AN INSTITUTE OF THE LAW OF SCOTLAND. BOOK I. T TITLE I. Of Laws in general. HE word law is frequently made use of, both by divines and philosophers, in a large acceptation, to express the settled method of God's providence, by which he preserves the order of the material world in such a manner, that nothing in it may deviate from that uniform course which he has appointed for it; and as brute matter is merely passive, without the least degree of choice upon its part, these laws are inviolably observed in the material creation, every part of which continues to act, immutably, according to the rules that were from the beginning prescribed to it by infinite wisdom. Thus, philosophers have given the appellation of law to that motion which incessantly pervades and agitates the universe, and is ever changing the form and substance of things, dissolving some, and raising others, as from their ashes, to fill up the void; yet so that, amidst all the fluctuations by which particular things are affected, the universe is still preserved without diminution; Gravina, De jure nat. Thus also they speak of the laws of fluids, of gravitation, &c.; and the word is used in this sense in several passages of the sacred writings; in the book of Job, and in Prov. viii. 29., where God is said to have given his law to the seas, that they should not pass his commandment. But law, in the strict meaning of the word, is peculiar to intelligent beings, endued with consciousness and liberty of will; who, consequently, VOL. I. A 1 Indeed, in any other sense, it may perhaps rather be regarded as a mere metaphorical sort of expression, for which, in strictness, some different and possibly more appropriate term may be substituted. Professor Christian has made a similar remark on an analogous passage in Blackstone's Commentaries.-" When we apply," says he, "the word Law to motion, matter, or the works of nature or of art, we shall find, "in every case, that, with equal or greater propriety and perspicuity, we might have "used the words quality, property, or peculiarity. We say, that it is a law of motion, "that a body put in motion in vacuo must for ever go forward in a straight line with Book I. Law, its extensive, as well as more limited signification. Book I. Its definition in risprudence. sequently, have an inward power of acting and forbearing, and by disregarding the prescriptions of the law, contract guilt, and render themselves obnoxious to punishment. In this restricted meaning, God directs his laws, either to pure spirits, or to the human race. But as the law of pure spirits has no immediate relation to the conduct of man, nor indeed falls within the reach of human сараcity, the subject of this treatise is to be confined to laws which are prescribed to mankind. 2. Law, even when it is thus limited, is an equivocal word, somethe sense of ju- times denoting the science which teacheth what things are or are not just, styled by the Romans jurisprudentia; and sometimes what is contained in that science; or, in other words, the particular rules to which the science is applied. In this last acceptation, law may be defined, the command of a sovereign, containing a common rule of life for his subjects, and obliging them to obedience. By a sovereign is understood the supreme power, whether it be lodged in the hands of one or of many. General characteristics of law. 3. Laws must be directed to those alone whom the lawgiver has a right to command; for the obligation to obey, on the part of the person commanded, can have no other foundation than his dependence on the lawgiver, and the lawgiver's just power of directing his actions. That cannot be a rule of life which is impossible or unintelligible, or of which one cannot be assured whether it be truly commanded. The thing prescribed as a law, therefore, must be in itself possible to be performed; it must be so distinctly exhibited, as to convey a precise knowledge of its meaning to those who are to be bound by it; and it must be notified to them in such a way, as they may know it to be the will of their sovereign. As the end of law is an equal distribution of justice, on which the happiness of every society depends, all laws ought to be in themselves just. This character is inseparable from the laws of God, who is Justice itself; and human laws, when they prescribe any thing repugnant to natural justice, have no coercive force *. 4. Justice "the same velocity;-that it is a law of nature, that particles of matter shall attract "each other, with a force that varies inversely as the square of the distance from each "other; and mathematicians say, that a series of numbers observes a certain law, "when each subsequent term bears a certain relation or proportion to the preceding "term;—but in all these instances, we might as well have used the word property "or quality, it being as much the property of all matter to move in a straight line, or "to gravitate, as it is to be solid or extended; and when we say that it is the law of "a series that each term is the square, or square root of the preceding term, we "mean nothing more than that such is its property or peculiarity. And the word "Law is used in this sense in those cases only which are sanctioned by usage; as it "would be thought a harsh expression to say, that it is a law that snow should be "white, or that fire should burn."-1. Blackst. 39. Note 1. The truth is, as the same authority goes on to observe, "when law is applied to any "other object than man, it ceases to contain two of its essential ingredient ideas, viz. "disobedience and punishment." Or, as our own author himself expresses it, (infra, 11. h. t.) "Creatures which are merely sensitive have no faculties which can be in"fluenced by motives above sense: They act from necessity, and so are incapable of "proper obedience, nor consequently of the obligations of Law." ? It is in the same spirit laid down by Blackstone, in general terms, that "the "law of nature being coeval with mankind, and dictated by God himself, is of course "superior in obligation to any other. It is binding over all the globe, in all coun"tries, 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, mediately or "immediately, from this original." (1. Blackst. 