SECTION II. OF THE NATURE OF LAWS IN GENERAL. LAW, in its most general and comprehensive sense, signifies a rule of action (1); and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey. Thus, when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction,-as that the hand shall describe a given space in a given time, to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation. If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws, more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal *nutrition, [ *39] 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 (1) See post, note to p. 122. ed sense, a rule of human conduct. dictated by some superior being; and, in those creatures that have neither the power to think nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for In its more limit- its existence depends on that obedience. But laws, in their more confined sense (2), and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour. Man, considered as a creature, must necessarily be subject (2) Mr. Christian's note upon this passage having met the approbation of some respectable authorities, it has been deemed proper to retain its substance, but to subjoin thereto certain qualifications. He says, that, "the word law, in all cases where it is not applied to human conduct, may be considered as a metaphor, and in every instance a more appropriate term may be found. When it is used to express the operations of the Deity or Creator, it comprehends ideas very different from those which are included in its signification when it is applied to man, or his other creatures. The volitions of the Almighty are his laws." Upon this it is thought right to observe, that, although the word law never can be properly "used to express the operations of the Deity," the term may be correctly applied to the operations of matter according to the laws of the Creator. Again, when Mr. Christian says, "if law is applied to any other object than man, it ceases to contain two of its essential ingredient ideas, viz. disobedience and punishment;" that is begging the question. The rules of action impressed upon inanimate nature by the great Creator, are ordained by power which precludes all idea of the possibility of disobedience, and of course all idea of punishment: therefore, it would be a mere truism to say that such rules are not laws, if it were established that the word law could never be correctly used without an implied reference to the possibility of disobedience and punishment; but that is not to be assumed, contrary to the whole current of authorities. The divine laws prescribed to man, indeed, are enforced by penalties, because he is left at liberty to disobey them; he would otherwise have no free agency, and this life would not be a state of trial; but the rules laid down for the operation of the material world are not the less laws, because mere matter cannot act in contradiction thereto. The word law, as Horne Tooke has instructed us, (Div. of Purley, Vol. 2, c. 2), is "merely the past participle of the Anglo-Saxon verb Leczan, ponere, and means any thing laid down as a rule." Mr. Christian candidly admits that "Hooker, in the beginning of his Ecclesiastical Polity, like the learned judge, has with incomparable eloquence interpreted law in its most general and comprehensive sense. And most writers, who treat law as a science, begin with such an explanation." The student will probably think he may safely adopt that comprehensive explanation, though Mr. Christian, from his professional occupation with municipal law, appears to have been unable to disconnect, in any case, the ideas of law and of punishment. to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should, in all points, conform to his Maker's will. For as Natural law the rule of human action. This will of his Maker is called the law of nature. God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he [ 40 ] laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down. only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil to which the Creator himself, in all his dispensations, conforms (3); 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 (3) The Mosaical dispensation to the Jews, and the Christian dispensation to the Gentiles, were, no doubt, both in conformity with the eternal laws of good and evil. The first of these laws instanced by Blackstone is, "that we should live honestly:" would it not sa vour of irreverence to say that "to this [ *41 ] Foundation of natural law. to every one his due; to which three general precepts Justinían (a) has reduced the whole doctrine of law. But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As, therefore, the Creator is a being not only of infinite power and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own 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 connexion of justice and human felicity, he *has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised, but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own true and substantial happiness" (4). This is the foundation of what we call ethics, or natural law; for the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature: or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it. obligation, and universality. This law of nature, being coeval with mankind, and dic- Its superiority in tated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity (5), if (5) The passage in the text has been quarrelled with by Mr. Christian; and if Blackstone, by the terms "validity, force, and authority," here meant more than moral obligation; if he used the word "validity" in its ordinary sense, his statement could hardly be borne out; for, it is a fact no less notorious than it is lamentable, that many laws have been enforced, in different ages and in different countries, by brutally despotic power; and have, in various instances, retained for a length of time irresistible validity; though it would be impossible to shew that their force was derived from "the law of nature, dictated by God." The total abolition of slavery in our colonies, by the statute of 3 Gul. IV. c. 73, has only very recently relieved Great Britain from the imputation of giving "validity" to laws, in her dependencies, which degraded man into a mere article of merchandize. But, though our legislators long laboured under this stigma, British courts of justice were free from the stain. See post, pp. 127, 423, 424. With a laudable feeling for the honor of his judicial brethren, Mr. Justice Best (in Forbes v. Cochrane, 2 Barn. & Cress. 470; S. C. 3 Dowl. & Ryl. 724) observed, that "it is matter of pride to recollect, that, whilst economists and politicians were recommending to the legislature the protection of the traffic in slaves, and senators were framing statutes for its promotion, and declaring it a benefit to the country; the judges of the land, above the age in which they lived, standing upon the high ground of natural right, and disdaining to bend to the lower doctrine of expediency, declared that slavery was inconsistent with the British constitution, and that human beings could not be the subject matter of property." learned judge adds, "as a lawyer, I speak of that early determination, when a different doctrine was prevailing in the senate, with a considerable degree of professional pride." See post, note to p. 424. The That Blackstone, however, by the words "validity, force, and authority," in the passage above, only meant moral or sacred obligation, there can be little doubt. In p. 91, post, he says, "I know it is generally laid down, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it." Mr. Christian, in a note which is hereto subjoined, animadverts upon a dictum in Day v. Savadge, Hob. 87, where it is said that, "an act of parliament made against natural equity, is void in itself;" but the necessary qualification of this doctrine is well |