Commentaries on the Laws of England, Book the First
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Title: Commentaries on the Laws of England, Book the First
Author: Sir William Blackstone
Release date: December 30, 2009 [eBook #30802]
Most recently updated: January 5, 2021
Language: English
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*** START OF THE PROJECT GUTENBERG EBOOK COMMENTARIES ON THE LAWS OF ENGLAND, BOOK THE FIRST ***
Produced by The Bookworm, Linda Cantoni, and the Online
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[Transcriber's Note: Sir William Blackstone's _Commentaries on the
Laws of England_ was first published in 1765-1769. It contains a
number of archaic spellings (including "goaler" for "gaoler" and
"it's" for "its") that have been preserved as they appear in the
original. All such spellings have been verified using the Oxford
English Dictionary. Inconsistencies in spelling, punctuation,
hyphenation, capitalization, and italicization have also been
preserved. Obvious printer errors have been preserved and marked with
a [Transcriber's Note]. Long s in the original has been modernized as
modern s. The archaic convention of placing quotation marks at the
beginning of each line of a quotation has also been modernized to
quotation marks only at the beginning and end of the quotation.]
COMMENTARIES
ON THE
LAWS
OF
ENGLAND.
BOOK THE FIRST.
BY
WILLIAM BLACKSTONE, ESQ.
VINERIAN PROFESSOR OF LAW,
AND
SOLICITOR GENERAL TO HER MAJESTY.
OXFORD,
PRINTED AT THE CLARENDON PRESS.
M. DCC. LXV.
TO
THE QUEEN'S MOST EXCELLENT MAJESTY,
THE FOLLOWING VIEW
OF THE LAWS AND CONSTITUTION
OF ENGLAND,
THE IMPROVEMENT AND PROTECTION OF WHICH
HAVE DISTINGUISHED THE REIGN
OF HER MAJESTY'S ROYAL CONSORT,
IS,
WITH ALL GRATITUDE AND HUMILITY,
MOST RESPECTFULLY INSCRIBED
BY HER DUTIFUL
AND MOST OBEDIENT
SERVANT,
WILLIAM BLACKSTONE.
PREFACE.
_THE following sheets contain the substance of a course of lectures on
the laws of England, which were read by the author in the university
of OXFORD. His original plan took it's rise in the year 1753: and,
notwithstanding the novelty of such an attempt in this age and
country, and the prejudices usually conceived against any innovations
in the established mode of education, he had the satisfaction to find
(and he acknowleges it with a mixture of pride and gratitude) that his
endeavours were encouraged and patronized by those, both in the
university and out of it, whose good opinion and esteem he was
principally desirous to obtain._
_THE death of Mr VINER in 1756, and his ample benefaction to the
university for promoting the study of the law, produced about two
years afterwards a regular and public establishment of what the author
had privately undertaken. The knowlege of our laws and constitution
was adopted as a liberal science by general academical authority;
competent endowments were decreed for the support of a lecturer, and
the perpetual encouragement of students; and the compiler of the
ensuing commentaries had the honour to be elected the first Vinerian
professor._
_IN this situation he was led, both by duty and inclination, to
investigate the elements of the law, and the grounds of our civil
polity, with greater assiduity and attention than many have thought it
necessary to do. And yet all, who of late years have attended the
public administration of justice, must be sensible that a masterly
acquaintance with the general spirit of laws and the principles of
universal jurisprudence, combined with an accurate knowlege of our own
municipal constitutions, their original, reason, and history, hath
given a beauty and energy to many modern judicial decisions, with
which our ancestors were wholly unacquainted. If, in the pursuit of
these inquiries, the author hath been able to rectify any errors which
either himself or others may have heretofore imbibed, his pains will
be sufficiently answered: and, if in some points he is still mistaken,
the candid and judicious reader will make due allowances for the
difficulties of a search so new, so extensive, and so laborious._
_THE labour indeed of these researches, and of a regular attention to
his duty, for a series of so many years, he hath found inconsistent
with his health, as well as his other avocations: and hath therefore
desired the university's permission to retire from his office, after
the conclusion of the annual course in which he is at present engaged.
But the hints, which he had collected for the use of his pupils,
having been thought by some of his more experienced friends not wholly
unworthy of the public eye, it is therefore with the less reluctance
that he now commits them to the press: though probably the little
degree of reputation, which their author may have acquired by the
candor of an audience (a test widely different from that of a
deliberate perusal) would have been better consulted by a total
suppression of his lectures;----had that been a matter intirely within
his power._
_FOR the truth is, that the present publication is as much the effect
of necessity, as it is of choice. The notes which were taken by his
hearers, have by some of them (too partial in his favour) been thought
worth revising and transcribing; and these transcripts have been
frequently lent to others. Hence copies have been multiplied, in their
nature imperfect, if not erroneous; some of which have fallen into
mercenary hands, and become the object of clandestine sale. Having
therefore so much reason to apprehend a surreptitious impression, he
chose rather to submit his own errors to the world, than to seem
answerable for those of other men. And, with this apology, he commits
himself to the indulgence of the public._
ERRATA.
_Page 138, line 15_: _for_ no _read_ an
_Page 147, (notes) col. 2._ _after_ 1 Sid. 1. _add_ See Stat. 13 Car.
II. c. 7.
_Page 224, line 14_: _after_ sit _add_ at
_Page 376, line 6_: _for_ predial _read_ rectorial
CONTENTS.
INTRODUCTION.
SECT. I.
_On the_ STUDY _of the_ LAW. Page 3.
SECT. II.
_Of the_ NATURE _of_ LAWS _in general_. 38.
SECT. III.
_Of the_ LAWS _of_ ENGLAND. 63.
SECT. IV.
_Of the_ COUNTRIES _subject to the_ LAWS _of_ ENGLAND. 93.
BOOK I.
_Of the_ RIGHTS _of_ PERSONS.
CHAP. I.
_Of the absolute_ RIGHTS _of_ INDIVIDUALS. 117.
CHAP. II.
_Of the_ PARLIAMENT. 142.
CHAP. III.
_Of the_ KING, _and his_ TITLE. 183.
CHAP. IV.
_Of the_ KING'S _royal_ FAMILY. 212.
CHAP. V.
_Of the_ COUNCILS _belonging to the_ KING. 220.
CHAP. VI.
_Of the_ KING'S DUTIES. 226.
CHAP. VII.
_Of the_ KING'S PREROGATIVE. 230.
CHAP. VIII.
_Of the_ KING'S REVENUE. 271.
CHAP. IX.
_Of subordinate_ MAGISTRATES. 327.
CHAP. X.
_Of the_ PEOPLE, _whether_ ALIENS, DENIZENS, _or_ NATIVES. 354.
CHAP. XI.
_Of the_ CLERGY. 364.
CHAP. XII.
_Of the_ CIVIL STATE. 384.
CHAP. XIII.
_Of the_ MILITARY _and_ MARITIME STATES. 395.
CHAP. XIV.
_Of_ MASTER _and_ SERVANT. 410.
CHAP. XV.
_Of_ HUSBAND _and_ WIFE. 421.
CHAP. XVI.
_Of_ PARENT _and_ CHILD. 434.
CHAP. XVII.
_Of_ GUARDIAN _and_ WARD. 448.
CHAP. XVIII.
_Of_ CORPORATIONS. 455.
COMMENTARIES
ON THE
LAWS OF ENGLAND.
INTRODUCTION.
SECTION THE FIRST.
ON THE STUDY OF THE LAW.[A]
[Footnote A: Read in Oxford at the opening of the Vinerian lectures;
25 Oct. 1758.]
MR VICE-CHANCELLOR, AND GENTLEMEN OF THE UNIVERSITY,
THE general expectation of so numerous and respectable an audience,
the novelty, and (I may add) the importance of the duty required from
this chair, must unavoidably be productive of great diffidence and
apprehensions in him who has the honour to be placed in it. He must be
sensible how much will depend upon his conduct in the infancy of a
study, which is now first adopted by public academical authority;
which has generally been reputed (however unjustly) of a dry and
unfruitful nature; and of which the theoretical, elementary parts have
hitherto received a very moderate share of cultivation. He cannot but
reflect that, if either his plan of instruction be crude and
injudicious, or the execution of it lame and superficial, it will cast
a damp upon the farther progress of this most useful and most rational
branch of learning; and may defeat for a time the public-spirited
design of our wise and munificent benefactor. And this he must more
especially dread, when he feels by experience how unequal his
abilities are (unassisted by preceding examples) to complete, in the
manner he could wish, so extensive and arduous a task; since he freely
confesses, that his former more private attempts have fallen very
short of his own ideas of perfection. And yet the candour he has
already experienced, and this last transcendent mark of regard, his
present nomination by the free and unanimous suffrage of a great and
learned university, (an honour to be ever remembered with the deepest
and most affectionate gratitude) these testimonies of your public
judgment must entirely supersede his own, and forbid him to believe
himself totally insufficient for the labour at least of this
employment. One thing he will venture to hope for, and it certainly
shall be his constant aim, by diligence and attention to atone for his
other defects; esteeming, that the best return, which he can possibly
make for your favourable opinion of his capacity, will be his
unwearied endeavours in some little degree to deserve it.
