Reading Notes and Excerpts from Blackstone - Ch. 2

Ch. II: "A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists." (p. 29)

"[The Creator] has graciously reduced the role of obedience to this one paternal precept, 'that man should pursue his own true and substantial happiness.' This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tneds to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it." (p. 31)

"Undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law." (p. 31)

"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these." (p. 32)

"If man were to live in a state of nature, unconnected with other individuals, there wouldbe no occasion for any other laws, than the law of nature, and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and in a state of nature we are all equal" (p. 32)

"A third kind of law [arises] to regulate this mutual intercourse called 'the law of nations': which, as none of these states will acknowledge a superiority in the other, cannot be dicated by either; but depends entirely upon the rules of natural law, or upon mutual copacts, treaties, leagues, and agreements between thseseveral communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which both communities are equally subject." (p. 32)

"Municipal law...is probably defined to be 'a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.'" (p. 33)

Elements of a rule (p. 33): "permanency, uniformity, and universality."

Municipal law: Civil not moral (pp. 33-34). Must be prescribed - i.e. notice provided. Basic critique of ex post facto legislation.

"Municipal law is 'a rule of civil conduct prescribed by the supreme power in a state'. [...] Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other." (p. 35)

Sorry, Locke: "This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted." (p. 35)

"the original contract of society [...] the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community" (p. 35)

"As all the members which compose this society were naturally equal, in whose hands are the reins of government to be entrusted? ... in such persons, in whom those qualities are most likely to be found ... the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty." (p. 36)

"In all [forms of government there must be] a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii or the rights of sovereignty, reside." (p. 36)

Cute: "Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit." (p. 37)

"With us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy: and as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy." (pp. 37-8)

"Here then is lodged the sovereignty of the British constitution; [...] FIf the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristorcracy or democracy; and so want two of the three principal ingredients of good polity." (p. 38)

"Inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law." (p. 39)

Four elements of a law: declaratory (establish rights and wrongs), directory (instruct conformity), remedial (recovery of rights or restitution of wrongs), and sanction (penalties incurred by public wrongs or failure of duty). (p. 40)

"The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded." (p. 41)

"The alternative is offered to every man; 'either abstain from this, or submit to such a penalty': and his conscience will be clear, whichever side of the alternative he things proper to embrace." (p. 42)

Discursus on rules of construction:

1. Words understood in most usual and known sense... i.e., general and popular use. Ergo, law prohibiting "lay hands" on priest includes use of weapon.
   
   
2. If still unclear, resort to context. Thus, preamble as aid of construction. Cross-statue comparisos.
   
   
3. Always interpret words as relating to the subject matter at hand. Thus, prohibition against priests purchasing "provisions" from Pope surely shan't signify sustenance instead of see's beneficences.
   
   
4. If words seem absurd if literally understood, we must bend their meaning in accord with reason. Thus: "whoever drew blood in the streets should be punished with the utmost severity,' was held after a long debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit."
   
   
5. Lastly, consider the reason and spirit of the law... the cause which moved the legislator to enact it. "For when the reason ceases, the law ought likewise to cease with it." (wow!) "There was a law, that those in a storm forsook the ship, should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the shiop, except only one sick passenger, who by reason of his deasease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was to give encouragement to such as should venture their lives to save the vessel: but this is a merit wheich he could never pretned to, who neither staid in the ship upon that account, nor contributed any thing to its possession." [Geoff: Though, I must say, by the rule of natural justice, I'd think the guy deserves the ship. He was left to die by his companions, and for bearing such an enormous risk of death, it seems not unjust that he should reap extraordinary rewards as a consequence of extraordinary fortune.]
   
   "Equity thus depending, essentially upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to positive law." [Haven't we done this? -- G.] "Law without equity, though hard and disagreeable, is much more desirable for the common good, than equity without law."