municipal law, this depends not so much upon the law of revelation or
of nature, as upon the wisdom and will of the legislator. This
doctrine, which before was slightly touched, deserves a more
particular explication. Those rights then which God and nature have
established, and are therefore called natural rights, such as are life
and liberty, need not the aid of human laws to be more effectually
invested in every man than they are; neither do they receive any
additional strength when declared by the municipal laws to be
inviolable. On the contrary, no human legislature has power to abridge
or destroy them, unless the owner shall himself commit some act that
amounts to a forfeiture. Neither do divine or natural _duties_ (such
as, for instance, the worship of God, the maintenance of children, and
the like) receive any stronger sanction from being also declared to be
duties by the law of the land. The case is the same as to crimes and
misdemesnors, that are forbidden by the superior laws, and therefore
stiled _mala in se_, such as murder, theft, and perjury; which
contract no additional turpitude from being declared unlawful by the
inferior legislature. For that legislature in all these cases acts
only, as was before observed, in subordination to the great lawgiver,
transcribing and publishing his precepts. So that, upon the whole, the
declaratory part of the municipal law has no force or operation at
all, with regard to actions that are naturally and intrinsically right
or wrong.
BUT with regard to things in themselves indifferent, the case is
entirely altered. These become either right or wrong, just or unjust,
duties or misdemesnors, according as the municipal legislator sees
proper, for promoting the welfare of the society, and more effectually
carrying on the purposes of civil life. Thus our own common law has
declared, that the goods of the wife do instantly upon marriage become
the property and right of the husband; and our statute law has
declared all monopolies a public offence: yet that right, and this
offence, have no foundation in nature; but are merely created by the
law, for the purposes of civil society. And sometimes, where the thing
itself has it's rise from the law of nature, the particular
circumstances and mode of doing it become right or wrong, as the laws
of the land shall direct. Thus, for instance, in civil duties;
obedience to superiors is the doctrine of revealed as well as natural
religion: but who those superiors shall be, and in what circumstances,
or to what degrees they shall be obeyed, is the province of human laws
to determine. And so, as to injuries or crimes, it must be left to our
own legislature to decide, in what cases the seising another's cattle
shall amount to the crime of robbery; and where it shall be a
justifiable action, as when a landlord takes them by way of distress
for rent.
THUS much for the _declaratory_ part of the municipal law: and the
_directory_ stands much upon the same footing; for this virtually
includes the former, the declaration being usually collected from the
direction. The law that says, "thou shalt not steal," implies a
declaration that stealing is a crime. And we have seen that, in things
naturally indifferent, the very essence of right and wrong depends
upon the direction of the laws to do or to omit it.
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. This is what we mean properly, when we
speak of the protection of the law. When, for instance, the
_declaratory_ part of the law has said "that the field or inheritance,
which belonged to Titius's father, is vested by his death in Titius;"
and the _directory_ part has "forbidden any one to enter on another's
property without the leave of the owner;" if Gaius after this will
presume to take possession of the land, the _remedial_ part of the law
will then interpose it's office; will make Gaius restore the
possession to Titius, and also pay him damages for the invasion.
WITH regard to the _sanction_ of laws, or the evil that may attend the
breach of public duties; it is observed, that human legislators have
for the most part chosen to make the sanction of their laws rather
_vindicatory_ than _remuneratory_, or to consist rather in
punishments, than in actual particular rewards. Because, in the first
place, the quiet enjoyment and protection of all our civil rights and
liberties, which are the sure and general consequence of obedience to
the municipal law, are in themselves the best and most valuable of all
rewards. Because also, were the exercise of every virtue to be
enforced by the proposal of particular rewards, it were impossible for
any state to furnish stock enough for so profuse a bounty. And
farther, because the dread of evil is a much more forcible principle
of human actions than the prospect of good[i]. For which reasons,
though a prudent bestowing of rewards is sometimes of exquisite use,
yet we find that those civil laws, which enforce and enjoin our duty,
do seldom, if ever, propose any privilege or gift to such as obey the
law; but do constantly come armed with a penalty denounced against
transgressors, either expressly defining the nature and quantity of
the punishment, or else leaving it to the discretion of the judges,
and those who are entrusted with the care of putting the laws in
execution.
[Footnote i: Locke, Hum. Und. b. 2. c. 21.]
OF all the parts of a law the most effectual is the _vindicatory_. For
it is but lost labour to say, "do this, or avoid that," unless we also
declare, "this shall be the consequence of your noncompliance." We
must therefore observe, that the main strength and force of a law
consists in the penalty annexed to it. Herein is to be found the
principal obligation of human laws.
