Blackstone's Commentaries - Introduction

Book the First
Chapter the First

.P 3

INTRODUCTION.

SECTION THE FIRST.

ON THE STUDY OF THE LAW.*

MR. VICE-CHANCELLOR, AND GENTLEMEN OF THE UNIVERSITY,

THE general expectation of fo numerous and refpectable an audience, the novelty, and ( I may add ) the importance of the duty required from this chair, muft unavoidably be productive of great diffidence and apprehenfions in him who has the honour to be placed in it. He muft be fenfible how much will depend upon his conduct in the infancy of a ftudy, which is now firft adopted by public academical authority; which has generally been reputed ( however unjuftly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto received a very moderate fhare of cultivation. He cannot but reflect that, if either his plan of inftruction be crude and injudicious, or the execution of it lame and fuperficial, it will caft a damp upon the farther progrefs of this moft ufeful and moft rational branch of learning; and may defeat for a time the public-

* Read in oxford at the opening of the Vincrian lectures; 25 Oct. 1758.

On the STUDY of the LAW.

fpirited defign of our wife and munificent benefactor. And this he muft more efpecially dread, when he feels by experience how unequal his abilities are ( unaffifted by preceding examples ) to complete, in the manner he could wifh, fo extenfive and arduous a tafk; fince he freely confeffes, that his former more private attempts have fallen very fhort of his own ideas of perfection. And yet the candour he has already experienced, and this laft tranfcendent mark of regard, his prefent nomination by the free and unanimous fuffrage of a great and learned univerfity, ( an honour to be ever remembered with the deepeft and moft affectionate gratitude ) thefe teftimonies of your public judgment must entirely fuperfede his own, and forbid him to believe himfelf totally infufficient for the labour at leaft of this employment. One thing he will venture to hope for, and it certainly fhall be his conftant aim, by diligence and attention to atone for his other defects; efteeming, that the beft return, which he can poffibly make for your favourable opinion of his capacity, will be his unwearied endeavours in fome little degree to deferve it.

THE fcience thus committed to his charge, to be cultivated, methodized, and explained in a courfe of academical lectures, is that of the laws and conftitution of our own country: a fpecies of knowlege, in which the gentlemen of England have been more remarkably deficient than thofe of all Europe befides. In moft of the nations on the continent, where the civil or imperial law under different modifications is clofely interwoven with the municipal laws of the land, no gentleman, or at leaft no fcholar, two of lectures, both upon the inftitutes of Juftinian and the local conftitutions of his native foil, under the very eminent profeffors that abound in their feveral univerfities. And in the northern parts of our own ifland, where alfo the municipal laws are frequently connected with the civil, it is difficult to meet with a perfon of liberal education, who is deftitute of a competent knowlege in that fcience, which is to be the guardian of his natural rights and the rule of his civil conduct.

On the STUDY of the LAW.

NOR have the imperial laws been totally neglected even in the Englifh nation. A general acquaintance with their decifions has ever been defervedly confidered as no fmall accomplifhment of a gentleman; and a fafhion has prevailed, efpecially of late, to tranfport the growing hopes of this ifland to foreign univerfities, in Switzerland, Germany, and Holland; which, though infinitely inferior to our own in every other confideration, have been looked upon as better nurferies of the civil, or ( which is nearly the fame) of their own municipal law. In the mean time it has been the peculiar lot of our admirable fyftem of laws, to be neglected, and even unknown, by all but one practical profeffion; though built upon the foundeft foundations, and approved by the experience of ages.

FAR be it from me to derogate from the ftudy of the civil law, confidered (apart from any binding authority) as collection of written reafon. No man is more thoroughly perfuaded of the general excellence of it's rules, and the ufual equity of it's decifions; nor is better convinced of it's ufe as well as ornament to the fcholar, the divine, the ftatefman, and even the common lawyer. But we muft not carry our veneration fo far as to facrifice our Alfred and Edward to the manes of Theodofius and Juftinian: we muft not prefer the edict of the praetor, or the refcript of the Roman emperor, tour own immemorial cuftoms, or the fanctions of an English parliament; unlefs we can alfo prefer the defpotic monarchy of Rome and Byzantium, for whofe meridians the former were calculated, to the free conftitution of Britain, which the latter are adapted to perpetuate.

WITHOUT detracting therefore from the real merit which abounds in the imperial law, I hope I may have leave to affert, that if an Englifhman muft be ignorant of either the one or the other, he had better be a ftranger to the Roman than the Englifh inftitutions. For I think it an undeniable pofition, that a competent knowlege of the laws of that fociety, in which we live,

On the STUDY of the LAW.

is the proper accomplifhment of every gentleman and fcholar; an highly ufeful, I had almoft faid effential, part of liberal and polite education. And in this I am warranted by the example of antient Rome; where, as Cicero informs us ^a, the very boys were obliged to learn the twelve tables by heart, as a carmen neceffarium or indifpenfable leffon, to imprint on their tender minds an early knowlege of the laws and conftitutions of their country.

BUT as the long and univerfal neglect of this ftudy, with us in England, feems in fome degree to call in queftion the truth of this evident pofition, it fhall therefore be the bufinefs of this introductory difcourfe, in the firft place to demonftrate the utility of fome general acquintance with the municipal law of the land, by pointing out its particular ufes in all confiderable fituations of life. Some conjectures will then be offered with regard to the caufes of neglecting this ufeful ftudy: to which will be fubjoined a few reflexions on the peculiar propriety of reviving it in our own univerfities.

AND, firft, to demonftrate the utility of fome acquaintance with the laws of the land, let us only reflect a moment on the fingular frame and polity of that land, which is governed by this fyftem of laws. A land, perhaps the only one in the univerfe, in which political or civil liberty is the very end and fcope of the conftitution^b. This liberty, rightly underftood, confifts in the power of doing whatever the laws permit^c; which is only to be effected by a general conformity of all orders and degrees to thofe equitable rules of action, by which the meaneft individual is protected from the infults and oppreffion of the greateft. As therefore every fubject is interefted in the prefervation of the laws, it is incumbent upon every man to be acquainted with thofe at leaft, with which he is immediately concerned; left he incur the cenfure, as well as inconvenience, of living in fociety without knowing the obligations which it lays him under. And thus much

^a De Legg. 2. 23.

^b Mentefq Efp. L. l. 11. c. 5.

^c Facultas ejus, quod cuiqur facere libet, mf quid vi, aut jure probibetur. Lnft. 1.3. 1.

On the STUDY of the LAW.

may fuffice for perfons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted fphere in which they are appointed to move. But thofe, on whom nature and fortune have beftowed more abilities and greater leifure, cannot be fo eafily excufed. Thefe advantages are given them, not for the benefit of themfelves only, but alfo of the public: and yet they cannot, in any fcene of life, difcharge properly their duty either to the public or themfelves, without fome degree of knowledge in the laws. To evince this the more clearly, may not be amifs to defcend to a few particulars.

LET us therefore begin with our gentlemen of independent eftates and fortune, the moft ufeful as well as confiderable body of men in the nation; whom even to fuppofe ignorant in this branch of learning is treated by Mr Locke^d as a ftrange abfurdity. It is their landed property, with it's long and voluminous train of defcents and conveyances, fettlements, entail, and inject of legal knowledge. The thorough comprehenfion of thefe, in all their minute diftinctions, is perhaps too laborious a tafk for any but a lawyer by profeffion: yet ftill the underftanding of a few fome check and guard upon a gentleman's inferior agents, and preferve him at leaft from very grofs and notorious impofition.

AGAIN, the policy of all laws has made fome forms neceffary in the wording of laft wills and teftaments, and more with regard to their atteftation. An ignorance in thefe muft always be of dangerous confequence, to fuch as by choice or neceffity compile their own teftaments without any technical affiftance. Thofe who have attended the courts of juftice are the beft witneffes of the confufion and diftreffes that are hereby occafioned in families; and of the difficulties that arife in difcerning the true meaning

^d Education. §. 187.

On the STUDY of the LAW.

of the teftator, or fometimes in difcovering any meaning at all: fo that in the end his eftate may often be vefted quite contrary to thefe his enigmatical intentions, becaufe perhaps he has omitted one or two formal words, which are neceffary to afcertain the fenfe with indifputable legal precifion, or has executed his will in the prefence of fewer witneffes than the law requires.

BUT to proceed from private concerns to thofe of a more public confideration. All gentlemen of fortune are, in confequence of their property, liable to be called upon to eftablifh the rights, to eftimate the injuries, to weigh the accufations, and fometimes to difpofe of the lives of their fellow-fubjects, by ferving upon juries. In this fituation they are frequently to decide, and that upon their oaths, queftions of nice importance, in the folution of which fome legal fkill is requifite; efpecially where the law and the fact, as it often happens, are intimately blended together. And the general incapacity, even of our beft juries, to do this with any tolerable propriety has greatly debafed their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverfe their verdicts, than perhaps the conftitution intended.

BUT it is not as a juror only that the English gentleman is called upon to determine queftions of right, and diftribute juftice to his fellow-fubjects: it is principally with this order of men that the commiffion of the peace is filled. And here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punifhing the diffolute and idle; by protecting the peaceable and induftrious; and, above all, by healing petty differences and preventing vexatious profecutions. But, in order to attain thefe defirable ends, it is neceffary that the magiftrate fhould underftand his bufinefs; and have not only the will, but the power alfo, ( under which muft be included the knowledge) of adminiftring legal and effectual juftice. Elfe, when he has miftaken his authority, through paffion, through ignorance, or abfurdity, he will be the object of

On the STUDY of the LAW.

contempt from his inferiors, and of cenfure from thofe to whom he is accountable for his conduct.

YET farther; moft gentlemen of confiderable property, at fome period or other in their lives, are ambitious of reprefenting their country in parliament: and thofe, who are ambitious of receiving fo high a truft, would alfo do well to remember it's nature and importance. They are not thus honourably diftinguifhed from the reft of their fellow-fubjects, merely that they may privilege their perfons, their eftates, or their domeftics; that they may lift under party banners; may grant or with-hold fupplies; may vote with or vote againft a popular or unpopular adminiftration; but upon confiderations far more interefting and important. They are the guardians of the Englifh conftitution; the makers, repealers, and interpreters of the Englifh laws; delegated to watch, to check, and to avert every dangerous innovation, to propofe, to adopt, and to cherifh any folid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to tranfmit that conftitution and thofe laws to their pofterity, amended if poffible, al leaft without any derogation. And how unbecoming muft it appear in a member of the legiflature to vote for a new law, who is utterly ignorant of the old ! what kind of interpretation can he be enabled to give, who is a ftranger to the text upon which he comments !

INDEED it is really amazing, that there fhould be no other ftate of life, no other occupation, art, or fcience, in which fome method of inftruction is not looked upon as requifite, except only the fcience of legiflation, the nobleft and moft difficult of any. Apprenticefhips are held neceffary to almoft every art, commercial or mechanical: a long courfe of reading and ftudy muft form the divine, the phyfician, and the practical profeffor of the laws: but every man of fuperior fortune thinks himfelf born a legiflator. Yet Tully was of a different opinion: “It is necef-

On the STUDY of the LAW.

“fary, fays he^e, for a fenator to be thoroughly acquainted with “the conftitution; and this, he declares, is a knowlege of the “moft extenfive nature; a matter of fcience, of diligence, of “reflexion; without which no fenator can poffibly be fit for his “office.”

