L A W 
(had they been fofefeen) the legiflator himfelf would have 
expreffed. And thefe are the cafes which, according to 
Grotius, lex non exaElc definit, fed arbitrio beni viri pcrmittit. 
Equity thus depending, effentially, upon the particular 
circumftances of each individual cafe, there can be no 
eftablilhed rules and fixed precepts of equity laid down, 
without detlroying its very efl'ence, and reducing it to a 
pofitive law. And, on the other hand, the liberty of con- 
(idering all cafes in an equitable light mult not be in¬ 
dulged too far; left thereby we deftroy all law, and leave 
the deeifion of every queftion entirely in the breaft of the 
judge. And law, without equity, though hard and dif- 
agreeable, is much more delirable for the public good, 
than equity without law ; which would make every judge 
a legiflator, and introduce infinite conr'ulion; as there 
would then be almoft as many different rules of adtion 
laid down in our courts, as there are differences of capa¬ 
city and fentiment in the human mind. 
In fine, every juft law is didtated by reafon, and the 
pradtice of every legal court is regulated by equity. It is 
the quality of reafon to be invariable and conftant; and 
of equity, to give to one man what in the fame cafe is 
given to another. The advantage which humanity de¬ 
rives from law is this : that the law gives every man a 
rule of adtion, and preferibes a mode of condudt, which 
(hall entitle him to the fupport and protedtion of fociety. 
That the law may be a rule of action, it is necejfary that 
it be known; it is neceftary that it be permanent and 
liable. The law is the meafure of civil right; but, if the 
meafure be changeable, the extent of the thing meafured 
never can be fettled. 
To permit a law to be modified at diferetion, is to leave 
the community without law. It is to withdraw the di¬ 
rection of that public wifdom by which the deficiencies 
of private underftanding are to be fupplied. It is to fufi¬ 
fe r the rafh and ignorant to adt at diferetion, and then to 
depend for the legality of that adtion on the fentence of 
the judge. He that is thus governed, lives not by law, 
but by opinion ; not by a certain rule, to Which he can 
apply his intention before he adts, but by an uncertain 
and variable opinion, which he can never know but after 
lie has committed the adt on which that opinion fliall be 
puffed. He lives by a law (if a law it be) which he can 
never know before he has offended it. To this cafe may 
be juftly applied that important principle, Mifera ejlfervi- 
tus ubi jus ejl aut incognitum aut vagutn. 
The end of law is protection as well as vengeance; but 
vengeance is never ufed but to ftrengthen protection. 
That fociety only is well governed where life is freed 
from danger and from fufpicion; where paffion is fo fhel- 
tered by falutary prohibitions, that violation is prevented 
more frequently than punifhed. 
As the law has been fometimes adminiftered, it lays us 
open to wounds, becaufe it is imagined to have the power 
of healing. To punifh fraud when it is detected is the 
proper aCt of vindictive juftice; but to prevent frauds, 
and make puniihment unneceflary, is the great employ¬ 
ment of legiflative wifdom. 
As the law fupplies the weak with adventitious ftrength, 
it likewife enlightens the ignorant with extrinfic under¬ 
ftanding ; law teaches us to know when we commit inju¬ 
ry, and when we fuffer it. It fixes certain marks upon 
aCtions by which we are admonifhed to do or to forbear 
them : Quo fibi bene temperat in licitis, fays one of the fa¬ 
thers, nunquam cadet in illicita. 