LEGISLATORS and their laws are said to _compel_ and _oblige_; not that
by any natural violence they so constrain a man, as to render it
impossible for him to act otherwise than as they direct, which is the
strict sense of obligation: but because, by declaring and exhibiting a
penalty against offenders, they bring it to pass that no man can
easily choose to transgress the law; since, by reason of the impending
correction, compliance is in a high degree preferable to disobedience.
And, even where rewards are proposed as well as punishments
threatened, the obligation of the law seems chiefly to consist in the
penalty: for rewards, in their nature, can only _persuade_ and
_allure_; nothing is _compulsory_ but punishment.
IT is held, it is true, and very justly, by the principal of our
ethical writers, that human laws are binding upon mens consciences.
But if that were the only, or most forcible obligation, the good only
would regard the laws, and the bad would set them at defiance. And,
true as this principle is, it must still be understood with some
restriction. It holds, I apprehend, as to _rights_; and that, when the
law has determined the field to belong to Titius, it is matter of
conscience no longer to withhold or to invade it. So also in regard to
_natural duties_, and such offences as are _mala in se_: here we are
bound in conscience, because we are bound by superior laws, before
those human laws were in being, to perform the one and abstain from
the other. But in relation to those laws which enjoin only _positive
duties_, and forbid only such things as are not _mala in se_ but _mala
prohibita_ merely, annexing a penalty to noncompliance, here I
apprehend conscience is no farther concerned, than by directing a
submission to the penalty, in case of our breach of those laws: for
otherwise the multitude of penal laws in a state would not only be
looked upon as an impolitic, but would also be a very wicked thing; if
every such law were a snare for the conscience of the subject. But in
these cases 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 thinks proper to embrace.
Thus, by the statutes for preserving the game, a penalty is denounced
against every unqualified person that kills a hare. Now this
prohibitory law does not make the transgression a moral offence: the
only obligation in conscience is to submit to the penalty if levied.
I HAVE now gone through the definition laid down of a municipal law;
and have shewn that it is "a rule--of civil conduct--prescribed--by
the supreme power in a state--commanding what is right, and
prohibiting what is wrong:" in the explication of which I have
endeavoured to interweave a few useful principles, concerning the
nature of civil government, and the obligation of human laws. Before I
conclude this section, it may not be amiss to add a few observations
concerning the _interpretation_ of laws.
WHEN any doubt arose upon the construction of the Roman laws, the
usage was to state the case to the emperor in writing, and take his
opinion upon it. This was certainly a bad method of interpretation. To
interrogate the legislature to decide particular disputes, is not only
endless, but affords great room for partiality and oppression. The
answers of the emperor were called his rescripts, and these had in
succeeding cases the force of perpetual laws; though they ought to be
carefully distinguished, by every rational civilian, from those
general constitutions, which had only the nature of things for their
guide. The emperor Macrinus, as his historian Capitolinus informs us,
had once resolved to abolish these rescripts, and retain only the
general edicts; he could not bear that the hasty and crude answers of
such princes as Commodus and Caracalla should be reverenced as laws.
But Justinian thought otherwise[k], and he has preserved them all. In
like manner the canon laws, or decretal epistles of the popes, are all
of them rescripts in the strictest sense. Contrary to all true forms
of reasoning, they argue from particulars to generals.
[Footnote k: _Inst._ 1. 2. 6.]
THE fairest and most rational method to interpret the will of the
legislator, is by exploring his intentions at the time when the law
was made, by _signs_ the most natural and probable. And these signs
are either the words, the context, the subject matter, the effects and
consequence, or the spirit and reason of the law. Let us take a short
view of them all.
1. WORDS are generally to be understood in their usual and most known
signification; not so much regarding the propriety of grammar, as
their general and popular use. Thus the law mentioned by
Puffendorf[l], which forbad a layman to _lay hands_ on a priest, was
adjudged to extend to him, who had hurt a priest with a weapon. Again;
terms of art, or technical terms, must be taken according to the
acceptation of the learned in each art, trade, and science. So in the
act of settlement, where the crown of England is limited "to the
princess Sophia, and the heirs of her body, being protestants," it
becomes necessary to call in the assistance of lawyers, to ascertain
the precise idea of the words "_heirs of her body_;" which in a legal
sense comprize only certain of her lineal descendants. Lastly, where
words are clearly _repugnant_ in two laws, the later law takes place
of the elder: _leges posteriores priores contrarias abrogant_ is a
maxim of universal law, as well as of our own constitutions. And
accordingly it was laid down by a law of the twelve tables at Rome,
_quod populus postremum jussit, id jus ratum esto_.
[Footnote l: L. of N. and N. 5. 12. 3.]
