 Preface of the Common Cherries on the Laws of England, Book 1. Digitized e-book, courtesy of the Postner Collection, at Carnegie Mellon University Libraries, Pittsburgh, Pennsylvania. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by J. C. Guan. Common Cherries on the Laws of England by William Blackston. Book 1. Preface. The following sheets contain the substance of a course of lectures on the Laws of England, which were read by the author in the University of Oxford. His original plan took its rise in the year 1753, and notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually conceived against any innovations in the established mode of education, he had the satisfaction to find, and he acknowledges it with a mixture of pride and gratitude, that his endeavours were encouraged and patronised by those both in the University and out of it, whose good opinion and esteem he was principally desirous to obtain. The death of Mr. Weiner in 1756, and his ample benefaction to the University for promoting the study of the Law, produced about two years afterward, a regular and public establishment of what the author had privately undertaken. The knowledge of our laws and constitution was adopted as a liberal science by General Academical Authority. Competent endowments were decreed for the support of a lecturer and the perpetual encouragement of students, and the compiler of the ensuing commentaries had the honour to be elected the first Vinarian professor. In this situation he was led, both by duty and inclination, to investigate the elements of the laws, and the grounds of our civil policy, with greater acidity and attention than many have thought it necessary to do. And yet, all who have late years have attended the public administration of justice must be sensible that a masterly acquaintance with the general spirit of laws and the principles of universal jurisprudence combined with an accurate knowledge of our own municipal constitutions, the original reasons and history, has given a beauty and energy to many modern judicial decisions, with which our ancestors were wholly unacquainted. If, in the pursuit of these inquiries, the author had been able to rectify any errors which either himself or others may have heretofore imbibed, his pains will be sufficiently answered, and if in some points he is still mistaken, the candid and judicious reader will make new allowances for the difficulties of a search so new, so extensive, and so laborious. The labour indeed of these researchers and of a regular attention to his duty, for a series of so many years, he had found inconsistent with his health, as well as his other applications, and had therefore desired the university's permission to retire from his office, after the conclusion of the annual course in which he is at present engaged. But the hints which he had collected for the use of his pupils have been thought by some of his more experienced friends not wholly unworthy of the public eye. It is therefore with the less reluctance that he now commits them to the press, though probably the little degree of repetition which their author may have acquired by the candor of an audience, a test widely different from that of a deliberate perusal, would have been better consulted by a total suppression of his lectures. Had that been a matter entirely within his power? For the truth is that the present publication is as much the effect of necessity as it is of choice. The notes which were taken by his hearers, have by some of them, too partial in his favor, been thought worth of revising and transcribing, and these transcripts have been frequently lent to others. Hence copies have been multiplied in their nature imperfect, if not erroneous, some of which have fallen into mercenary hands and become the object of clandestine sale. Having therefore so much reason to apprehend his surreptitious impression, he chose rather to submit his own errors to the world than to seem answerable for those of other men, and with this apology he commits himself to the indulgence of the public and of preface. Part 1 of Section 1 of Introduction of the Commentaries on the Laws of England, Book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by J. C. Guan. Commentaries on the Laws of England by William Blackston. Book 1. Introduction. Section 1. On the Study of the Law. Part 1. Mr. Vice Chancellor and Gentlemen of the University, the general expectation of so numerous and respectable an audience, the novelty and, I may add, the importance of the duty required from this chair must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. He must be sensible how much will depend upon his conduct in the infancy of a study which is now first adopted by public academical authority, which has generally been reputed, however unjustly, of a dry and unfruitful nature and of which the theoretical, elementary parts have hitherto received a very moderate share of cultivation. He cannot but reflect that if either his plan of instruction be crude and injudicious or the execution of it lame and superficial, it will cast a damp upon the further progress of this most useful and most rational branch of learning and may defeat for a time the public spirited design of our wise and magnificent benefactor. And this he must more especially dread when he feels, by experience, how unequal his abilities are, unassisted by preceding examples to complete in the manner he could wish so extensive and arduous a task, since he freely confesses that his former more private attempts have fallen very short of his own ideas of perfection. And yet the candor he has already experienced and this last transcendent mark of regard, his present nomination by the free and the unanimous suffrage of a great and learned university and honor to be ever remembered with the deepest and most affectionate gratitude. These testimonies of your public judgment must entirely supersede his own and forbid him to believe himself totally insufficient for the labor at least of disemployment. One thing he will venture to hope for and it certainly shall be his constant aim by diligence and attention to atone for his other defects, esteeming that the best return which he can possibly make for your favorable opinion of his capacity will be his unburied endeavors in some little degree to deserve it. The science thus committed to his charge to be cultivated, methodized and explained in a course of academic lectures is that of the laws and constitution of our own country. A species of knowledge in which the gentlemen of England have been more remarkably deficient than those of all Europe besides in most of the nations on the continent where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land. No gentleman or at least no scholar thinks his education is complete till he has attended a course or two of lectures both upon the institutes of Justinian and the local constitutions of his native soil under the very eminent professors that abound in their several universities and in the northern parts of our own island where also the municipal laws are frequently connected with the civil. It is difficult to meet with a person of liberal education who is destitute of a competent knowledge in that science which is to be the guardian of his natural rights and the role of his civil conduct. Nor have the imperial laws been totally neglected even in the English nation. A general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman and the fashion has prevailed especially of late to transport the growing hopes of this island to foreign universities. In Switzerland, Germany and Holland which though infinitely inferior to our own in every other consideration have been looked upon as better nurseries of the civil or which is nearly the same of their own municipal law. In the meantime it has been the peculiar lot of our admirable system of laws to be neglected and even unknown by all but one practical profession though built upon the soundest foundations and approved by the experience of ages. Far be it from me to derogate from the study of the civil law considered apart from any binding authority as a collection of written reason. No man is more thoroughly persuaded of the general excellence of its roles and the usual equity of its decisions nor is better convinced of its use as well as ornament to the scholar the divine, the statesman and even the common lawyer. But we must not carry our veneration so far as to sacrifice our Alfred and Edward to the maids of Theodosius and Justinian. We must not prefer the addict of the praetor or the rescripts of the Roman emperor to our own immemorial customs or the sanctions of an English parliament unless we can also prefer the despotic monarchy of Rome and Byzantium for whose meridians the former were calculated to the free constitution 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 assert that if an Englishman must be ignorant of either the one or the other he had better be a stranger to the Roman than the English institutions. For I think it an undeniable position that a competent knowledge of the laws of that society in which we live is the proper accomplishment of every gentleman and scholar and highly useful I had almost said essential part of liberal and polite education. And in this I am warranted by the example of ancient Rome where, as Cicero informs us the very boys were obliged to learn the twelve tables by heart as a carmen necessarium or indispensable lesson to imprint under tender minds and early knowledge of the laws and constitutions of their country. But as the long and universal neglect of this study with us in England seems in some degree to call and question the truth of this evident position it shall therefore be the business of this introductory discourse in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land by pointing out its particular uses in all considerable situations of life. Some conjectures will then be offered with regard to the causes of neglecting this useful study to which will be subjoined a few reflections on the peculiar propriety of reviving it in our own universities. And first to demonstrate the utility of some acquaintance with the laws of the land let us only reflect a moment on the singular frame and policy of that land which is governed by this system of laws. A land perhaps the only one in