Introduction
1. The subject of this examination, is a passage contained in that part of SIR W. BLACKSTONE'S COMMENTARIES on the LAWS of ENGLAND, which the Author has styled the INTRODUCTION. This Introduction of his stands divided into four Sections. The first contains his discourse `On the STUDY of the LAW'. The second, entitled `Of the NATURE of LAWS in general', contains his speculations concerning the various objects, real or imaginary, that are in use to be mentioned under the common name of LAW. The third, entitled `Of the LAWS OF ENGLAND', contains such general observations, relative to these last mentioned Laws, as seemed proper to be premised before he entered into the details of any parts of them in particular. In the fourth, entitled, `Of the COUNTRIES subject to the LAWS of ENGLAND', is given a statement of the different territorial extents of different branches of those Laws.
2. `Tis in the second of these sections, that we shall find the passage proposed for examination. It occupies in the edition I happen to have before me,' which is the first (and all the editions, I believe, are paged alike) the space of seven pages; from the 47th, to the 53d, inclusive.
3. After treating of `LAW in general', of the `LAW of Nature', LAW of Revelation', and `LAW of Nations', branches of that imaginary whole, our Author comes at length to what he calls `LAW municipal': that sort of Law, to which men in their ordinary discourse would give the name of Law without addition; the only sort perhaps of them all (unless it be that of Revelation) to which the name can, with strict propriety, be applied: in a word, that sort which we see made in each nation, to express the will of that body in it which governs. On this subject of LAW Municipal he sets out, as a man ought, with a definition of the phrase itself; an important and fundamental phrase, which stood highly in need of a definition, and never so much as since our Author has defined it.
4. This definition is ushered in with no small display of accuracy. First, it is given entire: it is then taken to pieces, clause by clause; and every clause by itself, justified and explained. In the very midst of these explanations, in the very midst of the definition, he makes a sudden stand. And now it bethinks him that it is a good time to give a dissertation, or rather a bundle of dissertations, upon various subjects On the manner in which Governments were established On the different forms they assume when they are established On the peculiar excellence of that form which is established in this country On the right, which he thinks it necessary to tell us, the GOVERNMENT in every country has of making LAWS On the duty of making LAWS; which, he says, is also incumbent on the Government.In stating these two last heads, I give, as near as possible, his own words; thinking it premature to engage in discussions, and not daring to decide without discussion on the sense.
5. The digression we are about to examine, is, as it happens, not at all involved with the body of the work from which it starts. No mutual references or allusions: no supports or illustrations communicated or received. It may be considered as one small work inserted into a large one; the containing and the contained, having scarce any other connection than what the operations of the press have given them. It is this disconnection that will enable us the better to bestow on the latter a separate examination, without breaking in upon any thread of reasoning, or any principle of Order.
6. A general statement of the topics touched upon in the digression we are about to examine has been given above. It will be found, I trust, a faithful one. It will not be thought, however, much of a piece, perhaps, with the following, which our Author himself has given us. `This', (says he,[1] meaning an explanation he had been giving of a part of the definition above spoken of) `will naturally lead us into a short enquiry into the nature of society and civil government;[2] and the natural inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing Laws.'
7. No very explicit mention here, we may observe, of the manner in which governments have been established, or of the different forms they assume when established: no very explicit intimation that these were among the topics to be discussed. None at all of the duty of government to make laws; none at all of the British constitution; though, of the four other topics we have mentioned, there is no one on which he has been near so copious as on this last. The right of Government to make laws, that delicate and invidious topic, as we shall find it when explained, is that which for the moment, seems to have swallowed up almost the whole of his attention.
8. Be this as it may, the contents of the dissertation before us, taken as I have stated them, will furnish us with the matter of five chapters: one, which I shall entitle `FORMATION of GOVERNMENT' a second, `FORMS of GOVERNMENT' a third, `BRITISH Constitution' a fourth, `RIGHT of the SUPREME POWER to make LAWS' a fifth, `Duty of the Supreme POWER to make LAWS'.
- ↑ I Comm. p.47.
- ↑ 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.