27.I think it is Selden,somewhere in his Table-talk,that speaks of a whimsical notion he had hit upon when a school-boy,that with regard to Caesar and Justin,and those other personages of antiquity that gave him so much trouble,there was nota syllable of truth in any thing they said,nor in fact were there ever really any such persons;but that the whole affair was a contrivance of parents to find employment for their children.Much the same sort of notion is that which these technical arrangements are calculated to give us of Jurisprudence:which in them stands represented rather as a game at Crambo for Lawyers to whet their wits at,than as that Science which holds in her hand the happiness of nations.
Let us,however,do no man wrong.Where the success has been worse,the difficulty was greater.That detestable chaos of institutions which the Analyst last-mentioned had to do with is still more embarrassed with a technical nomenclature than our own.
28.III Comm.Ch.XXIII.p.387.
29.II Comm.Ch.XXI,p.360.
30.The difference between a generous and determined affection,and an occasional,and as it were forced contribution,to the cause of reformation,may be seen,I think,in these Commentaries,compared with another celebrated work on the subject of our Jurisprudence.Mr Barrington,whose agreeable Miscellany has done so much towards opening men's eyes upon this subject Mr Barrington,like an active General in the service of the principal and professed purpose of it is,to expose the errors and Public,storms the strongholds of chicane,wheresoever they present themselves,and particularly fictions,without reserve.Our Author,like an artful partizan in the service of the profession,sacrifices a few,as if it were to save the rest.
Deplorable,indeed,would have been the student's chance for salutary instruction,did not Mr Barrington's work in so many instances,furnish the antidote to our Author's poisons.
31.I Comm.p.47.
32.To make sure of doing our Author no injustice,and to shew what it is that he thought would `naturally lead us into'this `enquiry,'it may be proper to give the paragraph containing the explanation above mentioned.It is as follows:'But farther:municipal law is a rule of civil conduct,prescribed by the supreme power in a state.'`For legislature,as was before observed,is the greatest act of superiority that can be exercised by one being over another.Wherefore it is requisite,to the very essence of a law,that it be made'(he might have added,or at least supported)`by the supreme power.Sovereignty and legislature are indeed convertible terms;one cannot subsist without the other.'I Comm.p.46.
33.1Comm.p.47.
34.v.supra p.426.
35.1Comm.p.47.
36.1Comm.p.47.supra p.426.
37.1Comm.p.47.supra p.425.
38.1Comm.p.47.supra p.425.
39.1Comm.p.48.supra p.426.
40.Comm.p.48.supra p.426.
41.1Comm.p.48.supra p.425.
42.1Comm.p.47.supra p.425.
43.1Comm.p.46.supra p.426.
44.1Comm.p.46.supra p.426.
45.1Comm.p.52.
46.1.A habit is but an assemblage of acts:under which name I would also include,for the present,voluntary forebearances.
2.A habit of obedience then is an assemblage of acts of obedience.
3.An act of obedience is any act done in pursuance of an expression of will on the part of some superior.
4.An act of POLITICAL obedience (which is what is here meant)is any act done in pursuance of an expression of will on the part of a person governing.
5.An expression of will is either parole or tacit.
6.A parole expression of wilt is that which is conveyed by the signs called words.
7.A tacit expression of will is that which is conveyed by any other signs whatsoever:among which none are so efficacious as acts of punishment annexed in time past,to the non-performance of acts of the same sort with those that are the objects of the will that is in question.
8.A parole expression of the will of a superior is a command.
9.When a tacit expression of the will of a superior is supposed to have been uttered,it may be styled a fictitious command.
10.Were we at liberty to coin words after the manner of the Roman lawyers,we night say a quasi-command.
11.The STATUTE LAW is composed of commands.The COMMON LAW,of quasi-commands.
12.An act which is the object of a command actual or fictitious;such an act,considered before it is performed,is styled a duty,or a point of duty.
13.These definitions premised,we are now in a condition to give such an idea,of what is meant by the perfection or imperfection of a habit of obedience in a society as may prove tolerably precise.
14.A period in the duration of the society;the number of persons it is composed of during that period;and the number of points of duty incumbent on each person being given;the habit of obedience will be more or less perfect'in the ratio of the number of acts of obedience to those of disobedience.
15.The habit of obedience in this country appears to have been more perfect in the time of the Saxons than in that of the Britons:unquestionably it is more so now than in the time of the Saxons.It is not yet so perfect,as well contrived and well digested laws its time,it is to be hoped,may render it.But absolutely perfect,till man ceases to be man,it never can be.
A very ingenious and instructive view of the progress of nations,from the least perfect states of political union to that highly perfect state of it in which we live,may be found in Load Kaims's Historical Law Tracts .
16.For the convenience and accuracy of discourse it may be of use,in this place to settle the signification of a few other expressions relative to the same subject.Persons who,with respect to each other,are ins state of political society,may be said also to be in a state of political union or connection.
17.Such of them as are subjects may,accordingly,be said to be in a state of submission,or of subjection,with respect to governors:such as are governors in a state of authority with respect to subjects.