THE mifchiefs that have arifen to the public from inconfiderate alterations in our laws, are too obvious to be called in queftion; and how far they have been owing to the defective education of our fenators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rafh and unexperienced workmen have ventured to new-drefs and refine, with all the rage of modern improvement. Hence frequently it's fymmetry has been deftroyed, it's proportions diftorted, and it's majeftic fimplicity exchanged for fpecious embellifhments and fantaftic novelties. For, to fay the truth, almoft all the perplexed queftions, almoft all the niceties, intricacies, and delays ( which have fometimes difgraced the Englifh, as well as other, courts of juftice) owe their original not to the common law itfelf, but to innovations that have been made in it by acts of parliament; “overladen ( as fir Edward “Coke expreffes it ^f) with provifoes and additions, and many “times on a fudden penned or corrected by men of none or very “little judgment in law.” This great and well-experienced judge declares, that in all his time he never knew two queftions made upon rights merely depending upon the common law; and warmly laments the confufion introduced by ill-judging and unlearned legiflators. “But if, he fubjoins, acts of parliament were “after the old fafhion penned, by fuch only as perfectly knew “what the common law was before the making of any act of “parliament concerning that matter, as alfo how far forth former ftatutes had provided remedy for former mifchiefs, and “defects difcovered by experience; then fhould very few quef-

^e De Legg. 3. 18. Eft. Fenatori neceffarium fine quo paratus effe fenator nullo pacto potey noffe rempublicum; icque late patet: - genus bor omne fcientiae, diligentiat, memoriae eft; fine quo paratus effe fonator nullo pacto pofef.

^f 2 Rep. Pref.

On the STUDY of the LAW.

“tions in law arife, and the learned fhould not fo often and fo “much perplex their heads to make atonement and peace, by “conftruction of law, between infenfible and difagreeing words, “fentences, and provifoes, as they now do.” And if this inconvenience was fo heavily felt in the reign of queen Elizabeth, you may judge how the evil is increafed in later times, when the ftatute book is fwelled to ten times a larger bulk; unlefs it fhould be found, that the penners of our modern ftatutes have proportionably better informed themfelves in the knowlege of the common law.

WHAT is faid of our gentlemen in general, and the propriety of their application to the ftudy of the laws of their country, will hold equally ftrong or ftill ftronger with regard to the nobility of this realm, except only in the article of ferving upon juries. But, inftead of this, they have feveral peculiar provinces of far greater confequence and concern; being not only by birth hereditary counfellors of the crown, and judges upon their honour of the lives of their brother-peers, but alfo arbiters of the property of all their fellow-fubjects, and that in the laft refort. In this their judicial capacity they are bound to decide the niceft and moft critical points of the law; to examine and correct fuch errors as have efcaped the moft experienced fages of the profeffion, the lord keeper and the judges of the courts at Weftminfter. Their fentence is final, decifive, irrevocable: no appeal, no correction, not even a review can be had: and to their determination, whatever it be, the inferior courts of juftice muft conform; otherwife the rule of property would no longer be uniform and fteady.

SHOULD a judge in the moft fubordinate jurifdiction be deficient in the knowlege of the law, it would reflect infinite contempt upon himfelf and difgrace upon thofe who employ him. And yet the confequence of his ignorance is comparatively very trifling and fmall: his judgment may be examined, and his errors rectified, by other courts. But how much more ferious and

On the STUDY of the LAW.

affecting is the cafe of a fuperior judge, if without any fkill in the laws he will boldly venture to decide a queftion, upon which the welfare and fubfiftence of whole families may depend ! where the chance of his judging right, or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury of the moft alarming nature, an injury without poffibility of redrefs.

YET, vaft as this truft is, it can no where be fo properly repofed as in the noble hands where our excellent conftitution has placed it: and therefore placed it, becaufe, from the independence of their fortune and the dignity of their ftation, they are perfumed to employ that leifure which is the confequence of both, in attaining a more extenfive knowlege of the laws than perfons of inferior rank: and becaufe the founders of our polity relied upon that delicacy of fentiment, fo peculiar to noble birth; which, as on the one hand it will prevent either intereft or affection from interfering in queftions of right, fo on the other it will bind a peer in honour, an obligation which the law efteems equal to another's oath, to be mafter of thofe points upon which it is his birthright to decide.

THE Roman pandects will furnifh us with a piece of hiftory not unapplicable to our prefent purpofe. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occafion to take the opinion of Quintus Mutius Scaevola, the oracle of the Roman law; but for want of fome knowlege in that fcience, could not fo much as underftand even the technical terms, which his friend was obliged to make ufe of. Upon which Mutius Scaevola could not forbear to upbraid him with this memorable reproof^g, “that it was a fhame for a patrician, a nobleman, and an orator of caufes, to be ignorant of that law in “which he was fo peculiarly concerned.” This reproach made fo deep an impreffion on Sulpicius, that he immediately applied himfelf to the ftudy of the law; wherein he arrived to that pro-

^g Ff. 1. 2. 2. §. 43. Turpe effe patricio, & caufas oranti, jus in quo verfaretur ignorare.

On the STUDY of the LAW.

ficiency, that he left behind him about a hundred and fourfcore volumes of his own compiling upon the fubject; and became, in the opinion of Cicero^h, a much more complete lawyer than even Mutius Scaevola himfelf.

I WOULD not be thought to recommend to our Englifh nobility and gentry to become as great lawyers as Sulpicius; though he, together with this character, fuftained likewife that of an excellent orator, a firm patriot, and a wife indefatigable fenator; but the inference which arifes from the ftory is this, that ignorance of the laws of the land hath ever been efteemed difhonourable, in thofe who are entrufted by their country to maintain, to adminifter, and to amend them.

BUT furely there is little occafion to enforce this argument any farther to perfons of rank and diftinction, if we of this place may be allowed to form a general judgment from thofe who are under our infpection: happy, that while we lay down the rule, we can alfo produce the example. You will therefore permit your profeffor to indulge both a public and private fatisfaction, by bearing this open teftimony; that in the infancy of thefe ftudies among us, they were favoured with the moft diligent attendance; and purfued with the moft unwearied application, by thofe of the nobleft birth and moft ample patrimony: fome of whom are ftill the ornaments of this feat of learning; and others at a greater diftance continue doing honour to it' inftitutions, by comparing our polity and laws with thofe of other kingdoms abroad, or exerting their fenatorial abilities in the councils of the nation at home.

NOR will fome degree of legal knowlege be found in the leaft fuperfluous to perfons of inferior rank; efpecially thofe of the learned profeffions. The clergy in particular, befides the common obligations they are under in proportion to their rank and fortune, have alfo abundant reafon, confidered merely as clergy-

On the STUDY of the LAW.

men, to be acquainted with many branches of the law, which are almoft peculiar and appropriated to themfelves alone. Such are the laws relating to advowfons, inftitutions, and inductions; fo fimony, and fimoniacal contracts; to uniformity, refidence, and pluralities; to tithes and other ecclefiaftical dues; to marriages ( more efpecially of late) and to a variety of other fubjects, which are configned to the care of their order by the provifions of particular ftatutes. To underftand thefe aright, to difcern what a warranted or enjoined, and what is forbidden by law, demands a fort of legal apprehenfion; which is no otherwife to be acquired than by ufe and a familiar acquaintance with legal writers.

FOR the gentlemen of the faculty of phyfic, I muft frankly own that I fee no fpecial reafon, why they in particular fhould apply themfelves to the ftudy of the law; unlefs in common with other gentlemen, and to complete the character of general and extenfive knowlege; a character which their profeffion, beyond others, has remarkably deferved. They will give me leave however to fuggeft, and that not ludicroufly, that it might frequently be of ufe to families upon fudden emergencies, if the phyfician were acquainted with the doctrine of laft wills and teftaments, at leaft fo far as relates to the formal part of their execution.

BUT thofe gentlemen who intend to profefs the civil and ecclefiaftical laws in the fpiritual and maritime courts of this kingdom, are of all men ( next to common lawyers) the moft indifpenfably obliged to apply themfelves ferioufly to the ftudy of our municipal laws. For the civil and canon laws, confidered with refpect to any intrinfic obligation, have no force or authority in this kingdom; they are no more binding in England than our laws are binding at Rome. But as far as thefe foreign laws, on account of fome peculiar propriety, have in fome particular cafes, and in fome particular courts, been introduced and allowed by our laws, fo far they oblige, and no farther; their authority being wholly founded upon that permiffion and adoption. In which we are not fingular in our notions; for even in Holland, where the

On the STUDY of the LAW.

Imperial law is much cultivated and it's decifions pretty generally followed, we are informed by Van Leeuwenⁱ, that, “it receives “it's force from cuftom and the confent of the people, either tacitly or expreffly given: for otherwife, he adds, we fhould no “more be bound by this law, than by that of the Almains, the “Franks, the Saxons, the Goths, the Vandals, and other of the “antient nations.” Wherefore, in all points in which the different fyftems depart from each other, the law of the land takes place of the law of Rome, whether antient or modern, imperial or pontificial. And in thofe of our Englifh courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themfelves to other matters, than are permitted to them; or if fuch courts proceed according to the decifions of thofe laws, in cafes wherein it is controlled by the law of the land, the common law in either inftance both may, and frequently does, prohibit and annul their proceedings^k: and it will not be a fufficient excufe for them to tell the king's courts at Weftminfter, that their practice is warranted by the laws of Juftinian or Gregory, or is conformable to the decrees of the Rota or imperial chamber. For which reafon it becomes highly neceffary, for every civilian and canonift that would act with fafety as a judge, or with prudence and reputation as an advocate, to know in what cafes and how far the Englifh laws have given fanction to the Roman; in what points the latter are rejected; and where they are both fo intermixed and blended together, as to form certain fupplemental parts of the common law of England, diftinguifhed by the titles of the king's maritime, the king's military, and the king's ecclefiaftical law. The property of which enquiry the univerfity of Oxford has for more than a century fo thoroughly feen, that in her ftatutes^l fhe appoints, that one of the three queftions to be annually difcuffed at the act by the jurift-inceptors fhall relate to the common law; fubjoining this reafon, “quia juris civilis ftudiofos decet baud imperitos effe juris municipalis, & difforentias ex-

^I Dedicatto ceorpris juris civilis. Edn. 1663.

^k Hale. Hift. C. L. c. 2. Selded in Fftlari. 5 Rep. Caudrey's Cafe. 2 Inft. 599.

^l Tu VII. Sect. 2. §. 2.

On the STUDY of the LAW.

“teri patriique juris notas habere.” And the ftatutes^m of the univerfity of Cambridge fpeak expreffly to the fame effect.

FROM the general ufe and neceffity of fome acquaintance with the common law, the inference were extremely eafy, with regard to the property of the prefent inftitution, in a place to which gentlemen of all ranks and degrees refort, as the fountain of all ufeful knowlege. But how it has come to pafs that a defign of this fort has never before taken place in the univerfity, and the reafon why the ftudy of our laws has in general fallen into difufe, I fhall previoufly proceed to enquire.

SIR John Fortefcue, in his panegyric on the laws of England, ( which was written in the reign of Henry the fixth) putsⁿ a very obvious queftion in the mouth of the young prince, whom he is exhorting to apply himfelf to that branch of learning; “why the “laws of England, being fo good, fo fruitful, and fo commondious, are not taught in the univerfities, as the civil and canon “laws are ?” In anfwer to which he gives^o what feems, with due deference be it fpoken, a very jejune and unfatisfactory reafon; being in fhort, that “as the proceedings at common law “were in his time carried on in three different tongues, the “Englifh, the Latin, and the French, that fcience muft be neceffarily taught in thofe three feveral languages; but that in “the univerfities all fciences were taught in the Latin tongue “only; and therefore he concludes, that they could not be conveniently taught or ftudied in our univerfities.” But without attempting to examine ferioufly the validity of this reafon, ( the very fhadow of which by the wifdom of your late conftitutions is entirely taken away) we perhaps may find out a better, or at leaft a more plaufible account, why the ftudy of the municipal laws has been banifhed from thefe feats of fcience, than what the learned chancellor thought it prudent to give to his royal pupil.

^m Doctor legum mox a doctoratu dobit operam legibus Angliae, ut non fit imperitus carum legum quas habet fna patria, et differentias exteri patriique juris nofcat. Stat. Eliz. R. c. 14. Cowel. Inftittut. In proemio.

On the STUDY of the LAW.