the universe in which political or civil liberty is the very end and scope of the constitution. This liberty rightly understood consists in the power of doing whatever the law permits. Footnote Facultas iut quod cui qe facere libet ni si quid we aut yure probibetur and footnote which is only to be affected by a general conformity of all orders and degrees to those equitable rules of action by which the meanest individual is protected from the insults and oppression of the greatest. As therefore every subject is interested in the preservation of the laws it is incumbent upon every man to be acquainted with those at least with which he is immediately concerned lest he incur the censure as well as inconvenience of living in society without knowing the obligations which it lays him under and thus much may suffice for persons of inferior condition who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are pointed to move but those on whom nature and fortune have bestowed more abilities and greater leisure cannot be so easily excused these advantages are given them not for the benefit of themselves only but also of the public and yet they cannot in any scene of life discharge properly their duty either to the public or themselves without some degree of knowledge in the laws to evince this the more clearly it may not be a myth to descend to a few particulars let us therefore begin with our gentlemen of independent states and fortune the most useful as well as considerable body of men in the nation whom even to suppose ignorant in this branch of learning is treated by Mr. Locke as a strange absurdity it is their landed property with its long and voluminous train of descents and conveniences settlements, intels and encumbrances that forms the most intricate and most extensive object of legal knowledge the thorough comprehension of these and all their minute distinctions is perhaps too laborious a talk for any but a lawyer of profession yet still the understanding of a few leading principles relating to estates and convenencing may form some check and guard upon a gentleman's inferior agents and preserve him at least from very gross and notorious in position again the policy of all laws has made some forms necessary in the wording of last wills and testaments and more with regard to their attestation and ignorance of these must always be of dangerous consequence to such as by choice or necessity compile their own testaments without any technical assistance those who have attended the courts of justice are the best witnesses of the constitution and the stresses that are hereby occasioned in families and of the difficulties that arise in discerning the true meaning of the testator or sometimes in discovering any meaning at all so that in the end his estates may often be vested quite contrary to these his enigmatic intentions because perhaps he has admitted one or two formal words which are necessary to ascertain the sense with indisputable legal precision or has executed his will in the presence of fewer witnesses than the law requires but to proceed from private concerns to those of a more public consideration all gentlemen of fortune are in consequence of their property liable to be called upon to establish the rights to estimate the injuries to weigh the accusations and sometimes to dispose of the lives of their fellow subjects by serving upon juries in this situation they are frequently to decide and that upon their oaths questions of nice importance in the solution of which some legal skill is requisite especially where the laws and the fact as it often happens are intimately blended together and the general incapacity even of our best juries to do this with any tolerable propriety has greatly debased their authority and has unavoidably thrown more power into the hands of the judges to direct control and even reverse their verdicts than perhaps the constitution intended but it is not as a juror only that the English gentlemen is called upon to determine questions of right and distribute justice to his fellow subject it is principally with this order of men that the commission 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 neighborhood by punishing the dissolute and idle by protecting the peaceable and industrious and above all by healing petty differences and preventing vexatious prosecutions but in order to attain these desirable ends it is necessary that the magistrate should understand his business and have not only the will but the power also under which must be included the knowledge of administering legal and effectual justice else when he has mistaken his authority through passion through ignorance or absurdity he will be the object of contempt from his inferiors and of censure from those to whom he is accountable for his conduct yet further most gentlemen of considerable property at some period or other in their lives are ambitious of representing their country in parliament and those who are ambitious of receiving so high a trust would also do well to remember its nature and importance they are not thus honorably distinguished from the rest of their fellow subject merely that they may privilege their persons their estates or their domestics that they may list under party banners may grant or withhold supplies may vote with or vote against a popular or unpopular administration but upon considerations far more interesting and important they are the guardians of the English constitution the makers repealers and interpreters of the English laws dedicated to watch to check and to avert every dangerous innovation to propose to adopt and to cherish any solid and well-weighted improvement bound by every tie of nature of honor and of religion to transmit that constitution and those laws to their posterity amended if possible at least without any derogation and how unbecoming must it appear in a member of the legislature 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 stranger to the text upon which he comments indeed it is really amazing that there should be no other state of life no other occupation art or science in which some method of instruction is not looked upon as requisite except only the science of legislation the noblest and most difficult of any apprenticeships are held necessary to almost every art commercial or mechanical a long course of reading and study must form the divine the physician and the practical professor of the laws but every man of superior fortune thinks himself born a legislator yet Tully was of a different opinion it is necessary says he for senator to be thoroughly acquainted with the constitution and this he declares is a knowledge of the most extensive nature a matter of science of diligence of reflections without which no senator can possibly be fit for his office the mischiefs that have a horizon to the public from inconsiderate alterations in our laws are too obvious to be called in question and how far they have been owing to the defective education of our senators is a point well worthy the public attention the common law of England has fared like other venerable edifices of antiquity which rash and unexperienced workmen have ventured to new dress and refined with all the rage of modern improvement hence frequently its symmetry has been destroyed its proportions distorted and its majestic simplicity exchanged for specialist embellishments and fantastic novelties for to say the truth almost all the perplexed questions almost all the niceties the intricacies and delays which have sometimes disgraced the English as well as other courts of justice oh their original not to the common law itself but to innovations that have been made in it by acts of parliament overladen as Sir Edward Cook expresses it with provisions and additions and many times on a sudden 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 questions made upon rights merely depending upon the common law and warmly laments the confusion introduced by ill judging and unlearned legislators but if his subjoint acts of parliament were after the old-fashioned paint by such only as perfectly new what the common law was before the making of any act of parliament concerning that matter as also how far forth former statutes have provided remedy for former mischiefs and effects discovered by experience then should very few questions in law arise and the learned should not so often and so much perplexed their heads to make a turnment and peace by construction of law between insensible and disagreeing words sentences and provisions as they now do and if this inconvenience was so heavily felt in the reign of Queen Elizabeth you may judge how the evil is increased in later times when the statute book is swelled to ten times a larger bulk unless it should be found that the penners of our modern statutes have proportionally better informed themselves in the knowledge of the common law what is said of our gentlemen in general and the propriety of their application to the study of the laws of their country will hold equally strong or still stronger with regard to the nobility of this realm except only in the article of serving upon juries but instead of these they have several peculiar provinces of far greater consequence and concern being not only by birth hereditary consulers of the crown and judges upon their honor of the lives of their brother peers but also arbiters of the property of all their fellow subject and that in the last resort in this their judicial capacity they are bound to decide the nicest and most critical points of the law to examine and correct such errors as have escaped the most experienced stages of the profession the Lord Keeper and the judges of the courts at Westminster their sentence is final decisive irrevocable no appeal no correction not even a review can be had and to their determination whatever it's be the inferior courts of justice must conform otherwise the rule of property would no longer be uniform and steady should a judge in the most subordinate jurisdiction be deficient in the knowledge of the law it would reflect infinite contempt upon himself and disgrace upon those who employ him and yet the consequence of his ignorance is comparatively very trifling and small his judgment may be examined and his errors rectified by other courts but how much more serious and affecting is the case of a superior