moral offence, or fin: the only obligation in confcience is to fubmit to the penalty, if levied. It must however be observed, that we are here fpeaking of laws that are fimply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compenfation for the civil inconvenience supposed to arise from the offence (7). But where disobedience to the law involves in it also any degree of public mifchief or private injury, there it falls within our former diftinction, and is alfo an offence against confcience ".

Lex pure poenalis obligat tantum að pienam, non item ad culpam : lex poenalis mixta et ad culpam cbligat, et ad poenam.

(Sanderfon de confcient.olligat.prael.viii. § 17. 24.)

(7) This is a doctrine to which the Editor cannot fubfcribe It is an important question, and deferves a more extenfive dif cuffion than can conveniently be introduced into a note. The folation of it may not only affect the quiet of the minds of confcientious men, but may be the foundation of arguments and decifions in every branch of the law. To form a true judgment upon this fubject, it is neceffary to take into confideration the nature of moral and pofitive laws. The principle of both is the fame, viz. utility, or the general happiness and true interefts of mankind,

Atque ipfa utilitas jufti prope mater et æqui.

But the neceffity of one fet of laws is feen prior to experience; of the other, pofterior. A moral rule is fuch, that every man's reason (if not perverted) dictates it to him as foon as he affociates with other men. It is univerfal, and must be the fame in every part of the world. Do not kill, do not steal, do not violate promises, must be equally obligatory in England, Lapland, Turkey, and - VOL. I.

F.

China

I HAVE now gone through the definition laid down of a municipal law; and have fhewn that it is "a rule---of civil conduct--prefcribed---by the fupreme power in a state--

China. But a pofitive law is difcovered by experience to be useful and neceffary only to men in certain diftricts, or under peculiar circumftances. It is faid that it is a capital crime in Holland to kill a ftork, because that animal deftroys the vermin which would undermine the dykes or banks, upon which the existence of the country depends. This may be a wife law in Holland; but the life of a ftork in England would be of no more value than that of a sparrow, and fuch a law would be useless and cruel in this country.

By the laws of nature and reason, every man is permitted to build his houfe in any manner he pleases; but from the experience of the deftructive effects of fire in London, the legislature with great wisdom enacted that all party -walls should be of a certain thickness; and it is fomewhat furprifing that they did not extend this provident act to all other great towns. (14 Geo. 3. c. 78.)

It was also discovered by experience, that dreadful confequences enfued, when fea-faring people, who returned from diftant countries infected with the plague, were permitted immediately to come on fhore, and mix with the healthy inhabitants; it was therefore a wife and merciful law, though reftrictive of natural right and liberty, which compelled fuch perfons to be purified from all contagion by performing quarantine. (4 Vol. 161.)

He who, by the breach of these positive laws, introduces conflagration and peftilence, is furely guilty of a much greater crime than he is who deprives another of his purse or his horse.

The laws against fmuggling are entirely juris pofitivi; but the criminality of actions can only be measured by their confequences; and he who faves a fum of money by evading the payment of a tax, does exactly the fame injury to fociety as he who fteals fo much from the treafury; and is therefore guilty of as great immorality, or as great an act of difhonefty. Or fmuggling has been compared to that fpecies of fraud which a man would practife who fhould join with his friends in ordering a dinner at a tavern, and after the feftivity and gratifications of the day, fhould fteal away, and leave his companions to pay his fhare of the reckoning.

Punishment or penalties are never intended as an equivalent or a compofition for the commiffion of the offence; but they are that

degree

"commanding what is right, and prohibiting what is wrong:" in the explication of which I have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. Before I conclude this fection, it may not be amifs to add a few observations concerning the interpretation of laws.

degree of pain or inconvenience, which are fuppofed to be fufficient to deter men from introducing that greater degree of inconvenience, which would refult to the community from the general permiffion of that act, which the law prohibits. It is no recompence to a man's country for the confequences of an illegal act, that he fhould afterwards be whipped, or fhould stand in the pillory, or lie in a gaol. But in pofitive laws, as in moral rules, it is equally falfe that omnia peccata paria funt. If there are laws fuch as the game-laws, which in the public opinion produce little benefit or no falutary effect to society, a confcientious man will feel perhaps no further regard for the obfervance of them, than from the confideration that his example may encourage others to violate those laws which are certainly beneficial to the community. Indeed, the last fentence of the learned Judge upon this subject, is an answer to his own doctrine; for the disobedience of any law in existence, must be presumed to involve in it either public mischief or private injury. It is related of Socrates, that he made a promise with himself to obferve the laws of his country; but this is nothing more than what every good man ought both to promife and perform: and he ought to promise ftill farther, that he will exert all his power to compel others to obey them. As the chief defign of eftablished government is the prevention of crimes and the enforcement of the moral duties of man, obedience to that government neceffarily becomes one of the highest of morai obligations : and the principle of moral and pofitive laws being precifely the fame, they become fo blended, that the difcrimination between them is frequently difficult or impracticable, or as the author of the Doctor and Student has expreffed it with beautiful fimplicity, "In every law pofitive well-made, is fomewhat of the law of " reason and of the law of God; and to discern the law of God "and the law of reafon from the law pofitive, is very hard." I Dial. c. 4.