Gehl Forage Harvester CB1200

Operator's Manual 902485A

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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 it's theory the noblest faculties of the soul, and exerts in
it's practice the cardinal virtues of the heart; a science, which is
universal in it's 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 academical knowlege, it was high time to
make it one; and to those who can doubt the propriety of it's
reception among us (if any such there be) we may return an answer
in their own way; that ethics are confessedly a branch of academical
learning, and Aristotle himself has said, speaking of the laws of his
own country, that jurisprudence or the knowlege of those laws is the
principal and most[e] perfect branch of ethics.
[c] Lord chancellor Clarendon, in his dialogue of education, among
his tracts, p. 325. appears to have been very solicitous, that it might
be made "a part of the ornament of our learned academies to teach
the qualities of riding, dancing, and fencing, at those hours when
more serious exercises should be intermitted."
[d] By accepting in full convocation the remainder of lord
Clarendon's history from his noble descendants, on condition to
apply the profits arising from it's publication to the establishment of
a manage in the university.
[e] Τελεια μαλιϛα αρετη, ὁτι της τελειας αρετης χρησις εϛι. Ethic. ad
Nicomach. l. 5. c. 3.
F r o m a thorough conviction of this truth, our munificent benefactor
Mr V i n e r , having employed above half a century in amassing
materials for new modelling 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 labours "to the
benefit of posterity and the perpetual service of his country[f]," 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 a doubt from their gratitude in receiving it with all possible
marks of esteem[g]; from their alacrity and unexampled dispatch in
carrying it into execution[h]; and, above all, from the laws and
constitutions by which they have effectually guarded it from the
neglect and abuse to which such institutions are liable[i]. 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 Mr Viner's establishment.
[f] See the preface to the eighteenth volume of his abridgment.
[g] Mr Viner is enrolled among the public benefactors of the
university by decree of convocation.
[h] Mr Viner died June 5, 1756. His effects were collected and
settled, near a volume of his work printed, almost the whole
disposed of, and the accounts made up, in a year and a half from his
decease, by the very diligent and worthy administrators with the will
annexed, (Dr West and Dr Good of Magdalene, Dr Whalley of Oriel,
Mr Buckler of All Souls, and Mr Betts of University college) to whom
that care was consigned by the university. Another half year was
employed in considering and settling a plan of the proposed
institution, and in framing the statutes thereupon, which were finally
confirmed by convocation on the 3d of July, 1758. The professor was
elected on the 20th of October following, and two scholars on the
succeeding day. And, lastly, it was agreed at the annual audit in
1761, to establish a fellowship; and a fellow was accordingly elected
in January following.—The residue of this fund, arising from the sale
of Mr Viner's abridgment, will probably be sufficient hereafter to
found another fellowship and scholarship, or three more
scholarships, as shall be thought most expedient.
[i] The statutes are in substance as follows:
1. T h a t the accounts of this benefaction be separately kept, and
annually audited by the delegates of accounts and professor, and
afterwards reported to convocation.
2. T h a t a professorship of the laws of England be established, with
a salary of two hundred pounds per annum; the professor to be
elected by convocation, and to be at the time of his election at least
a master of arts or bachelor of civil law in the university of Oxford, of
ten years standing from his matriculation; and also a barrister at law
of four years standing at the bar.
3. T h a t such professor (by himself, or by deputy to be previously
approved by convocation) do read one solemn public lecture on the
laws of England, and in the English language, in every academical
term, at certain stated times previous to the commencement of the
common law term; or forfeit twenty pounds for every omission to Mr
Viner's general fund: and also (by himself, or by deputy to be
approved, if occasional, by the vice-chancellor and proctors; or, if
permanent, both the cause and the deputy to be annually approved
by convocation) do yearly read one complete course of lectures on
the laws of England, and in the English language, consisting of sixty
lectures at the least, to be read during the university term time, with
such proper intervals that not more than four lectures may fall within
any single week: that the professor do give a month's notice of the
time when the course is to begin, and do read gratis to the scholars
of Mr Viner's foundation; but may demand of other auditors such
gratuity as shall be settled from time to time by decree of
convocation: and that, for every of the said sixty lectures omitted,
the professor, on complaint made to the vice-chancellor within the
year, do forfeit forty shillings to Mr Viner's general fund; the proof of
having performed his duty to lie upon the said professor.
4. T h a t every professor do continue in his office during life, unless
in case of such misbehaviour as shall amount to bannition by the
university statutes; or unless he deserts the profession of the law by
betaking himself to another profession; or unless, after one
admonition by the vice-chancellor and proctors for notorious neglect,
he is guilty of another flagrant omission: in any of which cases he be
deprived by the vice-chancellor, with consent of the house of
convocation.