judge if without any skill in the laws he will boldly venture to decide a question upon which the welfare and subsistence 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 most alarming nature an injury without possibility of redress yet vast as this trust is it can nowhere be so properly reposed as in the noble hands where our excellent constitution has placed it and therefore placed it because from the independence of their fortune and the dignity of their station they are presumed to employ that leisure which is the consequence of both in attaining a more extensive knowledge of the laws than persons of inferior rank and because the founders of our policy relied upon that delicacy of sentiment so peculiar to noble birth which as on the one hand it will prevent either interest or affection from interfering in questions of right so on the other it will bind appear in honor an obligation which the law esteem's equal to another's oath to be master of those points upon which it is his birthright to decide and of part one of section one of the introduction part two of section one of the introduction of the commentaries on the laws of England book one this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by JC Guan commentaries on the laws of England by William Blackston book one introduction section one part two the roman pandex will furnish us with a piece of history not unapplicable to our present purpose Service Sulpisius a gentleman of the patrician order and a celebrated orator had occasion to take the opinion of Quintus Mutius Scaivola the oracle of the roman law but for once of some knowledge in that science could not so much as understand even the technical terms which his friend was obliged to make use of upon which Mutius Scaivola could not forbear to abrade him with this memorable reproof that it was a shame for patrician a nobleman and an orator of causes to be ignorant of that law in which he was so peculiarly concerned this reproach made so deep an impression on Sulpisius that he immediately applied himself to the study of the law wherein he arrived to that proficiency that he left behind him about a hundred and four score volumes of his own compiling upon the subject and became in the opinion of Cicero a much more complete lawyer than even Mutius Scaivola himself I would not be thought to recommend to our English nobility and gentry to become as great lawyers as Sulpisius though he together with his character sustained likewise that of an excellent orator a firm patriot and a wise indefatigable senator but the inference which arises from this story is this that ignorance of the law of the land has ever been esteemed dishonorable in those who are entrusted by their country to maintain to administer and to amend them but surely there is little occasion to enforce this argument any further to persons of rank and distinction if we of this place may be allowed to form a general judgment from those who are under our inspection happy that while we lay down the role we can also produce the example you will therefore permit your professor to indulge both a public and private satisfaction by bearing this open testimony that in the infancy of these studies among us they were favored with the most diligent attendance and pursued with the most unwirry duplication by those of no blessed birth and most ample patrimony some of whom are still the ornaments of the seat of learning and others at a greater distance continue doing honor to its institutions by comparing our policy and laws with those of other kingdoms abroad or exerting their senatorial abilities in the councils of the nation at home nor will some degree of legal knowledge be found in the least superfluous to persons of inferior rank especially those of the learned professions the clergy in particular besides the common obligations they are under in proportion to their rank and fortune have also abundant reason considered merely as clergymen to be acquainted with many branches of the law which are almost peculiar and appropriated to themselves alone such are the laws relating to advousings institutions and inductions to symphony and simmonical contracts to uniformity, residence and pluralities to tithes and other ecclesiastical dues to marriages more especially of late and to a variety of other subjects which are consigned to the care of their order by the provisions of particular statutes to understand these are right to discern what is warranted or enjoined and what is forbidden by law demands a sort of legal apprehension which is no otherwise to be acquired than by use and a familiar acquaintance with legal writers for the gentleman of the faculty of physics I must frankly own that I see no special reason why they in particular should apply themselves to the study of the law unless in common with other gentlemen and to complete the character of general and extensive knowledge a character which their profession beyond others has remarkably deserved they will give me leave however to suggest and that's not ludicrously that it might frequently be of use to families upon sudden emergencies if the physician were acquainted with the doctrine of last wills and testaments at least so far as relates to the formal part of their execution but those gentlemen who intended to possess the civil and ecclesiastical laws in the spiritual and maritime courts of this kingdom are of all men next to the common lawyers the most indispensable obliged to apply themselves seriously to the study of our municipal laws for the civil and canon laws considered with respect to any intrinsic obligation have no force or authority in this kingdom there are no more binding in England than our laws are binding at Rome but as far as these foreign laws on account of some particular propriety having some particular cases and in some particular courts been introduced and allowed by our laws so far to obliged and no further their authority being wholly founded upon that permission and adoption in which we are no singular in our notions for even in Holland where the imperial law is much cultivated and its decisions pretty generally followed we are informed by van Luven that it receives its force from customs and the consent of the people either testically or expressly given for otherwise he adds we should no more be bound by this law than by that of the almanes the Franks the Saxons the Goths the Vandals and other of the ancient nations where for in all points in which the different systems depart from each other the law of the land takes place of the law of Rome whether ancient or modern imperial or pontifical and in those of our English courts where in a reception has been allowed to the civil and canon laws if either they exceed the bounds of that reception by extending themselves to other matters than are permitted to them or if such courts proceed according to the decisions of those laws in cases where in it is controlled by the law of the land the common law in either instance both may and frequently does prohibit and annul their proceedings and it will not be a sufficient excuse for them to tell the king's courts at Westminster that their practice is warranted by the law of Justinian or Gregory or is conformable to the decrees of the rota or imperial chamber for rich reason it becomes highly necessary for every civilian and canonist that would act with safety as a judge or with prudence and reputation as an advocate to know in what cases and how far the English laws have given sanction to the Roman in what points the latter are rejected and where they are both so intermixed and blended together as to form certain supplemental parts of the common law of England distinguished by the titles of the king's maritime the king's military and the king's ecclesiastical law the propriety of which inquiry the university of Oxford has for more than a century so thoroughly seen that in her statutes she appoints that one of the three questions to be annually discussed at the act by the jurist and subters shall relate to the common law subjoining this reason cuya yuris civilis studiosos desets baud in peritos esse yuris municipalis i differencias exteri patricue yuris notas habere and the statutes of the university of Cambridge speak expressly to the same effect from the general use and necessity of some acquaintance with the common law the inference were extremely easy with regards to the propriety of the present institution in the place to which gentlemen of all ranks and degrees report as the fountain of all useful knowledge but how it has come to pass that a design of this sort has never before taken place in the university and the reason why the study of our laws has in general fallen into this use I shall previously proceed to inquire Sir John Fortescue and his panegyric on the laws of England which was written in the reign of Henry VI puts a very obvious question in the mouth of the young prince whom he is exhorting to apply himself to that branch of learning why the laws of England being so good, so fruitful and so commodious are not taught in the universities as the civil laws and canon laws are in answer to which he gives what seems with due difference be it spoken a very jejun and unsatisfactory reason being in short that as the proceedings at common law were in his time carried on three different tongues the English, the Latin and the French that science must be necessarily taught in those three several languages but that in the universities all sciences were taught in the Latin tongue only and therefore he concludes that they could not be conveniently taught or studied in our universities but without attempting to examine seriously the validity of this reason the very shadow of which by the wisdom of your late constitutions is entirely taken away we perhaps may find out better or at least a more plausible account why the study of the municipal laws has been vanished from these seats of science that what the learned chancellor thought it prudent to give to his royal pupil that ancient collection of unwritten maxims and customs which is called the common law however compounded or from whatever fountains derived has subsisted in memorily in this kingdom and though somewhat altered and impaired by the violence of the times had in great measured readered the rude shock of the Norman conquest this had