41.) And as is noticed by Professor Christian, in a note on the above passage:-" Lord Chief-Justice Hobart has also "advanced, that even an Act of Parliament made against natural justice, as to make “a man a judge in his own cause, is void in itself, for jura naturæ sunt immutabilia, "and they are leges legum." (Hob. 87.) pr. 4. Justice, when it is ascribed, not to laws, but to persons, consists in the conformity of one's actions to law. Ulpian, indeed, copying after the stoic philosophy, has defined it to be, a constant and uniform disposition of mind to give every man his due, L. 10. De just. et jur. But though this definition may pass without censure from the pen of a divine or a moralist, who considers persons according to the judgment of God, not merely by their actions, but by the inward springs which move to action, yet human tribunals cannot judge by the affections of the mind. If a man act conformably to law, he must be accounted just, whatever his motives to action may have been. On the contrary, if one fail to make good his engagements in any matter of civil right, ex. gr. to discharge his debts; though this may have been owing to unavoidable misfortune, yet he is in the judgment of law unjust, and therefore subjected to imprisonment, or such other penalty as the law has inflicted on that constructive transgression. 5. When laws have a tendency to promote the real happiness of the subjects, that alone creates an obligation to obedience, called by Heineccius, and other writers, the internal obligation of law. This, however, would be insufficient of itself for enforcing obedience, if these laws were not also guarded by a commination of some punishment or evil which is not the natural consequence of the transgression. That part of the law which inflicts the punishment upon disobedience is called its sanction, from sancire," to confirm," because it is that which gives the enactment full force and authority, and chiefly preserves it from being violated by perverse men, who would disregard the true grounds of obedience. Hence it follows, that a sanction, though it should not be expressed in the law, is implied; so that the magistrate or judge to whom the execution of the law is committed may inflict a punishment on the transgressor, greater or less, according to the demerit of the offence. "With deference to these high authorities," however, the Professor continues, "I "should conceive, that in no case whatever can a judge oppose his own opinion and au"thority to the clear will and declaration of the legislature. His province is to interpret "and obey the mandates of the supreme power of the state. And if an act of Parliament, "if we could suppose such a case, should, like the edict of Herod, command all the "children under a certain age to be slain, the judge ought to resign his office rather "than be auxiliary to its execution; but it could only be declared void by the same "legislative power by which it was ordained. If the judicial power were competent "to decide, that an act of Parliament was void because it was contrary to natural -"justice, upon an appeal to the House of Lords this inconsistency would be the "consequence, that as judges they must declare void, what as legislators they had "enacted should be valid." (1. Blackst. 41. Note 3.) This commentary is founded perhaps on rather too literal an interpretation of the text. For that neither Blackstone nor our Author differed essentially in their real meaning, and with reference to its practical application, from the sentiments of the learned Annotator, appears distinctly from what both of them afterwards lay down in the context. Thus, Blackstone says, "If the Parliament will "positively enact a thing which is unreasonable, I know of no power in the ordi"nary forms of the Constitution that is vested with authority to control it and "the examples usually alleged in support of this sense of the rule do none of "them prove, that where the main object of a statute is unreasonable, the judges "are at liberty to reject it; for that were to set the judicial power above that of the "legislature, which would be subversive of all government."-" There is no court "that has power to defeat the intent of the Legislature, when couched in such evident "and express words, as leave no doubt whether it was the intent of the Legislature or "no." (1. Blackst. 91.) So also Erskine, (infra, h. t. § 50.) "Where the words of a statute are incapable of a double meaning, they must be explained in that only "sense which they can bear, whatever hardship this may draw after it. By the pre"cise words in which the statute is conceived, every interpretation is excluded, except "that which necessarily arises from the words themselves; and a judge who should, "under the pretence of equity, explain a law in a sense inconsistent with the words, "would assume the character of a lawgiver, rather than that of a judge." Book I. Justice, its pro per definition. The conformity of our actions to law. Internal obligation of laws and their sanction, express or tacit. Book 1. This sanction threatens punishment, but cannot bestow reward. General division of law. Law of nature. Objects of the law of nature. God, our neigh bour, and ourselves. offence. This doctrine seems to be admitted by all writers, even by Hobbes, Lib. 14. De cive, § 8.; and is taken for granted in several of our statutes, enjoining certain things to be done for the police of the country, in which, though no special penalty is annexed to the enactment, it is recommended to the Judge to see the law carried into execution, 1661, c. 41. &c.; and how this can be done effectually, without punishing the breach of the law, is hard to imagine. 6. Under the sanction of the law may be also included that part of it which proposes rewards as encouragements to obedience. Cumberland, C. 5, De leg. nat. § 40, maintains, that this is the chief and most proper sanction of a law. But his reasoning appears too subtile, and it is certain that this species of sanction is but little in the power of earthly lawgivers. No state can possibly furnish out a stock sufficient for rewarding all who may live in a due observance of the laws it is God alone, who can not only inflict the severest pains upon transgressors, but also, from the inexhaustible treasures of his power and goodness, animate his creatures to obedience by the highest rewards. 