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SECTION FIFTH.

OF CIVIL LAW.

Ir has already been remarked, that when man enters into a

flate of fociety, he refigns a part of his natural rights to obtain civil rights. Their fecurity is the object of law, and bounds the power of legiflation. Their enjoyment furnishes mankind with the greatest political happiness.

Civil law may then be defined, to be a rule of human action, adopted by mankind in a state of fociety, or prefcribed by the fupreme power of the government, requiring a course of conduct not repugnant to morality or religion, productive of the greatest political happiness, and prohibiting actions contrary thereto, and which is enforced by the fanction of pains and penalties. A few remarks will illuftrate this definition.

Civil law is confidered to be a more proper expreffion, than mu nicipal law, a term made ufe of by the English lawyers, where the term civil law is ufually by way of eminence, applied to the Roman or Imperial law-but as we have little connexion with the Roman law, and the term civil being commonly applied to our laws, I have restored it to its proper place, and have rejected the word municipal, which is too limited in its fignification, to convey a juft idea of this definition. It is a rule of action that is feady, permanent and univerfal, obligatory on the whole community, and adopted by mankind in a ftate of fociety, or prescribed by the fupreme power of the government. It concerns them only in the focial ftate, and points out the duties they owe to their neighbours, and to the commmunity that protects them. " The outlines are to live honeftly, hurt nobody, and to render to every one his due. It derives its authority, not only from being adopted by the univerfal and immemorial confent of the people as the common law, but from the pofitive acts made by the fupreme les giflature, which is the ftatute law. It requires a courfe of conduct, not repugnant to morality and religion, but productive of the greatest political happiness, and prohibits actions contrary thereto. The ufual definition is, commanding what is right, and

Juris precepta funt hæc, honefte vivere, alterum cuique tribuere. Juftinian's Inft. L.i, ii,

prohibiting

nod ledere fuam

prohibiting what is wrong. But that is too indefinite and general, and more applicable to the moral than civil law. It is true that it is generally remarked by writers, that law is grounded on moral principles, but a few obfervations will evidence this to be an error. The fole purpofe for which men unite in fociety, is the fecurity of that portion of the natural rights which they referve, and the civil rights which they acquire. The legislature, therefore, have no right to controul any actions, but thofe which are injurious to their rights, and endanger the existence of the flate. It is evident that no government has adoped the moral law as a rule, becaufe, in all, many actions are required to be done, which are morally indifferent, and many actions are not prohibitéd which are morally wrong. When it is acknowledged the government may omit the prohibition of immoral actions, and require the performance of indifferent, it follows as á confequencé that they are guided by fome rule different from morality. This rule is the political happiness of the people. It however must be confidered, that no laws may contravene the principles of morality. When the legislature enact and publish laws, it is not for the people to examine them, and determine whether they will comply with them. They are virtually prefent by their reprefentatives and affent to them when they are made. The laws therefore operate with the force of commands, and obedience becomes the duty of the citizens.

But the laws would be of but little validity, if they were not enforced by the fanction of pains and penalties. Human legislators beflow no rewards on the act of obedience, but the bleffings which neceffarily flow from it. They annex certain pains and penalties to every violation of their laws, which operate as motives on the mind, to enforce an obfervance of them. The measure of punishment is to fubject the offender to an inconvenience greater than the adyantage he can derive from the crime.

. Cicero has defined law to be a juft command, directing what is right, and prohibiting the contrary. Juftinian has defined law, to be that which each nation has eftablished for itself, and is proper to each state or civil fociety. ? Blackstone has defined it

to

• Sanéti› juba jabens honesta et profitens contraria. Quod quifque populus ip'e Abi jus conflituit id infius proprium civitatis eft voestur que jus civile. Juft, Ing. lib. i. tit. 2.

1 Black. Com. 44.

to be a rule of action, prefcribed by the fupreme power of the ftate, commanding what is right, and prohibiting what, is wrong. The definition of Juftinian is too confined, and does not give an idea of the nature and extent of law. The definitions of Cicero and Blackftone feem to be grounded on the principles of the natural law, and do not reach the full extent of the civil law and the definition of Blackftone is confined to ftatute law only, because it will comprehend thafe laws only which are prefcribed by the fupreme power of the ftate. In my definition, I have aimed to give a juft idea of law in its fullest extent. It comprehends the flatute, and the common law, and instead of limiting it to the commanding of what is right, and prohibiting what is wrong, I have extended it to the commanding or prohibiting of those actions which are morally indifferent, if it be neceffary to promote the political happinefs of mankind. This I confider to be the juft bound of civil law.

