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strive to pursue such real interest, and strength or power to carry the knowledge and intention into action. These are the natural foundations of sovereignty, the requisites for every wellconstituted frame of government.
Forms of Government. The origin and beginning of the several forms of government are involved in uncertainty, but in all there must have been a supreme, irresistible, absolute, uncontrolled authority. Political writers of antiquity specify three forms of government:
First. When sovereign power is lodged in an aggregate assembly, consisting of all the free members of a community, which is called a democracy.
Second. When it is lodged in a council, composed of select members, when it is styled an aristocracy.
Third. When it is entrusted in the hands of a single person, and then it is called a monarchy.
Legislative Power. By the sovereign power is meant the making of laws. At any time, the legislature may alter the law by a new edict, and may entrust the execution of its laws into whatever hands it pleases, by constituting a few or many executive magistrates. All the other powers of the state must obey the legislative power in the discharge of their several functions, or else the constitution is at an end.
Democracy. Where the right of making laws resides in the people, public virtue or goodness of intention is more likely to be found, than either of the other qualities of government. Public assemblies are often foolish in their impulses and weak in execution, but their object is generally praiseworthy, and they abound in patriotism and public spirit.
Aristocracy. More wisdom is to be found in this than in any other frame of government, composed as it usually is of the most experienced citizens, but there is less honesty than in a republic, and less strength than in a monarchy.
Monarchy. This is the most powerful form of government, for by the entire conjunction of the legislative and executive powers, all the sinews of government are knitted together and united in the hand of a prince; but then there is imminent danger of his employing that strength for oppressive purposes.
Compared. Democracies are usually the best calculated
to direct the end of a law; aristocracies to invent the means by which that end shall be attained, and monarchies to carry those ends into execution. The ancients knew of no other permanent form but these three.
English Constitution. England has the advantages of all three of these forms of government. The executive form is lodged in a single person, combining the strength and dispatch found in the most absolute monarchy. The legislature of the kingdom is entrusted to three distinct, independent powers, the king, the lords spiritual and temporal, an aristocratic assemblage of prominent persons, and lastly, the house of commons, freely chosen by the people from among themselves, which makes it a species of democracy. This aggregate body composes the British parliament, and has the supreme disposal of everything. Each branch has a negative power sufficient to repel any dangerous innovation. In no other shape could these three great qualities of government be so well and happily united. If the power were lodged in the king and the house of lords only, laws might be prudently made and well executed, but they might not always have the good of the people in view. If lodged in the king and commons, we should lack that circumspection and caution, which the wisdom of the peers affords. If the king had no voice in the government, his prerogatives would be encroached upon and his office probably abolished. If at any time the independence of any one of the three should be lost, or become subservient to the views of the other two, there would soon be an end to the English constitution.
Submission to Authority. Wherever the supreme authority in any state resides, it is the right of that authority to make laws, that is, to prescribe the rule of civil action. This is patent from the very end and institution of civil states, which are collective bodies, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as
As these several wills cannot by any natural union be joined together, so as to produce one uniform will of the whole, it must be accomplished by a political union, by the consent of all to submit their private wills to the will of one man or of assemblies of men, to whom the supreme power is entrusted. This will of one man or of assemblies of men is termed law.
Promulgation of Laws. It is not only the right of the
supreme power to make laws, but it is also its duty to give directions declaratory of its will. It must establish general rules for the information and direction of all persons in all points, whether of positive or negative duty. Every man may thus know what to look upon as his own, what as another's, what absolute and what relative duties are required of him, what is to be esteemed honest, dishonest or indifferent, what degree of natural liberty every man retains, what he has yielded as the price of the benefits of society, and how he is to use those rights assigned him, in order to promote public tranquility.
Right and Wrong. The law having ascertained the boundaries of right and wrong, it is its business to enforce those rights and to restrain or redress those wrongs. We shall consider in what manner the law ascertains these, and the method which it takes to command the one and prohibit the other.