THAT antient collection of unwritten maxims and cuftoms, which is called the common law, however compounded or from whatever fountains derived, had fubfifted immemorially in this kingdom; and, though fomewhat altered and impaired by the violence of the times, had in great meafure weathered the rude fhock of the Norman conqueft. This had endeared it to the people in general, as well becaufe it's decifions were univerfally known, as becaufe it was found to be excellently adapted to the genius of the Englifh nation. In the knowlege of this law confifted great part of the learning of thofe dark ages; it was then taught, fays Mr. Selden^p, in the monafteries, in the univerfities, and in the families of the principal nobility. The clergy in particular, as they then engroffed almoft every other branch of learning, fo ( like their predeceffors the Britifh druids^q) they were peculiarly remarkable for their proficiency in the ftudy of the law. Nullus clericus nifi caufidicus, is the character given of them foon after the conqueft by William of Malmfbury^r. The judges therefore were ufually created out of the facred order^s, as was likewife the cafe among the Normans^t; and all the inferior offices were fupplied by the lower clergy, which has occafioned their fucceffors to be denominated clerks to this day.

BUT the common law of England, being not committed to writing, but only handed down by tradition, ufe, and experience, was not fo heartily relifhed by the foreign clergy; who came over hither in fhoals during the reign of the conqueror and his two fons, and were utter ftrangers to our conftitution as well as our language. And an accident, which foon after happened, had nearly completed it's ruin. A copy of Juftinian's pandects, being newly^u difcovered at Amalfi, foon brought the civil law into

^p in Fletam. 7. 7.

^q Caefar de bello Gal. 6. 12.

^r de geft. reg. l. 4.

^t Les juges font fages perfonnes & autentiques, -ficome les archevefques, evefques, les chanoines les eglifes catbedraulx, & les autres perfonnes qui ont dignitez in faincte eglife; les abbex, les prieurs conventauls, & les gouverneurs des eglifes, &c. Grand Couftumier, ch. 9.

^u circ. A. D. 1130.

On the STUDY of the LAW.

vogue all over the weft of Europe, where before it was quite laid afide^w and in a manner forgotten; though fome traces of it's authority remained in Italy^x and the eaftern provinces of the empire^y. This now became in a particular manner the favourite of the popifh clergy, who borrowed the method and many of the maxims of their canon law from this original. The ftudy of it was introduced into feveral univerfities abroad, particularly that of Bologna; where exercifes were performed, lectures read, and degrees conferred in this faculty, as in other branches of fcience: and many nations on the continent, juft then beginning to recover from the convulfions confequent upon the overthrow of the Roman empire, and fettling by degrees into peaceable forms of government, adopted the civil law, ( being the beft written fyftem then extant) as the bafis of their own feodal cuftoms, in fome places with a more extenfive, in others a more confined authority^z.

NOR was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elected to the fee of Canterbury^a, and extremely addicted to this new ftudy, brought over with him in his retinue many learned proficients therein; and among the reft Roger firnamed Vacarius, whom he placed in the univerfity of Oxford^b, to teach it to the people of this country. But it did not meet with the fame eafy reception in England, where a mild and rational fyftem of laws had been long eftablifhed, as it did upon the continent; and, though the monkifh clergy ( devoted to the will of a foreign primate) received it with eagernefs and zeal, yet the laity who were more interefted to preferve the old conftitution, and had already feverely felt the effect of many Norman innovations, continued wedded to the ufe of the common law. King Stephen imme-

^w LL. Wifigofh. 2. 1. 9.

^x Capitular. Hludov. Pii. 4. 102.

^y Selden in Fletam. 5. 5.

^z Domat's treatife of laws. c. 13. §. 9. Epifiol. Innocent. IV. in M. Paris. ad A. D. 1254.

^b Gervaf. Dorobern. Act. Pontif. Cantuar. col. 1665.

On the STUDY of the LAW.

diately publifhed a proclamation ^c, forbidding the ftudy of the laws, then newly imported from Italy; which was treated by the monks ^d as a piece of impiety, and, though it might prevent the introduction of the civil law procefs into our courts of juftice, yet did not hinder the clergy from reading and teaching it in their own fchools and monafteries.

FROM this time the nation feems to have been divided into two parties; the bifhops and clergy, many of them foreigners, who applied themfelves wholly to the ftudy of the civil and canon laws, which now came to be infeparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the oppofite fyftem that real merit which is abundantly to be found in each. This appears on the one hand from the fpleen with which the monaftic writers ^e fpeak of our municipal laws upon all occafions; and, on the other, from the firm temper which the nobility fhewed at the famous parliament of Merton; when the prelates endeavoured to procure an act, to declare all baftards legitimate in cafe the parents intermarried at any time afterwards; alleging this only reafon, becaufe holy church (that is, the canon law) declared fuch children legitimate: but “all the earls and barons (fays the parliament roll^f) “of England, which had hitherto been ufed and approved.” And we find the fame jealoufy prevailing above a century afterwards ^g, when the nobility declared with a kind of prophetic fpirit, “that the realm of England hath never been unto this “hour, neither by the confent of our lord the king and the lords “of parliament fhall it ever be, ruled or governed by the civil

^e Rog. Bacon. citat per Selden. in Fletam.7. 6. in Fortefe. c. 33. & 8 Rep. Pref.

^e Joan. Sarifburiens. Polycrat. 8. 22.

^e Idem, ibid. 5. 16. Polydor. Vergil. Hift. l. 9.

^f Stat. Merton. 20. Hen. III. c. 9. Et omnes comites & barones una voce refponaerunt, quoe nolunt leges Angliae mutare, quae bucufqut ufuatat funt & approbatat.

On the STUDY of the LAW.

“law^h.” And of this temper between the clergy and laity many more inftances might be given.

WHILE things were in this fituation, the clergy, finding it impoffible to root out the municipal law, began to withdraw themfelves by degrees from the temporal courts; and to that end, very early in the reign of king Henry the third, epifcopal conftitutions were publifhedⁱ, forbidding all ecclefiaftics to appear as advocates in foro faeculari; nor did they long continue to act as judges there, nor caring to take the oath of office which was then found neceffary to be adminiftred, that they fhould in all things determine according to the law and cuftom of this realm ^k; though they ftill kept poffeffion of the high office of chancellor, an office then of little juridical power; and afterwards, as it's bufinefs increafed by degrees, they modelled the procefs of the court at their own difcretion.

BUT wherever they retired, and wherever their authority extended, they carried with them the fame zeal to introduce the rules of the civil, in exclufion of the municipal law. This appears in a particular manner from the fpiritual courts of all denominations, from the chancellor's courts in both our univerfities, and from the high court of chancery before-mentioned; in all of which the proceedings are to this day in a courfe much conformed to the civil law: for which no tolerable reafon can be affigned, unlefs that thefe courts were all under the immediate direction of the popifh ecclefiaftical, among whom it was a point of religion to exclude the municipal law; pope Innocent the fourth having ^l forbidden the very reading of it by the clergy, becaufe it's decifions were not founded on the imperial conftitutions, but merely on the cuftoms of the laity. And if it be confidered, that our univerfities began about that period to receive their prefent form of fcholaftic difcipline; that they were then, and continued to

^h Selden. Tan. Anglor. l. 2. §. 43. in Fortele. c. 33.

^I Spelman. Concil. A. D. 1217. Wilkins. vol. 1. p. 574, 599.

^k Selden. in Fletam. 9. 3.

^l M. Paris ad A. D. 1254.

On the STUDY of the LAW.

be till the time of the reformation, entirely under the influence of the popifh clergy; (fir John Mafon the firft proteftant, being alfo the firft lay, chancellor of Oxford) this will lead us to perceive the reafon, why the ftudy of the Roman laws was in thofe days of bigotry^m purfued with fuch alacrity in thefe feats of learning; and why the common law was entirely defpifed, and efteemed little better than heretical.

AND, fince the reformation, many caufes have confpired to prevent it's becoming a part of academical education. As, firft, long ufage and eftablifhed cuftom; which, as in every thing elfe, fo efpecially in the forms of fcholaftic exercife, have juftly great weight and authority. Secondly, the real intrinfic merit of the civil law, confidered upon the footing of reafon and not of obligation, which was well known to the inftructors of our youth; and their total ignorance of the merit of the common law, though it's equal at leaft, and perhaps an improvement on the other. But the principal reafon of all, that has hindered the introduction of this branch of learning, is, that the ftudy of the common law, being banifhed from hence in the times of popery, has fallen into a quite different chanel, and has hitherto been wholly cultivated in another place. But as this long ufage and eftablifhed cuftom, of ignorance in the laws of the land, begin now to be thought unreafonable; and as by this means the merit of thofe

^m There cannot be a ftronger inftance of the abfurd and fuperftitious veneration that was paid to thefe laws, then that the moft learned writers of the times thought they could not form a perfect character, even of the bluffed virgin, without making her a civilian and a canonift. Which Albertus Magnus, the renowned Dominican doctor of the thirteenth century, thus proves in his Summa de laudibus chriftiferae virginis (divinum magis quam bumanum opus) qu. 23. §. 5. “Item quod jura civilia, & leges, & decreta “fcivil in fummo, probutur boc modo: fapientia advocati manifeftatur in tribus; unum, “quod obtineat omnia contra judicem juftum & “fapientem; fecundo, quod contra adverfarium “aftutum & fagacem: tertio, quod in caufa “defperata: fed beatiffima virgo, contra judicem fapientiffimum, Dominum; contra adverfarium callidiffimum, dyabolum; in caufa “noftra defperata; fententiam optatam obtinuit.” To which an eminent francifcan, two centuries afterwards, Bernardinus de Bufti (Mariale, part. 4. ferm. 9.) very gravely fubjoins this note. “Nee videtur incongruum “mulicres habere peritiam juris. Legitur enim “de uxore Toannis Andreae gloffatoris, quod “tantam peritiam in utroquqe jure habuit, ut “publice in fcholis legere aufa fit.

On the STUDY of the LAW.

laws will probably be more generally known; we may hope that the method of ftudying them will foon revert to it's antient courfe, and the foundations at leaft of that will be laid in the two univerfities; without being exclufively confined to the chanel which it fell into at the times I have been juft defcribing.

FOR, being then entirely abandoned by the clergy, a few ftragglers excepted, the ftudy and practice of it devolved of courfe into the hands of laymen; who entertained upon their parts a moft hearty averfion to the civil law ⁿ, and made no fcruple to profefs their contempt, nay even their ignorance ^o of it, in the moft public manner. But ftill, as the balance of learning was greatly on the fide of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it muft have been fubjected to many inconveniences, and perhaps would have been gradually loft and overrun by the civil, (a fufpicion well juftified from the frequent tranfcripts of Juftinian to be met with in Bracton and Fleta) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to it's fupport.

THE incident I mean was the fixing the court of common pleas, the grand tribunal for difputes of property, to be held in one certain fpot; that the feat of ordinary juftice might by permanent and notorious to all the nation. Formerly that, in conjunction with all the other fuperior courts, was held before the

ⁿ Fortefc. de laud. LL. c. 25.

^o This remarkably appeared in the cafe of the abbot of Torun, M. 22 E. 3. 24. who had caufed a certain prior to be fummoned to anfwer at Avignon for erecting an oratory contra inhibitionem novi operas; by which words Mr. Selden, (in Flet. 8. 5.) very juftly underftands to be meant the title de novi operas nuntiatione both in the civil and canon laws, (Ff. 39. 1. C. 8. 11. and Decretal. not Extrav. 5. 32.) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. But Skipwith the king's ferjeant, and afterwards chief baron of the exchequer, declares them to he flat nonfenfe; “in ceux parolx, contra inhibitionem novi operas, ny ad pas entendment:” and juftice Schardelow mends the matter but little by informing him, that they fignify a reftitution in their law; for which reafon he very fagely refolves to pay no fort of regard to them. “Ceo n'eft que un reftitution en lour ley, pur que a ceo n'avomuregard, &c.”

On the STUDY of the LAW.

king's capital jufticiary of England, in the aula regis, or fuch of his palaces wherein his royal perfon refided; and removed with his houfhold from one end of the kingdom to the other. This was found to occafion great inconvenience to the fuitors; to remedy which it was made an article of the great charter of liberties, both that of king John and king Henry the third^p, that “common pleas fhould no longer follow the king's court, but be “held in fome certain place:” in confequence of which they have ever fince been held (a few neceffary removals in times of the plague excepted) in the palace of Weftminfter only. This brought together the profeffors of the municipal, law, who before were difperfed about the kingdom, and formed them into an aggregate body; whereby a fociety was eftablifhed of perfons, who (as Spelman^q obferves) addicting themfelves wholly to the ftudy of the laws of the land, and no longer confidering it as a mere fubordinate fcience for the amufement of leifure hours, foon raifed thofe laws to that pitch of perfection, which they fuddenly attained under the aufpices of our Englifh Juftinian, king Edward the firft.