THE science thus committed to his charge, to be cultivated,
methodized, and explained in a course of academical lectures, is that
of the laws and constitution of our own country: a species of
knowlege, in which the gentlemen of England have been more remarkably
deficient than those of all Europe besides. In most of the nations on
the continent, where the civil or imperial law under different
modifications is closely interwoven with the municipal laws of the
land, no gentleman, or at least no scholar, thinks his education is
completed, till he has attended a course or two of lectures, both upon
the institutes of Justinian and the local constitutions of his native
soil, under the very eminent professors that abound in their several
universities. And in the northern parts of our own island, where also
the municipal laws are frequently connected with the civil, it is
difficult to meet with a person of liberal education, who is destitute
of a competent knowlege in that science, which is to be the guardian
of his natural rights and the rule of his civil conduct.
NOR have the imperial laws been totally neglected even in the English
nation. A general acquaintance with their decisions has ever been
deservedly considered as no small accomplishment of a gentleman; and a
fashion has prevailed, especially of late, to transport the growing
hopes of this island to foreign universities, in Switzerland, Germany,
and Holland; which, though infinitely inferior to our own in every
other consideration, have been looked upon as better nurseries of the
civil, or (which is nearly the same) of their own municipal law. In
the mean time it has been the peculiar lot of our admirable system of
laws, to be neglected, and even unknown, by all but one practical
profession; though built upon the soundest foundations, and approved
by the experience of ages.
FAR be it from me to derogate from the study of the civil law,
considered (apart from any binding authority) as a collection of
written reason. No man is more thoroughly persuaded of the general
excellence of it's rules, and the usual equity of it's decisions; nor
is better convinced of it's use as well as ornament to the scholar,
the divine, the statesman, and even the common lawyer. But we must not
carry our veneration so far as to sacrifice our Alfred and Edward to
the manes of Theodosius and Justinian: we must not prefer the edict of
the praetor, or the rescript of the Roman emperor, to our own
immemorial customs, or the sanctions of an English parliament; unless
we can also prefer the despotic monarchy of Rome and Byzantium, for
whose meridians the former were calculated, to the free constitution
of Britain, which the latter are adapted to perpetuate.
WITHOUT detracting therefore from the real merit which abounds in the
imperial law, I hope I may have leave to assert, that if an Englishman
must be ignorant of either the one or the other, he had better be a
stranger to the Roman than the English institutions. For I think it an
undeniable position, that a competent knowlege of the laws of that
society, in which we live, is the proper accomplishment of every
gentleman and scholar; an highly useful, I had almost said essential,
part of liberal and polite education. And in this I am warranted by
the example of antient Rome; where, as Cicero informs us[a], the very
boys were obliged to learn the twelve tables by heart, as a _carmen
necessarium_ or indispensable lesson, to imprint on their tender minds
an early knowlege of the laws and constitutions of their country.
[Footnote a: _De Legg._ 2. 23.]
BUT as the long and universal neglect of this study, with us in
England, seems in some degree to call in question the truth of this
evident position, it shall therefore be the business of this
introductory discourse, in the first place to demonstrate the utility
of some general acquaintance with the municipal law of the land, by
pointing out its particular uses in all considerable situations of
life. Some conjectures will then be offered with regard to the causes
of neglecting this useful study: to which will be subjoined a few
reflexions on the peculiar propriety of reviving it in our own
universities.
AND, first, to demonstrate the utility of some acquaintance with the
laws of the land, let us only reflect a moment on the singular frame
and polity of that land, which is governed by this system of laws. A
land, perhaps the only one in the universe, in which political or
civil liberty is the very end and scope of the constitution[b]. This
liberty, rightly understood, consists in the power of doing whatever
the laws permit[c]; which is only to be effected by a general
conformity of all orders and degrees to those equitable rules of
action, by which the meanest individual is protected from the insults
and oppression of the greatest. As therefore every subject is
interested in the preservation of the laws, it is incumbent upon every
man to be acquainted with those at least, with which he is immediately
concerned; lest he incur the censure, as well as inconvenience, of
living in society without knowing the obligations which it lays him
under. And thus much may suffice for persons of inferior condition,
who have neither time nor capacity to enlarge their views beyond that
contracted sphere in which they are appointed to move. But those, on
whom nature and fortune have bestowed more abilities and greater
leisure, cannot be so easily excused. These advantages are given them,
not for the benefit of themselves only, but also of the public: and
yet they cannot, in any scene of life, discharge properly their duty
either to the public or themselves, without some degree of knowlege in
the laws. To evince this the more clearly, it may not be amiss to
descend to a few particulars.
[Footnote b: Montesq. _Esp. L._ _l._ 11. _c._ 5.]
[Footnote c: _Facultas ejus, quod cuique facere libet, nisi quid vi,
aut jure prohibetur._ _Inst._ 1. 3. 1.]
LET us therefore begin with our gentlemen of independent estates and
fortune, the most useful as well as considerable body of men in the
nation; whom even to suppose ignorant in this branch of learning is
treated by Mr Locke[d] as a strange absurdity. It is their landed
property, with it's long and voluminous train of descents and
conveyances, settlements, entails, and incumbrances, that forms the
most intricate and most extensive object of legal knowlege. The
thorough comprehension of these, in all their minute distinctions, is
perhaps too laborious a task for any but a lawyer by profession: yet
still the understanding of a few leading principles, relating to
estates and conveyancing, may form some check and guard upon a
gentleman's inferior agents, and preserve him at least from very gross
and notorious imposition.
[Footnote d: Education. §. 187.]
AGAIN, the policy of all laws has made some forms necessary in the
wording of last wills and testaments, and more with regard to their
attestation. An ignorance in these must always be of dangerous
consequence, to such as by choice or necessity compile their own
testaments without any technical assistance. Those who have attended
the courts of justice are the best witnesses of the confusion and
distresses that are hereby occasioned in families; and of the
difficulties that arise in discerning the true meaning of the
testator, or sometimes in discovering any meaning at all: so that in
the end his estate may often be vested quite contrary to these his
enigmatical intentions, because perhaps he has omitted one or two
formal words, which are necessary to ascertain the sense with
indisputable legal precision, or has executed his will in the presence
of fewer witnesses than the law requires.
BUT to proceed from private concerns to those of a more public
consideration. All gentlemen of fortune are, in consequence of their
property, liable to be called upon to establish the rights, to
estimate the injuries, to weigh the accusations, and sometimes to
dispose of the lives of their fellow-subjects, by serving upon juries.
In this situation they are frequently to decide, and that upon their
oaths, questions of nice importance, in the solution of which some
legal skill is requisite; especially where the law and the fact, as it
often happens, are intimately blended together. And the general
incapacity, even of our best juries, to do this with any tolerable
propriety has greatly debased their authority; and has unavoidably
thrown more power into the hands of the judges, to direct, control,
and even reverse their verdicts, than perhaps the constitution
intended.
BUT it is not as a juror only that the English gentleman is called
upon to determine questions of right, and distribute justice to his
fellow-subjects: it is principally with this order of men that the
commission of the peace is filled. And here a very ample field is
opened for a gentleman to exert his talents, by maintaining good order
in his neighbourhood; by punishing the dissolute and idle; by
protecting the peaceable and industrious; and, above all, by healing
petty differences and preventing vexatious prosecutions. But, in order
to attain these desirable ends, it is necessary that the magistrate
should understand his business; and have not only the will, but the
power also, (under which must be included the knowlege) of
administring legal and effectual justice. Else, when he has mistaken
his authority, through passion, through ignorance, or absurdity, he
will be the object of contempt from his inferiors, and of censure
from those to whom he is accountable for his conduct.