Parts of every Law. 1. Declaratory, whereby the rights to be observed and the wrongs to be avoided are clearly defined and laid down.
2. Directory, whereby the subject is instructed and enjoined to observe those rights and to abstain from the commission of those wrongs.
3. Remedial, whereby a method is pointed out to recover a man's private rights or redress his private wrongs.
4. Vindicatory, whereby it is signified, what evil or penalty shall be incurred by such as commit any public wrongs and transgress or neglect a duty.
Declaratory. This depends not so much upon the law of revelation or nature, as upon the wisdom and will of the legislator. No human legislature has power to abridge or destroy natural rights, unless the owner himself shall commit an act that amounts to a forfeiture. Divine or natural duties receive no stronger sanction, from being also declared to be duties by the law of the land.
Mala in se. Crimes forbidden by the superior law, and therefore styled mala in se, contract no additional turpitude from being declared unlawful by the legislature. Hence the declaratory part of the municipal law has no force or operation at all, with regard to actions that are intrinsically right or wrong.
Mala prohibita. But with regard to things in themselves.
indifferent, the case is different. They become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, to promote the welfare of society. Sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the law of the land shall direct.
Directory. This part of the law virtually includes the former, the declaration being usually collected from the direction. In things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or omit them.
Remedial. This is so necessary a consequence of the declaratory and directory parts, that laws must be vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting these rights, when wrongfully withheld or invaded. This is the protection of the law.
Vindicatory. With regard to the sanction of the laws, or the evil that may attend the breach of public duties, legislators have usually made their laws vindicatory rather than remuneratory, or to consist rather in punishment than in actual particular rewards.' The quiet enjoyment of all our civil rights and liberties, the result of obedience to municipal law, is in itself the best reward. To furnish other reward for this would be too profuse a bounty. Also the dread of evil is more potent than the prospect of good. Hence legislators seldom proffer reward for the performance of duty, but affix penalties against trangressions, or else leave the nature and quantity of the punishment to the discretion of the judges, who are entrusted with the execution of the laws. The vindicatory part of the law is the most effectual, as the main strength and force of the law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws. Legislators and their laws are said to compel and oblige, by declaring a penalty against all offenders, whereby by reason of the impending correction, compliance is preferable to disobedience, whereas rewards in their nature can only persuade and allure; nothing is compulsory but punishment.
Prohibitory Laws. Appeal to Conscience. Our ethical writers assert, that human laws are binding upon men's consciences. But if that were the only obligation, the good alone would regard the law, and the bad would set it at defiance. Then again, while in regard to things mala in se the path of duty is plain, because we are bound by superior laws, which enjoin positive duties, yet in things mala prohibita without any intermixture of moral guilt, annexing a penalty for non-compliance, conscience is not concerned, except in directing a submission to the penalty in case of breach. The alternative is offered; either abstain from this, or submit to such a penalty. Conscience in such case will be clear, whichever alternative a man choses to embrace. These prohibitory laws do not make the transgression a moral offense; the only obligation to conscience is to submit to the penalty if levied. This only refers to laws simply penal, where the thing forbidden or enjoined is wholly a matter of indifference, and the penalty is simply a compensation. But where disobedience to the law involves public or private injury, it is also an offence against conscience.
Interpretation of Laws. In the Roman empire, when any doubt arose upon the construction of its laws, it was usual to state the case to the emperor in writing, and to take his opinion upon it. His answers were termed rescripts, and had in succeeding cases the force of laws. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts. They argue from particulars to generals. The best method to interpret the will of the legislator is, by exploring his intentions at the time the law was made, by signs the most natural and probable. These signs are either:
The words, the context, the subject matter,
Words. These are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular sense. Terms of art or technical terms must be taken according to the acceptation of the learned in each art, trade or science.
Context. If words are dubious, we may establish their meaning from the context, which may be used to compare a word or a sentence, whenever it is ambiguous, equivocal or intricate. Thus a preamble is often called in to help the construction of an act of parliament. Of similar benefit is the comparison of a law with other laws made by the same legislator,