ject has no assent to give or withhold, no judgment to form, no decision to take, but that to obey.

Nevertheless, there is a sense, in this country, and perhaps in all countries, in which it is true that the assent of the governed is essential to the validity of the law; but this is the assent they give in their quality of electors, through the medium of their representatives in enacting the law, not an assent which they give as subjects to the law after it is enacted and promulgated. The distinction is obvious and important. It is only in our quality of electors, through the medium of our representatives, that we have any legislative authority, any assent, to give or to withhold. But in this quality we have already assented to the law, otherwise it could not have been enacted, since there is no power with us but the people in this quality and through this medium that does or can make the law. Having thus assented, nay, enacted the law, we have no more assent to give, and it would be absurd to seek, after this, the assent of the people in their capacity of simple individuals, in which they are simply subjects, and have no legislative voice whatever. Having spoken once in our legislative capacity, as electors, through our representatives, we must obey, till, by speaking again in the same capacity and through the same medium, we repeal the law. That is, when the people have made the law, they must obey it, till they, through the forms through which they made it, repeal it.

us.

But laws may undoubtedly be unjust. Am I bound to obey unjust laws? We will let St. Thomas answer this question for "Laws imposed by human authority may be either just or unjust. If they are indeed just, they bind in conscience, by the eternal law from which they are derived, according to Prov. viii. 15,—' Per me reges regnant, et legum conditores justa decernunt. They are just when they ordain what is for the common good, when enacted by an authority which does not exceed its powers, and when they distribute in equal proportions the burdens they impose upon the subjects for the common good. For, since each man is a part of the multitude, every man belongs to the multi

tude in that which he is and in that which he has, in like manner as the part belongs in what it is to the whole, and hence nature allows a certain detriment to the part that the whole may be saved. Consequently, laws of this kind, which proportion equally the burdens imposed, are just, bind in conscience, and are legal laws. But laws may be unjust in two senses. 1. By contrariety to human good, in the respects just mentioned. They are unjust, when a prince imposes burdens on his subjects, not for the common good, but rather for his own glory or cupidity, when they exceed the commission or the authority which ordains them, and when the burdens they impose, even though for the common good, are not equally proportioned. Such acts are violences rather than laws, as St. Augustine says, De Lib. Arb., I., c. 5.- Lex esse non videtur, quæ justa non fuerit: Laws of this kind do not bind in conscience, unless, perchance, for the avoiding of scandal or disorder, for which a man must forego his own rights, according to St. Matt. v. 40, 41,—“ Qui angariaverit te mille passus, vade cum eo alia duo; et qui abstulerit tibi tunicam, da ei et pallium. 2. Laws may be unjust by contrariety to divine good, as the edicts of tyrants commanding idolatry or other things forbidden by the divine law. Such laws are to be observed in no sense whatever, since, Acts iv., it is necessary to obey God rather than men."*

The principle is, that all just laws bind in conscience; but, with regard to unjust laws, we must distinguish between those which are unjust because they ordain what is repugnant to human good, and those which are unjust because they ordain what is repugnant to the divine law. The latter do not bind, but we are bound in conscience to refuse to obey them at all hazards; the former, when they only require us to suffer wrong,-and if they go farther and command us to do wrong, they are identical with the latter, we may obey, and are bound to obey, when our disobedience would cause scandal or breed disturbance in the state.

But who is to determine whether the laws are just or unjust! Summa, 1 2, Ques. 96, a. 4

Not absolutely in all cases the state, for that would make the distinction between just and unjust laws nugatory, since the state, in enacting a law, decides that it is just; not the individual, for that would make the law depend on the assent of the subject for its legality, which we have seen is not the fact, and cannot be the fact, if we are to have government at all. There is here, to many minds, no doubt, a serious difficulty; but, without considering it in a light which would involve a controversy foreign to our present purpose, we may answer the question by laying down the principle, that authority is always presumptively in the right, and the law primà facie evidence of justice. The onus probandi rests on the shoulders of the subject, who must prove the law to be unjust, before he can have the right to refuse it obedience. For this his own private judgment or conviction can never suffice. If he can allege nothing against the law but his own individual persuasion of its injustice, he is bound, by his general obligation to obey the laws, to obey it. No one, then, can ever be justified in disobeying on his own private authority. He must sustain his refusal to obey by an authority higher than his own, higher than that of the state, or else he will be guilty of resisting the ordinance of God, and, therefore, purchase damnation to himself. Hence, where there is no infallible authority to decide, the subject must always presume the law to be just, and faithfully obey it, unless it manifestly and undeniably ordains what is wrong in itself, and prohibited by the law of God.