YET farther; most gentlemen of considerable property, at some period
or other in their lives, are ambitious of representing their country
in parliament: and those, who are ambitious of receiving so high a
trust, would also do well to remember it's nature and importance. They
are not thus honourably distinguished from the rest of their
fellow-subjects, merely that they may privilege their persons, their
estates, or their domestics; that they may list under party banners;
may grant or with-hold supplies; may vote with or vote against a
popular or unpopular administration; but upon considerations far more
interesting and important. They are the guardians of the English
constitution; the makers, repealers, and interpreters of the English
laws; delegated to watch, to check, and to avert every dangerous
innovation, to propose, to adopt, and to cherish any solid and
well-weighed improvement; bound by every tie of nature, of honour, and
of religion, to transmit that constitution and those laws to their
posterity, amended if possible, at least without any derogation. And
how unbecoming must it appear in a member of the legislature to vote
for a new law, who is utterly ignorant of the old! what kind of
interpretation can he be enabled to give, who is a stranger to the
text upon which he comments!
INDEED it is really amazing, that there should be no other state of
life, no other occupation, art, or science, in which some method of
instruction is not looked upon as requisite, except only the science
of legislation, the noblest and most difficult of any. Apprenticeships
are held necessary to almost every art, commercial or mechanical: a
long course of reading and study must form the divine, the physician,
and the practical professor of the laws: but every man of superior
fortune thinks himself _born_ a legislator. Yet Tully was of a
different opinion: "It is necessary, says he[e], for a senator to be
thoroughly acquainted with the constitution; and this, he declares, is
a knowlege of the most extensive nature; a matter of science, of
diligence, of reflexion; without which no senator can possibly be fit
for his office."
[Footnote e: _De Legg._ 3. 18. _Est senatori necessarium nosse
rempublicam; idque late patet:--genus hoc omne scientiae, diligentiae,
memoriae est; sine quo paratus esse senator nullo pacto potest._]
THE mischiefs that have arisen to the public from inconsiderate
alterations in our laws, are too obvious to be called in question; and
how far they have been owing to the defective education of our
senators, is a point well worthy the public attention. The common law
of England has fared like other venerable edifices of antiquity, which
rash and unexperienced workmen have ventured to new-dress and refine,
with all the rage of modern improvement. Hence frequently it's
symmetry has been destroyed, it's proportions distorted, and it's
majestic simplicity exchanged for specious embellishments and
fantastic novelties. For, to say the truth, almost all the perplexed
questions, almost all the niceties, intricacies, and delays (which
have sometimes disgraced the English, as well as other, courts of
justice) owe their original not to the common law itself, but to
innovations that have been made in it by acts of parliament;
"overladen (as sir Edward Coke expresses it[f]) with provisoes and
additions, and many times on a sudden penned or corrected by men of
none or very little judgment in law." This great and well-experienced
judge declares, that in all his time he never knew two questions made
upon rights merely depending upon the common law; and warmly laments
the confusion introduced by ill-judging and unlearned legislators.
"But if, he subjoins, acts of parliament were after the old fashion
penned, by such only as perfectly knew what the common law was before
the making of any act of parliament concerning that matter, as also
how far forth former statutes had provided remedy for former
mischiefs, and defects discovered by experience; then should very few
questions in law arise, and the learned should not so often and so
much perplex their heads to make atonement and peace, by construction
of law, between insensible and disagreeing words, sentences, and
provisoes, as they now do." And if this inconvenience was so heavily
felt in the reign of queen Elizabeth, you may judge how the evil is
increased in later times, when the statute book is swelled to ten
times a larger bulk; unless it should be found, that the penners of
our modern statutes have proportionably better informed themselves in
the knowlege of the common law.
[Footnote f: 2 Rep. Pref.]
WHAT is said of our gentlemen in general, and the propriety of their
application to the study of the laws of their country, will hold
equally strong or still stronger with regard to the nobility of this
realm, except only in the article of serving upon juries. But, instead
of this, they have several peculiar provinces of far greater
consequence and concern; being not only by birth hereditary
counsellors of the crown, and judges upon their honour of the lives of
their brother-peers, but also arbiters of the property of all their
fellow-subjects, and that in the last resort. In this their judicial
capacity they are bound to decide the nicest and most critical points
of the law; to examine and correct such errors as have escaped the
most experienced sages of the profession, the lord keeper and the
judges of the courts at Westminster. Their sentence is final,
decisive, irrevocable: no appeal, no correction, not even a review can
be had: and to their determination, whatever it be, the inferior
courts of justice must conform; otherwise the rule of property would
no longer be uniform and steady.
SHOULD a judge in the most subordinate jurisdiction be deficient in
the knowlege of the law, it would reflect infinite contempt upon
himself and disgrace upon those who employ him. And yet the
consequence of his ignorance is comparatively very trifling and small:
his judgment may be examined, and his errors rectified, by other
courts. But how much more serious and affecting is the case of a
superior judge, if without any skill in the laws he will boldly
venture to decide a question, upon which the welfare and subsistence
of whole families may depend! where the chance of his judging right,
or wrong, is barely equal; and where, if he chances to judge wrong, he
does an injury of the most alarming nature, an injury without
possibility of redress!
YET, vast as this trust is, it can no where be so properly reposed as
in the noble hands where our excellent constitution has placed it: and
therefore placed it, because, from the independence of their fortune
and the dignity of their station, they are presumed to employ that
leisure which is the consequence of both, in attaining a more
extensive knowlege of the laws than persons of inferior rank: and
because the founders of our polity relied upon that delicacy of
sentiment, so peculiar to noble birth; which, as on the one hand it
will prevent either interest or affection from interfering in
questions of right, so on the other it will bind a peer in honour, an
obligation which the law esteems equal to another's oath, to be master
of those points upon which it is his birthright to decide.
THE Roman pandects will furnish us with a piece of history not
unapplicable to our present purpose. Servius Sulpicius, a gentleman of
the patrician order, and a celebrated orator, had occasion to take the
opinion of Quintus Mutius Scaevola, the oracle of the Roman law; but
for want of some knowlege in that science, could not so much as
understand even the technical terms, which his friend was obliged to
make use of. Upon which Mutius Scaevola could not forbear to upbraid
him with this memorable reproof[g], "that it was a shame for a
patrician, a nobleman, and an orator of causes, to be ignorant of that
law in which he was so peculiarly concerned." This reproach made so
deep an impression on Sulpicius, that he immediately applied himself
to the study of the law; wherein he arrived to that proficiency, that
he left behind him about a hundred and fourscore volumes of his own
compiling upon the subject; and became, in the opinion of Cicero[h], a
much more complete lawyer than even Mutius Scaevola himself.
[Footnote g: _Ff._ 1. 2. 2. §. 43. _Turpe esse patricio, & nobili, &
causas oranti, jus in quo versaretur ignorare._]
[Footnote h: _Brut._ 41.]
I WOULD not be thought to recommend to our English nobility and gentry
to become as great lawyers as Sulpicius; though he, together with this
character, sustained likewise that of an excellent orator, a firm
patriot, and a wise indefatigable senator; but the inference which
arises from the story is this, that ignorance of the laws of the land
hath ever been esteemed dishonourable, in those who are entrusted by
their country to maintain, to administer, and to amend them.
BUT surely there is little occasion to enforce this argument any
farther to persons of rank and distinction, if we of this place may be
allowed to form a general judgment from those who are under our
inspection: happy, that while we lay down the rule, we can also
produce the example. You will therefore permit your professor to
indulge both a public and private satisfaction, by bearing this open
testimony; that in the infancy of these studies among us, they were
favoured with the most diligent attendance, and pursued with the most
unwearied application, by those of the noblest birth and most ample
patrimony: some of whom are still the ornaments of this seat of
learning; and others at a greater distance continue doing honour to
it's institutions, by comparing our polity and laws with those of
other kingdoms abroad, or exerting their senatorial abilities in the
councils of the nation at home.