IN confequence of this lucky affemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it neceffary to eftablifh a new univerfity of their own. This they did by purchafing at various times certain houfes (now called the inns of court and of chancery) between the city of Weftminfter, the place of holding the king's courts, and the city of London; for advantage of ready accefs to the one, and plenty of provifions in the other^r. Here exercifes were performed, lectures read, and degrees were at length conferred in the common law, as at other univerfities in the canon and civil. The degrees were thofe of barrifters (firft ftiled apprentices ^s from apprendre, to learn) who anfwered to our ba-

^q Gloffar. 334.

^r Fortefc. c. 48.

^s Apprentices or Barrifters feem to have been firft appointed by an ordinance of king Edward the firft in parliament, in the 20^th year of his reign. (Spelm. Gloff. 37. Dugdale. Orig. jurid 55.)

On the STUDY of the LAW.

chelors; as the ftate and degree of a ferjeant^t, fervientis ad legem, did to that of doctor.

THE crown feems to have foon taken under it's protection this infant feminary of common law; and, the more effectually to fofter and cherifh it, king Henry the third in the nineteenth year of his reign iffued out an order directed to the mayor and fheriffs of London, commanding that no regent of any law fchools within that city fhould for the future teach law therein^u. The word, law, or leges, being a general term, may create fome doubt at this diftance of time whether the teaching of the civil law, or the common, or both, is hereby reftrained. But in either cafe it tends to the fame end. If the civil law only is prohibited, (which is Mr Selden's ^w opinion) it is then a retaliation upon the clergy, who had excluded the common law from their feats of learning. If the municipal law be alfo included in the reftriction, (as fir Edward Coke ^x underftands it, and which the words feem to import) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public univerfity, which was newly inftituted in the fuburbs.

^t The firft mention I have met with in our lawbooks of ferjeants or counters, is in the ftatute of Weftm. 1. 3. Edw. I. c. 29. and in Horn's Mirror, c. 1. §. 10. c. 2. §. 5. c. 3. §. 1. in the fame reign. But M. Paris in his life of John II, abbot of St. Alban's, which he wrote in 1255, 39 Hen. III. fpeaks of advocates at the common law, or counters (quos banci narrators vulgariter appellamus) as of an order of men well known. And we have an example of the antiquity of the coif in the fame author's hiftory of England, A. D. 1259. in the cafe of one William de Buffy; who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire fecret; and to that end voluit ligamenta coifae fuae folvere, ut palam monftraret fe tonfuram habere clericalem; fed non eft permiffus. –Satelles vero cum arripiens, non per coifae ligamina fed per gutur cum apprehendens, traxit ad carcerem. And hence fir H. Spelman conjectures, (Gloffar. 335.) that coifs were introduced to hide the tonfure of fuch renegade clerks, as were ftill tempted to remain in the fecular courts in the quality of advocates or judges, notwithftanding their prohibition by canon.

^u Ne aliquis fcholas regens de legibus in eadem civitate de caetero ibidem leges doceat.

^w in Flet. 8. 2.

^x 2 Inft. proem.

On the STUDY of the LAW.

IN this juridical univerfity (for fuch it is infifted to have been by Fortefcue^y and fir Edward Coke ^z) there are two forts of collegiate houfes; one called inns of chancery, in which the younger ftudents of the law were ufually placed, “learning and ftudying “fays Fortefcue^a, the originals and as it were the elements of “the law; who, profiting therein, as they grow to ripenefs fo “are they admitted into the greater inns of the fame ftudy, called the inns of court.” And in thefe inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did ufe to place their children, though they did not defire to have them thoroughly learned in the law, or to get their living by it's practice: and that in his time there were about two thoufand ftudents at thefe feveral inns, all of whom he informs us were filii nobelium, or gentlemen born.

HENCE it is evident, that (though under the influence of the monks our univerfities neglected this ftudy, yet) in the time of Henry the fixth it was thought highly neceffary and was the univerfal practice, for the young nobility and gentry to be inftructed in the originals and elements of the laws. but by degres this cuftom has fallen into difufe; fo that in the reign of queen Elizabeth fir Edward Coke ^b does not reckon above a thoufand ftudents, and the number at prefent is very confiderably lefs. Which feems principally owing to thefe reafons: firft, becaufe the inns of chancery being now almoft totally filled by the inferior branch of the poffeffion, they are neither commodious nor proper for the refort of gentlemen of any rank or figure; fo that there are now very rarely any young ftudents entered at the inns of chancery: fecondly, becaufe in the inns of court all forts of regimen and academical fuperintendance, either with regard to morals or ftudies, are found impracticable and therefore entirely neglected: laftly, becaufe perfons of birth and fortune, after having finifhed their ufual courfes at the univerfities, have feldom

^z 3 Rep. prof.

On the STUDY of the LAW.

leifure or refolution fufficient to enter upon a new fcheme of ftudy at a new place of inftruction. Wherefore few gentlemen now refort to the inns of court, but fuch for whom the knowlege of practice is abfolutely neceffary; fuch, I mean, as are intended for the profeffion: the reft of our gentry, (not to fay our nobility alfo) having ufually retired to their eftates, or vifited foreign kingdoms, or entered upon public life, without any inftruction in the laws of the land; and indeed with hardly any opportunity of gaining inftruction, unlefs it can be afforded them in thefe feats of learning.

AND that thefe are the proper places, for affording affiftances of this kind to gentlemen of all ftations and degrees, cannot (I think) with any colour of reafon be denied. For not one of the objections, which are made to the inns of court and chancery, and which I have juft enumerated, will hold with regard to the univerfities. Gentlemen may here affociate with gentlemen of their own rank and degree. Nor are their conduct and ftudies left entirely to their own difcretion; but regulated by a difcipline fo wife and exact, yet fo liberal, fo fenfible and manly, that their conformity to it's rules (which does at prefent fo much honour to our youth) is not more the effect of conftraint, than of their own inclinations and choice. Neither need they apprehend too long an avocation hereby from their private concerns and amufements, or (what is a more noble object) the fervice of their friends and their country. This ftudy will go hand in hand with their other purfuits: it will obftruct none of them; it will ornament and affift them all.

BUT if, upon the whole, there are any ftill wedded to monaftic prejudice, that can entertain a doubt how far this ftudy is properly and regularly academical, fuch perfons I am afraid either have not confidered the conftitution and defign of an univerfity or elfe think very meanly of it. It muft be a deplorable narrownefs of mind, that would confine thefe feats of inftruction to the limited views of one or two learned profeffions. To the praife

On the STUDY of the LAW.

of this age be it fpoken, a more open and generous way of thinking begins now univerfally to prevail. The attainment of illiberal and general accomplifhments, though not of the intellectual fort, has been thought by our wifeft and moft affectionate patrons ^c, and very lately by the whole univerfity^d,no fmall improvement of our antient plan of education; and therefore I may fafely affirm that nothing (how unufual foever) is, under due regulations, improper to be taught in this place, which is proper for a gentleman to learn. But that a fcience, which diftinguifhes the criterions of right and wrong; which teaches to eftablifh the one, and prevent, punifh, or redrefs the other; which employs in it's theory the nobleft faculties of the foul, and exerts in it's practice the cardinal virtues of the heart; a fcience, which is univerfal in it's ufe and extent, accommodated to each individual, yet comprehending the whole community; that a fcience like this fhould have ever been deemed unneceffary to be ftudied in an univerfity, is matter of aftonifhment and concern. Surely, if it were not before an object of academical knowlege, it was high time to make it one; and to thofe who can doubt the property of it's reception among us (if any fuch there be) we may return an anfwer in their own way; that ethics are confeffedly a branch of academical learning, and Ariftotle himfelf has faid, fpeaking of the laws of his own country, that jurifprudence or the knowlege of thofe laws is the principal and moft ^e perfect branch of ethics.

FROM a thorough conviction of this truth, our munificent benefactor Mr. VINER, having employed above half a century in amaffing materials for new modeling and rendering more commodious the rude ftudy of the laws of the land, configned both

^c Lord chancellor Clarendon, in his dialogue of education, among his tracts, P. 325. appears to have been very folicitous, that it might be made “a part of the ornament “of our learned academies to teach the “qualities of riding, dancing, and fencing, “at thofe hours when more ferious exercife fhould be intermitted.”

^d By accepting in full convocation the remainder of lord Clarendon's hiftory from his noble defcendants, on condition to apply the profits arifing from it's publication to the eftablifhment of a managi in the univerfity.

^e T Ethic. ad Nicomach. l. 5. c. 3.

On the STUDY of the LAW.

the plan and execution of thefe his public-fpirited defigns to the wifdom of his parent univerfity. Refolving to dedicate his learned labours “to the benefit of pofterity and the perpetual fervice “of his country ^f,” he was fenfible he could not perform his refolutions in a better and more effectual manner, than by extending to the youth of this place thofe affiftances, of which he fo well remembered and fo heartily regretted the want. And the fenfe, which the univerfity has entertained of this ample and moft ufeful benefaction, muft appear beyond a doubt from their gratitude in receiving it with all poffible marks of efteem ^g; from their alacrity and unexampled difpatch in carrying it into execution ^h; and, above all from the laws and conftitutions by which they have effectually guarded it from the neglect and abufe to which fuch inftitutions are liable ^i.We have feen an univerfal emulation, who beft fhould underftand, or moft faithfully pur-

^f See the preface to the eighteenth volume of his abridgment.

^g Mr. Viner is enrolled among the public benefactors of the univerfity by decree of convocation.

^h Mr. Viner died June 5, 1756. His effects were collected and fettled, near a volume of his work printed, almoft the whole difpofed of, and the accounts made up, in a year and a half from his deceafe, by the very diligent and worthy adminiftrators with the will annexed, (Dr. Whalley of Oriel, Mr. Buckler of All Souls, and Mr. Betts of Univerfity college) to whom that care was configned by the univerfity. Another half year was employed in confidering and fettling a plan of the propofed inftitution, and in framing the ftatutes thereupon, which were finally confirmed by convocation on the 3^d of July, 1758. The profeffor was elected on the 20^th of October following, and two fcholars on the fucceeding day. And, laftly, it was agreed at the annual audit in 1761, to eftablifh a fellowfhip; and a fellow was accordingly elected in January following. – The refidue of this fund, arifing from the fale of Mr. Viner's abridgment, will probably be fufficient hereafter to found another fellowfhip and fcholarfhip, or three more fcholarfhips, as fhall be thought moft expedient.

ⁱ The ftatutes are in fubftance as follows:

1. THAT the accounts of this benefaction be feparately kept, and annually audited by the delegates of accounts and profeffor, and afterwards reported to convocation.

2. THAT a profefforfhip of the laws of England be eftablifhed, with a falary of two hundred pounds per annum; the profeffor to be elected by convocation, and to be at the time of his election at leaft a mafter of arts or bachelor of civil law in the univerfity of Oxford, of ten years ftanding from his matriculation; and alfo a barrifter at law of four years ftanding at the bar.

3. THAT fuch profeffor (by himfelf, or by deputy to be previoufly approved by

On the STUDY of the LAW.

fue, the defigns of our generous patron: and with pleafure we recollect, that thofe who are moft diftinguifhed by their quality,

convocation) do read one folemn public lecture on the laws of England, and in the Englifh language, in every academical term, at certain ftated times previous to the commencement of the common law term; or forfeit twenty pounds for every omiffion to Mr. Viner's general fund: and alfo (by himfelf, or by deputy to be approved, if occafional, by the vice-chancellor and proctors or, if permanent, both the caufe and the deputy to be annually approved by convocation) do yearly read one complete courfe of lectures on the laws of England, and in the Englifh language, confifting of fixty lectures at the leaft; to be read during the univerfity term time, with fuch proper intervals that not more than four lectures may fall within any fingle week: that the profeffor do give a month's notice of the time when the courfe is to begin, and do read gratis to the fcholars of Mr. Viner's foundation; but may demand of other auditors fuch gratuity as fhall be fettled from time to time by decree of convocation: and that, for every of the faid fixty lectures omitted, the profeffor, on complaint made to the vice-chancellor within the year, do forfeit forty fhillings to Mr. Viner's general fund; the proof of having performed his duty to lie upon the faid profeffor.