It is neceftary to diltinguifh the deficiencies and de¬ 
mands of the different conditions of human life, which, 
from a" degree of favagenefs and independence in which 
all laws are vain, paffes or may pafs, by innumerable gra¬ 
dations, to a (tate of reciprocal benignity, in which laws 
(hall be no longer neceftary. Men are firft wild and un- 
focial, living each man to himfelf, taking from the weak, 
and iofing to the ftrong. In their firft coalitions of fo¬ 
ciety, much of this original favagenefs is retained. Of 
general happinefs, the product of general confidence, 
there is yet no thought. Men continue to profecute their 
own advantages by the neareft way ; and the utmoff feve- 
rity of the civil law is neceftary to reftrain individuals 
from plundering each other. The reltraints then necef- 
fary, are reltraints from plunder, from aCts of public vio¬ 
lence, and undifguifed oppreflion. The ferocity of our 
anceftors, as of all other nations, produced not fraud, but 
rapine. They had not yet learned to cheat, and attempt¬ 
ed only to rob. As manners grow more polifhed, with 
the knowledge of good, men attain likewife dexterity 
in evil ; open rapine becomes lefs frequent, and violence 
gives way to cunning. Thofe who before invaded paf- 
t ures and Itormed houfes, now begin to enrich themfelves 
by unequal contracts and fraudulent arts ; and the in- 
creafe of commerce, and the inceftant ftruggle for riches 
which commerce excites, gives us no prolpedt of an end 
fpeedily to be expected of artifice and fraud. Hence the 
conftant neceftity of new laws, and of revifing the old. 
Having thus confidered the nature of law in general, 
we (hall proceed to the following particulars : i. Of the 
Law of Nations, z. Of fome Ancient Codes. 3. Of the 
Law of Englartd. 4.. Of the Law of Scotland. 5. Of the 
Law of Ireland. The firft leftioji, on the Law of Nations, 
has been prefented to this work by a barrifter of great ex¬ 
perience and knowledge; in the fecond, on Ancient Codes, 
we have largely availed ourfelves of Mr. Barrett’s Intro¬ 
duction to the Code Napoleon ; and the preceding gene¬ 
ral remarks, together with what we (fyall offer upon the'Eng- 
lifh law,- are chiefly compiled from Blackftone ; “ whole 
Commentaries (faid the excellent fir William Jones) are 
the mod corredt and beautiful outline that ever was ex¬ 
hibited of any human fcience.” 
I. Of the LAW of NATIONS. 
The law of nations is a fyftem of rules, deducible by 
natural reafon, and eftablilhed by univerfal confent among 
the civilized inhabitants of the world; in order to decide 
all difputes, to regulate all ceremonies and civilities, and 
to enfure the obfervance of juftice and good faith, in that 
intercourle which mult frequently occur between two or 
more independent dates, and the individuals belonging- 
to each. See p. 317. This general law is founded upon- 
this principle, that different nations ought in time of 
peace to do one another all the good they can ; and, in 
time of war, as little harm as poflible, without prejudice 
to their own real interefts. And, as none of thefe Hates 
will allow- a fuperiority in the other, therefore neither can 
dictate or preferibe the rules of this law to the reft ; but 
fuch rules tr.uft neceffarily refult from thofe principles of 
natural juftice, in which all the learned of every nation 
agree; or they depend upon mutual compacts or treaties 
between the refpeclive communities ; in the conftruction 
of which there is alio no judge to refort to, but the law 
of nature and reafon, being the only one in which all the 
contradting parties are equally converfant, and to which 
they are equally fubjedt. 
The law of nations being founded in a great meafure 
upon the fyfteins of morality, good or bad, purfued by 
certain lets of claffes of people; and religion being every 
where the ground-work of the morality obferved 5 the 
Chriftian religion may be fuppofed not merely to influ¬ 
ence, but to be the chief guide of, the Chriftian law of 
nations. It certainly has had fo powerful an effedt upon 
it, that, wherever it has exifted, it has gone the fartheft 
of all caufes to introduce notions of humanity and true 
juftice into the maxims of the world. The great proof 
of which is, that, if we compare the conduct of Chriftian 
nations with that of nations profelling any other religion, 
(whatever may be their ftages of improvement, or in what¬ 
ever era of their glory,) the refult will be uniform and 
univerfal, that the one will be eminent over the other for 
regularity, equity, and benevolence. In making the 
companion, it would be unfair to bring into the account 
any of thofe nations that are lliil approaching to a date 
of nature, or who may yet be denominated favage. We 
refer, 