NOR will some degree of legal knowlege be found in the least
superfluous to persons of inferior rank; especially those of the
learned professions. The clergy in particular, besides the common
obligations they are under in proportion to their rank and fortune,
have also abundant reason, considered merely as clergymen, to be
acquainted with many branches of the law, which are almost peculiar
and appropriated to themselves alone. Such are the laws relating to
advowsons, institutions, and inductions; to simony, and simoniacal
contracts; to uniformity, residence, and pluralities; to tithes and
other ecclesiastical dues; to marriages (more especially of late) and
to a variety of other subjects, which are consigned to the care of
their order by the provisions of particular statutes. To understand
these aright, to discern what is warranted or enjoined, and what is
forbidden by law, demands a sort of legal apprehension; which is no
otherwise to be acquired than by use and a familiar acquaintance with
legal writers.
FOR the gentlemen of the faculty of physic, I must frankly own that I
see no special reason, why they in particular should apply themselves
to the study of the law; unless in common with other gentlemen, and to
complete the character of general and extensive knowlege; a character
which their profession, beyond others, has remarkably deserved. They
will give me leave however to suggest, and that not ludicrously, that
it might frequently be of use to families upon sudden emergencies, if
the physician were acquainted with the doctrine of last wills and
testaments, at least so far as relates to the formal part of their
execution.
BUT those gentlemen who intend to profess the civil and ecclesiastical
laws in the spiritual and maritime courts of this kingdom, are of all
men (next to common lawyers) the most indispensably obliged to apply
themselves seriously to the study of our municipal laws. For the civil
and canon laws, considered with respect to any intrinsic obligation,
have no force or authority in this kingdom; they are no more binding
in England than our laws are binding at Rome. But as far as these
foreign laws, on account of some peculiar propriety, have in some
particular cases, and in some particular courts, been introduced and
allowed by our laws, so far they oblige, and no farther; their
authority being wholly founded upon that permission and adoption. In
which we are not singular in our notions; for even in Holland, where
the imperial law is much cultivated and it's decisions pretty
generally followed, we are informed by Van Leeuwen[i], that, "it
receives it's force from custom and the consent of the people, either
tacitly or expressly given: for otherwise, he adds, we should no more
be bound by this law, than by that of the Almains, the Franks, the
Saxons, the Goths, the Vandals, and other of the antient nations."
Wherefore, in all points in which the different systems depart from
each other, the law of the land takes place of the law of Rome,
whether antient or modern, imperial or pontificial. And in those of
our English courts wherein a reception has been allowed to the civil
and canon laws, if either they exceed the bounds of that reception, by
extending themselves to other matters, than are permitted to them; or
if such courts proceed according to the decisions of those laws, in
cases wherein it is controlled by the law of the land, the common law
in either instance both may, and frequently does, prohibit and annul
their proceedings[k]: and it will not be a sufficient excuse for them
to tell the king's courts at Westminster, that their practice is
warranted by the laws of Justinian or Gregory, or is conformable to
the decrees of the Rota or imperial chamber. For which reason it
becomes highly necessary for every civilian and canonist that would
act with safety as a judge, or with prudence and reputation as an
advocate, to know in what cases and how far the English laws have
given sanction to the Roman; in what points the latter are rejected;
and where they are both so intermixed and blended together, as to form
certain supplemental parts of the common law of England, distinguished
by the titles of the king's maritime, the king's military, and the
king's ecclesiastical law. The propriety of which enquiry the
university of Oxford has for more than a century so thoroughly seen,
that in her statutes[l] she appoints, that one of the three questions
to be annually discussed at the act by the jurist-inceptors shall
relate to the common law; subjoining this reason, "_quia juris civilis
studiosos decet haud imperitos esse juris municipalis, & differentias
exteri patriique juris notas habere_." And the statutes[m] of the
university of Cambridge speak expressly to the same effect.
[Footnote i: _Dedicatio corporis juris civilis._ _Edit._ 1663.]
[Footnote k: Hale. Hist. C.L. c. 2. Selden _in Fletam_. 5 Rep.
Caudrey's Case. 2 Inst. 599.]
[Footnote l: _Tit. VII. Sect._ 2. §. 2.]
[Footnote m: _Doctor legum mox a doctoratu dabit operam legibus
Angliae, ut non sit imperitus earum legum quas habet sua patria, et
differentias exteri patriique juris noscat._ _Stat._ Eliz. _R._ _c._
14. Cowel. _Institut. in proëmio._]
FROM the general use and necessity of some acquaintance with the
common law, the inference were extremely easy, with regard to the
propriety of the present institution, in a place to which gentlemen of
all ranks and degrees resort, as the fountain of all useful knowlege.
But how it has come to pass that a design of this sort has never
before taken place in the university, and the reason why the study of
our laws has in general fallen into disuse, I shall previously proceed
to enquire.
SIR John Fortescue, in his panegyric on the laws of England, (which
was written in the reign of Henry the sixth) puts[n] a very obvious
question in the mouth of the young prince, whom he is exhorting to
apply himself to that branch of learning; "why the laws of England,
being so good, so fruitful, and so commodious, are not taught in the
universities, as the civil and canon laws are?" In answer to which he
gives[o] what seems, with due deference be it spoken, a very jejune
and unsatisfactory reason; being in short, that "as the proceedings at
common law were in his time carried on in three different tongues, the
English, the Latin, and the French, that science must be necessarily
taught in those three several languages; but that in the universities
all sciences were taught in the Latin tongue only; and therefore he
concludes, that they could not be conveniently taught or studied in
our universities." But without attempting to examine seriously the
validity of this reason, (the very shadow of which by the wisdom of
your late constitutions is entirely taken away) we perhaps may find
out a better, or at least a more plausible account, why the study of
the municipal laws has been banished from these seats of science, than
what the learned chancellor thought it prudent to give to his royal
pupil.
[Footnote n: _c._ 47.]
[Footnote o: _c._ 48.]
THAT antient collection of unwritten maxims and customs, which is
called the common law, however compounded or from whatever fountains
derived, had subsisted immemorially in this kingdom; and, though
somewhat altered and impaired by the violence of the times, had in
great measure weathered the rude shock of the Norman conquest. This
had endeared it to the people in general, as well because it's
decisions were universally known, as because it was found to be
excellently adapted to the genius of the English nation. In the
knowlege of this law consisted great part of the learning of those
dark ages; it was then taught, says Mr Selden[p], in the monasteries,
_in the universities_, and in the families of the principal nobility.
The clergy in particular, as they then engrossed almost every other
branch of learning, so (like their predecessors the British druids[q])
they were peculiarly remarkable for their proficiency in the study of
the law. _Nullus clericus nisi causidicus_, is the character given of
them soon after the conquest by William of Malmsbury[r]. The judges
therefore were usually created out of the sacred order[s], as was
likewise the case among the Normans[t]; and all the inferior offices
were supplied by the lower clergy, which has occasioned their
successors to be denominated _clerks_ to this day.
[Footnote p: _in Fletam._ 7. 7.]
[Footnote q: Caesar _de bello Gal._ 6. 12.]
[Footnote r: _de gest. reg._ _l._ 4.]
[Footnote s: Dugdale _Orig. jurid._ _c._ 8.]
[Footnote t: _Les juges sont sages personnes & autentiques,--sicome
les archevesques, evesques, les chanoines les eglises cathedraulx, &
les autres personnes qui ont dignitez in saincte eglise; les abbez,
les prieurs conventaulx, & les gouverneurs des eglises, &c._ _Grand
Coustumier_, _ch._ 9.]
BUT the common law of England, being not committed to writing, but
only handed down by tradition, use, and experience, was not so
heartily relished by the foreign clergy; who came over hither in
shoals during the reign of the conqueror and his two sons, and were
utter strangers to our constitution as well as our language. And an
accident, which soon after happened, had nearly completed it's ruin. A
copy of Justinian's pandects, being newly[u] discovered at Amalfi,
soon brought the civil law into vogue all over the west of Europe,
where before it was quite laid aside[w] and in a manner forgotten;
though some traces of it's authority remained in Italy[x] and the
eastern provinces of the empire[y]. This now became in a particular
manner the favourite of the popish clergy, who borrowed the method and
many of the maxims of their canon law from this original. The study of
it was introduced into several universities abroad, particularly that
of Bologna; where exercises were performed, lectures read, and degrees
conferred in this faculty, as in other branches of science: and many
nations on the continent, just then beginning to recover from the
convulsions consequent upon the overthrow of the Roman empire, and
settling by degrees into peaceable forms of government, adopted the
civil law, (being the best written system then extant) as the basis of
their several constitutions; blending and interweaving it among their
own feodal customs, in some places with a more extensive, in others a
more confined authority[z].