The fcience of the law is grounded on certain first principles. Thefe have been introduced by the ftatutes of the legislature, or have been derived from the dictates of reafon, and the Icience of morals. On this bafis, our courts have erected an artificial fabrick of jurisprudence, they have adjusted the various parts with the nice fymetry; and a deviation from any fundamental principle, deranges the whole fuperftructure. A judge therefore in forming his opinion, with refpect to any particular cafe, must take into view the whole fyftem of law, and make his decifion conformable to the general principles on which it is founded. Nothing can be more improper than the practice of confidering every cafe as ftanding on its own bafis, and of deciding according to principles of right, which appear to be applicable to fingle cafes. This will make the law uncertain, introduce contradictory determinations, and render it impracticable to systematize the principles of jurispru dence. But when courts take into view, the whole fcience, and fquare their decifions to the fundamental docrines on which it is eftablished, the confequence will be the introduction of that perma nent uniform rule of adminiftering juftice, which is the ultimatet object of government.

SECT.

SECTION SIXTH.

OF THE LAWS OF CONNECTICUT.

We come now to treat of the code of civil law, adopted in this

ftate, which confifts of two parts, the common law and the statute law, which require a feparate confideration.

I. The Common Law derives its force and authority, from the univerfal confent and immemorial practice of the people. It has never received the fanction of the legislature, by any exprefs act, which is the criterion by which it is diftinguished from the statute law. It has never been reduced to writing, but depends on the general practice and judicial adjudications of courts. The common law is derived from two fources, the common law of England, and the practice and decifions of our own courts.

1. I fhall first confider that branch of the common law that originated in England. As our ancestors adopted the form of, and acknowledged allegiance to the British government, it was natural for them to admit and establish their laws, fo far as it was confiftent with the difference of fituation. From this circumftance, our common law became chiefly of English original, and we must trace their jurifprudence, to afcertain the foundation and extent of our own. The revolutions that England underwent by the conquefts of the Romans, the Saxons, the Danes, and the Normans, rendered their law of complex origin. After the Norman collquest, as foon as the government had affumed a regular form, the acts of parliament and the decifions of their courts, laid the foundation of their prefent code. They adopted a principle which is common to all nations, that when a court had folemnly and deliberately decided any question or point of law, that adjudication became a precedent in all cafes of a fimilar nature, and operated with the force and authority of a law. This practice is founded in the highest wisdom, and produces the best effects.

It establishes one permanent uniform, univerfal directory, for the conduc of the whole community, and opens the door for a constant progrefive improvement in the laws, in proportion to the civiliza

tion of their manners, and the encreafe of their wealth, while the legiflature were paffing acts for general regulations, the courts were polishing, improving, and perfecting a fyftem of conduct, for the minuter fubordinate tranfactions of life, which by the collective wifdom and experience of fucceffive ages, have advanced to the highest pitch of clearness, certainty, and precision.

Courts however are not abfolutely bound by the authority of precedents. If a determination has been founded upon mistaken principles, or the rule adopted by it be inconvenient, or repugnant to the general tenor of the law, a fubfequent court affumes the power to vary from or contradict it. In fuch cafes they do not determine the prior decisions to be bad law; but that they are not law. Thus in the very nature of the inftitution, is a principle eftablished which corrects all errors and rectifies all mistakes.

The common law of England is a highly improved fyftem of reafon, founded on the nature and fitness of things, and furnishes the best standard of civil conduct. It is to be found in the adjudi cations of courts, which have been collected and published by judges, lawyers, and other officers. Thefe adjudications are con. tained in year books which are extant, from the reign of Edward the fecond, till the reign of Henry the eighth, and then in reports which have been continued to the present time. Befides these re ports, the common law has been improved by treatifes of a fyfte matic nature, which are held in high veneration and refpect.-Such are the works of Glanville, Bracton, Britton, Fitzherbert, Littleton, and Lord Coke-But no writer on law has acquired greater distinction than Sir William Blackstone. He has reduced order out of chaos, and in his commentaries, exhibited a compleat system of the laws of England. From this work the student will obtain a general understanding of this fcience, in a much shorter time than from any other author. His writings entitle him to the thanks of every country where English jurifprudence is practifed, and have fecured to him a fame that will last as long as the me. mory of those laws on which he has written fhall endure.

But I ought not to omit the names of Reeve, Powel, and 'Ef pinaffe, the most diftinguished judicial writers of the prefent age, VOL. I. Reeve,

G

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