4. THAT every profeffor do continue in his office during life, unlefs in cafe of fuch mifbehaviour as fhall amount to bannition by the univerfity ftatutes; or unlefs he deferts the profeffion of the law by betaking himfelf to another profeffion or unlefs, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omiffion: in any of which cafes he be deprived by the vice-chancellor, with confent of the houfe of convocation.

5. THAT fuch a number of fellowfhips with a ftipend of fifty pounds per annum, and fcholarfhips with a ftipend of thirty pounds be eftablifhed, as the convocation fhall from time to time ordain, according to the ftate of Mr. Viner's revenues.

6. THAT every fellow be elected by convocation, and at the time of election be unmarried, and at leaft a mafter of arts or bachelor of civil law, and a member of fome college or hall in the univerfity of Oxford; the fcholars of this foundation or fuch as have been fcholars (if qualified and approved of by convocation) to have the preference: that, if not a barrifter when chofen, he be called to the bar within one year after his election; but do refide in the univerfity two months in every year, or in cafe of non-refidence do forfeit the ftipend of that year to Mr. Viner's general fund.

7. THAT every fcholar be elected by convocation, and at the time of election be unmarried, and a member of fome college or hall in the univerfity of Oxford, who fhall have been matriculated twenty four calendar months at the leaft: that he do take the degree of bachelor of civil law with all convenient fpeed; (either proceeding in arts or otherwife) and previous to his taking the fame, between the fecond and eighth year from his matriculation, be bound to attend two courfes of the profeffor's lectures, to be certified under the profeffor's hand; and within one year after taking the fame be called to the bar: that he do annually refide fix months till he is of four years ftanding, and four months from that time till he is mafter of arts or bachelor of civil law; after which he be bound to refide two months in every years; or, in cafe of non-refidence, do forfeit the ftipend of that year to Mr. Viner's general fund.

8. THAT the fcholarfhips do become void in cafe of non-attendance on the profeffor, or not taking the degree of bachelor

On the STUDY of the LAW.

their fortune, their ftation, their learning, or their experience, have appeared the moft zealous to promote the fuccefs of Mr. Viner's eftablifhment.

THE advantages that might refult to the fcience of the law itfelf, when a little more attended to in thefe feats of knowlege, perhaps would be very confiderable. The leifure and abilities of the learned in thefe retirements might either fuggeft expedients, or execute thofe dictated by wifer heads ^k, for improving it's method, retrenching it's fuperfluities, and reconciling the little contrarieties, which the practice of many centuries will neceffarily create in any human fyftem: a tafk, which thofe who are deeply employed in bufinefs, and the more active fcenes of the profeffion, can hardly condefcend to engage in. And as to the intereft, or (which is the fame) the reputation of the univerfities themfelves, I may venture to pronounce, that if ever this ftudy fhould arrive to any tolerable perfection either here or at Cambridge, the nobility and gentry of this kingdom would not fhorten their refidence upon this account, nor perhaps entertain a worfe opinion of the benefits of academical education. Neither fhould it be confidered as a matter of light importance, that while we thus extend the pomoeria of univerfity learning, and adopt a new tribe of citizens within thefe philofophical walls, we intereft a

of civil law, being duly admonifhed fo to do by the vice-chancellor and proctors: and that both fellowfhips and fcholarfhips do expire at the end of ten years after each refpective election; and become void in cafe of grofs mifbehaviour, non-refidence for two years together, marriage, not being called to the bar within the time before limited, (being duly admonifhed fo to be by the vice-chancellor and proctors) or deferting the profeffion of the law by following any other profeffion: and that in any of thefe cafes the vice-chancellor, with confent of convocation, do declare the place actually void.

9. THAT in cafe of any vacancy of the profefforfhip, fellowfhips, or fcholarfhips, the profits of the current year be ratably divided between the predeceffor or his reprefentatives, and the fucceffor; and that a new election be had within one month afterwards, unlefs by that means the time of election fhall fall within any vacation, in which cafe it be deferred to the firft week in the next full term. And that before any convocation fhall be held for fuch election, or for any other matter relating to Mr. Viner's benefaction, ten days public notice be given to each college and hall of the convocation, and the caufe of convoking it.

^k See lord Bacon's propofals and offer of a digeft.

On the STUDY of the LAW.

very numerous and very powerful profeffion in the prefervation of our rights and revenues.

FOR I think it is paft difpute that thofe gentlemen, who refort to the inns of court with a view to purfue the profeffion, will find it expedient (whenever it is practicable) to lay the previous foundations of this, as well as every other fcience, in one of our learned univerfities. We may appeal to the experience of every fenfible lawyer, whether any thing can be more hazardous or difcouraging than the ufual entrance on the ftudy of the law. A raw and unexperienced youth, in the moft dangerous feafon of life, is tranfpanted on a fudden into the midft of allurements to pleafure, without any reftraint or check but what his own prudence can fuggeft; with no public direction in what courfe to purfue his enquiries; no private affiftance to remove the diftreffes and difficulties, which will always embarafs a beginner. In this fituation he is expected to fequefter himfelf from the world, and by a tedious lonely procefs to extract the theory of law from a mafs of undigefted learning; or elfe by an affiduous attendance on the courts to pick up theory and practice together, fufficient to qualify him for the ordinary run of bufinefs. How little therefore is it to be wondered at, that we hear of fo frequent mifcarriages; that fo many gentlemen of bright imaginations grow weary of fo unpromifing a fearch ^l, and addict themfelves wholly to amufements, or other left innocent purfuits; and that fo many perfons of moderate capacity confufe themfelves at firft fetting out, and continue ever dark and puzzled during the remainder of their lives !

THE evident want of fome affiftance in the rudiments of legal knowlege, has given birth to a practice, which, if ever it had grown to be general, muft have proved of extremely perni-

^l Sir Henry Spelman, in the preface to his glofiary, gives us a very lively picture of him own diftrefs upon this occafion. “Enifit me mater Londinum, juris neftri cafeffendi gretia; chjus cum veftibulum falntaffem, reperiffemque linguan pevegrinan, dialectum barbaram, methodum inconcinnam, molem non ingentem folum fed perpetuis humer, fuftinendam, excidit mihi (fateor) animus.

On the STUDY of the LAW.

cious confequence: I mean the cuftom, by fome fo very warmly recommended, to drop all liberal education, as of no ufe to lawyers; and to place them, in it's ftead, at the defk of fome fkilful attorney; in order to initiate them early in all the depths of practice, and render them more dextrous in the mechanical part of bufinefs. A few inftances of particular perfons, (men of excellent learning, and unblemifhed integrity) who, in fpight of this method of education, have fhone in the foremoft ranks of the bar, have afforded fome kind of fanction to this illiberal path to the profeffion, and biaffed many parents, of fhortfighted judgment, in it's favour: not confidering, that there are fome geniufes, formed to overcome all difadvantages, and that from fuch particular inftances no general rules can be formed; nor obferving, that thofe very perfons have frequently recommended by the moft forcible of all examples, the difpofal of their own off-fpring, a very different foundation of legal ftudies, a regular academical education. Perhaps too, in return, I could now direct their eyes to our principal feats of juftice, and fuggeft a few hints, in favour of univerfity learning^m: ---- but in thefe all who hear me, I know, have already prevented me.

MAKING therefore due allowance for one or two fhining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in fubfervience to attorneys and folicitors ⁿ, will find he has begun at the wrong end. If practice be the whole he is taught, practice muft alfo be the whole he will ever know: if he be uninftructed in the elements and firft principles upon which the rule of practice is founded, the leaft variation from eftablifhed precedents will totally diftract and bewilder him: ita lex fcripta eff ^o is the utmoft his knowlege will arrive at; he muft never afpire to form, and feldom expect to comprehend, any arguments drawn a priori, from the fpirit of the laws and the natural foundations of juftice.

^m The four higheft offices in the law were at that time filled by gentlemen, two of whom had been fellows of All Souls college: another, ftudent of Chrift-Church; and the fourth a fellow of Trinity college, Cambridge.

ⁿ See Kennet's life of Somner. p. 67.

^o Ff. 40. 9. 12.

On the STUDY of the LAW.

NOR is this all; for (as few perfons of birth, or fortune, or even of fcholaftic education, will fubmit to the drudgery of fervitude and the manual labour of copying the trafh of an office) fhould this infatuation prevail to any confiderable degree, we muft rarely expect to fee a gentleman of diftinction or learning at the bar. And what the confequence may be, to have the interpretation and enforcement of the laws (which include the entire difpofal of our properties, liberties, and lives) fall wholly into the hands of obfcure or illiterate men, is matter of very public concern.

THE inconveniences here pointed out can never be effectually prevented, but by making academical education a previous ftep to the profeffion of the common law, and at the fame time making the rudiments of the law a part of academical education. For fciences are of a fociable difpofition, and flourifh beft in the neighbourhood of each other: nor is there any branch of learning, but may be helped and improved by affiftances drawn from other arts. If therefore the ftudent in our laws hath formed both his fentiments and ftyle, by perufal and imitation of the pureft claffical writers, among whom the hiftorians and orators will beft deferve his regard; if he can reafon with precifion, and feparate argument from fallacy, by the clear fimple rules of pure unfo-phifticated logic; if he can fix his attention, and fteadily purfue truth through any the moft intricate deduction, by the ufe of mathematical demonftrations; if he has enlarged his conceptions of nature and art, by a view of the feveral branches of genuine; experimental, philofophy; if he has contemplated thofe maxims reduced to a practical fyftem in the laws of imperial Rome; if he has done this or any part of it, (thought all may be eafily done under as able inftructors as ever graced any feats of learning) a ftudent thus qualified may enter upon the ftudy of the law with incredible advantage and reputation. And if,

On the STUDY of the LAW.

at the conclufion, or during the acquifition of thefe accomplifhments, he will afford himfelf here a year or two's farther leifure, to lay the foundation of his future labours in a folid fcientifical method, without thirfting too early to attend that practice which it is impoffible he fhould rightly comprehend, he will afterwards proceed with the greateft eafe, and will unfold the moft intricate points with an intuitive rapidity and clearnefs.

I SHALL not infift upon fuch motives as might be drawn from principles of oeconomy, and are applicable to particulars only: I reafon upon more general topics. And therefore to the qualities of the head, which I have juft enumerated, I cannot but add thofe of the heart; affectionate loyalty to the king, a zeal for liberty and the conftitution, a fenfe of real honour, and well grounded principles of religion; as neceffary to form a truly valuable Englifh lawyer, a Hyde, a Hale, or a Talbot. And, whatever the ignorance of fome, or unkindnefs of others, may have heretofore untruly fuggefted, experience will warrant us to affirm, that thefe endowments of loyalty and public fpirit, of honour and religion, are no where to be found in more high perfection than in the two univerfities of this kingdom.

BEFORE I conclude, it may perhaps be expected, that I lay before you a fhort and general account of the method I propofe to follow, in endeavouring to execute the truft you have been pleafed to repofe in my hands. And in thefe folemn lectures, which are ordained to be read at the entrance of every term (more perhaps to do public honour to this laudable inftitution, than for the private inftruction of individuals ^p) I perfume it will beft anfwer the intent of our benefactor and the expectation of this learned body, if I attempt to illuftrate at times fuch detached titles of the law, as are the moft eafy to be underftood, and moft capable of hiftorical or critical ornament. But in reading the complete courfe, which is annually configned to my care, a more regular method will be neceffary; and, till a better is propofed,

^p See Lowth's Oratio Crewiana, p. 365.

On the STUDY of the LAW.