5. T h a t such a number of fellowships with a stipend of fifty pounds
per annum, and scholarships with a stipend of thirty pounds be
established, as the convocation shall from time to time ordain,
according to the state of Mr Viner's revenues.
6. T h a t every fellow be elected by convocation, and at the time of
election be unmarried, and at least a master of arts or bachelor of
civil law, and a member of some college or hall in the university of
Oxford; the scholars of this foundation or such as have been
scholars (if qualified and approved of by convocation) to have the
preference: that, if not a barrister when chosen, he be called to the
bar within one year after his election; but do reside in the university
two months in every year, or in case of non-residence do forfeit the
stipend of that year to Mr Viner's general fund.
7. T h a t every scholar be elected by convocation, and at the time of
election be unmarried, and a member of some college or hall in the
university of Oxford, who shall have been matriculated twenty four
calendar months at the least: that he do take the degree of bachelor
of civil law with all convenient speed; (either proceeding in arts or
otherwise) and previous to his taking the same, between the second
and eighth year from his matriculation, be bound to attend two
courses of the professor's lectures, to be certified under the
professor's hand; and within one year after taking the same be
called to the bar: that he do annually reside six months till he is of
four years standing, and four months from that time till he is master
of arts or bachelor of civil law; after which he be bound to reside
two months in every year; or, in case of non-residence, do forfeit the
stipend of that year to Mr Viner's general fund.
8. T h a t the scholarships do become void in case of non-attendance
on the professor, or not taking the degree of bachelor of civil law,
being duly admonished so to do by the vice-chancellor and proctors:
and that both fellowships and scholarships do expire at the end of
ten years after each respective election; and become void in case of
gross misbehaviour, non-residence for two years together, marriage,
not being called to the bar within the time before limited, (being
duly admonished so to be by the vice-chancellor and proctors) or
deserting the profession of the law by following any other
profession: and that in any of these cases the vice-chancellor, with
consent of convocation, do declare the place actually void.
9. T h a t in case of any vacancy of the professorship, fellowships, or
scholarships, the profits of the current year be ratably divided
between the predecessor or his representatives, and the successor;
and that a new election be had within one month afterwards, unless
by that means the time of election shall fall within any vacation, in
which case it be deferred to the first week in the next full term. And
that before any convocation shall be held for such election, or for
any other matter relating to Mr Viner's benefaction, ten days public
notice be given to each college and hall of the convocation, and the
cause of convoking it.
T h e advantages that might result to the science of the law itself,
when a little more attended to in these seats of knowlege, perhaps
would be very considerable. The leisure and abilities of the learned
in these retirements might either suggest expedients, or execute
those dictated by wiser heads[k], for improving it's method,
retrenching it's superfluities, and reconciling the little contrarieties,
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 ever 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 academical
education. Neither should it be considered as a matter of light
importance, that while we thus extend the pomoeria 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.
[k] See lord Bacon's proposals and offer of a digest.
F o r I think it is past dispute that those gentlemen, who resort to
the inns 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 any thing can be more hazardous or
discouraging than the usual entrance on the study of the law. A raw
and unexperienced youth, in the most dangerous season of life, is
transpanted 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 course to pursue his
enquiries; no private assistance to remove the distresses and
difficulties, which will always embarass 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
courts 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[l], and addict themselves wholly to amusements, 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!
[l] Sir Henry Spelman, in the preface to his glossary, gives us a very
lively picture of his own distress upon this occasion. "Emisit me
mater Londinum, juris nostri capessendi gratia; cujus cum
vestibulum salutassem, reperissemque linguam peregrinam,
dialectum barbaram, methodum inconcinnam, molem non ingentem
solum sed perpetuis humeris sustinendam, excidit mihi (fateor)
animus, &c."
T h e evident want of some assistance in the rudiments of legal
knowlege, 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 it's stead, as the desk of some skilful attorney;
in order to initiate them early in all the depths of practice, and
render them more dextrous in the mechanical part of business. A
few instances of particular persons, (men of excellent learning, and
unblemished integrity) who, in spight of this method of education,
have shone in the foremost ranks of the bar, have afforded some
kind of sanction to this illiberal path to the profession, and biassed
many parents, of shortsighted judgment, in it's favour: 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 forcible of all examples, the
disposal of their own offspring, a very different foundation of legal
studies, a regular academical education. Perhaps too, in return, I
could now direct their eyes to our principal seats of justice, and
suggest a few hints, in favour of university learning[m]:—but in these
all who hear me, I know, have already prevented me.
[m] The four highest offices in the law were at that time filled by
gentlemen, two of whom had been fellows of All Souls college;
another, student of Christ-Church; and the fourth a fellow of Trinity
college, Cambridge.