endeared it to the people in general as well because its decisions were universally known as because it was found to be excellently adapted to the genus of the English nation and the knowledge of this law consisted great part of the learning of those dark ages it was done thought says Mr. Seldon in the monasteries in the universities and in the families of the principal nobility the clergy in particular as they then engrossed almost every order branch of learning like the predecessors the British druids they were peculiarly remarkable for the proficiency in the study of the law Noulous Cléricus Nisid Calcidicus is the character given of them soon after the conquest by William of Momsbury the judges therefore were usually created out of the sacred order as was likewise the case among the Normans and all the inferior offices were supplied by the lower clergy which has occasioned their successors to be denominated clerks to this day but the common law of England being not committed to writing but only handed down by tradition use and experience was not so heartily relished by the foreign clergy who came over hither in shoals during the reign of the conqueror and his two sons and were utter strangers to our constitutions as well as our language and an accident which soon after happened had nearly completed its ruin a copy of Justinian's pandex being newly discovered at Amalfi soon brought the civil law into vogue all over the west of Europe where before it was quite laid aside and in the manner forgotten though some traces of its authority remained in Italy and in the eastern provinces of the empire this now became in a particular manner the favorite of the Poppish clergy who borrowed the method and many of the maxims of their canon law from the original the study of it was introduced into several universities abroad particularly that of Bologna where exercises were performed, lectures read and degrees conferred in this faculty as in other branches of science and many nations on the continent just then beginning to recover from the convulsions consequence upon the overthrow of the Roman Empire and settling by degrees into peaceable forms of government adopted the civil law being the best written system then extents as the basis of their several constitutions lending and interweaving it among their own feudal customs in some places within more extensive in others a more confined authority nor was it long before the prevailing mode of the times reached England for Seobalt, a Norman Abbot being elected to the sea of Canterbury and extremely addicted to this new study brought over with him and his retinue many learned proficient therein and among the rest Roger Cernum de Vicarius whom he placed in the University of Oxford to teach it to the people of this country but it did not meet with the same easy reception in England where a modern rational system of laws had been long established as it did upon the continent and though the monkish clergy devoted to the will of a foreign primate received it with eagerness and zeal yet the laity who were more interested to preserve the old constitution and had already severely felt the effect of many Norman innovations continued wedded to the use of the common law King Stephen immediately published a proclamation forbidding the study of the laws then newly imported from Italy which was treated by the monks as a piece of impiety and though it might prevent the introduction of the civil law process into our courts of justice yet did not hinder the clergy from reading and teaching it in their own schools and monasteries from this time the nation seems to have been divided into two parties the bishops and clergy many of them foreigners who applied themselves wholly to the study of the civil and canon laws which now came to be inseparably interwoven with each other and the nobility and laity who adhered with equal pertinency to the old common law both of them reciprocally jealous of what they were unacquainted with and neither of them perhaps allowing the opposite system that real merit which is abundantly to be found in each this appears on the one hand from the spleen with which the monastic writers speak of our municipal laws upon all occasions and on the other from the firm temper which the nobility showed at the famous parliament of merchant when the prelates endeavored to procure and act to declare all bastards legitimate in case the parents intermarried at any time afterwards alleging this only reason because holy church that is the canon law declared such children legitimate but all the urls and barons says the parliament roll with one voice answered that they would not change the laws of england which had hitherto been used and approved and we find the same jealousy prevailing above a century afterwards when the nobility declared with a kind of prophetic spirit that the realm of england had never been on to this hour neither by consent of our lord the king and the lord of parliament shall it ever be ruled or governed by the civil law and of this temper between the clergy and lady many more instances might be given while things were in this situation the clergy finding it impossible to route out the municipal law began to withdraw themselves by degrees from the temporal courts and to that end very early in the reign of king henry the third episcopal constitutions were published forbidding all ecclesiastics to appear as advocates in for a feculary nor did they long continue to act as judges there nor caring to take the oath of office which was then found necessary to be administered that it should in all things determine according to the law and custom of this realm though they still kept possession of the high office of chancellor an office then of little judicial power and afterwards as its business increased by degrees the model the process of the court at their own discretion but whenever they retired and whenever their authority extended they carried with them the same zeal to introduce the rules of the civil in exclusion of the municipal law this appears in particular manner from the spiritual courts of all denominations from the chancellor's courts in both our universities and from the high court of chain three before mentioned in all of which the proceedings are to this day in a course much conformed to the civil law for which no tolerable reason it can be assigned unless that these courts were all on the immediate direction of the Pope's ecclesiastics among whom it was a point of religion to exclude the municipal law pope innocence the force having forbidden the very reading of its by the clergy because its decisions were not founded on the imperial constitutions but merely on the customs of the latee and if it be considered that our universities began about that period to receive their present form of scholastic discipline that they were then and continued to be to the time of the reformation entirely under the influence of the pope's clergy Sir John Mason the first protestant being also the first lay chancellor of Oxford this will lead us to perceive the reason why the study of the Roman laws was in those days of bigotry pursued with such alacrity in these seats of learning and why the common law was entirely despised and esteemed little better than heretical and since the reformation many causes have conspired to prevent its becoming a part of academic education as first long usage and established custom which as in everything else so especially in the forms of scholastic exercise have justly great weight and authority secondly the great intrinsic merit of the civil law considered upon the footing of reason and not of obligation which was well known to the instructors of our youth and their total ignorance of the merit of the common law though it's equal at least and perhaps an improvement on the other but the principal reason of all that has hindered the introduction of this branch of learning is that the study of the common law being banished from hence in the times of potpourri had fallen into a quite different channel and has headed to been wholly cultivated in another place but as this long usage and established custom of ignorance in the laws of the land begin now to be thought unreasonable and as by this means the merit of those laws will probably be more generally known we may hope that the method of studying them will soon revert to its ancient cause and the foundations at least of that science will be laid in the two universities without being exclusively confined to the channel which it fell into at the times I have been just describing for being then entirely abandoned by the clergy a few stragglers accepted the study and practice of it developed of course into the hands of laymen who entertained upon their parts a most hearty aversion to the civil law and made no scruple to profess their contempt nay even their ignorance of it in the most public manner but still as the balance of learning was greatly on the side of the clergy and as the common law was no longer taught as formerly in any part of the kingdom it must have been subjected to many inconveniences and perhaps would have been gradually lost and overrun by the civil a suspicion well justified from the frequent transcripts of justinian to be met with in bracton and flitter had it not been for a particular incident which happened at a very critical time and contributed greatly to its support and of part two of section one of the introduction section three part three of section one of the introduction of the commentaries on the laws of england book one this is a librivox recording all librivox recordings are in the public domain for more information or to volunteer please visit librivox.org recording by graham redmond commentaries on the laws of england by william blackstone book one introduction section one part three the incident i mean was the fixing the court of common please the grand tribunal for disputes of property to be held in one certain spot that the seat of ordinary justice might be permanent and notorious to all the nation formally that in conjunction with all the other superior courts was held before the king's capital just judiciary of england in the all egregious or such of his palaces wherein his royal person resided and removed with his household from one end of the kingdom to the other this was found