This rule may strike some as too stringent, but, if examined, closely, it will be found to allow all the liberty to the subject compatible with the existence of government. If, for instance, the government should command me to lie, to steal, to rob, to bear false witness, or any thing else manifestly against the law of nature or the law of God, I should hold myself bound to disobey, and to take the consequences of my disobedience. So, also, if my government should declare war against an unoffending state, manifestly for the purpose of stripping it of its territory, destroying its independence, and reducing its people to

slavery, or for the purpose of overthrowing the Christian religion and substituting a false religion, and should command me tc aid it in its nefarious designs, I should hold myself bound in conscience to refuse at all hazards; for such a war would be manifestly and palpably unjust, not in my judgment only, but in that of all sound-minded men. Such a case would be clear, and duty would be so plain that no question could arise. But in a case less clear and manifest, in a case where there was room for doubt, for an honest difference of opinion, I should hold myself bound to obey the orders of the government, for conscience' sake, leaving the responsibility with it, sure of incurring no blame myself.

In conclusion, we say, that, though we have defended the lawfulness of war, when declared by the sovereign authority, for a just cause, and prosecuted with right intentions, we have no sympathy with that restless and ambitious spirit that craves war for the sake of excitement or glory. Only a stern necessity can ever justify the resort to arms, and that necessity does not in reality often exist. In most cases, the war, with a little prudence, a little forbearance, a little use of reason, might be avoided; and a terrible responsibility rests upon rulers when they unnecessarily plunge two nations in the horrors of war. Yet it belongs to the sovereign authority to judge of the necessity of the war, no less than to declare it; and when not manifestly and undeniably for that which is wrong in itself, the subject is bound to obey, and give his life, if need be, for his country. But the subject can, with a good conscience, fight only under the national banner. He can never justly fight under the bloodred flag of the factionist or of the revolutionist. The loyal subject hears no call to the battle-field but that of his sovereign. This sovereign he hears, by him he stands, for him he is ready to fight against any enemies, from within or from without. But there he stops. He can join with no faction, with no party, against the legitimate authorities of his country. No dreains of free institutions, of popular government, of an earthly paradise can make him raise the parricidal hand, and seek by vio

lence to overthrow legitimate government, and introduce a new political order. No, dearly as we love liberal institutions, and as ready as we are to spill our blood in their defense whers they are the legal order, we would rush to the side of authority, and spill the same blood against them, if there were an attempt by violence to introduce them. True freedom is only where the law is supreme, and the law is supreme only where the people reverence it, and feel themselves bound by their duty to God to obey it.

THE HIGHER LAW.*

JANUARY, 1851.

PROFESSOR STUART appears to have written this pamphlet from patriotic motives, with an earnest desire to allay the uncalled for popular agitation on the subject of negro slavery, and to contribute his share towards the maintenance of domestic peace, and the preservation of the Union. His chief purpose appears to have been to remove the scruples of some of his friends, by showing that a man may with a good conscience support the Federal Constitution although it recognizes slavery, and requires the slave escaping into a non-slaveholding State to be given up on the demand of his owner; and though he is no great proficient in moral theology, and his style is prolix, prosy, and at times even garrulous, he has shown this to the satisfaction of all but mere factionists and cavillers.

We do not think that the learned Professor has made out his case as conclusively as he might have done. He is a man of respectable ability and attainments, but not remarkable for the strength or acutness of his logical powers. He makes now and

* Conscience and the Constitution, with Remarks on the recent Speech of the Hon. Daniel Webster in the Senate of the United States on the Subject of Slavery. By MOSES STUART. Boston: Crocker & Brewster. 1850 8vo. pp. 119.