[Footnote u: _circ. A.D._ 1130.]
[Footnote w: _LL. Wisigoth._ 2. 1. 9.]
[Footnote x: _Capitular. Hludov. Pii._ 4. 102.]
[Footnote y: Selden _in Fletam._ 5. 5.]
[Footnote z: Domat's treatise of laws. c. 13. §. 9. _Epistol.
Innocent. IV. in M. Paris. ad A.D._ 1254.]
NOR was it long before the prevailing mode of the times reached
England. For Theobald, a Norman abbot, being elected to the see of
Canterbury[a], and extremely addicted to this new study, brought over
with him in his retinue many learned proficients therein; and among
the rest Roger sirnamed Vacarius, whom he placed in the university of
Oxford[b], to teach it to the people of this country. But it did not
meet with the same easy reception in England, where a mild and
rational system of laws had been long established, as it did upon the
continent; and, though the monkish clergy (devoted to the will of a
foreign primate) received it with eagerness and zeal, yet the laity
who were more interested to preserve the old constitution, and had
already severely felt the effect of many Norman innovations, continued
wedded to the use of the common law. King Stephen immediately
published a proclamation[c], forbidding the study of the laws, then
newly imported from Italy; which was treated by the monks[d] as a
piece of impiety, and, though it might prevent the introduction of the
civil law process into our courts of justice, yet did not hinder the
clergy from reading and teaching it in their own schools and
monasteries.
[Footnote a: _A.D._ 1138.]
[Footnote b: Gervas. Dorobern. _Act. Pontif. Cantuar. col._ 1665.]
[Footnote c: Rog. Bacon. _citat. per_ Selden. _in Fletam._ 7. 6. _in
Fortesc._ _c._ 33. & 8 Rep. Pref.]
[Footnote d: Joan. Sarisburiens. _Polycrat._ 8. 22.]
FROM this time the nation seems to have been divided into two parties;
the bishops and clergy, many of them foreigners, who applied
themselves wholly to the study of the civil and canon laws, which now
came to be inseparably interwoven with each other; and the nobility
and laity, who adhered with equal pertinacity to the old common law;
both of them reciprocally jealous of what they were unacquainted with,
and neither of them perhaps allowing the opposite system that real
merit which is abundantly to be found in each. This appears on the one
hand from the spleen with which the monastic writers[e] speak of our
municipal laws upon all occasions; and, on the other, from the firm
temper which the nobility shewed at the famous parliament of Merton;
when the prelates endeavoured to procure an act, to declare all
bastards legitimate in case the parents intermarried at any time
afterwards; alleging this only reason, because holy church (that is,
the canon law) declared such children legitimate: but "all the earls
and barons (says the parliament roll[f]) with one voice answered, that
they would not change the laws of England, which had hitherto been
used and approved." And we find the same jealousy prevailing above a
century afterwards[g], when the nobility declared with a kind of
prophetic spirit, "that the realm of England hath never been unto this
hour, neither by the consent of our lord the king and the lords of
parliament shall it ever be, ruled or governed by the civil law[h]."
And of this temper between the clergy and laity many more instances
might be given.
[Footnote e: _Idem, ibid._ 5. 16. Polydor. Vergil. _Hist._ _l._ 9.]
[Footnote f: _Stat. Merton._ 20 _Hen. III._ _c._ 9. _Et omnes comites
& barones una voce responderunt, quod nolunt leges Angliae mutare,
quae hucusque usitatae sunt & approbatae._]
[Footnote g: 11 Ric. II.]
[Footnote h: Selden. _Jan. Anglor._ _l._ 2. §. 43. _in Fortesc._ _c._
33.]
WHILE things were in this situation, the clergy, finding it impossible
to root out the municipal law, began to withdraw themselves by degrees
from the temporal courts; and to that end, very early in the reign of
king Henry the third, episcopal constitutions were published[i],
forbidding all ecclesiastics to appear as advocates _in foro
saeculari_; nor did they long continue to act as judges there, nor
caring to take the oath of office which was then found necessary to be
administred, that they should in all things determine according to the
law and custom of this realm[k]; though they still kept possession of
the high office of chancellor, an office then of little juridical
power; and afterwards, as it's business increased by degrees, they
modelled the process of the court at their own discretion.
[Footnote i: Spelman. _Concil. A.D._ 1217. Wilkins, _vol._ 1. _p._
574, 599.]
[Footnote k: Selden. _in Fletam._ 9. 3.]
BUT wherever they retired, and wherever their authority extended, they
carried with them the same zeal to introduce the rules of the civil,
in exclusion of the municipal law. This appears in a particular manner
from the spiritual courts of all denominations, from the chancellor's
courts in both our universities, and from the high court of chancery
before-mentioned; in all of which the proceedings are to this day in a
course much conformed to the civil law: for which no tolerable reason
can be assigned, unless that these courts were all under the immediate
direction of the popish ecclesiastics, among whom it was a point of
religion to exclude the municipal law; pope Innocent the fourth
having[l] forbidden the very reading of it by the clergy, because it's
decisions were not founded on the imperial constitutions, but merely
on the customs of the laity. And if it be considered, that our
universities began about that period to receive their present form of
scholastic discipline; that they were then, and continued to be till
the time of the reformation, entirely under the influence of the
popish clergy; (sir John Mason the first protestant, being also the
first lay, chancellor of Oxford) this will lead us to perceive the
reason, why the study of the Roman laws was in those days of
bigotry[m] pursued with such alacrity in these seats of learning; and
why the common law was entirely despised, and esteemed little better
than heretical.
[Footnote l: M. Paris _ad A.D._ 1254.]
[Footnote m: There cannot be a stronger instance of the absurd and
superstitious veneration that was paid to these laws, than that the
most learned writers of the times thought they could not form a
perfect character, even of the blessed virgin, without making her a
civilian and a canonist. Which Albertus Magnus, the renowned dominican
doctor of the thirteenth century, thus proves in his _Summa de
laudibus christiferae virginis (divinum magis quam humanum opus)_
_qu._ 23. §. 5. "_Item quod jura civilia, & leges, & decreta scivit in
summo, probatur hoc modo: sapientia advocati manifestatur in tribus;
unum, quod obtineat omnia contra judicem justum & sapientem; secundo,
quod contra adversarium astutum & sagacem; tertio, quod in causa
desperata: sed beatissima virgo, contra judicem sapientissimum,
Dominum; contra adversarium callidissimum, dyabolum; in causa nostra
desperata; sententiam optatam obtinuit._" To which an eminent
franciscan, two centuries afterwards, Bernardinus de Busti (_Mariale_,
_part._ 4. _serm._ 9.) very gravely subjoins this note. "_Nec videtur
incongruum mulieres habere peritiam juris. Legitur enim de uxore
Joannis Andreae glossatoris, quod tantam peritiam in utroque jure
habuit, ut publice in scholis legere ausa sit._"]
AND, since the reformation, many causes have conspired to prevent it's
becoming a part of academical education. As, first, long usage and
established custom; which, as in every thing else, so especially in
the forms of scholastic exercise, have justly great weight and
authority. Secondly, the real intrinsic merit of the civil law,
considered upon the footing of reason and not of obligation, which was
well known to the instructors of our youth; and their total ignorance
of the merit of the common law, though it's equal at least, and
perhaps an improvement on the other. But the principal reason of all,
that has hindered the introduction of this branch of learning, is,
that the study of the common law, being banished from hence in the
times of popery, has fallen into a quite different chanel, and has
hitherto been wholly cultivated in another place. But as this long
usage and established custom, of ignorance in the laws of the land,
begin now to be thought unreasonable; and as by this means the merit
of those laws will probably be more generally known; we may hope that
the method of studying them will soon revert to it's antient course,
and the foundations at least of that science will be laid in the two
universities; without being exclusively confined to the chanel which
it fell into at the times I have been just describing.
FOR, being then entirely abandoned by the clergy, a few stragglers
excepted, the study and practice of it devolved of course into the
hands of laymen; who entertained upon their parts a most hearty
aversion to the civil law[n], and made no scruple to profess their
contempt, nay even their ignorance[o] of it, in the most public
manner. But still, as the ballance of learning was greatly on the side
of the clergy, and as the common law was no longer _taught_, as
formerly, in any part of the kingdom, it must have been subjected to
many inconveniences, and perhaps would have been gradually lost and
overrun by the civil, (a suspicion well justified from the frequent
transcripts of Justinian to be met with in Bracton and Fleta) had it
not been for a peculiar incident, which happened at a very critical
time, and contributed greatly to it's support.