to occasion great inconvenience to the suitors to remedy which it was made an article of the great charter of liberties both that of king john and king henry the third that common please should no longer follow the king's court but be held in some certain place in consequence of which they have ever since been held a few necessary removals in times of the plague accepted in the palace of westminster only this brought together the professors of the municipal law who before were dispersed about the kingdom and formed them into an aggregate body whereby a society was established of persons who as spellmen observes addicting themselves wholly to the study of the laws of the land and no longer considering it as a mere subordinate science for the amusement of leisure hours soon raised those laws to that pitch of perfection which they suddenly obtained under the auspices of our english dustinian king edward the first in consequence of this lucky assemblage they naturally fell into a kind of collegiate order and being excluded from oxford and cambridge found it necessary to establish a new university of their own this they did by purchasing at various times certain houses now called the inns of court and of chance re between the city of westminster the place of holding the king's courts and the city of london for advantage of ready access to the one and plenty of provisions in the other here exercises were performed lectures read and degrees were at length conferred in the common law as at other universities in the canon and civil the degrees were those of barristers first styled apprentices from a prender to learn who answered to our bachelors as the state and degree of a sergeant servientis at legem did to that of doctor the crown seems to have soon taken under its protection this infant seminary of common law and the more effectually to foster and cherish it king henry the third in the nineteenth year of his reign issued out an order directed to the mayor and sheriffs of london commanding that no regent of any law schools within that city should for the future teach law therein the word law or legis being a general term may create some doubt at this distance of time whether the teaching of the civil law or the common or both is hereby restrained but in either case it tends to the same and if the civil law only is prohibited which is mr. seldom's opinion it is then a retaliation upon the clergy who had excluded the common law from their seats of learning if the municipal law be also included in the restriction as edward cook understands it and which the words seem 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 university which was newly instituted in the suburbs in this juridical university for such it is insisted to have been by fortescue and sir edward cook there are two sorts of collegiate houses one called inns of chancery in which the younger students of the law were usually placed learning and studying says fortescue the originals and as it were the elements of the law who profiting therein as they grow to ripeness so are they admitted into the greater inns of the same study called the inns of court and in these inns of both kinds he goes on to tell us the knights and barons with other grandees and noblemen of the realm did used to place their children though they did not desire to have them thoroughly learned in the law or to get their living by its practice and that in his time there were about two thousand students at the several inns all of whom he informs us were filii nobilium or gentlemen born hence it is evident that though under the influence of the monks our universities neglected this study yet in the time of Henry the sixth it was thought highly necessary and was the universal practice for the young nobility and gentry to be instructed in the originals and elements of the laws but by degrees this custom has fallen into disuse so that in the reign of Queen Elizabeth Sir Edward Cook does not reckon above a thousand students and the number at present is very considerably less which seems principally owing to these reasons first because the inns of chanceery being now almost totally filled by the inferior branch of the profession they are neither commodious nor proper for the resort of gentlemen of any rank or figure so that there are now very rarely any young students entered at the inns of chanceery secondly because in the inns of court all sorts of regimen and academical superintendents either with regard to models or studies are found impracticable and therefore entirely neglected lastly because persons of birth and fortune after having finished their usual courses at the universities have seldom leisure or resolution sufficient to enter upon a new scheme of study at a new place of instruction where for few gentlemen now resort to the inns of court but such for whom the knowledge of practice is absolutely necessary such I mean as are intended for the profession the rest of our gentry not to say our nobility also having usually retired to their estates or visited foreign kingdoms or entered upon public life without any instruction in the laws of the land and indeed with hardly any opportunity of gaining instruction unless it can be afforded them in these seats of learning and that these are the proper places for affording assistances of this kind to gentlemen of all stations and degrees cannot I think with any color of reason be denied for not one of the objections which are made to the inns of court and chanceery and which I have just enumerated will hold with regard to the universities gentlemen may here associate with gentlemen of their own rank and degree nor are their conduct and studies left entirely to their own discretion but regulated by a discipline so wise and exact yet so liberal so sensible and manly that their conformity to its rules of which does it present so much honor to our youth is not more the effect of constraint than of their own inclinations and choice neither need they apprehend too long an avocation hereby from their private concerns and amusements or what is a more noble object the service of their friends and their country this study will go hand in hand with their other pursuits it will obstruct none of them it will ornament and assist them all but if upon the whole there are any still wedded to monastic prejudice that can entertain a doubt how far this study is properly and regularly academic all such persons I am afraid either have not considered the constitution and design of an university or else think very meanly of it it must be a deplorable narrowness of mind that would confine these seats of instruction to the limited views of one or two learned professions to the praise of this age be it spoken a more open and generous way of thinking begins now universally to prevail the attainment of liberal and gentile accomplishments though not of the intellectual sort has been thought by our wisest and most affectionate patrons and very lately by the whole university no small improvement of our ancient plan of education and therefore I may safely affirm that nothing how unusual so ever is under due regulations improper to be taught in this place which is proper for a gentleman to learn but that a science which distinguishes the criterions of right and wrong which teaches to establish the one and prevent punish or redress the other which employs in its theory the noblest faculties of the soul and exerts in its practice the cardinal virtues of the heart a science which is universal in its use and extent accommodated to each individual yet comprehending the whole community that a science like this should have ever been deemed unnecessary to be studied in an university is matter of astonishment and concern surely if it were not before an object of academic knowledge it was high time to make it one and to those who conduct the propriety of its reception among us if any such there be we may return an answer in their own way that ethics are confessedly a branch of academic learning and Aristotle himself has said speaking of the laws of his own country that jurisprudence or the knowledge of those laws is the principal and most perfect branch of ethics from a thorough conviction of this truth our munificent benefactor Mr. Weiner having employed above half a century in amassing materials for new modeling and rendering more commodious the rude study of the laws of the land consigned both the plan and execution of these his public spirited designs to the wisdom of his parent university resolving to dedicate his learned labors to the benefit of posterity and the perpetual service of his country he was sensible he could not perform his resolutions in a better and more effectual manner than by extending to the youth of this place those assistances of which he so well remembered and so heartily regretted the want and the sense which the university has entertained of this ample and most useful benefaction must appear beyond doubt from their gratitude in receiving it with all possible marks of esteem from their alacrity and unexampled dispatch in carrying it into execution and above all from the laws and constitutions by which they have effectively guarded it from the neglect and abuse to which such institutions are liable we have seen an universal emulation who best should understand or most faithfully pursue the designs of our generous patron and with pleasure we recollect that those who are most distinguished by their quality their fortune their station their learning or their experience have appeared the most zealous to promote the success of this diviner's establishment end of section three recording by Graham Redman section four part four of section one of the introduction of the commentaries on the laws of England book one this is a LibriVox recording or LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by J. C. Guan commentaries on the laws of England by William Baxter book one introduction section one part four the advantages that might result to the science of the law itself when a little more attended to in these seats of knowledge perhaps would be very considerable the leisure and abilities of the learned in these retirements might either suggest expedience or execute those dictated by wiser heads for improving its method retrenching its superfluities and reconciling the little contrariates