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the mortification of the great and the learned, experience has established this to be generally true. It is not therefore without reason, that men acquiesce more readily in the verdict of a jury, than in the opinion of the judges, on matters of fact. There is also another consideration of considerable weight. The judges are often viewed as a distinct class, placed above the common interests and common feelings of the citizens. Hence arises the idea, however ill founded, of a distinct interest and a general bias, upon certain occasions. Juries are, or ought to be, taken from the substantial class of citizens; and effectual provision should be made to guard against every inlet to corruption, and the admission of those to set on the trial who may be subject to prejudices or interested views, in their decisions.* With these precautions, the justice of their decisions will be attributed to the excellence of the administration, and if they should prove unjust, it will be attributed to human frailty ; it will be viewed as a temporary inconvenience, for which the laws are not answerable, where unjust decisions made by the judges are considered as dictated by standing, official prejudices, by interest or secret corruption, which, however dangerous, are not easily removed. From this brief view of the subject it appears, that this institution, in which is included both the grand and petit juries, is intimately connected with the principles of a free government. It sufficiently obviates any danger, which might be supposed to arise from the independence of the judges, and secures the administration of justice, in the spirit of impartiality and moderation, the true spirit of a free government.

*There is a provision for selecting jurors in some of these states, well worthy of imitation. The law directs that at the annual town meetings, the principal town officers and the civil authority of the town shall select and nominate a suitable number of persons properly qualified to serve as grand and petit jurors, for the year ensuing. When approved by the meeting the names of the persons so selected, are to be deposited in separate boxes in the custody of the town clerk. When a venire is issued for jurymen, the court directs from what towns they shall be taken, and the number from each; and thereupon the summoning officers attend on the town clerk, who is directed to draw by lot from the several boxes, in the presence of the officer, the number required, and the officer is directed to summon the persons whose names are so drawn, and no others. The jurors thus selected, are always respectable, and in very few instances do the parties in court find cause of challenge.

BOOK VI.

OF LAWS.

CHAPTER I.

General idea of Law-Of the Law of Nature.

The principal object in this book, will be to take a brief view of the principles, and the obligation of the law of nature, of the law of nations, and the municipal law.

Judge Blackstone tells us, that "law in its most comprehensive sense, signifies a rule of action, and is applied indiscriminately to all 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 nations."* When we speak of the laws of nature, with respect to the universe, so far as it comes under our knowledge, we mean those apparent rules, agreeable to which, all its motions and operations, in all its parts, are produced and directed in an unceasing series, regular, orderly, and uniform. The author afterwards observes, that "laws in their more confined sense, denote the rules, not of action in general, but of human action or conduct." Upon which, Mr. Christian very justly remarks, that "this perhaps is the only sense, in which the word law, can be strictly used; for in all cases where it is not applied to human conduct, it may be considered as a metaphor;

*1 Comm. p. 38.

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. He had only to will," Let there be light, and there was light." When we apply the word law, to motion, matter, or the works of nature or of art, we shall find in every case, that with equal, or greater propriety, we might have used the words, quality, property, or peculiarity."

Yet from a degree of analogy apprehended, it is, unless limited by the nature of the subject, or the manner of expression, generally understood in its most comprehensive sense. In speaking of the laws of nature generally, we include as well the laws which are supposed to govern action, attending matter animate, or inanimate, and which are sometimes called physical laws, as those laws which govern the actions and conduct of man, as a moral intelligence, and which are the subject of our present enquiry. Between the former and the latter there is, however, a very important distinction. Whether we suppose with some, that the Creator, in the formation of the universe, impressed on matter certain principles, from which it cannot depart, without ceasing to exist; or with others, that according to a predetermined plan, the movements of the whole system, and every operation in all its parts, even the most minute, are effected by an immediate and constant exertion of the Divine agency, or effective will of the Deity; yet, here the law, as it respects the subjects, is a law, not of obligation, but necessity. The subjects are mere passive means or instruments, without will, intention, or power of resistance. No moral consequences are attached to the action. But the latter, the law of intelligent beings, the law of human conduct, is a law of obligation, not of necessity, as in the case of mere physical laws. Man has, indeed, a body, wonderfully organized, and endued with animal life. As an animal being, he is subject to physical laws; but he is furnished with intelligence, with a faculty by which he attains the perception of moral relations and their result in duty, in a view to human actions. In considering certain relations, in which he finds himself, he