7. Law is divided into the law of nature, the law of nations, and civil or municipal law. The law of nature may be defined, after Grotius, the dictate of reason, by which we discover whether an action be morally good or evil, by its agreement or disagreement with the rational and social nature of man. That there is such a law, cannot be denied, without denying the essential attributes of the Deity. Man is endued by his Creator with intellectual faculties, capable of distinguishing between truth and error, between real and apparent happiness; and with a power, either of acting immediately, if his judgment shall so direct him, or of suspending the execution of his purposes, in cases which require deliberation, till he shall, by a thorough examination, be satisfied of their rectitude. The infinitely wise and good God hath not thus enlightened the soul of man, merely to enable him, by an abuse of his understanding, to range more expertly, and with greater success, in the paths of violence and oppression, without being accountable for his wickedness. God necessarily wills what is just and good; and that divine will which we are capable of discerning by natural light, truly constitutes a law to us. The law of nature, therefore, has the God of nature for its author; and it is not made known to us by any formal or external notification of his will, but is impressed on our minds by the internal suggestion of reason; and is therefore elegantly said by St Paul to be written by God upon the heart of every one of us. 8. The law of nature hath for its objects, God, our neighbour, and ourselves, according to Tully, Tusc. Quæst. L. 1. C. 26. Its duties are known by attending to the relations in which man stands to his Creator, to his fellow-creatures of mankind, and to the other beings that surround him, and by considering the nature and frame of the human constitution. Thus, the essential reason of things teaches us to reverence and obey God, who, as our Creator and Preserver, hath the highest title to our worship and obedience; to honour and obey our parents, to whom, under God, we owe our being; to adhere strictly to our obligations and engagements; to perform all the friendly offices we can to those with whom nature hath intended that we should live together in a state of society, as mutual helps to one another; to do to them whatever we might reasonably reasonably expect they should do to us in the like circumstances; to take a proper care of our own preservation; to restrain our natural passions and appetites within due bounds; and to cultivate and improve our faculties to the utmost of our power, &c. TITLE I. The law of na ture, its immu on the whole human race. 9. As a necessary consequence of this, the law of nature lays an indispensable obligation to obedience on the whole human race, who have the exercise of their reason, without exception; for all table obligation men are alike subject to the command of their Maker, and the frame of the human constitution is the same in every individual. As that constitution, therefore, and the relations of men to other beings, must always continue what God at first made them, the duties of natural law must also be of unchangeable obligation. "It is not therefore one law in Rome, and another in Athens; one to-day, and another to-morrow; but it is ever the same, exerting "its obligatory force over all nations, and throughout all ages;" as Cicero expresses himself in a beautiful fragment preserved by Lactantius, Lib. 6. C. 8. 66 10. The observance of the law of nature is strongly enforced by that faculty of the mind called conscience, by which we are not only informed of what we ought to do, but enabled to turn our eyes inward upon ourselves, and after recollecting and examining our past actions by the test of reason, to pass judgment, either approving or condemning them. The terrors which take fast hold of wicked men upon a sense of their guilt, though they should be placed beyond the reach of human censure, or concealed from the view of their fellow-creatures, clearly prove their knowledge, not only of the law itself, but of its being fenced with the heaviest penalties. On the other hand, that inward serenity of mind, on the reflection of having led a virtuous life, or of having performed any act of disinterested justice, humanity, or self-denial, is the reward which God hath been pleased to bestow, even in this life, upon those who give a willing obedience to his law. 11. The Romans have, with great impropriety, ascribed this law to the brute part of the creation, L. 1. § 3. De just. et jur. Creatures which are merely sensitive, have no faculties which can be influenced by motives above sense: They act from necessity, and so are not capable of proper obedience, nor consequently of the obligations of law. On this account also, infants before they have attained the use of reason, and idiots, who either never had reason, or have lost the use of it, are not to be accounted moral agents, or subjected to punishment as transgressors; for where there is no law, there can be no transgression. 12. Writers divide the law of nature into the primary and the secondary. The primary is that which regards men, simply considered, or in their state of nature, previous to any human act or establishment. To this branch of the division, the instances already given of natural law may be applied. The secondary respects men as they are formed into several distinct and independent states; and it arises from the nature of society, and from the necessities of mankind as members of it. Because this sort can have no room till men be placed in particular circumstances, Puffendorf, and some writers after him, have chosen to call it the hypothetical law of nature. 13. From this secondary law of nature the right of property hath arisen. By the first or original law, all things were common: The few who inhabited the earth were, for some time after the creation, VOL. I. B Its observance is strongly enforced by conscience. It therefore presupposes the faculty of reasoning. Law of nature divided into primary and secondary. |