The Law of the Land.

From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia


  THE authority of civil government as a director of individual conduct, is explicitly asserted in the Christian Scriptures:—“Be subject to principalities and powers,—Obey magistrates,”1—“Submit yourselves to every ordinance of man for the Lord’s sake; whether it be to the king, as supreme; or unto governors, as unto them that are sent by him for the punishment of evil—doers, and for the praise of them that do well.”2

  By this general sanction of civil government a multitude of questions respecting human duty are at once decided. In ordinary cases, he upon whom the magistrate imposes a law, needs not to seek for knowledge of his duty upon the subject from a higher source. The Divine will be sufficiently indicated by the fact that the magistrate commands. Obedience to the law is obedience to the expressed will of God. He who, in the payment of a tax to support the just exercise of government, conforms to the law of the land, as truly obeys the Divine will as if the Deity had regulated questions of taxation by express rules.

  In thus founding the authority of civil government upon the precepts of revelation, we refer to the ultimate, and for that reason to the most proper sanction. Not, indeed, that if revelation had been silent, the obligation of obedience might not have been deduced from other considerations. The utility of government,—its tendency to promote the order and happiness of society,—powerfully recommend its authority; so powerfully, indeed, that it is probable that the worst government which ever existed was incomparably better than none; and we shall hereafter have occasion to see that considerations of utility involve actual moral obligation.

  The purity and practical excellence of the motives to civil obedience which are proposed in the Christian Scriptures are especially worthy of regard. “Submit for the Lord’s sake.” “Be subject, not only for wrath’s but for conscience’ sake.” Submission for wrath’ sake, that is, from fear of penalty, implies a very inferior motive to submission upon grounds of principle and duty; and as to practical excellence, who cannot perceive that ·he who regulates his obedience by the motives of Christianity acts more worthily, and honourably, and consistently, than he who is influenced only by fear of penalties? The man who obeys the law for conscience’ sake will obey always; alike when disobedience would be unpunished and unknown, as when it would be detected the next hour. The magistrate has· a security for such a man’s fidelity, which no other motive can supply. A smuggler will import his kegs if there is no danger of a seizure,—a Christian will not buy the brandy, though no one knows it but himself.

  It is to be observed, that the obligation of civil obedience is enforced, whether the particular command of the law is in itself sanctioned by morality or not. Antecedently to the existence of the law of the magistrate respecting the importation of brandy, it was of no consequence in the view of morality whether brandy was imported or not; but the prohibition of the magistrate involves a moral obligation to refrain. Other doctrine has been held; and it has been asserted, that unless the particular law is enforced by morality, it does not become obligatory by the command of the state.3 But if this were true,—if no law was obligatory that was not previously enjoined by morality, no moral obligation would result from the law of the land. Such a question is surely set at rest by, “Submit yourselves to every ordinance of man.”

  But the authority of civil government is a subordinate authority. If from any cause the magistrate enjoins that which is prohibited by the moral law, the duty of obedience is withdrawn. “All human authority ceases at the point where obedience becomes criminal.” The reason is simple; that when the magistrate enjoins what is criminal, he has exceeded his power: “the minister of God” has gone beyond his communication. There is, in our day, no such thing as a moral plenipotentiary.

  Upon these principles, the first teachers of Christianity acted when the rulers “called them, and commanded them not to speak at all nor teach in the name of Jesus.”—“Whether,” they replied, “it be right in the sight of God to hearken unto you more than unto God, judge ye.”4 They accordingly “entered into the temple early in the morning, and taught:” and when, subsequently, they were again brought before the council and interrogated, they replied, “We ought to obey God rather than men;” and notwithstanding the renewed command of the council, “daily in the temple and in every house, they ceased not to teach and preach Jesus Christ.5—Nor let any one suppose that there is any thing religious in the motives of the apostles, which involved a peculiar obligation upon them to refuse obedience: we have already seen that the obligation to conform to religious duty and to moral duty is one.

  To disobey the civil magistrate is however not a light thing. When the Christian conceives that the requisitions of government and of a higher law are conflicting, it is needful that he exercise a strict scrutiny into the principles of his conduct. But if, upon such scrutiny, contrariety of requisitions appears real, no room is left for doubt regarding his duty, or for hesitation in performing it. With the consideration of consequences he has then no concern: whatever they may be, his path is plain before him.

  It is sufficiently evident that these doctrines respect non-compliance only. It is one thing not to comply with laws, and another to resist those who make or enforce them. He who thinks the payment of tithes unchristian ought to decline to pay them; but he would act upon strange principles of morality, if, when an officer came to distrain upon his property, he forcibly resisted his authority.6

  If there are cases in which the positive injunctions of the law may be disobeyed, it is manifest that the mere permission of the law to do a given action, conveys no sufficient authority to perform it. There are, perhaps, no disquisitions connected with the present subject which are of greater practical utility than those which show, that not every thing which is legally right is morally right; that a man may be entitled by law to privileges which morality forbids him to exercise, or to possessions which morality forbids him to enjoy.