M a k i n g therefore due allowance for one or two shining exceptions,
experience may teach us to foretell that a lawyer thus educated to
the bar, in subservience to attorneys and solicitors[n], 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 rule
of practice is founded, the least variation from established
precedents will totally distract and bewilder him: ita lex scripta est[o]
is the utmost his knowlege 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.
[n] See Kennet's life of Somner. p. 67.
[o] Ff. 40. 9. 12.
N o r 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 labour 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 wholly into the hands of obscure
or illiterate men, is matter of very public concern.
T h e inconveniences here pointed out can never be effectually
prevented, but by making academical 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 academical education. For sciences
are of a sociable disposition, and flourish best in the neighbourhood
of each other: nor is there any branch of learning, but may be
helped and improved by assistances drawn from other arts. If
therefore the student in our laws hath 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,
by the 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 graced any
seats of learning) a student thus qualified may enter upon the 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's farther leisure, to lay the
foundation of his future labours in a solid scientifical method,
without thirsting 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 s h a l l not insist upon such motives as might be drawn from
principles of oeconomy, 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 honour, and well grounded principles of
religion; as necessary to form a truly valuable English lawyer, a
Hyde, a Hale, 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 honour and religion, are no where to be
found in more high perfection than in the two universities of this
kingdom.
B e f o r e I conclude, it may perhaps be expected, that I lay before
you a short and general account of the method I propose to follow,
in endeavouring 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
do public honour to this laudable institution, than for the private
instruction of individuals[p]) I presume it will best answer the intent
of our benefactor and the expectation of this learned 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[q]. 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 acquainted with terms and ideas,
which they never had opportunity to learn) this must be my ardent
endeavour, 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 laws should do, than what I have
ever known to be done.
[p] See Lowth's Oratio Crewiana, p. 365.
[q] The Analysis of the laws of England, first published, A.D. 1756,
and exhibiting the order and principal divisions of the ensuing
C o m m e n t a r i e s ; which were originally submitted to the university
in a private course of lectures, A.D. 1753.
H e should consider his course as a general map of the law, marking
out the shape of the country, it's connexions 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 inns of chancery, "in tracing out
the originals and as it were the elements of the law." For if, as
Justinian[r] has observed, the tender understanding of the student
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 labour, delay, and despondence. These
originals should be traced to their fountains, as well as our distance
will permit; to the customs of the Britons 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 rules of the Roman law, either left here in the days of Papinian,
or imported by Vacarius and his followers; but, above all, to that
inexhaustible reservoir of legal antiquities and learning, the feodal
law, or, as Spelman[s] has entitled it, the law of nations in our
western orb. These primary rules 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 shewn how far they are connected with,
or have at any time been affected by, the civil transactions of the
kingdom.
[r] Incipientibus nobis exponere jura populi Romani, ita videntur
tradi posse commodissime, si primo levi ac simplici via singula
tradantur: Alioqui, si statim ab initio rudem adhuc & infirmum
animum studiosi multitudine ac varietate rerum oneravimus, duorum
alterum, aut desertorem studiorum efficiemus, aut cum magno
labore, saepe etiam cum diffidentia (quae plerumque juvenes
avertit) serius ad id perducemus, ad quod leviore via ductus, sine
magno labore & sine ulla diffidentia maturius perduci potuisset. Inst.
1. 1. 2.
[s] Of Parliaments. 57.
A p l a n of this nature, if executed with care and ability, cannot fail
of administring a most useful and rational entertainment to students
of all ranks and professions; and yet it must be confessed that the
study of the laws is not merely a matter of amusement: for as a very
judicious writer[t] has observed upon a similar occasion, the learner
"will be considerably disappointed if he looks for entertainment
without the expence of attention." An attention, however, not
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 intend to pursue the profession. To others I
may venture to apply, with a slight alteration, the words of sir John
Fortescue[u], when first his royal pupil 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 labour, he may be sufficiently
informed in the laws of his country, if he will but apply his mind in
good earnest to receive and apprehend them. For, though such
knowlege as is necessary for a judge is hardly to be acquired by the
lucubrations of twenty years, yet with a genius of tolerable
perspicacity, that knowlege which is fit for a person of birth or
condition may be learned in a single year, without neglecting his
other improvements."
[t] Dr Taylor's preface to Elem. of civil law.
