Thus much I thought it neceſſary to premiſe concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal ſubject of this ſection, municipal or civil law; that is, the rule by which particular diſtricts, communities, or nations are governed; being thus defined by Juſtinian[1], “jus civile eſt quod quiſque ſibi populus conſtituit.” I call it municipal law, in compliance with common ſpeech; for, though ſtrictly that expreſſion denotes the particular cuſtoms of one ſingle municipium or free town, yet it may with ſufficient propriety be applied to any one ſtate or nation, which is governed by the ſame laws and cuſtoms.
Municipal law, thus underſtood, is properly defined to be “a rule of civil conduct preſcribed by the ſupreme power in a ſtate, commanding what is right and prohibiting what is wrong.” Let us endeavour to explain it’s ſeveral properties, as they ariſe out of this definition.
And, firſt, it is a rule; not a tranſient ſudden order from a ſuperior to or concerning a particular perſon; but ſomething permanent, uniform, and univerſal. Therefore a particular act of the legislature to confiſcate the goods of Titius, or to attaint him of high treaſon, does not enter into the idea of a municipal law: for the operation of this act is ſpent upon Titius only, and has no relation to the community in general; it is rather a ſentence than a law. But an act to declare that the crime of which Titius is accuſed ſhall be deemed high treaſon; this has permanency, uniformity, and univerſality, and therefore is properly a rule. It is alſo called a rule, to diſtinguiſh it from advice or counſel, which we are at liberty to follow or not, as we ſee proper; and to judge upon the reaſonableneſs or unreaſonableneſs of the thing adviſed. Whereas our obedience to the law depends not upon our approbation, but upon the maker’s will. Counſel is only matter of perſuaſion, law is matter of injunction; counſel acts only upon the willing, law upon the unwilling alſo.
- ↑ Inſt. 1. 2. 1.