which the practice of many centuries will necessarily create in any human system a task which those who are deeply employed in business and the more active scenes of the profession can hardly condescend to engage in and as to the interest or which is the same the reputation of the universities themselves I may venture to pronounce that if I would this study should arrive to any tolerable perfection either here or at Cambridge the nobility and gentry of this kingdom would not shorten their residence upon this account nor perhaps entertain a worse opinion of the benefits of academic education neither should it be considered as a matter of light importance that while we does extend the premier of university learning and adopt a new tribe of citizens within these philosophical walls we interest a very numerous and very powerful profession in the preservation of our rights and revenues for I think it is past dispute that those gentlemen who resort to the ends of court with a view to pursue the profession will find it expedient whenever it is practicable to lay the previous foundations of this as well as every other science in one of our learned universities we may appeal to the experience of every sensible lawyer whether anything can be more hazardous or discouraging than the usual entrance on the study of the law a raw and unexperienced use in the most dangerous season of life is transplanted on a sudden into the midst of allurements to pleasure without any restraint or check but what his own prudence can suggest with no public direction in what cause to pursue his inquiries no private assistance to remove the distresses and difficulties which will always embarrass a beginner in this situation he is expected to sequester himself from the world and by a tedious lonely process to extract the theory of law from a mass of undigested learning or else by an assiduous attendance on the court to pick up theory and practice together sufficient to qualify him for the ordinary run of business how little therefore is it to be wondered at that we hear of so frequent miscarriages that so many gentlemen of bright imaginations grow weary of so unpromising a search and addicted themselves wholly to amusement or other less innocent pursuits and that so many persons of moderate capacity confuse themselves at first setting out and continue ever dark and puzzled during the remainder of their lives the evidence want of some assistance in the rudiments of legal knowledge has given birth to a practice which if ever it had grown to be general must have proved of extremely pernicious consequence I mean the custom by some so very warmly recommended to drop all liberal education as of no use to lawyers and to place them in its stead at the desk of some skillful attorney in order to initiate them early in order depths of practice and rendered them more dexterous in the mechanical part of business a few instances of particular persons men of excellent learning and unblemished integrity who in spite of this method of education have shown in the foremost ranks of the bar have afforded some kind of sanction to this illiberal path to the profession and biased many parents of short sighted judgment in its favor not considering that there are some geniuses formed to overcome all disadvantages and that from such particular instances no general rules can be formed nor observing that those very persons have frequently recommended by the most possible of all examples the disposal of their own offspring a very different foundation of legal studies a regular academic or education perhaps to in return I could now direct their eyes to our principle seeds of justice and suggest a few hints in favor of university learning but in these all who hear me I know have already prevented me many therefore due allowance for one or two shining exceptions experience may teach us to foretell that a lawyer that's educated to the bar in subservience to attorneys and solicitors will find he has begun at the wrong end if practice be the whole he is taught practice must also be the whole he will ever know if he be uninstructed in the elements and first principles upon which the rules of practice is founded the lease variation from established precedents will totally distract and bewilder him it Alex script a S is the utmost his knowledge will arrive at he must never aspire to form and seldom expect to comprehend any arguments drawn a priori from the spirit of the laws and the natural foundations of justice nor is this all for as few persons of birth or fortune or even of scholastic education will submit to the drudgery of servitude and the manual labor of copying the trash of an office should this infatuation prevail to any considerable degree we must rarely expect to see a gentleman of distinction or learning at the bar and what the consequence may be to have the interpretation and enforcement of the laws which include the entire disposal of our properties liberties and lives fall holy into the hands of a skewer or a literal man is matter of very public concern the inconveniences here pointed out can never be eventually prevented but by making academic or education a previous step to the profession of the common law and at the same time making the rudiments of the law a part of academic or education for sciences are of a sociable disposition and flourish best in the neighborhood of each other nor is there any branch of learning but may be helped and improved by assistance is drawn from other arts if therefore the students in our laws has formed both his sentiments and style by perusal and imitation of the purest classical writers among whom the historians and orators will best deserve his regard if he can reason with precision and separate argument from fallacy but a clear simple rules of pure unsophisticated logic if he can fix his attention and steadily pursue truth through any the most intricate deduction by the use of mathematical demonstrations if he has enlarged his conceptions of nature and art by a view of the several branches of genuine experimental philosophy if he has impressed on his mind the sound maxims of the law of nature the best and most authentic foundation of human laws if lastly he has contemplated those maxims reduced to a practical system in the laws of imperial Rome if he has done this or any part of it though all may be easily done under as able instructors as ever grazed any seeds of learning a student thus qualified may enter upon study of the law with incredible advantage and reputation and if at the conclusion or during the acquisition of these accomplishments he will afford himself here a year or two father leisure to lay the foundation of his future labors in a solid scientific old method without thrusting too early to attend that practice which it is impossible he should rightly comprehend he will afterwards proceed with the greatest ease and will unfold the most intricate points with an intuitive rapidity and clearness I shall not insist upon such motives as might be drawn from principles of economy and are applicable to particulars only I reason upon more general topics and therefore to the qualities of the head which I have just enumerated I cannot but add those of the heart affectionate loyalty to the king a zeal for liberty and the constitution a sense of real honor and well-grounded principles of religion as necessary to form a truly valuable English lawyer a hide a hail or a Talbot and whatever the ignorance of some or unkindness of others may have heretofore untruly suggested experience will warrant us to affirm that these endowments of loyalty and public spirit of honor and religion are nowhere to be found in more high perfection than the two universities of this kingdom before I conclude it's may perhaps be expected that I lay before you a short and general account of the method I propose to follow in endeavoring to execute the trust you have been pleased to repose in my hands and in these solemn lectures which are ordained to be read at the entrance of every term more perhaps to the public honor of this laudable institution than for the private instruction of individuals I presume it will best answer the intent of our benefactor and the expectation of this learns body if I attempt to illustrate at times such detached titles of the law as are the most easy to be understood and most capable of historical or critical ornament but in reading the complete course which is annually consigned to my care a more regular method will be necessary and till a better is proposed I shall take the liberty to follow the same that I have already submitted to the public to fill up and finish that outline with propriety and correctness and to render the whole intelligible to the uninformed minds of beginners whom we are too apt to suppose acquaintance with terms and ideas which they never had opportunity to learn this must be my ardent endeavor though by no means my promise to accomplish you will permit me however very briefly to describe rather what I conceive an academical expounder of the law should do then what I have ever known to be done you should consider his course as a general map of the law marking out the shape of the country it's connections and boundaries it's greater divisions and principal cities it is not his business to describe minutely the subordinate limits or to fix the longitude and latitude of every inconsiderable Hamlet his attention should be engaged like that of the readers in Fortescue's ends of Chainsbury in tracing out the originals and as it were the elements of the law for if as as Justinian has observed the time to understanding of the students can be loaded at the first with a multitude and variety of matter it will either occasion him to desert his studies or will carry him heavily through them with much labor delay and despondence these originals should be traced to their fountains as well as our distance will permit to the customs of the Britain's and Germans as recorded by Caesar and Tacitus to the codes of the northern nations on the continent and more especially to those of our own Saxon princes to the roles of the Roman law either left here in the days of Papinian or imported by vicarious and his followers but above all to that inexhaustible reservoir of legal antiquities and learning the feudal law or as Spellman has entitled