[Footnote n: Fortesc. _de laud. LL._ _c._ 25.]
[Footnote o: This remarkably appeared in the case of the abbot of
Torun, _M._ 22 _E._ 3. 24. who had caused a certain prior to be
summoned to answer at Avignon for erecting an oratory _contra
inhibitionem novi operis_; by which words Mr Selden, (_in Flet._ 8.
5.) very justly understands to be meant the title _de novi operis
nuntiatione_ both in the civil and canon laws, (_Ff._ 39. 1. _C._ 8.
11. and _Decretal._ not _Extrav._ 5. 32.) whereby the erection of any
new buildings in prejudice of more antient ones was prohibited. But
Skipwith the king's serjeant, and afterwards chief baron of the
exchequer, declares them to be flat nonsense; "_in ceux parolx_,
contra inhibitionem novi operis, _ny ad pas entendment_:" and justice
Schardelow mends the matter but little by informing him, that they
signify a restitution _in their law_; for which reason he very sagely
resolves to pay no sort of regard to them. "_Ceo n'est que un
restitution en lour ley, pur que a ceo n'avomus regard, &c._"]
THE incident I mean was the fixing the court of common pleas, the
grand tribunal for disputes of property, to be held in one certain
spot; that the seat of ordinary justice might be permanent and
notorious to all the nation. Formerly that, in conjunction with all
the other superior courts, was held before the king's capital
justiciary of England, in the _aula regis_, or such of his palaces
wherein his royal person resided; and removed with his houshold from
one end of the kingdom to the other. This was found to occasion great
inconvenience to the suitors; to remedy which it was made an article
of the great charter of liberties, both that of king John and king
Henry the third[p], that "common pleas should no longer follow the
king's court, but be held in some certain place:" in consequence of
which they have ever since been held (a few necessary removals in
times of the plague excepted) in the palace of Westminster only. This
brought together the professors of the municipal law, who before were
dispersed about the kingdom, and formed them into an aggregate body;
whereby a society was established of persons, who (as Spelman[q]
observes) addicting themselves wholly to the study of the laws of the
land, and no longer considering it as a mere subordinate science for
the amusement of leisure hours, soon raised those laws to that pitch
of perfection, which they suddenly attained under the auspices of our
English Justinian, king Edward the first.
[Footnote p: _c._ 11.]
[Footnote q: _Glossar._ 334.]
IN consequence of this lucky assemblage, they naturally fell into a
kind of collegiate order, and, being excluded from Oxford and
Cambridge, found it necessary to establish a new university of their
own. This they did by purchasing at various times certain houses (now
called the inns of court and of chancery) between the city of
Westminster, the place of holding the king's courts, and the city of
London; for advantage of ready access to the one, and plenty of
provisions in the other[r]. Here exercises were performed, lectures
read, and degrees were at length conferred in the common law, as at
other universities in the canon and civil. The degrees were those of
barristers (first stiled apprentices[s] from _apprendre_, to learn)
who answered to our bachelors; as the state and degree of a
serjeant[t], _servientis ad legem_, did to that of doctor.
[Footnote r: Fortesc. _c._ 48.]
[Footnote s: Apprentices or Barristers seem to have been first
appointed by an ordinance of king Edward the first in parliament, in
the 20th year of his reign. (Spelm. _Gloss._ 37. Dugdale. _Orig.
jurid._ 55.)]
[Footnote t: The first mention I have met with in our lawbooks of
serjeants or countors, is in the statute of Westm. 1. 3 Edw. I. c. 29.
and in Horn's Mirror, _c._ 1. §. 10. _c._ 2. §. 5. _c._ 3. §. 1. in
the same reign. But M. Paris in his life of John II, abbot of St.
Alban's, which he wrote in 1255, 39 Hen. III. speaks of advocates at
the common law, or countors (_quos banci narratores vulgariter
appellamus_) as of an order of men well known. And we have an example
of the antiquity of the coif in the same author's history of England,
_A.D._ 1259. in the case of one William de Bussy; who, being called to
account for his great knavery and malpractices, claimed the benefit of
his orders or clergy, which till then remained an entire secret; and
to that end _voluit ligamenta coifae suae solvere, ut palam monstraret
se tonsuram habere clericalem; sed non est permissus.----Satelles vero
eum arripiens, non per coifae ligamina sed per guttur eum
apprehendens, traxit ad carcerem_. And hence sir H. Spelman
conjectures, (_Glossar._ 335.) that coifs were introduced to hide the
tonsure of such renegade clerks, as were still tempted to remain in
the secular courts in the quality of advocates or judges,
notwithstanding their prohibition by canon.]
THE crown seems to have soon taken under it's protection this infant
seminary of common law; and, the more effectually to foster and
cherish it, king Henry the third in the nineteenth year of his reign
issued out an order directed to the mayor and sheriffs of London,
commanding that no regent of any law schools _within_ that city should
for the future teach law therein[u]. The word, law, or _leges_, being
a general term, may create some doubt at this distance of time whether
the teaching of the civil law, or the common, or both, is hereby
restrained. But in either case it tends to the same end. If the civil
law only is prohibited, (which is Mr Selden's[w] opinion) it is then a
retaliation upon the clergy, who had excluded the common law from
_their_ seats of learning. If the municipal law be also included in
the restriction, (as sir Edward Coke[x] understands it, and which the
words seem to import) then the intention is evidently this; by
preventing private teachers within the walls of the city, to collect
all the common lawyers into the one public university, which was newly
instituted in the suburbs.
[Footnote u: _Ne aliquis scholas regens de legibus in eadem civitate
de caetero ibidem leges doceat._]
[Footnote w: _in Flet._ 8. 2.]
[Footnote x: 2 Inst. proëm.]
IN this juridical university (for such it is insisted to have been by
Fortescue[y] and sir Edward Coke[z]) there are two sorts of collegiate
houses; one called inns of chancery, in which the younger students of
the law were usually placed, "learning and studying, says
Fortescue[a], the originals and as it were the elements of the law;
who, profiting therein, as they grow to ripeness so are they admitted
into the greater inns of the same study, called the inns of court."
And in these inns of both kinds, he goes on to tell us, the knights
and barons, with other grandees and noblemen of the realm, did use to
place their children, though they did not desire to have them
thoroughly learned in the law, or to get their living by it's
practice: and that in his time there were about two thousand students
at these several inns, all of whom he informs us were _filii
nobilium_, or gentlemen born.
[Footnote y: _c._ 49.]
[Footnote z: 3 Rep. pref.]
[Footnote a: _ibid._]
HENCE it is evident, that (though under the influence of the monks our
universities neglected this study, yet) in the time of Henry the sixth
it was thought highly necessary and was the universal practice, for
the young nobility and gentry to be instructed in the originals and
elements of the laws. But by degres [Transcriber's Note: degrees] this
custom has fallen into disuse; so that in the reign of queen Elizabeth
sir Edward Coke[b] does not reckon above a thousand students, and the
number at present is very considerably less. Which seems principally
owing to these reasons: first, because the inns of chancery being now
almost totally filled by the inferior branch of the profession, they
are neither commodious nor proper for the resort of gentlemen of any
rank or figure; so that there are now very rarely any young students
entered at the inns of chancery: secondly, because in the inns of
court all sorts of regimen and academical superintendance, either with
regard to morals or studies, are found impracticable and therefore
entirely neglected: lastly, because persons of birth and fortune,
after having finished their usual courses at the universities, have
seldom leisure or resolution sufficient to enter upon a new scheme of
study at a new place of instruction. Wherefore few gentlemen now
resort to the inns of court, but such for whom the knowlege of
practice is absolutely necessary; such, I mean, as are intended for
the profession: the rest of our gentry, (not to say our nobility also)
having usually retired to their estates, or visited foreign kingdoms,
or entered upon public life, without any instruction in the laws of
the land; and indeed with hardly any opportunity of gaining
instruction, unless it can be afforded them in these seats of
learning.