[u] Tibi, princeps, necesse non erit mysteria legis Angliae longo
disciplinatu rimare. Sufficiet tibi,—et fatis denominari legista
mereberis, si legum principia & causas, usque ad elementa, discipuli
more indagaveris.—Quare tu, princeps serenissime, parvo tempore,
parva industria, sufficienter eris in legibus regni Angliae eruditus,
dummodo ad ejus apprehensionem tu conferas animum tuum.—
Nosco namque ingenii tui perspicacitatem, quo audacter pronuntio
quod in legibus illis (licet earum peritia, qualis judicibus necessaria
est, vix viginti annorum lucubrationibus acquiratur) tu doctrinam
principi congruam in anno uno sufficienter nancisceris; nec interim
militarem disciplinam, ad quam tam ardenter anhelas, negliges; sed
ea, recreationis loco, etiam anno illo tu ad libitum perfrueris. c. 8.
T o the few therefore (the very few, I am persuaded,) that entertain
such unworthy notions of an university, as to suppose it intended for
mere dissipation of thought; to such as mean only to while away the
aukward interval from childhood to twenty one, between the
restraints of the school and the licentiousness of politer life, in a
calm middle state of mental and of moral inactivity; to these Mr
Viner gives no invitation to an entertainment which they never can
relish. But to the long and illustrious train of noble and ingenuous
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 knowlege, to these our benefactor has consecrated the
fruits of a long and laborious life, worn out in the duties of his
calling; and will joyfully reflect (if such reflexions can be now the
employment of his thoughts) that he could not more effectually have
benefited posterity, or contributed to the service of the public, than
by founding an institution which may instruct the rising generation in
the wisdom of our civil polity, and inform them with a desire to be
still better acquainted with the laws and constitution of their country.
 Section the second.

Of t h e N AT U R E of LAWS in

general.

L A W , in it's most general and comprehensive sense, signifies a

rule 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 rule of
action, which is prescribed by some superior, and which the inferior
is bound to obey.
T h u s 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 it's
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 it's formation.
I f 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
progres of plants, from the seed to the root, and from thence to the
seed again;—the method of animal nutrition, digestion, secretion,
and all other branches of vital oeconomy;—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.
T h i s then is the general signification of law, a rule of action
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 it's existence
depends on that obedience. But laws, in their more confined sense,
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.
M a n , 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 rule to pursue, but such as he
prescribes to himself; but a state of dependance 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 dependance consists. This principle
therefore has more or less extent and effect, in proportion as the
superiority of the one and the dependance 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.
T h i s will of his maker is called the law of nature. For as 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 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.
C o n s i d e r i n g 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 every
one it's due; to which three general precepts Justinian[a] has
reduced the whole doctrine of law.
[a] Juris praecepta sunt haec, honeste vivere, alterum non laedere,
suum cuique tribuere. Inst. 1. 1. 3.
B u t 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,
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 it's 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 enquire 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 connection 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 happiness." 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.
T h i s law of nature, being co-eval 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 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, mediately or
immediately, from this original.
B u t 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 the 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.
T h i s 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, hath been
pleased, at sundry times and in divers manners, to discover and
enforce it's 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 they tend in all their consequences to
man's felicity. But we are not from thence to conclude that the
knowlege of these truths was attainable by reason, in it's 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 of 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 the 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.
U p o n 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 law 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, and act 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 it's moral
guilt, or superadd any fresh obligation in foro conscientiae to abstain
from it's perpetration. Nay, if any human law should allow or injoin
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 commanded
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.
I f 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 a law always supposes some superior who is to
make it; and in a state of nature we are all equal, without 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[b], 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 acknowlege 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[c] very justly observes, that quod
naturalis ratio inter omnes homines constituit, vocatur jus gentium.
[b] Puffendorf, l. 7. c. 1. compared with Barbeyrac's commentary.
[c] Ff. 1. 1. 9.
T h u s much I thought it necessary to premise concerning the law of
nature, the revealed law, and the law of nations, before I proceeded
to treat more fully of the principal subject of this section, municipal
or civil law; that is, the rule by which particular districts,
communities, or nations are governed; being thus defined by
Justinian[d], "jus civile est quod quisque sibi populus constituit." I call
it municipal law, in compliance with common speech; for, tho' strictly
that expression denotes the particular customs of one single
municipium or free town, yet it may with sufficient propriety be
applied to any one state or nation, which is governed by the same
laws and customs.
[d] Inst. 1. 2. 1.
M u n i c i p a l 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 it's several properties, as they arise out of this
definition.
A n d , first, it is a rule; 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 Titius, or to attaint him of high treason,
does not enter into the idea of a municipal law: for the operation of
this act is spent upon Titius only, and has no relation to the
community in general; it is rather a sentence than a law. But an act
to declare that the crime of which Titius 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 upon our approbation, but upon the maker's
will. Counsel is only matter of persuasion, law is matter of
injunction; counsel acts only upon the willing, law upon the unwilling
also.
I t 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, or
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