it the law of nations in our western orb these primary roles and fundamental principles should be weighed and compared with the precepts of the law of nature and the practice of other countries should be explained by reasons illustrated by examples and confirmed by undoubted authorities their history should be deduced their changes and revolutions observed and it should be shown how far they are connected with or have at any time been affected by the civil transactions of the kingdom a plan of this nature if executed with care and ability cannot fail of administering a most useful and rational entertainment to students of all ranks and professions and yet it must be confessed that the study of the law is not merely a matter of amusement for as a very judicious writer has observed upon a similar occasion the learner will be considerably disappointed if he looks for entertainment without the expense of attention and attention however no greater than is usually bestowed in mastering the rudiments of other sciences or sometimes in pursuing a favorite recreation or exercise and this attention is not equally necessary to be exerted by every student upon every occasion some branches of the law as the formal process of civil suits and the subtile distinctions incident to landed property which are the most difficult to be thoroughly understood are the least worth the pains of understanding except to such gentlemen as intent to pursue the profession to others I may venture to apply with a slight alteration the words of Sir John Fortescue when first his royal purple determines to engage in this study it will not be necessary for a gentleman as such to examine with a close application the critical niceties of the law it will fully be sufficient and he may well enough be denominated a lawyer if under the instruction of a master he traces up the principles and grounds of the law even to their original elements therefore in a very short period and with very little labor he may be sufficiently informed in the laws of his country if he will but apply his mind in good earnest to receive an apprehend them for though such knowledge as is necessary for a judge is hardly to be acquainted by the lucubrations of 20 years yet with a genius of tolerable perspicacity that knowledge which is fit for a person of birth or condition may be learned in a single year without neglecting his other improvements to the few therefore the very few I am persuaded that entertain such unworthy notions of a new university as to suppose it intended for mere dissipation of thought to such as mean only to while away the awkward interval from childhood to 21 between the restraints of the school and the less sensuousness of polite alive in a calm middle state of mental and of moral inactivity to these mr. vinyl gives no invitation to an entertainment which they never can relish but to the long and illustrious train of noble and ingenious youth who are not more distinguished among us by their birth and possessions than by the regularity of their conduct and their thirst after useful knowledge to these our benefactor has consecrated the fruits of a long and laborious life were not in doubt in the duties of his calling and were joyfully reflect if such reflections can be now the employment of his thoughts that he could not more effectually have benefited posterity were contributed to the service of the public than by founding an institution which may instruct the rising generation in the wisdom of our civil policy and informed them with a desire to better acquainted with the laws and constitution of the country and of section four section five part one of section two of the introduction of the commentaries on the laws of England book one this is a liberal arts recording or liberal arts recordings on the public domain for more information or to volunteer please visit librivlx.org recording by JC Kwan commentaries on the laws of England by William Blackston book one introduction section two part one section the second of the nature of laws in general law in its most general and comprehensive sense signifies the role of action and is applied indiscriminately to all kinds of action whether animate or inanimate rational or irrational thus we say the laws of motion of gravitation of optics or mechanics as well as the laws of nature and of nations and it is that role of action which is prescribed by some superior and which the inferior is bound to obey thus when the supreme being formed the universe and created matter out of nothing he impressed certain principles upon that matter from which it can never depart and without which it would cease to be when he put that matter into motion he established certain laws of motion to which all movable bodies must conform and to descend from the greatest operation to the smallest when a workman forms a clock or other piece of mechanism he establishes at his own pleasure certain arbitrary laws for its direction as that the hand shall describe a given space in a given time to which law as long as the work conforms so long it continues in perfection and answers the end of its formation if we further advance from mere inactive matter to vegetable and animal life we shall find them still governed by laws more numerous indeed but equally fixed and invariable the whole progress of plants from the seed to the root and from dense to the seed again the method of animal nutrition digestion secretion and all other branches of vital economy are not left to chance or the will of the creature itself but are performed in a wondrous involuntary manner and guided by unerring rules laid down by the great creator this then is the general signification of law a rule of action dedicated by some superior being and in those creatures that have neither the power to think nor the will such laws must be invariably obeyed so long as the creature itself subsists for its existence depends upon that obedience but laws in their more confined sense and in which it is our present business to consider them to note the rules not of action in general but of human action or conduct that is the precepts by which man the noblest of all sublunary beings a creature endowed with both reason and free will is commanded to make use of those faculties in the general regulation of his behavior man considered as a creature must necessarily be subject to the laws of his creator for he is entirely a dependent being a being independent of any other has no role to pursue but such as he prescribes to himself but a state of dependence well inevitably obliged inferior to take the will of him on whom he depends as the role of his conduct not indeed in every particular but in all those points where in his dependence consists this principle therefore has more or less extent an effect in proportion as the superiority of the one and the dependence the other is greater or less absolute or limited and consequently as man depends absolutely upon his maker for every thing it is necessary that he should in all points conform to his maker's will this will of his maker is called the law of nature for as God when he created matter and endured it with a principle of mobility established certain rules for the perpetual direction of that motion so when he created man and endured him with free will to conduct himself in all parts of life he laid down certain immutable laws of human nature whereby that free will is in some degree regulated and restrained and gave him also the faculty of reason to discover the purport of those laws considering the creator only as a being of infinite power he was able unquestionably to have prescribed whatever laws he pleased to his creature man however unjust or severe but as he is also a being of infinite wisdom he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept these are the eternal immutable laws of good and evil to which the creator himself in all his dispensations conforms and which he has enabled human reason to discover so far as they are necessary for the conduct of human actions such among others are these principles that we should live honestly should hurt nobody and should render to everyone its due to which three general precepts justinien has reduced the whole doctrine of law but if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason and could not otherwise be attained than by a chain of metaphysical disquisitions the creator of the world would have wanted some inducement to have quickened their inquiries and the greater part of the world would have rested content in mental indolence and ignorance its inseparable companion as therefore the creator is a being not only of infinite power and wisdom but also of infinite goodness he has been pleased and framed of humanity that we should want no other prompter to inquire after and pursue the role of right but only our own self-love that universal principle of action for he has so intimately connected so inseparably interwoven the laws of eternal justice with the happiness of each individual that the latter cannot be attained but by observing the former and if the former be punctually obeyed it cannot but induce the latter in consequence of which mutual connection of justice and human felicity he has not perplexed the law of nature with a multitude of abstracted roles and precepts referring merely to the fitness or unfitness of things as some have vainly surmised but as graciously reduced all of obedience to this one paternal precept that man should pursue his own happiness this is the foundation of what we call ethics or natural law for the several articles into which it is branched in our own systems amount to no more than demonstrating that this or that action tends to a man's real happiness and therefore ever justly concluding that the performance of it is a part of the law of nature or on the other hand that this or that action is destructive of man's real happiness and therefore that the law of nature forbids this law of nature being co-evil with mankind and dedicated by God himself is of course superior in obligation to any other it is binding all over the globe in all countries and at all times no human laws are of any validity if contrary to this and such of them as are valid derive all their force and all their authority immediately or immediately from this original but in order to apply this to the