I fhall take the liberty to follow the fame that I have already fubmitted to the public^q. To fill up and finifh that outline with propriety and correctnefs, and to render the whole intelligible to the uninformed minds of beginners, (whom e are too apt to fuppofe acquainted with terms and ideas, which they never had opportunity to learn) this muft be my ardent endeavour, though by no means my promife to accomplifh. You will permit me however very briefly to defcribe, rather what I conceive an academical expounder of the laws fhould do, than what I have ever known to be done.

HE fhould confider his courfe as a general map of the law, marking out the fhape of the country, it's connexions and boundaries, it's greater divifions and principal cities: it is not his bufinefs to defcribe minutely the fubordinate limits, or to fix the longitude and latitude of every inconfiderable hamlet. His attention fhould be engaged, like that of the readers in Fortefcue's inns of chancery, “in tracing out the originals and as it were the element of the law.” For if, as Juftinian ^r has obferved, the tender underftanding of the ftudent be loaded at the firft with a multitude and variety of matter, it will either occafion him to defert his ftudies, or will carry him heavily through them, with much labour, delay, and defpondence. Thefe originals fhould be traced to their fountains, as well as our diftance will permit; to the cuftoms of the Britons and Germans, as recorded by Caefar and Tacitus; to the codes of the northern nations on the continent, and more efpecially to thofe of our own Saxon princes; to the rules of the Roman law, either left here in the days of Papinian, or imported by Vacarius and his followers; but, above

^q The Analyfis of the laws of England, firft publifhed, A. D. 1756, and exhibiting the order and principal divifions of the enfuing COMMENTARIES; which were originally fubmitted to the univerfity in a private courfe of lectures, A. D. 1753.

r Incipientibus nobis exponere jura populi Roman, ita videntur tradi poffe commodiffime, fi primo levi ae fimplici via fingula traaantur: Alioqui, fi ftatim ab initio rudem adhus & infirmum animum ftudiofi multitudint at varictan rerum oncravimus, duorum altcrum, aut defectorem ftudiorum efficiemus, aut cum magno labere, faepe etiam cum diffidentia (quae plerumque juvenes avertit) ferius ad id perducemia, ad quod leviore via ductue, fine magno labore & fine ulla diffidentia maturius perduci potuiffet. Inft. 1. 1. 2.

On the STUDY of the LAW.

all, to that inexhauftible refervoir of legal antiquities and learning, the feodal law, or, as Spelman^s has entitled it, the law of nations in our weftern orb. Thefe primary rules and fundamental principles fhould be weighed and compared with the precepts of the law of nature, and the practice of other countries; fhould be explained by reafons, illuftrated by examples, and confirmed by undoubted authorities; their hiftory fhould be deduced, their changes and revolutions obferved, and it fhould be fhewn how far they are connected with, or have at any time been affected by the civil tranfactions of the kingdom.

A PLAN of this nature, if executed with care and ability, cannot fail of adminiftring a moft ufeful and rational entertainment to ftudents of all ranks and profeffions; and yet it muft be confeffed that the ftudy of the laws is not merely a matter of amufement: for as a very judicious writer ^t has obferved upon a fimilar occafion, the learner “will be confiderably difappointed “if he looks for entertainment without the expence of attention.” An attention, however, not greater than is ufually beftowed in maftering the rudiments of other fciences, or fometimes in purfuing a favorite recreation or exercife. And this attention is not equally neceffary to be exerted by every ftudent upon every occafion. Some branches of the law, as the formal procefs of civil fuits, and the fubtile diftinctions incident to landed property, which are the moft difficult to be thoroughly underftood, are the leaft worth the pains of underftanding, except to fuch gentlemen as intend to purfue the profeffion. To others I may venture to apply, with a flight alteration, the words of fir John Fortefcue ^u,”

^s Of Parliaments. 57.

^t Dr. Taylor's preface to Elem. of civil law.

^u Tibi. princeps, neceffe non erit myfteria legis Angliae longo difciplinatu rimare. Sufficient tibi, -et fatis denominari legifla mereberis, fi legum principia & caufas, ufque ad elementa, difcipuli more indagaveris. – Quare tu, princeps fereniffime, parvo tempore, parva induftria, fufficienter eris in legibus regm Angliae eruditus, dummado ad ejtes apprehenfionem tu conferas animum tuum. –Nofco namqque ingenii tui perfpicacitatem, quo audacter prnuntio quod in legibus illis (licet carum peritia, quails judicibas neceffaria eft, vix viginti annorum lucubrationibus acquqiratur) tu, doctrinam principi congruam in anno uno fufficienter nancifceris; nec interim militarem difciplinam, ad quam tam ardenter anhelas, negliges; fed ea, recreationis loco, etiam anno illo tu ad libitum perfruerit c. 8.

On the STUDY of the LAW.

when firft his royal pupil determines to engage in this ftudy. “It will not be neceffary for a gentleman, as fuch, to examine “with a clofe application the critical niceties of the law. It will “fully be fufficient, and he may well enough be denominated a “lawyer, if under the inftruction of a mafter he traces up the “principles and grounds of the law, even to their original elements. Therefore in a very fhort period, and with very little “labour, he may be fufficiently informed in the laws of his “country, if he will but apply his mind in good earneft to receive and apprehend them. For, though fuch knowlege as is “neceffary for a judge is hardly to be acquired by the lucubrations of twenty years, yet with a genius of tolerable perfpicacity, that knowlege which is fit for a perfon of birth or condition may be learned in a fingle year, without neglecting his “other improvements.”

To the few therefore (the very few, I am perfuaded,) that entertain fuch unworthy notions of an univerfity, as to fuppofe it intended for mere diffipation of thought; to fuch as mean only to while away the aukward interval from childhood to twenty one, between the reftraints of the fchool and the licentioufnefs of politer life, in a calm middle ftate of mental and of moral inactivity; to thefe Mr. Viner gives on invitation to an entertainment which they never can relifh. But to the long and illuftrious train of noble and ingenuous youth, who are not more diftinguifhed among us by their birth and poffeffions, than by the regularity of their conduct and their thrift after ufeful knowlege, to thefe our benefactor has confecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if fuch reflexions can be now the employment of his thoughts) that he could not more effectually have benefited pofterity, or contributed to the fervice of the public, than by founding an inftitution which may inftruct the rifing generation in the wifdom of our civil polity, and inform them with a defire to be ftill better acquainted with the laws and conftitution of their country.

On the STUDY of the LAW.

SECTION THE SECOND.

OF THE NATURE OF LAWS IN GENERAL.

LAW, in it's moft general and comprehenfive fenfe, fignifies a rule of action; and is applied indifcriminately to all kinds of action, whether animate, or inanimate, rational or irrational. Thus we fay, 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 prefcribed by fome fuperior, and which the inferior is bound to obey.

THUS when the fupreme being formed the univerfe, and created matter out of nothing, he impreffed certain principles upon that matter, from which it can never depart, and without which it would ceafe to be. When he put that matter into motion, he eftablifhed certain laws of motion, to which all moveable bodies muft conform. And, to defcend from the greateft operations to the fmalleft, when a workman forms a clock, or other piece of mechanifm, he eftablifhes at his own pleafure certain arbitrary laws for it's direction; as that the hand fhall defcribe a given fpace in a given time; to which law as long a the work conforms, fo long it continues in perfection, and anfwer the end of it's formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we fhall find them ftill governed by laws; more numerous indeed, but equally fixed and invariable. The whole progrefs of plants, from the feed to the root, and from thence to the feed again; --- the method of animal nutrition, digeftion,

Of the NATURE of LAWS in general.

fecretion, and all other branches of vital oeconomy; --- are not left to chance, or the will of the creature itfelf, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.

THIS then is the general fignification of law, a rule of action dictated by fome fuperior being; and in thofe creatures that have neither the power to think, nor to will, fuch laws muft be invariably obeyed, fo long as the creature itfelf fubfifts, for it's exiftence depends on that obedience. But laws, in their more confined fenfe, and in which it is our prefent bufinefs to confider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the nobleft of all fublunary beings, a creature endowed with both reafon and freewill, is commanded to make ufe of thofe faculties in the general regulation of his behaviour.

MAN, confidered as a creature, muft neceffarily be fubject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to purfue, but fuch as he prefcribes to himfelf; but a ftate of dependance 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 thofe points wherein his dependance confifts. This principle therefore has more or lefs extent and effect, in proportion as the fuperiority of the one and the dependance of the other is greater or lefs, abfolute or limited. And confequently as man depends abfolutely upon his maker for every thing, it is neceffary that he fhould in all points conform to his maker's will.

THIS will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, eftablifhed certain rules for the perpetual direction of that motion; fo, when he created man, and endued him with freewill to conduct himfelf in all parts of life, he laid down cer-

Of the NATURE of LAWS in general.

tain immutable laws of human nature, whereby that freewill is in fome degree regulated and reftrained, and gave him alfo the faculty of reafon to difcover the purport of thofe laws.

CONSIDERING the creator only as a being of infinite power, he was able unqueftionably to have prefcribed whatever laws he pleafed to his creature, man, however unjuft or fevere. But as he is alfo a being of infinite wifdom, he has laid down only fuch laws as were founded in thofe relations of juftice, that exifted in the nature of things antecedent to any pofitive precept. Thefe are the eternal, immutable laws of good and evil, to which the creator himfelf in all his difpenfations conforms; and which he has enabled human reafon to difcover, fo far as they are neceffary for the conduct of human actions. Such among others are thefe principles: that we fhould live honeftly, fhould hurt nobody, and fhould render to every one it's due; to which three general precepts Juftinian ^a has reduced the whole doctrine of law.

BUT if the difcovery of thefe firft principles of the law of nature depended only upon the due exertion of right reafon, and could not otherwife be attained than by a chain of metaphyfical difquifitions, mankind would have wanted fome inducement to have quickened their inquiries, and the greater part of the world would have refted content in mental indolence, and ignorance it's infeparable companion. As therefore the creator is a being, not only of infinite power, and wifdom, but alfo of infinite goodnefs, he has been pleafed fo to contrive the conftitution and frame of humanity, that we fhould want no other prompter to enquire after and purfue the rule of right, but only our own felf-love, that univerfal principle of action. For he has fo intimately connected, fo infeparably interwoven the laws of eternal juftice with the happinefs of each individual, that the latter cannot be attained but by obferving the former; and, if the former be punctually obeyed, it cannot but induce the latter. In confequence of which mutual connection of juftice and human felicity, he has not per-

^a Turis praecepta funt haec, honefte vivere, alterum non laedere, fuum cuique tribuere. Inft. 1. 1. 5.

Of the NATURE of LAWS in general.

plexed the law of nature with a multitude of abftracted rules and precepts, referring merely to the fitnefs or unfitnefs of things, is fome have vainly furmifed; but has gracioufly reduced the rule of obedience to this one paternal precept, “that man fhould “purfue his own happinefs.” This is the foundation of what we call ethics, or natural law. For the feveral articles into which it is branched in our fyftems, amount to no more than demonftrating, that this or that action tends to man's real happinefs, and therefore very juftly 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 deftructive of man's real happinefs, and therefore that the law of nature forbids it.

THIS law of nature, being co-eval with mankind and dictated by God himfelf, is of courfe fuperior 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; and fuch of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

BUT in order to apply this to the particular exigencies of each individual, it is ftill neceffary to have recourfe to reafon; whofe office it is to difcover, as was before obferved, what the law of nature directs in every circumftance of life; by confidering, what method will tend the moft effectually to our own fubftantial happinefs. And if our reafon were always, as in our firft anceftor before his tranfgreffion, clear and perfect, unruffled by paffions, unclouded by prejudice, unimpaired by difeafe or intemperance, the tafk would be pleafant and eafy; we fhould need no other guide but this. But every man now finds the contrary in his own experience; that his reafon is corrupt, and his underftanding full of ignorance and error.

