upon a similar occasion, the learner "will be considerably disappointed, if he looks for entertainment without the expense of attention." An attention, how ever, not greater than is usually bestowed in mastering the rudiments of other sciences, or sometimes in pursuing a favourite recreation or exercise. And this attention is not equally necessary to be exerted by every student upon every occasion. Some branches of the law, as the formal process of civil suits, and the subtle distinctions incident to landed property, which are the most difficult, to be thoroughly understood, are the least worth the pains of understanding except to such gentlemen as intend to pursue the profession. To others I may venture to apply, with a slight alteration, the words of Sir John Fortescue (u) when first his royal pupil determines to engage in this study: "It will not be necessary for a gentleman as such, to examine with a close application the critical niceties of the law. It will fully be suflicient, and he may well enough be denominated a lawyer, if under the instruction of a master he traces up the [*37] principles and grounds of the law, even to their original elements. Therefore, in a very short period, and with very little labour, he may be sufficiently informed in the laws of his country, if he will but apply his mind in good earnest to receive and apprehend them. For, though such knowledge as is necessary for a judge is hardly to be acquired by the lucubrations of twenty years, yet, with a genius of tolerable perspicacity, that knowledge which is fit for a person of birth or condition may be learned in a single year, without neglecting his other improvements."

To the few therefore (the very few I am persuaded,) that entertain such unworthy notions of an university, as to suppose it intended for mere dissipation of thought; to such as mean only to while away the awkward interval from childhood to twenty-one, between the restraints of the school and the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these Mr. Viner gives no invitation to an entertainment which they never can relish. But to the long and illustrious train of noble and ingenuous youth, who are not more distinguished among us by their birth and possessions, than by the regularity of their conduct and their thirst after useful knowledge, to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if such reflections can be now the employment of his thoughts,) that he could not more effectually have benefited posterity, or contributed to the service of the public, than by founding an institution which may instruct the rising generation in the wisdom of our civil polity, and inspire them with a desire to be still better acquainted with the laws and constitution of their country. (8)

(u) De Laud. Leg. c. 8.

(8) [It is remarkable that the celebrated historian, Mr. Gibbon, animadverting freely upor the lectures and institutions of Oxford, speaks only of the Vinerian professorship with respect; for, after noticing the establishment of the riding school, he adds: "The Vinerian professorship is of far more serious importance. The laws of his country are the first science of an Englishman of rank and fortune who is called to be a magistrate, and may hope to be a legislator. This judicious institution was coldly entertained by the graver doctors, who complained (I have heard the complaint) that it would take the young people from their books; but Mr. Viner's benefaction is not unprofitable, since it has at least produced the excellent commentaries of Sir William Blackstone." Gibbon's Life, p. 53. And in another part, having stated his inducements for bestowing attention upon new publications of merit, he tells us. “A more respectable motive may be assigned for the third perusal of Blackstone's Commentaries, and a copious and critical abstract of that English work was my first serious production in my native language." Ib. p. 141. Such, it may be observed, are even the remote consequences of every liberal and literary institution, that Viner's Abridgment may have contributed in no inconsiderable degree to the elegance and perspicuity of the Decline and Fall of the Roman Empire.]

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SECTION II.

OF THE NATURE OF LAWS IN GENERAL.

LAW, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.

Thus, when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction,-as that the hand shall describe a given space in a given time, to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws, more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal *nutrition, digestion, secretion, and all other branches of vital economy; are not left [*39] to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator. This, then, is the general signification of law, a rule of action dictated by some superior being, and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour.

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should, in all points, conform to his Maker's will.

This will of his Maker is called the law of nature. (1) For as God, when he created matter, and endued it with a principle of mobility, established certain

(1) [The "Law of Nature" is a supreme, invariable and uncontrollable rule of conduct to all men; and it is so called because its general precepts are essentially adapted to promote the happiness of man, as long as he remains a being of the same nature with which he is at present endowed, or, in other words, as long as he continues to be man, in all the variety of times, places and circumstances in which he has been known, or can be imag ned to exist; because it is discoverable by natural reason, and suitable to our own natural constitutions. because its fitness and wisdom are founded on the general nature of human beings, and not on any of those temporary and accidental situations in which they may be placed; and, lastly, because its violation is avenged natural punishments which necessarily flow from the constitution of things, and are as fixed and inevitable as the order of nature, as by shame,

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rules for the perpetual direction of that motion, so, when he created man, and endued him with freewill to conduct himself in all parts of *life, he laid [*40] down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian (a) has reduced the whole doctrine of law.