particular exigencies of each individual it is still necessary to have recourse to reason whose office it is to discover as was before observed what the law of nature directs in every circumstance of life by considering what method will tend to most effectually to our own substantial happiness and if our reason were always as in our first ancestor before his transgression clear and perfect unruffled by passions unclouded by prejudice unimpaired by disease or intemperance the task would be pleasant and easy we should need no other guide but this but every man now finds the contrary in his own experience that his reason is corrupt and his understanding full of ignorance and error this has given manifold occasion for the benign interposition of divine providence which in companion to the frailty the imperfection and the blindness of human reason has been pleased at some dry times and in diverse manners to discover and enforce its 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 scriptures these precepts when revealed are found upon comparison to be really a part of the original law of nature as detent in all their consequences to man's felicity but we are not from then to conclude that the knowledge of these truths was attainable by reason in its present corrupted state since we find that until they were revealed they were hid from the wisdom of ages as then the moral precepts of this law are indeed the same original with those of the law of nature so their intrinsic obligation is of equal strength and perpetuity yet undoubtedly the revealed law is humanly speaking of infinitely more authority than what we generally call natural law because one is the law of nature expressly declared so to be by God himself the other is only what by the assistance of human reason we imagine to be that law if we could be as certain of the latter as we are of the former both would have an equal authority but till then they can never be put in any competition together upon these two foundations the law of nature and the law of revelation depend all human laws that is to say no human laws should be suffered to contradict these there is it is true a great number of indifferent points in which both the divine and the natural leave a man at his own liberty but which are found necessary for the benefit of society to be restrained within certain limits and herein it is that human laws have their greatest force and efficacy for with regard to such points as are not indifferent human laws are only declaratory of enact in subordination to the former to instance in the case of murder this is expressly forbidden by the divine and demonstrably by the natural law and from these prohibitions arises the true unlawfulness of this crime those human laws that annex a punishment to it do not at all increase its moral guilt or super add any fresh obligation in photo conscientie to abstain from its perpetration nay if any human law should allow or enjoin us to commit it we are bound to transgress that human law or else we must offend both the natural and the divine but with regard to matters that are in themselves indifferent and are not commended or forbidden by those superior laws such for instance as exporting of wool into foreign countries here the inferior legislature has scope and opportunity to interpose and to make that action unlawful which before was not so if man were to live in a state of nature unconnected with other individuals there would be no occasion for any other laws than the law of nature and the law of God neither could any other law possibly exist for law always supposes some superior who is to make it and in a state of nature we are all equal not any other superior but him who is the author of our being but man was formed for society and as is demonstrated by the writers on this subject is neither capable of living alone nor indeed has the courage to do it however as it is impossible for the whole race of mankind to be united in one great society they must necessarily divide into many and form separate states commonwealths and nations entirely independent of each other and yet liable to a mutual intercourse hence arises a third kind of law to regulate this mutual intercourse called the law of nations which as none of these states will acknowledge a superiority 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 these several communities in the construction also of which compacts we have no other rule to resort to but the law of nature being the only one to which both communities are equally subject and therefore the civil law very justly observed by both naturalists or menace constituent vocatoe used gentium thus much I thought it necessary to premise concerning the law of nature the revealed law and the law of nations before I proceed to treat more fully of the principal subject of these section municipal or civil law that is the rule by which particular districts communities or nations are governed being thus defined by justinian use civile is called quiscis cibi populus constituit I call it municipal law in compliance with common speech for though strictly that expression denotes the particular customs of one single municipium or free town yet it may be sufficient propriety to be applied in any one state or nation which is governed by the same laws and customs municipal law thus understood is properly defined to be a rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong let us endeavour to explain its several properties as they arise out of this definition and first it is a role not a transient sudden order from a superior to or concerning a particular person but something permanent uniform and universal therefore a particular act of the legislature to confiscate the goods of teachers or to attain him of high treason does not enter into the idea of a municipal law for the operation of this act is spent upon teachers only and has no relation to the community in general it is whether a sentence than a law but a net to declare that the crime of which teachers is accused shall be deemed high treason this has permanency uniformity and universality and therefore is properly a rule it is also called a rule to distinguish it from advice or counsel which we are at liberty to follow or not as we see proper and to judge upon the reasonableness or unreasonableness of the thing advised whereas our obedience to the law depends not only upon our approbation but upon the makers will counsel is only matter of persuasion is matter of injunction counsel acts only upon the willing law upon the unwilling also it is also called a rule to distinguish it from a compact or agreement for a compact is a promise proceeding from us law is a command directed to us the language of a compact is I will not do this that of a law is thou shalt or shalt not do it it is true there is an obligation which a compact carries with it equal in point of conscience to that of a law but then the original of the obligation is different in compact we ourselves determine and promise what shall be done or we are obliged to do it in laws we are obliged to act without ourselves determining or promising anything at all upon these accounts law is defined to be a rule municipal law is also a rule of civil conduct this distinguishes 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 also the rule of faith these regard man as a creature and point out his duty to God to himself and to his neighbor considered in the light of an individual but municipal or civil law regards him also as a citizen and bound to other duties towards his neighbor those 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 subsistence and peace of the society it is likewise a rule prescribed because a beer resolution confined in the breast of the legislator without by some external sign can never be properly a law it is requisite that this resolution be notified to the people who are to obey it but the manner in which this notification is to be made is matter of very great indifference it may be notified by universal tradition and long practice which supposes a previous publication and is the case of the common law of England it may be notified by officers appointed for that purpose as is done with regard to proclamations and such acts of parliament are appointed to be publicly read in churches and other assemblies it may lastly be notified by writing, printing or the like which is the general curse taken with all our acts of parliament yet whatever way is made use of it is incumbent on the promulgators to do it in the most public and perspicuous manner not like Caligula who, according to Dio Cassius, wrote his laws in a very small character and hung them up upon high pillars the more effectively to ensnare the people there is still a more unreasonable method than this which is called making of laws exposed factor when after an action is commended the legislator then for the first time declares it to have been a crime and inflicts a punishment upon the person who has commended it here it is impossible that a party could foresee that an action innocent when it was done should be afterwards converted to guilt by a subsequent law he had therefore no cause to abstain from it and all punishment for not abstaining must of consequence be cruel and unjust all laws should be therefore made to commence in Futuro and be notified before the commencement which isn't lied in the term prescribed but when this rule is in the usual manner notified or prescribed it is then the subject's business to be thoroughly acquainted therewith for if ignorance of what he might know were admitted as a legitimate excuse the laws will be of no effect but might always be eluded with impunity but further municipal law is a role of civil conduct prescribed by the supreme power in a state for a legislature as was before observed it is the greatest act of superiority that can be exercised by one being over another wherefore it is requisite to the very essence of the law that it be made by the supreme power sovereignty and legislature are indeed convertible terms one cannot subsist without the other this will naturally lead us into a shortened query concerning the nature of society and civil government and the natural inherent right that belongs to the sovereignty of a state wherever that sovereignty be lodged of making and enforcing laws end of section 5