  As to the possession, for example, of property: the general foundation of the right to property is the law of the land. But as the law of the land is itself subordinate, it is manifest that the right to property must be subordinate also, and must be held in subjection to the moral law. A man who has a wife and two sons, and who is worth fifteen hundred pounds, dies without a will. The widow possesses no separate property, but the sons have received from another quarter ten thousand pounds apiece. Now of the fifteen hundred pounds which the intestate left, the law assigns five hundred to the mother, and five hundred to each son. Are these sons morally permitted to take each five hundred pounds, and to leave their parent with only five hundred for her support? Every man I hope will answer, No: and the reason is this; that the moral law, which is superior to the law of the land, forbids them to avail themselves of their legal rights. The moral law requires justice and benevolence, and a due consideration for the wants and necessities of others; and if justice and benevolence would be violated by availing ourselves of legal permissions, those permissions are not sufficient authorities to direct our conduct.

  It has been laid down, that “so long as we keep within the design and intention of a law, that law will justify us, in foro conscientiæ as in foro humano, whatever be the equity or expediency of the law itself.”7 From the example which has been offered, I think it sufficiently appeals that this maxim is utterly unsound: at any rate, its unsoundness will appear from a brief historical fact. During the revolutionary war in America, the Virginian legislature passed a law, by which “it was enacted, that all merchants and planters in Virginia who owed money to British merchants should be exonerated from their debts, if they paid the money due into the public treasury, instead of sending it to Great Britain; and all such as stood indebted were invited to come forward and give their money, in this manner, towards the support of the contest in which America was then engaged.” Now, according to the principles of Paley, these Virginian planters would have been justified, in foro conscientiæ, in defrauding the British merchants of the money which was their due. It is quite clear that the “design and intention of the law” was to allow the fraud,—the planters were even invited to commit it; and yet the heart of every reader will tell him, that to have availed themselves of the legal permission would have been an act of flagitious dishonesty. The conclusion is therefore distinct,—that legal decisions respecting property are not always a sufficient warrant for individual conduct. To the extreme disgrace of these planters it should be told, that although at first, when they would have gained little by the fraud, few of them paid their debts into the treasury, yet afterward many large sums were paid. The legislature offered to take the American paper money; and as this paper money, in consequence of its depreciation, was not worth a hundredth part of its value in specie, the planters, in thus paying their debts to their own government, paid but one pound instead of a hundred, and kept the remaining ninety—nine in their own pockets! Profligate as these planters and as this legislature were, it is pleasant for the sake of America to add, that in 1796, after the supreme court of the United States had been erected, the British merchants brought the affair before it; and the judges directed that every one of these debts should again be paid to the rightful creditors.

  It might be almost imagined that the moral philosopher designed to justify such conduct as that of the planters. He says, when a man “refuses to pay a debt of the reality of which he is conscious, he cannot plead the intention of the statute, unless he could show that the law intended to interpose its supreme authority to acquit men of debts, of the existence and justice of which they were themselves sensible.”8 Now the planters could show that this was the intention of the law, and yet they were not justified in availing themselves of it. The error of the moralist is founded in the assumption, that there is “supreme authority” in the law. Make that authority, as it really is, subordinate, and the error and the fallacious rule which is founded upon it will be alike corrected.

  In applying to the law of the land as a moral guide, it is of importance to distinguish its intention from its letter. The intention is not indeed as we have seen, a final consideration, but the design of a legislature is evidently of greater import, and consequent obligation, than the literal interpretation of the words in which that design is proposed to be expressed. The want of a sufficient attention to this simple rule occasions many snares to private virtue, and the commission of much practical injustice. In consequence, partly of the inadequacy of all language, and partly of the inability of those who frame laws accurately to provide for cases which subsequently arise, it happens that the literal application of a law sometimes frustrates the intention of the legislator, and violates the obligations of justice. Whatever be the cause, it is found in practice that courts of law usually regard the letter of a statute rather than its general intention; and hence it happens that many duties devolve upon individuals in the application of the laws in their own affairs. If legal courts usually decide by the letter, and if decision by the letter often defeats the objects of the legislator and the claims of justice, how shall these claims be satisfied except by the conscientious and forbearing integrity of private men? Of the cases in which this integrity should be brought into exercise several examples will be offered in the early part of the next essay.

1 Tit. iii.1.
2 1 Pet. ii. 13.
3 See Godwin’s Political Justice.
4 Acts iv. 18.
5 Acts v. 29, 42.
6 We speak here of private obligations only. Respecting the political obligations which result from the authority of civil government, some observations will be found in the chapter on Civil Obedience. Ess. iii. c. v.
7 Mor. And Pol. Phil. b. 3, p. 1, c. 4.
8 Ibid.

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