-Evidence-Number of witnesses-Accomplices-Husband and ON REVERSAL OF JUDGMENT, REPRIEVE AND PARDON. I. Avoiding the judgment-without writ of error-by writ of error. Duty of the sheriff INTRODUCTION. SECTION I. OF LAWS IN GENERAL. LAW, in its 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. This is the general signification of law; 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, denote the rules of human action or conduct; that is, the precepts by which man, a creature endowed with both reason and free-will, 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 will of his Creator, which is called the law of nature. For God, when he created man, and endued him with free-will to conduct himself in all parts of life, laid down certain rules, whereby that free-will is regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. These rules are the eternal 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. They are binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to their precepts; and such of them as are valid derive all their authority, mediately or immediately, from this original. If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other rules than those prescribed by the law of nature. But man was formed for society; and is neither capable of living alone, nor indeed has the courage to do it. As however, it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a second kind of law to regulate this mutual intercourse, called the law of nations; which, as none of these 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 agreements between these several communities: in the construction of which we have no other rule to resort to but the law of nature; being the only one to which all communities are equally subject, and therefore the civil law very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium. Thus much I think it necessary to premise concerning the law of nature, and the law of nations, before treating of municipal law; that is, the rule by which particular communities are governed; and which is usually defined to be "a rule of civil conduct pre"scribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." It is a rule: not a transient, sudden order from a superior, to or concerning a particular person; but something permanent, uniform, and universal. It is called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper: our obedience to the law depends not upon our approbation, but upon the maker's will. It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. Municipal law is also "a rule of civil conduct;" for municipal law regards man as a citizen, bound to other duties towards his neighbour besides those prescribed by the law of nature. It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislature, without manifesting itself by some external sign, can never be properly a law. All laws should therefore be notified to those who are to obey ; which is implied in the term “prescribed.” But, further: municipal law is “a rule of civil conduct prescribed by the supreme power in a state;” it being obviously requisite that it be made by the person or body in whom the sovereignty of the state is lodged. This may justify a short inquiry concerning the nature of society and civil government, the foundations of which are the wants and fears of individuals. For though society may not have had its formal beginnings from any convention of individuals, actuated by their wants or fears; yet it is the sense of weakness that keeps mankind together, and is, therefore, the natural foundation of civil society. This is what we mean by the original contract of society; that the whole shall protect all its parts, and that every part shall pay obedience to the will of the whole. When civil society is once formed, government at the same time results, as necessary to keep that society in order: for unless some superior be constituted, whose commands all the members are to obey, they would still remain as in a state of nature. In what manner, however, the several forms of government we now see in the world at first actually began, it is not here necessary to discuss. For by whatever right they subsist, there must be in all a supreme authority, in which the rights of sovereignty reside. And this authority ought to be placed in those hands, wherein the qualities requisite for supremacy, wisdom, goodness, and power, are most likely to be found. Political writers allow three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly, consisting of all the free members of a community, which is democracy; the second, when it is lodged in a council, composed of select members, and then it is an aristocracy; the last, when it is intrusted in the hands of a single person, and then it is a monarchy. By the sovereign power is meant the making of laws; for wherever that power resides, all others |