[Footnote b: _ibid._]
AND that these are the proper places, for affording assistances of
this kind to gentlemen of all stations and degrees, cannot (I think)
with any colour of reason be denied. For not one of the objections,
which are made to the inns of court and chancery, and which I have
just enumerated, will hold with regard to the universities. Gentlemen
may here associate with gentlemen of their own rank and degree. Nor
are their conduct and studies left entirely to their own discretion;
but regulated by a discipline so wise and exact, yet so liberal, so
sensible and manly, that their conformity to it's rules (which does at
present so much honour to our youth) is not more the effect of
constraint, than of their own inclinations and choice. Neither need
they apprehend too long an avocation hereby from their private
concerns and amusements, or (what is a more noble object) the service
of their friends and their country. This study will go hand in hand
with their other pursuits: it will obstruct none of them; it will
ornament and assist them all.
BUT if, upon the whole, there are any still wedded to monastic
prejudice, that can entertain a doubt how far this study is properly
and regularly _academical_, such persons I am afraid either have not
considered the constitution and design of an university, or else think
very meanly of it. It must be a deplorable narrowness of mind, that
would confine these seats of instruction to the limited views of one
or two learned professions. To the praise of this age be it spoken, a
more open and generous way of thinking begins now universally to
prevail. The attainment of liberal and genteel accomplishments, though
not of the intellectual sort, has been thought by our wisest and most
affectionate patrons[c], and very lately by the whole university[d],
no small improvement of our antient plan of education; and therefore I
may safely affirm that nothing (how _unusual_ soever) is, under due
regulations, improper to be _taught_ in this place, which is proper
for a gentleman to _learn_. But that a science, which distinguishes
the criterions of right and wrong; which teaches to establish the one,
and prevent, punish, or redress the other; which employs in it's
theory the noblest faculties of the soul, and exerts in it's practice
the cardinal virtues of the heart; a science, which is universal in
it's use and extent, accommodated to each individual, yet
comprehending the whole community; that a science like this should
have ever been deemed unnecessary to be studied in an university, is
matter of astonishment and concern. Surely, if it were not before an
object of academical knowlege, it was high time to make it one; and to
those who can doubt the propriety of it's reception among us (if any
such there be) we may return an answer in their own way; that ethics
are confessedly a branch of academical learning, and Aristotle
_himself has said_, speaking of the laws of his own country, that
jurisprudence or the knowlege of those laws is the principal and
most[e] perfect branch of ethics.
[Footnote c: Lord chancellor Clarendon, in his dialogue of education,
among his tracts, p. 325. appears to have been very solicitous, that
it might be made "a part of the ornament of our learned academies to
teach the qualities of riding, dancing, and fencing, at those hours
when more serious exercises should be intermitted."]
[Footnote d: By accepting in full convocation the remainder of lord
Clarendon's history from his noble descendants, on condition to apply
the profits arising from it's publication to the establishment of a
_manage_ in the university.]
[Footnote e: [Greek: Teleia malista aretê, hoti tês teleias aretês
chrêsis esti.] _Ethic. ad Nicomach._ _l._ 5. _c._ 3.]
FROM a thorough conviction of this truth, our munificent benefactor Mr
VINER, having employed above half a century in amassing materials for
new modelling and rendering more commodious the rude study of the laws
of the land, consigned both the plan and execution of these his
public-spirited designs to the wisdom of his parent university.
Resolving to dedicate his learned labours "to the benefit of posterity
and the perpetual service of his country[f]," he was sensible he could
not perform his resolutions in a better and more effectual manner,
than by extending to the youth of this place those assistances, of
which he so well remembered and so heartily regretted the want. And
the sense, which the university has entertained of this ample and most
useful benefaction, must appear beyond a doubt from their gratitude in
receiving it with all possible marks of esteem[g]; from their alacrity
and unexampled dispatch in carrying it into execution[h]; and, above
all, from the laws and constitutions by which they have effectually
guarded it from the neglect and abuse to which such institutions are
liable[i]. We have seen an universal emulation, who best should
understand, or most faithfully pursue, the designs of our generous
patron: and with pleasure we recollect, that those who are most
distinguished by their quality, their fortune, their station, their
learning, or their experience, have appeared the most zealous to
promote the success of Mr Viner's establishment.
[Footnote f: See the preface to the eighteenth volume of his
abridgment.]
[Footnote g: Mr Viner is enrolled among the public benefactors of the
university by decree of convocation.]
[Footnote h: Mr Viner died June 5, 1756. His effects were collected
and settled, near a volume of his work printed, almost the whole
disposed of, and the accounts made up, in a year and a half from his
decease, by the very diligent and worthy administrators with the will
annexed, (Dr West and Dr Good of Magdalene, Dr Whalley of Oriel, Mr
Buckler of All Souls, and Mr Betts of University college) to whom that
care was consigned by the university. Another half year was employed
in considering and settling a plan of the proposed institution, and in
framing the statutes thereupon, which were finally confirmed by
convocation on the 3d of July, 1758. The professor was elected on
the 20th of October following, and two scholars on the succeeding
day. And, lastly, it was agreed at the annual audit in 1761, to
establish a fellowship; and a fellow was accordingly elected in
January following.--The residue of this fund, arising from the sale of
Mr Viner's abridgment, will probably be sufficient hereafter to found
another fellowship and scholarship, or three more scholarships, as
shall be thought most expedient.]
[Footnote i: The statutes are in substance as follows:
1. THAT the accounts of this benefaction be separately kept, and
annually audited by the delegates of accounts and professor, and
afterwards reported to convocation.
2. THAT a professorship of the laws of England be established, with a
salary of two hundred pounds _per annum_; the professor to be elected
by convocation, and to be at the time of his election at least a
master of arts or bachelor of civil law in the university of Oxford,
of ten years standing from his matriculation; and also a barrister at
law of four years standing at the bar.
3. THAT such professor (by himself, or by deputy to be previously
approved by convocation) do read one solemn public lecture on the laws
of England, and in the English language, in every academical term, at
certain stated times previous to the commencement of the common law
term; or forfeit twenty pounds for every omission to Mr Viner's
general fund: and also (by himself, or by deputy to be approved, if
occasional, by the vice-chancellor and proctors; or, if permanent,
both the cause and the deputy to be annually approved by convocation)
do yearly read one complete course of lectures on the laws of England,
and in the English language, consisting of sixty lectures at the
least, to be read during the university term time, with such proper
intervals that not more than four lectures may fall within any single
week: that the professor do give a month's notice of the time when the
course is to begin, and do read _gratis_ to the scholars of Mr Viner's
foundation; but may demand of other auditors such gratuity as shall be
settled from time to time by decree of convocation: and that, for
every of the said sixty lectures omitted, the professor, on complaint
made to the vice-chancellor within the year, do forfeit forty
shillings to Mr Viner's general fund; the proof of having performed
his duty to lie upon the said professor.
4. THAT every professor do continue in his office during life, unless
in case of such misbehaviour as shall amount to bannition by the
university statutes; or unless he deserts the profession of the law by
betaking himself to another profession; or unless, after one
admonition by the vice-chancellor and proctors for notorious neglect,
he is guilty of another flagrant omission: in any of which cases he be
deprived by the vice-chancellor, with consent of the house of
convocation.
5. THAT such a number of fellowships with a stipend of fifty pounds
_per annum_, and scholarships with a stipend of thirty pounds be
established, as the convocation shall from time to time ordain,
according to the state of Mr Viner's revenues.
6. THAT every fellow be elected by convocation, and at the time of
election be unmarried, and at least a master of arts or bachelor of
civil law, and a member of some college or hall in the university of
Oxford; the scholars of this foundation or such as have been scholars
(if qualified and approved of by convocation) to have the preference:
that, if not a barrister when chosen, he be called to the bar within
one year after his election; but do reside in the university two
months in every year, or in case of non-residence do forfeit the
stipend of that year to Mr Viner's general fund.
7. THAT every scholar be elected by convocation, and at the time of
election be unmarried, and a member of some college or hall in the
university of Oxford, who shall have been matriculated twenty four
calendar months at the least: that he do take the degree of bachelor
of civil law with all convenient speed; (either proceeding in arts or
otherwise) and previous to his taking the same, between the second and
eighth year from his matriculation, be bound to attend two courses of
the professor's lectures, to be certified under the professor's hand;
and within one year after taking the same be called to the bar: that
he do annually reside six months till he is of four years standing,
and four months from that time till he is master of arts or bachelor
of civil law; after which he be bound to reside two months in every
year; or, in case of non-residence, do forfeit the stipend of that
year to Mr Viner's general fund.