THIS has given manifold occafion for the benign interpofition of divine providence; which, in compaffion to the frailty, the imperfection, and the blindnefs of human reafon, hath been

Of the NATURE of LAWS in general.

pleafed, at fundry times and in divers manners, to difcover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy fcriptures. Thefe precepts, when revealed, are found upon comparifon to be really a part of the original law of nature, as they tend in all their confequences to man's felicity. But we are not from thence to conclude that the knowlege of thefe truths was attainable by reafon, in it's prefent corrupted ftate; fince we find that, until they were revealed, they were hid from the wifdom of ages. As then the moral precepts of this law are indeed of the fame original with thofe of the law of nature, fo their intrinfic obligation is of equal ftrength and perpetuity. Yet undoubtedly the revealed law is (humanly fpeaking) of infinitely more authority than what we generally call the natural law. Becaufe one is the law of nature, expreffly declared fo to be by God himfelf; the other is only what, by the affiftance of human reafon, 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 thefe two foundations, the law of nature and the law of revelation, depend all human laws; that is to fay, no human laws fhould be fuffered to contradict thefe. There is, 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 neceffary for the benefit of fociety to be reftrained within certain limits. And herein it is that human laws have their greateft force and efficacy; for, with regard to fuch points as are not indifferent, human laws are only declaratory of, and act in fubordination to, the former. To inftance in the cafe of murder: this is expreffly forbidden by the divine, and demonftrably by the natural law; and from thefe prohibitions arifes the true unlawfulnefs of this crime. Thofe human laws, that annex a punifhment to it, do not at all increafe it's moral guilt, or fuperadd any frefh obligation in foro confcientiae to abftain from

Of the NATURE of LAWS in general.

it's perpetration. Nay, if any human law fhould allow or injoin us to commit it, we are bound to tranfgrefs that human law, or elfe we muft offend both the natural and the divine. But with regard to matters that are in themfelves indifferent, and are not commanded or forbidden by thofe fuperior laws; fuch, for inftance, as exporting of wool into foreign countries; here the inferior legiflature has fcope and opportunity to interpofe, and to make that action unlawful which before was not fo.

IF man were to live in a ftate of nature, unconnected with other individuals, there would be no occafion for any other laws, than the law of nature, and the law of God. Neither could any other law poffibly exift; for a law always fuppofes fome fuperior who is to make it; and in a ftate of nature we are all equal, without any other fuperior but him who is the author of our being. But man was formed for fociety; and, as is demonftrated by the writers on this fubject^b, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impoffible for the whole race of mankind to be united in one great fociety, they muft neceffarily divide into many; and form feparate ftates, commonwealths, and nations; entirely independent of each other, and yet liable to a mutual intercourfe. Hence arifes a third kind of law to regulate this mutual intercourfe, called “the law of “nations;” which, as none of thefe ftates will acknowlege a fuperiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between thefe feveral communities: in the conftruction alfo of which compacts we have no other rule to refort to, but the law of nature; being the only one to which both communities are equally fubject: and therefore the civil law ^c very juftly obferves, that quod naturalis ratio inter omnes hominess conftituit, vocatur jus gentium.

THUS much I thought it neceffary to premife concerning the law of nature, the revealed law, and the law of nations, before

^b Puftendorf, l. 7. c. 1. compared with Barbeyrac's commentary.

^c Ff. 1. 1. 9.

Of the NATURE of LAWS in general.

I proceeded to treat more fully of the principal fubject of this fection, municipal or civil law; that is, the rule by which particular diftricts, communities, or nations are governed; being thus defined by Juftinian ^d, “jus civile eft quod quifque fibi populus conftituit.” I call it municipal law, in compliance with common fpeech; for, tho ftrictly that expreffion denotes the particular cuftoms of one fingle municipium or free town, yet it may with fufficient propriety be applied to any one ftate or nation, which is governed by the fame laws and cuftoms.

MUNICIPAL law, thus underftood, is properly defined to be “a rule of civil conduct prefcribed by the fupreme power in “a ftate, commanding what is right and prohibiting what is “wrong.” Let us endeavour to explain it's feveral properties, as they arife out of this definition.

AND, firft, it is a rule; not a tranfient fudden order from a fuperior to or concerning a particular perfon; but fomething permanent, uniform, and univerfal. Therefore a particular act of the legiflature to confifcate the goods of Titius, or to attaint him of high treafon, does not enter into the idea of a municipal law: for the operation of this act is fpent upon Titius only, and has no relation to the community in general; it is rather a fentence than a law. But an act to declare that the crime of which Titius is accufed fhall be deemed high treafon; this has permanency, uniformity, and univerfality, and therefore is properly a rule. It is alfo called a rule, to diftinguifh it from advice or counfel, which we are at liberty to follow or not, as we fee proper; and to judge upon the reafonablenefs or unreafonablenefs of the thing advifed. Whereas our obedience to the law depends not upon our approbation, but upon the maker's will. Counfel is only matter of perfuafion, law is matter of injunction; counfel acts only upon the willing, law upon the unwilling alfo.

^d Inft. 1. 2. 1.

Of the NATURE of LAWS in general.

IT is alfo called a rule, to diftinguifh it from a compact or greement; for a compact is a promife proceeding from us, law a command directed to us. The language of a compact is, “I “will, or will not, do this;” that of a law is, “thou fhalt, or “fhalt not, do it.” It is true there is an obligation which a compact carries with it, equal in point of confcience to that of a law; but then the original of the obligation is different. In compacts, we ourfelves determine and promife what fhall be done, before we are obliged to do it; in laws, we are obliged to act. Without ourfelves determining or promifing any thing at all. Upon thefe accounts law is defined to be “a rule.”

MUNICIPAL law is alfo “a rule of civil conduct.” This diftinguifhes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but alfo the rule of faith. Thefe regard man as a creature, and point out his duty to God, to himfelf, and to his neighbour, confidered in the light of an individual. But municipal or civil law regards him alfo as a citizen, and bound to other duties towards him neighbour, than thofe of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the fubfiftence and peace of the fociety.

IT is likewife “a rule prefcribed.” Becaufe a bare refolution, confined in the breaft of the legiflator, without manifefting itfelf by fome external fign, can never be properly a law. It is requifite that this refolution be notified to the people who are to obey it. But the manner in which this notification is to be made, in matter of very great indifference. It may be notified by univerfal tradition and long practice, which fuppofes a previous publication, and is the cafe of the common law of England. It may be notified, viva voce, by officers appointed for that purpofe, as is done with regard to proclamations, and fuch acts of parliament

Of the NATURE of LAWS in general.

as are appointed to be publicly read in churches and other affemblies. It may laftly be notified by writing, printing, or the like; which is the general courfe taken with all our acts of parliament. Yet, whatever way is made ufe of, it is incumbent on the promulgators to do it in the moft public and perfpicuous manner; not like Caligula, who (according to Dio Caffius) wrote his laws in a very fmall character, and hung them up upon high pillars, the more effectually to enfnare the people. There is ftill a more unreafonable method than this, which is called making of laws ex poft facto; when after an action is committed, the legiflator then for the firft time declares it to have been a crime, and inflicts a punifhment upon the perfon who has committed it; here it is impoffible that the party could forefee that an action, innocent when it was done, fhould be afterwards converted to guilt by a fubfequent law; he had therefore no caufe to abftain from it; and all punifhment for not abftaining muft of confequence be cruel and unjuft ^e. All laws fhould be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term “prefcribed.” But when this rule is in the ufual manner notified, or prefcribed, it is then the fubject's bufinefs to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excufe, the laws would be of no effect, but might always be eluded with impunity.

BUT farther: municipal law is “a rule of civil conduct prefcribed by the fupreme power in a ftate.” For legiflature, as was before obferved, is the greateft act of fuperiority that can be exercifed by one being over another. Wherefore it is requifite to the very effence of a law, that it be made by the fupreme power. Sovereignty and legiflature are indeed convertible terms; one cannot fubfift without the other.

^e Such laws among the Romans were denominated privilegia, or private laws, of which Cicero de leg-3. 19. and in his oration pro domo, 17. thus fpeaks; “Vaant leges “facratae vetant duodecim tabulae, leges privates hominibus irrogari; id enim eft privelegium. Nemo unquam tulit, nihil eft crudelius, “nihil perniciofius, nihil quod minus haec civitas ferre poffit.”

Of the NATURE of LAWS in general.

THIS will naturally lead us into a fhort enquiry concerning the nature of fociety and civil government; and the natural, inherent right that belongs to the fovereignty of a ftate, wherever that fovereignty be lodged, of making and enforcing laws.

THE only true and natural foundations of fociety are the wants and the fears individuals. Not that we can believe, with fome theoretical writers, that there ever was a time when there was no fuch thing as fociety; and that, from the impulfe of reafon, and through a fenfe of their wants and weakneffes, individuals met together in a large plain, entered into an original contract, and chofe the talleft man prefent to be their governor. This notion, of an actually exifting unconnected ftate of nature, is too wild to be ferioufly admitted; and befides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their prefervation two thoufand years afterwards; both which were effected by the means of fingle families. Thefe formed the firft fociety, among themfelves; which every day extended it's limits, and when it grew too large to fubfift with convenience in that paftoral ftate, wherein the patriarchs appear to have lived, it neceffarily fubdivided itfelf by various migrations into more. Afterwards, as agriculture increafed, which employs and can maintain a much greater number of hands, migrations became lefs frequent; and various tribes, which had formerly feparated, reunited again; fometimes by compulfion and conqueft, fometimes by accident and fometimes perhaps by compact. But though fociety had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the fenfe of their weaknefs and imperfection that keeps mankind together; that demonftrates the neceffity of this union; and that therefore is the folid and natural foundation, as well as the cement, of fociety. And this is what we mean by the original contract of fociety; which, though perhaps in no inftance it has ever been formally expreffed at the firft inftitution of a ftate, yet in nature and reafon muft always be underftood and implied,

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in the very act of affociating together: namely, that the whole fhould protect all it's parts, and that every part fhould pay obedience to the will of the whole; or, in other words, that the community fhould guards the rights of each individual member, and that (in return for this protection) each individual fhould fubmit to the laws of the community; without which fubmiffion of all it was impoffible that protection could be certainly extended to any.

FOR when fociety is once formed, government refults of courfe, as neceffary to preferve and to keep that fociety in order. Unlefs fome fuperior were conftituted, whofe commands and decifions all the members are bound to obey, they would ftill remain as in a ftate of nature, without any judge upon earth to define their feveral rights, and redrefs their feveral wrongs. But, as all the members of fociety are naturally equal, it may be afked, in whofe hands are the reins of government to be entrufted ? To this the general anfwer is eafy; but the application of it to particular cafes has occafioned one half of thofe mifchiefs which are apt to proceed from mifguided political zeal. In general, all mankind will agree that government fhould be repofed in fuch perfons, in whom thofe qualities are moft likely to be found, the perfection of which are among the attributes of him who is emphatically ftiled the fupreme being; the three grand requifites, I mean, of wifdom, of goodnefs, and of power: wifdom, to difcern the real intereft of the community; goodnefs, to endeavour always to purfue that real intereft; and ftrength, or power, to carry this knowlege and intention into action. Thefe are the natural foundations of fovereignty, and thefe are the requifites that ought to be found in every well conftituted frame of government.

How the feveral forms of government we now fee in the world at firft actually began, is matter of great uncertainty, and has occafioned infinite difputes. It is not my bufinefs or intention to enter into any of them. However they began, or by

Of the NATURE of LAWS in general.

what right foever they fubfift, there is and muft be in all of them a fupreme, irrefiftible, abfolute, uncontrolled authority, in which the jura fummi imperii, or the rights of fovereignty, refide. And this authority is placed in thofe hands, wherein (according to the opinion of the founders of fuch refpective ftates, either expreffly given, or collected from their tacit approbation) the qualities requifite for fupremacy, wifdom, goodnefs, and power, are the moft likely to be found.

THE political writers of antiquity will not allow more than three regular forms of government; the firft, when the fovereign power is lodged in an aggregate affembly confifting of all the members of a community, which is called a democracy; the fecond, when it is lodged in a council, compofed of felect members, and then it is ftiled an ariftocracy; the laft, when it is entrufted in the hands of a fingle perfon, and then it takes the name of a monarchy. All other fpecies of government, they fay, are either corruptions of, or reducible to, thefe three.

