320 
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tion or vindicatory branch of the law ; whereby it is Signi¬ 
fied what evil or penalty Shall be incurred by fuch as 
rommit any public wrongs, and tranfgrefs or neglect 
their duty. 
i. With regard to the firft of thefe, the declaratory part 
of the municipal law; this depends not fo much upon the 
law of revelation or of nature, as upon the wifdom and 
w ill of the legiflature. This doctrine, which before was 
(lightly touched, deferves a more particular explication. 
Thofe rights, then, which God and nature have efcabliShed, 
and are therefore called natural rights, fuch as are life and 
liberty, need not the aid of human laws to be more effec¬ 
tually invefted in every man than they are ; neither do 
they receive any additional Strength when declared by the 
municipal laws to be inviolable. On the contrary, no 
human legiflature has power to abridge or deftroy them, 
■uniefs the owner (hail himfelf commit fomeaft that amounts 
to a forfeiture. Neither do divine or natural duties (fuch 
as, for inftance, the worfliip of God, the maintenance of 
children, and the like) receive any Stronger fanftion from 
being alfo declared to be duties by the law of the land. 
The cafe is the fame as to crimes and misdemeanors, that 
are forbidden by the fuperior laws, and therefore Styled 
tna(a in fe, fuch as murder, theft, and perjury ; which con- 
traff no additional turpitude from being declared unlaw¬ 
ful by the inferior legislature. For that legislature in all 
thefe cafes afts only, as was before obferved, in fubordi- 
r.ation to the Great Lawgiver, tranfafting and publishing 
his precepts. So that, upon the whole, the declaratory 
part of the municipal law has no force or operation at all, 
with regard to actions that are naturally and intrinsically 
right or wrong. But, with regard to things in themfelves 
indifferent, the cafe is entirely altered. Thefe become 
either right or wrong, juft or unjulf, duties or mifdemea- 
nors, according as the municipal legislator fees proper, for 
promoting the welfare of the Society, and more effectu¬ 
ally carrying on the purpofesof civil life. Thus our own 
common law has declared, that the goods of the wife do 
inftantly upon marriage become the property and right of 
the huSband ; and our Statute law has declared all mono¬ 
polies a public offence; yet that right, and this offence, 
have no foundation in nature; but are merely created by 
the law, for the purpofes of civil fociety. Arid fome- 
times, where the thing itfelf has its rife from the law of 
nature, the particular circumftances and mode of doing 
it become right or wrong,. as the laws of the land Shall 
direct. Thus, for inftance, in civil duties, obedience to 
fuperiors is the doctrine of revealed as well as natural re¬ 
ligion ; but who thofe fuperiors Shall be, and in what cir¬ 
cumftances or to what degrees they Shall be obeyed, is the 
province of human laws to determine. And fo, as to in¬ 
juries or crimes, it muft be left to our own legislature to 
decide, in what cafes the feizing another’s cattle Shall 
amount to the crime of robbery ; and where it Shall be a 
justifiable aftion, as when a landlord takes them by way 
of diftrefs for rent. 
a. Thus much for the declaratory part of the municipal 
law ; and the direflory Stands much upon the Same foot¬ 
ing ; for this virtually includes the former, the declara¬ 
tion being ufually collected from the direction. The law 
that fays, “Thou Shalt not Steal,” implies a declaration 
that Stealing is a crime. And we have feen, that, in 
things .naturally indifferent, the very effence of right and 
wrong depends upon the direction of the laws to do or to 
omit them. 
3. The remedial part of a law is fo neceffary a confe¬ 
quence of the two former, that laws muft be very vague 
and imperfeft without it. For in vain would rights be 
declared, in vain directed to be observed, if there were no 
method of recovering and afferting thofe rights when 
wrongfully withheld or invaded. This is what we mean 
properly, when we fpeak of the protection of the law. 
When, for inftance, the declaratory part of the law has Said, 
that “the field or inheritance which belonged to Titius’s 
father is vefted by his death in Titius,” and the direftory 
part has “forbidden any one to enter on another’s pro¬ 
perty without the leave of the owner;” if Gains after 
this will prefume to take poffeftion of the land, the reme¬ 
dial part of the law will then interpofe its office ; will 
make Gaius reltore the poffeffion to Titius, and alfo pay 
him damages for the invasion. 
4. With regard to the fandlion of laws, or the evil that 
may attend the breach of public duties ; it is obferved, 
that human legislators have for the molt part chofen to 
make their laws rather vindicatory than remuneratory, or 
to confift rather in punifhments than in rewards; becaufe, 
in the firft 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 themfelves the belt and moft valuable of ail re¬ 
wards ; becaufe 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 profufe a bounty; and, farther, becaufe the 
dread of evil is a much more forcible principle of human 
aftions than the profpeCt of good. For which reafons, 
though a prudent bellowing of rewards is fometimes of 
exquifite ufe, yet we find that thofe civil laws, which en¬ 
force and enjoin our duty, do feldom, if ever, propofe 
any privilege or gift to fuch as obey the law ; but do con¬ 
stantly come armed with a penalty denounced againft 
tranSgreffors, either ejcprefsly defining the nature and 
quantity of the punifhment, or elfe leaving it to the dis¬ 
cretion of the judges, and thofe who are intrufted with 
the care of putting the laws in execution. 
Of all the parts of a law, the moll effectual is the vindi¬ 
catory. For it is but loft labour to fay, “Do this,” or 
“Avoid that,” uniefs we alfo declare, “This Shall be the 
confequence of your non-compliance.” We muft there¬ 
fore obferve, that the main Strength and force of a law 
confilts 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 fo conftrain a man 
as to render it impoffible for him to act otherwise than as 
they direCt, which is the Strict fenfe of obligation ; but 
becaufe, by declaring and exhibiting a penalty againft of¬ 
fenders, they bring it to pafs that no man can eafily 
chcofe to tranfgrefs the law ; fince, by reafon of the im¬ 
pending correction, compliance is in a high degree pre¬ 
ferable to difobedience. And, even where rewards are 
propofed as well as punishments threatened, the obliga¬ 
tion of the law feems chiefly to confilt in the penalty ; for 
rewards, in their nature, can only perfuade arid allure 5 
nothing is compulfory but punifhment. 
It has been held, and very juftly, by the principal of our 
ethical writers, that human laws are binding upon men’s 
consciences. But, if that were the only or moft forcible 
obligation, the good only would regard the laws, and the 
bad would fet them at defiance. And, true as this prin¬ 
ciple is, it muft Still be ur.derftood with fome restriction. 
It holds, vve apprehend, as to rights-, and that, when the 
law has determined the field to belong to Titius, it is a 
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 vve are bound in confcience, becaufe 
we are bound by fuperior laws, before thofe human laws 
were in being, to perform the one and abstain from the 
other. But, in relation to thofe laws which enjoin only 
pofitive duties, and forbid only fuch things as are not mala 
in fe, but mala prohibita merely, without any intermixture 
of moral guilt, annexing a penalty to non-compliance ; 
here confcience Seems to be no farther concerned, than by 
directing afubmiffion to the penalty, in cale of our breach 
of thofe laws; for otherwife the multitude of penal laws 
in a State would not only be looked upon as an impolitic, 
but would alfo be a very wicked, thing ; if every fuch 
law were a fnare for the conference of the fubject. But 
in thefe cafes the alternative is offered to every man; “ Ei¬ 
ther abstain from this, or Submit to fuch a penalty;” and 
j his 