2. IF words happen to be still dubious, we may establish their meaning
from the context; with which it may be of singular use to compare a
word, or a sentence, whenever they are ambiguous, equivocal, or
intricate. Thus the proeme, or preamble, is often called in to help
the construction of an act of parliament. Of the same nature and use
is the comparison of a law with other laws, that are made by the same
legislator, that have some affinity with the subject, or that
expressly relate to the same point. Thus, when the law of England
declares murder to be felony without benefit of clergy, we must resort
to the same law of England to learn what the benefit of clergy is:
and, when the common law censures simoniacal contracts, it affords
great light to the subject to consider what the canon law has adjudged
to be simony.
3. AS to the subject matter, words are always to be understood as
having a regard thereto; for that is always supposed to be in the eye
of the legislator, and all his expressions directed to that end. Thus,
when a law of our Edward III. forbids all ecclesiastical persons to
purchase _provisions_ at Rome, it might seem to prohibit the buying of
grain and other victual; but when we consider that the statute was
made to repress the usurpations of the papal see, and that the
nominations to vacant benefices by the pope were called _provisions_,
we shall see that the restraint is intended to be laid upon such
provisions only.
4. AS to the effects and consequence, the rule is, where words bear
either none, or a very absurd signification, if literally understood,
we must a little deviate from the received sense of them. Therefore
the Bolognian law, mentioned by Puffendorf[m], which enacted "that
whoever drew blood in the streets should be punished with the utmost
severity," was held after long debate not to extend to the surgeon,
who opened the vein of a person that fell down in the street with a
fit.
[Footnote m: _l._ 5. _c._ 12. Sec. 8.]
5. BUT, lastly, the most universal and effectual way of discovering
the true meaning of a law, when the words are dubious, is by
considering the reason and spirit of it; or the cause which moved the
legislator to enact it. For when this reason ceases, the law itself
ought likewise to cease with it. An instance of this is given in a
case put by Cicero, or whoever was the author of the rhetorical
treatise inscribed to Herennius[n]. There was a law, that those who in
a storm forsook the ship should forfeit all property therein; and the
ship and lading should belong entirely to those who staid in it. In a
dangerous tempest all the mariners forsook the ship, except only one
sick passenger, who by reason of his disease 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,
which he could never pretend to, who neither staid in the ship upon
that account, nor contributed any thing to it's preservation.
[Footnote n: _l._ 1. _c._ 11.]
FROM this method of interpreting laws, by the reason of them, arises
what we call _equity_; which is thus defined by Grotius[o], "the
correction of that, wherein the law (by reason of its universality) is
deficient." For since in laws all cases cannot be foreseen or
expressed, it is necessary, that when the general decrees of the law
come to be applied to particular cases, there should be somewhere a
power vested of excepting those circumstances, which (had they been
foreseen) the legislator himself would have excepted. And these are
the cases, which, as Grotius expresses it, "_lex non exacte definit,
sed arbitrio boni viri permittit_."
[Footnote o: _de aequitate._]
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 it's very essence,
and reducing it to a positive law. And, on the other hand, the liberty
of considering all cases in an equitable light must not be indulged
too far, lest thereby we destroy all law, and leave the decision of
every question entirely in the breast of the judge. And law, without
equity, tho' hard and disagreeable, is much more desirable for the
public good, than equity without law; which would make every judge a
legislator, and introduce most infinite confusion; as there would then
be almost as many different rules of action laid down in our courts,
as there are differences of capacity and sentiment in the human mind.
SECTION THE THIRD.
OF THE LAWS OF ENGLAND.
THE municipal law of England, or the rule of civil conduct prescribed
to the inhabitants of this kingdom, may with sufficient propriety be
divided into two kinds; the _lex non scripta_, the unwritten, or
common law; and the _lex scripta_, the written, or statute law.
THE _lex non scripta_, or unwritten law, includes not only _general
customs_, or the common law properly so called; but also the
_particular customs_ of certain parts of the kingdom; and likewise
those _particular laws_, that are by custom observed only in certain
courts and jurisdictions.
WHEN I call these parts of our law _leges non scriptae_, I would not
be understood as if all those laws were at present merely _oral_, or
communicated from the former ages to the present solely by word of
mouth. It is true indeed that, in the profound ignorance of letters
which formerly overspread the whole western world, all laws were
intirely traditional, for this plain reason, that the nations among
which they prevailed had but little idea of writing. Thus the British
as well as the Gallic druids committed all their laws as well as
learning to memory[a]; and it is said of the primitive Saxons here, as
well as their brethren on the continent, that _leges sola memoria et
usu retinebant_[b]. But with us at present the monuments and evidences
of our legal customs are contained in the records of the several
courts of justice, in books of reports and judicial decisions, and in
the treatises of learned sages of the profession, preserved and handed
down to us from the times of highest antiquity. However I therefore
stile these parts of our law _leges non scriptae_, because their
original institution and authority are not set down in writing, as
acts of parliament are, but they receive their binding power, and the
force of laws, by long and immemorial usage, and by their universal
reception throughout the kingdom. In like manner as Aulus Gellius
defines the _jus non scriptum_ to be that, which is "_tacito et
illiterato hominum consensu et moribus expressum_."
