there have been any occafion to establish a fupreme authority upon earth. They would have lived in a mutual intercourfe of love and beneficence; in a fimplicity without ftate or pomp; in an equality without jealoufy; ftrangers to all fuperiority but that of virtue, and to every other ambition but that of being difinterested and generous. But they were not long directed by the perfect rule of nature; the vivacity of their paffions weakened the force of nature's law, the ftrongeft oppreffed the weakeft, they poffeffed nothing in tranquillity, they enjoyed nothing in repofe, their natural liberty degenerated into wild licentioufnefs, and they were reduced to the moft frightful and most melancholy fituation. To fcreen themfelves, therefore, from the evils with which they were afflicted in a ftate of nature, it was neceffary that a multitude of individuals fhould unite in fo particular a manner, that their prefervation must depend on each other, to the end that they remain under the neceffity of mutual affiftance, and by this junction of ftrength and interefts, be able not only to repel the infults against which each individual could not fo eafily guard, but also to reftrain thofe who fhould attempt to deviate from their duty, and to promote more effectually their common advantage. For this purpose, two things were neceffary. FIRST, To unite for ever the wills of all the members of the fociety in fuch a manner, that from that time forward they fhould never defire but one and the fame thing, in whatever related to the end and purpose of fociety. SECONDLY, It was requifite to establish a fupreme power, fupported by the ftrength of the whole body, (by which means they might overawe thofe who fhould be inclined to difturb the public peace) and to inflict a prefent and fenfible evil on fuch as fhould attempt to act contrary to the public good. It is from this union of wills and of firength that the State or BODY POLITICK refults; and the rules of conduct prefcribed for the prefervation of the general welfare of the State are called -THE POLITICAL LAW. This vol. 2. p. 174 This general ftrength, or political power, may be in the hands of a fingle perfon or of many; and, as this power refides, the form of government takes its denomination. Thus, when the fovereign power is lodged in an aggregate affembly, con- Paley's Philof. iting of all the members of a community, it is and Algernon called a DEMOCRACY; when it is lodged in a Sidney's cele council compofed af felect members, it is called brated Treatie an ARISTOCRACY; and when it is intrufted in the hands of a single perfon, it takes the name of Mo-' NARCHY. All other fpecies of government, therefore, are corruptions of, or reducible to, these three. §. 6. Of Civil Law. on Govern ment, bk. 2. The members of the community, befides thofe Montefq. Sp. Political Laws which relate to the conftitution and of Laws. 5. prefervation of the State, have also another fet of.. laws, as they ftand in relation to each other; and as the conjunction of their wills forms what is called the Civil State, fo the rules which each particular community eftablishes for its own internal ment is called THE CIVIL LAW OF THE STATE. govern For, as amidst the variety of human tranfactions it has been found that different fyftems of law will beft fuit different defcriptions of people, every fet of people has been left in a great macafure at liberty to inftitute or ftrike out fuch a fyftem as best agrees with their form of government, and the manner of their climate, time, conftitution, and other circumftances. JUSTINIAN, therefore, fays, Juft. Inft. Quod quifque populus fibi jus conftituit id ipfius pro. Harris's edit. prium civitatis, eft vocaturque Jus Civile, quafi jus proprium ipfius civitatis. P. 7. 133. The Civil Law is either meram et fimpliciter civile, Taylor's El. mere arbitrary pofitive inftitutions of a law-giver, af. de Uf. and fuch only as bind from the fanction given then ch. 20. by this authority; or what may be called jus civile mixtum, where pofitive inftitutions make fome alterations in the Law of Nature, either by adding to it, or taking from it, or elfe by determining and limiting limiting what by former laws was indetermi nate, The Law of Nature, therefore, may not improperly be confidered as a text, and the Civil Law as a comment; for Law in general is the refult Montef. Sp. of and perfection of human reafon, inafinuch as it governs all the inhabitants of the earth; and therefore the Political and Civil Laws of each nation ought to be only the particular cafes in which human reafon is applied. Laws, p. 9. 1 See Hale's The Laws of England. History of the THE LAWS OF ENGLAND are generally divided Common Law, into two kinds: Lex non Scripta, the unwritten ch. 1. or Common Law; and Lex Scripta, the written or 1.Bl.Com.77-Statute Law. Wood'sInft.4. 110.b. 115.b. 344. a. Motis, 28. 1.Bl.Com.93. ments, 77. The Common Law is not only conftituted of the laws of nature, of nations, and of religion, the refpective fignifications of which we have already defined, but of certain general and local customs, of principles and maxinis, and of certain particular Laws, The Statute Law depends upon the will of the fovereign power, or Legiflature of the kingdom. THE LAWS thus conftituted are, in their ordinary jurifdiction, confined to the territory of ENGLAND only, but are made to extend, with more or less restrictions, to thofe places of which THE EMPIRE OF GREAT BRITAIN is compofed The objects of them are the fafety and prefervaBacon's Ele- tion of the perfons and the properties of individuals Builer's Nifi from fivil injuries and criminal viclence, and the prometing of that general peace and harmony upon which all the comforts and advantages of Co.Lt.16.97.fociety depend, Prius, 2. Crompton on Courts, 7. Το To obtain these ends, Courts of Justice are neceffarily inftituted for the purpose of adminiftering the laws, by affording relief to the injured, and inflicting punishment on the guilty. Having therefore confidered, in the two preceding chapters, the laws which muft neceffarily be recognized on the establishment of every fociety, we fhall proceed in the fucceeding chapters to defcribe,-3dly, The Common Law of England, with the grounds and foundation upon which it is raifed. 4thly, The Statute Law. 5thly, The particular Places to which they extend. 6thly, The feveral Objects they embrace. 7thly, The Courts of Juftice; to which we fhall fubjoin, 8thly, A fhort Vocabulary of thofe Words of Art, or Technical Expreffions, peculiar to the Science of THE LAW. СНАР Burn's Ecc. Law, Pref. 39. Hale's Tif. Com Law, CHAPTER THE THIRD. 1. Of the Common Law, and its Foundations. HE COMMON LAW is fo called because it is TH the common municipal law, or rule of justice throughout the kingdom; for although there are divers particular laws, fome by custom applied to particular places, and fome to particular caufes; yet that law which is common to the generality of all perfons, places, and things, and hath a fuperintendency over thofe particular laws which are only admitted in relation to certain matters, is properly the Common Law of England. This is ufually called the Lex non Scripta. Not 3. that the parts of which it is compofed were merely oral, and communicated from age to age by word of mouth; for all of them have fome monuments or memorials of their existence in writing, either in eftablished maxims, declaratory ftatutes, records of pleas, books of reports, or tractates of learned men. But they are unwritten laws, because their authoritative and original inftitutions are not fet down or verbally expreffed in the fame manner as the acts of the Legiflature are, but have grown into ufe, and acquired their binding force and power by long jinmemorial ufage, and the ftrength of general reception. The matter and fubftance of them indeed are in writing, but the formal and obligatory power of them grew by long ufe and custom; for cuftoms generally received and admitted, gain, in this kingdom, the force of laws. It is cuftom only which gives power fometimes to the Common Law, and fometimes to the Civil Law, in the refpective courts wherein they are ufed; both of which are controuled by the rules of the Common Law, when they crofs the other cuttoms of the kingdom that are more generally received. Burn's Ecc. Law, r. 19. The |