But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance, its inseparable companion. As, therefore, the Creator is a being not only of infinite. power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own selflove, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connexion of justice and human felicity, he has not [*41] perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised, but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own true and substantial happiness." This is the foundation of what we call ethics, or natural law; for the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; (2) and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. (3)

(a) Juris præcepta sunt hæc, honeste vivere, alterum non lædere suum cuique tribuere. Inst. I. i. 3.

emorse, infamy and misery, and still further enforced by reasonable expectation of still more vful penalties in a future and more permanent state of existence.-MACKINTOSH.] (2) [Lord Chief Justice Hobart has also advanced, that even an act of parliament ma against natural justice, as to make a man a judge in his own cause, is void in itself, for j naturæ sunt immutabilia, and they are leges legum. Hob. 87. With deference to these high authorities, I should conceive that in no case whatever can a judge oppose his own opinion and authority to the clear will and declaration of the legislature. His province is to interpret and obey the mandates of the supreme power of the state. And if an act of parliament, if we could suppose such a case, should, like the edict of Herod, command all the children under a certa age to be slain, the judge ought to resign his office rather than be auxiliary to its execution; it could only be declared void by the high authority by which it was ordained. The lear judge himself is also of this opinion in p. 91.-CHRISTIAN.]

(3) [By this sentence, though somewhat strongly expressed, I understand the author t mean merely, that a human law against the law of nature has no binding force on the con

But, in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life, by considering what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

This has given manifold occasion for the benign interposition of divine Providence, which, in compassion to the frailty, the imperfection, and the blindness of human reason, *hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. [*42] The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law; because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points in which both the divine law and the natural leave a man at his own liberty, but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and, from these prohibitions, arises the true unlawfulness of this crime. Those human laws that annex a punishment to it do not at all increase its moral guilt, or *superadd any fresh obligation, in foro conscientiæ, to abstain from its perpetration. Nay, if any human law should allow or [*43] enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But, with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws, such, for instance, as exporting of wool into foreign countries,here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and, in a state of nature, we are all equal, without any other superior but Him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject, (b) is neither capable of living alone, nor indeed has the courage to do

(b) Puffendorf, l. 7, c. 1. compared with Barbeyrac's Commentary.

science; and that if a man submits to the penalty of disobedience, he stands acquitted. In this sense the position seems unquestionable.-COLERIDGE.] But see note, p. 57.

LAWS OF NATIONS.

it. However, as it is impossible for the whole race of mankind to be united in ¡Intro. one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations," which, as none of thest states will acknowledge a superiority in the other, cannot be dictated by any but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities; in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject: and therefore the cival law (c) very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.

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[*44] *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, (d)“ 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."(4) Let us endeavour to explain its several properties, as they arise out of this definition. And, first, it is a rule: not a

(c) Ff. i. 1, 9.

(d) Inst. i. 2. 1.

(4) [Though the learned judge treats this as a favorite definition; yet when it is examined, it will not perhaps appear so satisfactory as the definition of civil or municipal law, or the law of the land, cited above from Justinian's Institutes, viz: Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est, vocaturque jus civile, quasi jus proprium ipsius civitatis.

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A municipal law is completely expressed by the first branch of the definition: "A rule of civil conduct prescribed by the supreme power in a state." And the latter branch, manding what is right, and prohibiting what is wrong," must either be superfluous, or convey a defective idea of a municipal law; for if right and wrong are referred to the municipal law itself, then whatever it commands is right, and whatever it prohibits is wrong, and the clause would be insignificant tautology. But if right and wrong are to be referred to the law of nature, then the definition will become deficient or erroneous; for though the municipal law may seldom or never command what is wrong, yet in ten thousand instances it forbids what is right. It forbids an unqualified person to kill a hare or exercise a trade without having served seven years as an apprentice; it forbids a man to keep a horse or a servant without paying the tax. a partridge; it forbids a man to the prohibition of the municipal law. The latter clause of this definition seems to have been Now all these acts were perfectly right before taken from Cicero's definition of a law of nature, though perhaps it is there free from the objections here suggested: Lex est summa ratio insita a natura que jubet ea, quæ facienda sunt prohibetque contraria. Cic. de Leg. lib. i. c. 6.

The description of law given by Demosthenes is perhaps the most perfect and satisfactory that can either be found or conceived: just, honorable and expedient; and, when that is discovered, it is proclaimed as a general The design and object of laws is to ascertain what is ordinance, equal and impartial to all. This is the origin of law, which, for various reasons, all are under an obligation to obey, but especially because all law is the invention and gift of heaven, the resolution of wise men, the correction of every offence, and the general compact of the state; to live in conformity with which is. the duty of every individual in society." Orat. 1. Cont. Aristogit.]

Those things which the supreme authority forbids, however innocent in themselves, abstractly considered, must be understood as inhibited, because, in view of the relations of the citizen to the state, or to some one or more of his fellow citizens, it is not proper, right or best that they should be done. The laws which forbade unqualified persons to destroy game, were based upon an assumed superior right in the privileged classes; and the regulation of trades has its foundation in the legislative judgment of what is best and most expedient for society at large. Viewed relatively, therefore, the acts forbidden are not perfectly right, but, in some of their relations, incidents or consequences, would work a wrong, which, assuming the premises to be correct, the legislative authority may properly prevent. See pp. 55 and 58, post

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