BY the fovereign power, as was before obferved, is meant the making of laws; for wherever that power refides, all others muft conform to, and be directed by it, whatever appearance the outward form and adminiftration of the government may put on. For it is at any time in the option of the legiflature to alter that form and adminiftration by a new edict or rule, and to put the execution of the laws into whatever hands it pleafes: and all the other powers of the ftate muft obey the legiflature power in the execution of their feveral functions, or elfe the conftitution is at an end.

IN a democracy, where the right of making laws refides in the people at large, public virtue, or goodnefs of intention, is more likely to be found, than either of the other qualities of government. Popular affemblies are frequently foolifh in their contrivance, and weak in their execution; but generally mean to do the thing that is right and juft, and have always a degree of pa-

Of the NATURE of LAWS in general.

triotifm or public fpirit. In ariftocracies there is more wifdom to be found, than in the other frames of government; being compofed, or intended to be compofed, of the moft experienced citizens; but there is lefs honefty than in a republic, and lefs ftrength than in a monarchy. A monarchy is indeed the moft powerful of any, all the finews of government being knit together, and united in the hand of the prince; but then there is imminent danger of his employing that ftrength to improvident or oppreffive purpofes.

THUS thefe three fpecies of government have, all of them their feveral perfections and imperfections. Democracies are ufually the beft calculated to direct the end of a law; ariftocracies to invent the means by which that end fhall be obtained; and monarchies to carry thofe means into execution. And the antients, as was obferved, had in general no idea of any other permanent form of government but thefe three; for though Cicero ^f declares himfelf of opinion, “effe optime conftitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, “fit modice confufa;” yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a vifionary whim; and one that, if effected, could never be lafting or fecure ^g.

BUT happily for us of this ifland, the Britifh conftitution has long remained, and I truft will long continue, a ftanding exception to the truth of this obfervation. For, as with us the executive power of the laws is lodged in a fingle perfon, they have all the advantages of ftrength and difpatch, that are to be found in the moft abfolute monarchy; and, as the legiflature of the kingdom is entrufted to three diftinct powers, entirely independent of each other; firft, the king; fecondly, the lords fpiritual and temporal, which is an ariftocratical affembly of perfon

^f In his fragments de rep. l. 2.

^g “Cunctas nations et urbes populus, aut “primore, aut finguli regunt delecta ex his, “et conftituta reipublicae forma laudari facilius “quam evenire, vel, fi evcnit, haud diuturna “effe poteft.” Ann. l. 4.

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felected for their piety, their birth, their wifdom, their valour, or their property; and, thirdly, the houfe of commons, freely chofen by the people from among themfelves, which makes it a kind of democracy; as this aggregate body, actuated by different fprings, and attentive to different interefts, compofes the Britifh parliament, and has the fupreme difpofal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withftood by one of the other two; each branch being armed with a negative power, fufficient to repel any innovation which it fhall think inexpedient or dangerous.

HERE then is lodged the fovereignty of the Britifh conftitution; and lodged as beneficially as is poffible for fociety. For in no other fhape could we be fo certain of finding the three great qualities of government fo well and fo happily united. If the fupreme power were lodged in any one of the three branches feparately, we muft be expofed to the inconveniences of either abfolute monarchy, ariftocracy, or democracy; and fo want two of the three principal ingredients of good polity, either virtue, wifdom, or power. If it were lodged in any two of the branches; for inftance, in the king and houfe of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we fhould want that circumfpection and mediatory caution, which the wifdom of the peers is to afford: if the fupreme rights of legiflature were lodged in the two houfes only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolifh the kingly office, and thereby weaken (if not totally deftroy ) the ftrength of the executive power. But the conftitutional government of this ifland is fo admirably tempered and compounded, that nothing can endanger or hurt it, but deftroying the equilibrium of power between one branch of the legiflature and the reft. For if ever it fhould happen that the independence of any one of the three fhould be loft, or that it fhould become fubfervient to the views of either of the other two, there would

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foon be an end of our conftitution. The legiflature would be changed from that, which was originally fet up by the general confent and fundamental act of the fociety; and fuch a change, however effected, is according to Mr. Locke ^h (who perhaps carries his theory too far) at once an entire diffolution of the bands of government; and the people would be reduced to a ftate of anarchy, with liberty to conftitute to themfelves a new legiflative power.

HAVING thus curforily confidered the three ufual fpecies of government, and our own fingular conftitution, felected and compounded from them all, I proceed to obferve, that, as the power of making laws conftitutes the fupreme authority, fo wherever the fupreme authority in any ftate refides, it is the right of that authority to make laws; that is, in the words of our definition, to prefcribe the rule of civil action. And this may be difcovered from the very end and inftitution of civil ftates. For a ftate is a collective body, compofed of a multitude of individuals, united for their fafety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inafmuch as political communities are made up of many natural perfons, each of whom has his particular will and inclination, thefe feveral wills cannot by any natural union be joined together, or tempered and difpofed into a lafting harmony, fo as to conftitute and produce that one uniform will of the whole. It can therefore be no thoerwife profuced than by a political union; by the confent of all perfons to fubmit their own private wills to the will of one man, or of one or more affemblies of men, to whom the fupreme authority is entrufted: and this will of that one man, or affemblage of men, is in different ftates, according to their different conftitutions, underftood to be law.

THUS far as to the right of the fupreme power to make laws; but farther, it is it's duty likewife. For fince the refpec-

^h On government, part 2. §. 212.

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tive members are bound to conform themfelves to the will of the ftate, it is expedient that they receive directions from the ftate declaratory of that it's will. But fince it is impoffible, in fo great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the ftate eftablifhes general rules, for the perpetual information and direction of all perfons in all points, whether of pofitive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what abfolute and what relative duties are required at his hands; what is to be efteemed honeft, difhoneft, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of fociety; and after what manner each perfon is to moderate the ufe and exercife of thofe rights which the ftate affigns him, in order to promote and fecure the public tranquillity.

FROM what has been advanced, the truth of the former branch of our definition, is (I truft) fufficiently evident; that “municipal law is a rule of civil conduct prefcribed by the fupreme “power in a ftate.” I proceed now to the latter branch of it; that it is a rule fo prefcribed, “commanding what is right, and “prohibiting what is wrong.”

Now in order to do this completely, it is firft of all neceffary that the boundaries of right and wrong be eftablifhed and afcertained by law. And when this is once done, it will follow of courfe that it is likewife the bufinefs of the law, confidered as a rule of civil conduct, to enforce thefe rights and to reftrain or redrefs thefe wrongs. It remains therefore only to confider in what manner the law is faid to afcertain the boundaries of rights and wrong; and the methods which it takes to command the one and prohibit the other.

FOR this purpofe every law may be faid to confift of feveral parts: one, declaratory; whereby the rights to be obferved, and the wrongs to be efchewed, are clearly defined and laid down:

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another, directory; whereby the fubject is inftructed and enjoined to obferve thofe rights, and to abftain from the commiffion of thofe wrongs: a third, remedial; whereby a method is pointed out to recover a man's private rights, or redrefs his private wrongs: to which may by added a fourth, ufually termed the fanction, or uindicatory branch of the law; whereby it is fignified what evil or penalty fhall be incurred by fuch as commit any public wrongs, and tranfgrefs or neglect their duty.

WITH regard to the firft of thefe, the declaratory part of the municipal law, this depends not fo much upon the law of revelation or of nature, as upon the wifdom and will of the legiflator. This doctrine, which before was flightly touched, deferves a more particular explication. Thofe rights then which God and nature have eftablifhed, and are therefore called natural rights, fuch as are life and liberty, need not the aid of human laws to be more effectually invefted in every man than they are; neither do they receive any additional ftrength when declared by the municipal laws to be inviolable. On the contrary, no human legiflature has power to abridge or deftroy them, unlefs the owner fhall himfelf commit fome act that amounts to a forfeiture. Neither do divine or natural duties (fuch as, for inftance, the worfhip of God, the maintenance of children, and the like) receive any ftronger fanction from being alfo declared to be duties by the law of the land. The cafe is the fame as to crimes and mifdemefnors, that are forbidden by the fuperior laws, and therefore ftiled mala in fe, fuch as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legiflature. For that legiflature in all thefe cafes acts only, as was before obferved, in fubordination to the great lawgiver, tranfcribing and publifhing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinfically right or wrong.

Of the NATURE of LAWS in general.

BUT with regard to things in themfelves indifferent, the cafe is entirely altered. Thefe become either right or wrong, juft or unjuft, duties or mifdemefnors, according as the municipal legiflator fees proper, for promoting the welfare of the fociety, and more effectually carrying on the purpofes of civil life. Thus our own common law has declared, that the goods of the wife do inftantly upon marriage become the property and right of the hufband; and our ftatute law declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purpofes of civil fociety. And fometimes, where the thing itfelf has it's rife from thelaw of nature, the particular circumftances and mode of doing it become right or wrong, as the laws of the land fhall direct. Thus, for inftance, in civil duties; obedience to fuperiors is the doctrine of revealed as well as natural religion: but who thofe fuperiors fhall be, and in what circumftances, or to what degrees they fhall be obeyed, is the province of human laws to determine. And fo, as to injuries or crimes, it muft be left to out own legiflature to decide, in what cafes the feifing another's cattle fhall amount to the crime of robbery; and where it fhall be a juftifiable action, as when a landlord takes them by way of diftrefs for rent.

THUS much for the declaratory part of the municipal law: and the directory ftands much upon the fame footing; for this virtually includes the former, the declaratiioin being ufually collected from the direction. The law that fays, “thou fhalt not “fteal,” implies a declaration that ftealing is a crime. And we have feen that, in things naturally indifferent, the very effence of right and wrong depends upon the direction of the laws to do or to omit it.

THE remedial part of a law is fo neceffary a confequence of the former two, that laws muft be very vague and imperfect without it. For in vain would rights be declared, in vain directed

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to be obferved, if there were no method of recovering and afferting thofe rights, when wrongfully withheld or invaded. This is what we mean properly, when we fpeak of the protection of the law. When, for inftance, the declaratory part of the law has faid “that the field or inheritance, which belonged to Titius's “father, is vefted by his death in Titius” and the directory part has “forbidden any one to enter on another's property without “the leave of the owner;” if Gaius after this will perfume to take poffeffion of the land, the remedial part of the law will then interpofe it's office; will make Gaius reftore the poffeffion to Titius, and alfo pay him damages for the invafion.

WITH regard to the fanction of laws, or the evil that may attend the breach of public duties; it is obferved, that human legiflators have for the moft part chofen to make the fanction of their laws rather vindicatory than remuneratory, or to confift rather in punifhments, than I actual particular rewards. Becaufe, in the firft place, the quiet enjoyment and protection of all our civil rights and liberties, which are the fure and general confequence of obedience to the municipal law, are in themfelves the beft and moft valuable of all rewards. Becaufe alfo, were the exercife of every virtue to be enforced by the propofal of particular rewards, it were impoffible for any ftate to furnifh ftock enough for fo profufe a bounty. And farther, becaufe the dread of evil is a much more forcible principle of human actions than the profpect of good ⁱ. For which reafons, though a prudent beftowing of rewards is fometimes of exquifite ufe, yet we find that thofe civil laws, which enforce and enjoin our duty, do feldom, if ever, propofe any privilege or gift to fuch as obey the law; but do conftantly come armed with a penalty denounced againft tranfgreffors, either expreffly defining the nature and quantity of the punifhment, or elfe leaving it to the difcretion of the judges, and thofe who are entrufted with the care of putting the laws in execution.

^I Locke, Hum. Und. b. 2. c. 21.

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OF all the parts of a law the moft effectual is the vindicatory. For it is but loft labour to fay, “do this, or avoid that,” unlefs we alfo declare, “this fhall be the confequence of your noncompliance.” We muft therefore obferve, that the main ftrength and force of a law confifts in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

LEGISLATORS and their laws are faid to compel and oblige; not that by any natural violence they fo conftrain a man, as to render it impoffible for him to act otherwife than as they direct, which is the ftrict fenfe of obligation: but becaufe, by declaring and exhibiting a penalty againft offenders, they bring it to pafs that no man can eafily choofe to tranfgrefs the law; fince, by reafon of the impending correction, compliance is in a high degree preferable to difobedience. And, even where rewards are propofed as well as punifhments threatened, the ob