[Footnote a: _Caes. de b. G._ _lib._ 6. _c._ 13.]
[Footnote b: Spelm. Gl. 362.]
OUR antient lawyers, and particularly Fortescue[c], insist with
abundance of warmth, that these customs are as old as the primitive
Britons, and continued down, through the several mutations of
government and inhabitants, to the present time, unchanged and
unadulterated. This may be the case as to some; but in general, as Mr
Selden in his notes observes, this assertion must be understood with
many grains of allowance; and ought only to signify, as the truth
seems to be, that there never was any formal exchange of one system of
laws for another: though doubtless by the intermixture of adventitious
nations, the Romans, the Picts, the Saxons, the Danes, and the
Normans, they must have insensibly introduced and incorporated many of
their own customs with those that were before established: thereby in
all probability improving the texture and wisdom of the whole, by the
accumulated wisdom of divers particular countries. Our laws, saith
lord Bacon[d], are mixed as our language: and as our language is so
much the richer, the laws are the more complete.
[Footnote c: _c._ 17.]
[Footnote d: See his proposals for a digest.]
AND indeed our antiquarians and first historians do all positively
assure us, that our body of laws is of this compounded nature. For
they tell us, that in the time of Alfred the local customs of the
several provinces of the kingdom were grown so various, that he found
it expedient to compile his _dome-book_ or _liber judicialis_, for the
general use of the whole kingdom. This book is said to have been
extant so late as the reign of king Edward the fourth, but is now
unfortunately lost. It contained, we may probably suppose, the
principal maxims of the common law, the penalties for misdemesnors,
and the forms of judicial proceedings. Thus much may at least be
collected from that injunction to observe it, which we find in the
laws of king Edward the elder, the son of Alfred[e]. "_Omnibus qui
reipublicae praesunt, etiam atque etiam mando, ut omnibus aequos se
praebeant judices, perinde ac in judiciali libro_ (_Saxonice_,
[Anglo-Saxon: dom-bec]) _scriptum habetur; nec quicquam formident quin
jus commune_ (_Saxonice_, [Anglo-Saxon: folcrihte]) _audacter
libereque dicant._"
[Footnote e: _c._ 1.]
BUT the irruption and establishment of the Danes in England which
followed soon after, introduced new customs and caused this code of
Alfred in many provinces to fall into disuse; or at least to be mixed
and debased with other laws of a coarser alloy. So that about the
beginning of the eleventh century there were three principal systems
of laws prevailing in different districts. 1. The _Mercen-Lage_, or
Mercian laws, which were observed in many of the midland counties, and
those bordering on the principality of Wales; the retreat of the
antient Britons; and therefore very probably intermixed with the
British or Druidical customs. 2. The _West-Saxon-Lage_, or laws of the
west Saxons, which obtained in the counties to the south and west of
the island, from Kent to Devonshire. These were probably much the same
with the laws of Alfred abovementioned, being the municipal law of the
far most considerable part of his dominions, and particularly
including Berkshire, the seat of his peculiar residence. 3. The
_Dane-Lage_, or Danish law, the very name of which speaks it's
original and composition. This was principally maintained in the rest
of the midland counties, and also on the eastern coast, the seat of
that piratical people. As for the very northern provinces, they were
at that time under a distinct government[f].
[Footnote f: Hal. Hist. 55.]
OUT of these three laws, Roger Hoveden[g] and Ranulphus Cestrensis[h]
inform us, king Edward the confessor extracted one uniform law or
digest of laws, to be observed throughout the whole kingdom; though
Hoveden and the author of an old manuscript chronicle[i] assure us
likewise, that this work was projected and begun by his grandfather
king Edgar. And indeed a general digest of the same nature has been
constantly found expedient, and therefore put in practice by other
great nations, formed from an assemblage of little provinces, governed
by peculiar customs. As in Portugal, under king Edward, about the
beginning of the fifteenth century[k]. In Spain under Alonzo X, who
about the year 1250 executed the plan of his father St. Ferdinand, and
collected all the provincial customs into one uniform law, in the
celebrated code entitled _las partidas_[l]. And in Sweden about the
same aera, a universal body of common law was compiled out of the
particular customs established by the laghman of every province, and
intitled the _land's lagh_, being analogous to the _common law_ of
England[m].
[Footnote g: _in Hen. II._]
[Footnote h: _in Edw. Confessor._]
[Footnote i: _in Seld. ad Eadmer._ 6.]
[Footnote k: Mod. Un. Hist. xxii. 135.]
[Footnote l: Ibid. xx. 211.]
[Footnote m: Ibid. xxxiii. 21, 58.]