is conscious of an obligation, or perhaps, we shall be as distinctly understood, if we say, he perceives a duty resulting from those relations, to perform a certain action, or to pursue a certain course of actions. This, which is properly called moral perception, is found to be common to the whole human race; although more or less clear, more or less comprehensive in different men, according to their different susceptibilities and means of improvement. Hence is derived the general notion of a moral, which, by way of eminence, is called the natural law, or the law of nature. All who are capable of discerning the law, are capable of discerning the obligation. Some authors have, with great propriety, taken a two-fold view of the law of nature, as a moral law. They have first considered it as a law universally binding on the consciences of all men, in all cases, and without exception to be obeyed, agreeable to the end and intention of the whole law, as manifested by the Creator, the Omniscient law-giver, and judge of all human actions. Taken in this view, as universally binding the conscience, it is called the internal law. Again, they have considered it in relation to man in society, and under civil institutions; and here they find certain rules admitted, that seem to be exceptions to the general rule. These relate to those duties which are denominated duties of imperfect obligation, and are principally comprehended in the duties of benevolence. In cases of this kind, the law of nature permits each individual to judge for himself; it does not permit to others, whether individuals, societies, or communities, the right ultimately to judge of the duty, or to compel a performance. In this view, they have called it the external law of nature. shall treat of these in the same order, and first, of the internal law, as that which is universally binding on every conscience.

It has, I believe, been generally holden, and with the utmost propriety, that this law has its origin in the relation necessarily subsisting between the Creator and his created intelligences, the human race, and in those moral relations, which man is made to sustain, and is capable of sustaining, with a constant regard to the great end and design apparent in his moral constitution, his true interest and happiness.

It has been much disputed, what constitutes moral obligation,

or why a man is, in any instance, obliged by the law of nature, to perform a certain action; although I apprehend the difference is more apparent than real, and has arisen from the different abstract, as well as practical views, which different writers have taken of the subject. Some have asserted that moral obligation arises from the fitness of things-a moral fitness. Do they mean by this an abstract, antecedent fitness, which, in some mysterious way, imposes an obligation on moral beings, and in a conformity to which only all virtue consists ? Or do they mean that moral obligation arises from the moral relations, in which alone can moral obligation be found either theoretically or practically? Others tell us, that the will of God is the sole foundation of moral obligation, and have so expressed themselves, as to be often understood to mean an irrespective will. It is unquestionably true, that the whole system of natural law, of which we are treating, was established by the Creator, agreeable to his will, and that it has its binding force on the creature man agreeable to that will; but the question practically is, upon what is moral obligation founded, or, from what does it arise in that system.

And here I think we need not hesitate to repeat, that it arises from the moral relations existing, and in all cases embracing the relation between the creature and the Creator, and the design and end of that system-the interest and happiness of the subject. The divine will, as a moral law, cannot for an instant be supposed without a reference to those relations, for which provision is made, and to the end and design so apparent in the whole constitution. In a practical enquiry, in any case, after the obligation, resort is had to the existing moral relations. A duty is perceived to result from those relations, and because the duty is so perceived, it is concluded to be the will of God, that the duty should be performed. In this case for I speak not here of positive revelation-it is not the known will that indicates the duty, but the duty perceived indicates the will which completes the obligation.

Accordingly, those appear to me to be the most correct who have holden, that to constitute the efficient of moral obligation, there is necessarily associated in the result the notion of a Supreme power or Being, rightfully ordaining the law and requiring

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