ing the right of enacting laws for the regulation of its own policy. They were called "municipal," in compliance with common speech, by Judge Blackstone; because they may, with sufficient propriety, be applied to any one state or nation which is governed by the same laws and customs. In this country they receive the name with peculiar fitness, because they are almost entirely under the control of the individual states.

The rights to be secured by municipal laws, are either absolute, being such as belong to individuals in a single or unconnected state; or relative, being those which arise from civil and domestic relations.

The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable. The effectual security and enjoyment of them depend upon the existence of civil liberty; and that consists in being protected and governed by laws made, or assented to, by the representatives of the people, and conducive to the general welfare.*

These rights, on account of their importance, together with the most essential articles of civil liberty, have been in many constitutions defended from the infringement even of the government itself. This is done in a bill of rights, where they are collected, digested, and declared, in a precise and definite manner.

The necessity, in our representative republics, of these declaratory codes, has been frequently questioned, inasmuch as the government, in all its parts, is the creature of the people, and every department of it is filled by their agents, duly chosen or appointed, according to their will, and made responsible for mal-administration. It may be observed, on

360 Of how many classes are the rights which are to be secured by municipal laws?

361 Mention some of the most important absolute rights.

362 What has been said of these? How are they secured?

363 Have people been tenacious of these rights?

364 How have they defended them from the infringement of rulers? 365 What reasons have been adduced to show that a bill of rights is not necessary?

Kent's Com. sect. 24.

the one hand, that no gross violation of those absolute private rights, which are clearly understood and settled by the common reason of mankind, is to be apprehended in the ordinary course of public affairs; and as to extraordinary instances of faction and turbulence, and the corruption and violence which they necessarily engender, no parchment checks can be relied on as affording, under such circumstances, any effectual protection to public liberty. When the spirit of liberty has fled, and truth and justice are disregarded, private rights can easily be sacrificed under the forms of law. On the other hand, there is weight due to the consideration, that a bill of rights is of real efficacy in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private rights. It requires more than ordinary hardness and audacity of character, to trample down principles which our ancestors cultivated with reverence; which we imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional

sanction.

Bills of rights are part of the muniments of freemen, showing their title to security; and they become of increased value when placed under the protection of an independent judiciary, instituted as the appropriate guardian of private right. Care, however, is to be taken in the digest of these declaratory provisions, to confine the manual to a few plain and unexceptionable principles. We weaken greatly the force of them, if we incumber the constitution, and perhaps embarrass the future operations and more enlarged experience of the legislature, with a catalogue of ethical and political aphorisms, any of which, may be reasonably questioned, or justly condemned.*

But for the most part, the constitution invests the legislature with power to ascertain the rights and duties of citizens;

366 What has been said in favor of retaining them?

367 In what kind of government have they the most value?

368 What care is necessary in drawing them up?

369 Are all the rights of citizens ascertained and defended in the constitution itself?

Kent's Com. sect. 24.

and to enact laws for the preservation of those rights, and the fulfilment of those duties. This appears to be the great end and object of civil government. Men wish to enjoy the benefits of a common union; and for this purpose they enter into engagements to each other, by which they assume duties not obligatory by the laws of mere nature or religion. Each man promises to fulfil the duties of a citizen, which require him to contribute, as far as in him lies, to the peace and prosperity of the society. In order to secure the advantages of this union, it is necessary that the boundaries of civil right and wrong be ascertained, and that the rights should be enforced and the wrongs redressed. This must be done by the supreme power of the state, be that what it may; and this is the object of that power in all its law-making operations. Accordingly, municipal law is "a rule of conduct prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong."*

That a law may answer the purpose of a complete rule of conduct, it is necessary that it should embrace several particulars. For this purpose every law may be said to consist of several parts: one, declaratory, whereby the rights to be observed, and the wrongs to be avoided, are clearly defined and laid down; another, directory, whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs; a third, remedial, whereby a method is pointed out to recover a man's private rights, or redress his private wrongs; to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law, whereby is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.†

It is evident that the law must be promulgated to the people who are to obey it. This may be done by universal tradition and long practice, which suppose a previous publi

370 What benefits appear necessary to mankind; and how are they secured?

371 What is the object of the law-making power?

372 What is municipal law?

373 What is necessary to a law to make it a complete rule of conduct? What are its parts?

374 How may the laws be promulgated?

* Blackstone.

† Ibid. book 1.

cation, as is the case of what is called the common law. It may be notified, viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of the legislature as are appointed to be publicly read in churches and other assemblies. And, lastly, it may be notified by writing, printing, or the like; which is the general course taken with all the acts of our government. Such a provision ought to be made for their publication, that by an ordinary care, and without taking up much time and thought, people may be able to know the pleasure of their governors. There is another circumstance, which is worse than the non-promulgation of a law; and that is the making of laws "ex post facto:" when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment *upon the person who has committed it. All laws should be made to commence "in futuro," and be notified before their commencement. When the laws or rules of conduct are properly notified or prescribed, it is the business of the subject to be thoroughly acquainted with them; for if ignorance of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

Each civil law may be divided into two branches; the one distributive, the other vindictive and penal. The distributive part is that which constitutes the rules and measures of things, whereby we know what belongs to us, and what to others; so that we may not disturb or interrupt others in the enjoyment of their own, nor be interrupted by them; and what each man may lawfully do or not do. The vindictive part, is that branch by which are determined the punishments to be inflicted on those who violate the laws.

It is necessary that these two should be combined. For if a law say no more than "whatever you catch in your net in the sea, shall be yours," it is in vain; for though another take from you what you have caught, it is still yours; so that what the law defines to be yours, was yours before that

375 How liberal should be the provision for their publication? 376 What is worse than the non-promulgation of a law?

377 After the law has been published is ignorance of it excusable? 378 Into how many branches may a civil law be divided? 379 Describe the distributive part. The vindictive part.

380 Why is it necessary that these two essentials be combined?

law, and will be yours after it though possessed by another. A law, therefore, is but an empty sound unless it determine the thing to be yours in such a sense as to forbid every body else from disturbing you in the possession of it. But such prohibition will be vain, unless there be a penalty annexed to it.

A law, therefore, must contain both these parts, that which prohibits and that which punishes. The first whereof, which is called distributive, is prohibitory, and speaks to all; the latter, called vindictive or penal, is mandatory, and speaks only to the public officers. Whence it follows, that to all civil laws there is annexed a penalty, either implicitly or explicitly; for that is no law, which may be violated with impunity.

As the determination of this penalty to particular individuals and instances, belongs to the courts of justice, we will devote a little attention to the organization of that branch of civil government, before we treat of the application of law to the administration of justice.

CHAP. XII.-ORGANIZATION OF THE JUDICIAL POWER.

The manner of constituting the judicial department seems to embrace three several objects.* 1. The mode of appointing the judges: 2. The tenure by which they are to hold their places: 3. The partition of the judiciary authority between different courts, and the relations which these courts are to hold to each other.

1. According to the true principle of representative government, and in order to secure to any department a will of its own, it seems necessary at first sight that every appointment should come from the people, and through channels having no communication with each other. But in the constitution of the judiciary department, in particular, it might be inexpedient to insist rigorously on this principle; first, be

381 Has a law any importance without a penalty?

382 Describe more particularly the intention of the two parts of a law.

383 To whom belongs the infliction of the penalty?

384 In ascertaining the manner of constituting courts of justice, how many objects deserve attention? Name them.

385 What at first right seems necessary to appointments?

386 Should that principle be rigorously attended to always?

* Federalist, No. 78.