« 이전계속 »
to check, and to avert any dangerous innovation, to propose and to adopt any solid and well-weighed improvement, and bound by every tie of honour and religion to transmit that Constitution and those Laws to their posterity, amended if possible, but at least without any derogation.
THE NATURE OF LAWS IN GENERAL
Let us first consider Laws in general-Laws that denote the rules of human action or conduct; that is, the precepts which man-a creature endowed with both reason and free-will-is commanded to observe in the general regulation of his behaviour; then, secondly, Laws in their more limited sense, being the rules which regulate our civil conduct as Englishmen.
What is Law; and explain the Foundations upon which all Human Laws depend.
LAW, in its most general and comprehensive sense, signifies a rule of action prescribed by a superior to an inferior being, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational; and it is that rule of action which the inferior is bound to obey.
LAW comprises the LAW OF NATURE; REVEALED LAW; the LAW OF NATIONS; and MUNICIPAL LAW.
The Law of Nature is the Will of our Maker; for God, when he created man and endowed him with free-will, not only laid down certain immutable laws of human nature, whereby that free-will is in some degree regulated and restrained, but He gave him the faculty of reason to discover the purport of those laws; and He has so intimately connected, so inseparably interwoven, the laws of eternal justice with the happiness of each individual, that the latter cannot be secured but by observing the former. Also, in compassion to the frailty, the imperfection, and the blindness of human reason, Divine Providence has been pleased, at sundry times and in divers manners, to discover and enforce
his laws by an immediate and direct revelation, which we call the DIVINE or REVEALED LAW. These laws are to be found in the Holy Scriptures; and upon the Law of Nature and the Law of Revelation depend all human laws.
The Law of Nations is what is termed International Law, a law to regulate the intercourse of nations-the offspring of Civilization-a moral obligation of justice and humanity from one State to another, and which entirely depends upon mutual compacts, treaties, and agreements between the several communities.
Municipal Law is "a rule of civil conduct, prescribed by the supreme power in a State, commanding what is right, prohibiting what is wrong, and regulating matters in themselves indifferent."
It is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. It is called a rule to distinguish it from advice or counsel, which we are at liberty to follow or not, and to judge upon the reasonableness or unreasonableness of the advice tendered; whereas our obedience to the law depends not upon our approbation, but upon the enactments of the legislature.
It is also called a rule, to distinguish it from a contract or agreement; for a contract is a promise proceeding from us; law is a command directed to us.
Municipal Law is also a rule of "civil conduct," which regards man as a citizen, and binds him to contribute on his part to the subsistence and peace of the society in which he is placed.
It is likewise a rule "prescribed," because a bare resolution confined in the breast of the legislator, without manifesting itself 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, and when this rule is in the usual manner notified or prescribed, the law holds that it is then the subject's duty to be thoroughly acquainted therewith; for if ignorance of what he might know were admitted as a legitimate excuse for a breach of law, the laws would be of no effect, but might be eluded with impunity.
But further, Municipal Law is a rule of civil conduct "prescribed by the supreme power in a State;" in other words, the
FORMS AND DUTIES OF GOVERNMENT.
British Legislature. When civil society is once formed, government at the same time results, as a necessary consequence, to preserve and keep that society in order; therefore it is requisite to the very essence of a municipal law that it be made by the supreme power.
Explain the Origin and Forms of Government.
How the several forms of Government originated is a matter of great uncertainty, which has occasioned infinite discussion. However they began, or by what right soever they subsist, there must be in all of them a supreme, irresistible, absolute authority, in which the jura summa imperii, or the rights of sovereignty, reside; and this authority is placed in those hands wherein, according to the opinion of the majority of such respective States, either expressly given or collected from their tacit approbation, the qualities requisite for supremacy, wisdom, goodness, and power are to be found.
The political writers of antiquity do not acknowledge more than three regular forms of Government; the first, when the supreme power is lodged in an aggregate assembly, consisting of all the free members of a community, which is a DEMOCRACY; the second, when it is lodged in a council, composed of select members, and then it is styled an ARISTOCRACY; the third, when it is intrusted to the hands of a single person, and then it takes the name of a MONARCHY. These three forms are embodied in the British Constitution,-first, the Queen; secondly, the Lords spiritual and temporal; thirdly, the House of Commons, freely chosen by the people; and in no other shape could we be so certain of finding the great qualities of government so well and so happily blended.
What are the Duties of Government?
One of the duties of supreme power is to make laws; in other words, to prescribe the rules of civil action—“ commanding what is right, prohibiting what is wrong, and regulating matters in themselves indifferent." Now, in order to do this completely, it is first of all necessary that the boundaries of right and wrong should be established and ascertained by law.
In what manner does the Law ascertain the Boundaries of Right and Wrong? Explain the method it takes to command the one and prohibit the other.
Every law consists of several parts; one Declaratory, whereby the rights to be observed and the wrongs to be avoided are clearly defined and laid down; another Directory, whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs; a third Remedial, whereby a method is pointed out to recover a man's private rights or redress his private wrongs; to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what punishment or penalty shall be incurred by such persons as commit public wrongs by transgressing or neglecting their duty.
With regard to the first of these the Declaratory part of the municipal law-this depends upon the wisdom and will of the Legislature; for those rights which God and nature have established, called natural rights, such as life and liberty, need not the aid of human laws to be more effectually possessed by man. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. The case is the same as to crimes and misdemeanors that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury, which contract no additional turpitude from being declared unlawful by the inferior legislature. But with regard to things which are said to be in themselves indifferent, the case is otherwise. These become either right or wrong, just or unjust, duties or misdemeanors, according as the Legislature enacts for promoting the welfare of society, and more effectually carrying on the purposes of civil life. Thus by our own common law, as at present interpreted, the goods of the wife do instantly upon marriage become the property and right of the husband, and our statute law has declared all monopolies a public offence; yet that right and this offence have no foundation in nature, but are merely created by the law for the purpose of civil society.
Thus much for the declaratory part of the municipal law;