8. THAT the scholarships do become void in case of non-attendance on
the professor, or not taking the degree of bachelor of civil law,
being duly admonished so to do by the vice-chancellor and proctors:
and that both fellowships and scholarships do expire at the end of ten
years after each respective election; and become void in case of gross
misbehaviour, non-residence for two years together, marriage, not
being called to the bar within the time before limited, (being duly
admonished so to be by the vice-chancellor and proctors) or deserting
the profession of the law by following any other profession: and that
in any of these cases the vice-chancellor, with consent of
convocation, do declare the place actually void.
9. THAT in case of any vacancy of the professorship, fellowships, or
scholarships, the profits of the current year be ratably divided
between the predecessor or his representatives, and the successor; and
that a new election be had within one month afterwards, unless by that
means the time of election shall fall within any vacation, in which
case it be deferred to the first week in the next full term. And that
before any convocation shall be held for such election, or for any
other matter relating to Mr Viner's benefaction, ten days public
notice be given to each college and hall of the convocation, and the
cause of convoking it.]
THE advantages that might result to the science of the law itself,
when a little more attended to in these seats of knowlege, perhaps
would be very considerable. The leisure and abilities of the learned
in these retirements might either suggest expedients, or execute those
dictated by wiser heads[k], for improving it's method, retrenching
it's superfluities, and reconciling the little contrarieties, which
the practice of many centuries will necessarily create in any human
system: a task, which those who are deeply employed in business, and
the more active scenes of the profession, can hardly condescend to
engage in. And as to the interest, or (which is the same) the
reputation of the universities themselves, I may venture to pronounce,
that if ever this study should arrive to any tolerable perfection
either here or at Cambridge, the nobility and gentry of this kingdom
would not shorten their residence upon this account, nor perhaps
entertain a worse opinion of the benefits of academical education.
Neither should it be considered as a matter of light importance, that
while we thus extend the _pomoeria_ of university learning, and adopt
a new tribe of citizens within these philosophical walls, we interest
a very numerous and very powerful profession in the preservation of
our rights and revenues.
[Footnote k: See lord Bacon's proposals and offer of a digest.]
FOR I think it is past dispute that those gentlemen, who resort to the
inns of court with a view to pursue the profession, will find it
expedient (whenever it is practicable) to lay the previous foundations
of this, as well as every other science, in one of our learned
universities. We may appeal to the experience of every sensible
lawyer, whether any thing can be more hazardous or discouraging than
the usual entrance on the study of the law. A raw and unexperienced
youth, in the most dangerous season of life, is transpanted
[Transcriber's Note: transplanted] on a sudden into the midst of
allurements to pleasure, without any restraint or check but what his
own prudence can suggest; with no public direction in what course to
pursue his enquiries; no private assistance to remove the distresses
and difficulties, which will always embarass a beginner. In this
situation he is expected to sequester himself from the world, and by a
tedious lonely process to extract the theory of law from a mass of
undigested learning; or else by an assiduous attendance on the courts
to pick up theory and practice together, sufficient to qualify him for
the ordinary run of business. How little therefore is it to be
wondered at, that we hear of so frequent miscarriages; that so many
gentlemen of bright imaginations grow weary of so unpromising a
search[l], and addict themselves wholly to amusements, or other less
innocent pursuits; and that so many persons of moderate capacity
confuse themselves at first setting out, and continue ever dark and
puzzled during the remainder of their lives!
[Footnote l: Sir Henry Spelman, in the preface to his glossary, gives
us a very lively picture of his own distress upon this occasion.
"_Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum
vestibulum salutassem, reperissemque linguam peregrinam, dialectum
barbaram, methodum inconcinnam, molem non ingentem solum sed perpetuis
humeris sustinendam, excidit mihi (fateor) animus, &c._"]
THE evident want of some assistance in the rudiments of legal
knowlege, has given birth to a practice, which, if ever it had grown
to be general, must have proved of extremely pernicious consequence:
I mean the custom, by some so very warmly recommended, to drop all
liberal education, as of no use to lawyers; and to place them, in it's
stead, as [Transcriber's Note: at] the desk of some skilful attorney;
in order to initiate them early in all the depths of practice, and
render them more dextrous in the mechanical part of business. A few
instances of particular persons, (men of excellent learning, and
unblemished integrity) who, in spight of this method of education,
have shone in the foremost ranks of the bar, have afforded some kind
of sanction to this illiberal path to the profession, and biassed many
parents, of shortsighted judgment, in it's favour: not considering,
that there are some geniuses, formed to overcome all disadvantages,
and that from such particular instances no general rules can be
formed; nor observing, that those very persons have frequently
recommended by the most forcible of all examples, the disposal of
their own offspring, a very different foundation of legal studies, a
regular academical education. Perhaps too, in return, I could now
direct their eyes to our principal seats of justice, and suggest a few
hints, in favour of university learning[m]:--but in these all who hear
me, I know, have already prevented me.
[Footnote m: The four highest offices in the law were at that time
filled by gentlemen, two of whom had been fellows of All Souls
college; another, student of Christ-Church; and the fourth a fellow of
Trinity college, Cambridge.]
MAKING therefore due allowance for one or two shining exceptions,
experience may teach us to foretell that a lawyer thus educated to the
bar, in subservience to attorneys and solicitors[n], will find he has
begun at the wrong end. If practice be the whole he is taught,
practice must also be the whole he will ever know: if he be
uninstructed in the elements and first principles upon which the rule
of practice is founded, the least variation from established
precedents will totally distract and bewilder him: _ita lex scripta
est_[o] is the utmost his knowlege will arrive at; he must never
aspire to form, and seldom expect to comprehend, any arguments drawn
_a priori_, from the spirit of the laws and the natural foundations of
justice.
[Footnote n: See Kennet's life of Somner. p. 67.]
[Footnote o: _Ff._ 40. 9. 12.]
NOR is this all; for (as few persons of birth, or fortune, or even of
scholastic education, will submit to the drudgery of servitude and the
manual labour of copying the trash of an office) should this
infatuation prevail to any considerable degree, we must rarely expect
to see a gentleman of distinction or learning at the bar. And what the
consequence may be, to have the interpretation and enforcement of the
laws (which include the entire disposal of our properties, liberties,
and lives) fall wholly into the hands of obscure or illiterate men, is
matter of very public concern.
THE inconveniences here pointed out can never be effectually
prevented, but by making academical education a previous step to the
profession of the common law, and at the same time making the
rudiments of the law a part of academical education. For sciences are
of a sociable disposition, and flourish best in the neighbourhood of
each other: nor is there any branch of learning, but may be helped and
improved by assistances drawn from other arts. If therefore the
student in our laws hath formed both his sentiments and style, by
perusal and imitation of the purest classical writers, among whom the
historians and orators will best deserve his regard; if he can reason
with precision, and separate argument from fallacy, by the clear
simple rules of pure unsophisticated logic; if he can fix his
attention, and steadily pursue truth through any the most intricate
deduction, by the use of mathematical demonstrations; if he has
enlarged his conceptions of nature and art, by a view of the several
branches of genuine, experimental, philosophy; if he has impressed on
his mind the sound maxims of the law of nature, the best and most
authentic foundation of human laws; if, lastly, he has contemplated
those maxims reduced to a practical system in the laws of imperial
Rome; if he has done this or any part of it, (though all may be easily
done under as able instructors as ever graced any seats of learning) a
student thus qualified may enter upon the study of the law with
incredible advantage and reputation. And if, at the conclusion, or
during the acquisition of these accomplishments, he will afford
himself here a year or two's farther leisure, to lay the foundation of
his future labours in a solid scientifical method, without thirsting
too early to attend that practice which it is impossible he should
rightly comprehend, he will afterwards proceed with the greatest ease,
and will unfold the most intricate points with an intuitive rapidity
and clearness.
I SHALL not insist upon such motives as might be drawn from principles
of oeconomy, and are applicable to particulars only: I reason upon
more general topics. And therefore to the qualities of the head, which
I have just enumerated, I cannot but add those of the heart;
affectionate loyalty to the king, a zeal for liberty and the
constitution, a sense of real honour, and well grounded principles of
religion; as necessary to form a truly valuable English lawyer, a
Hyde, a Hale, or a Talbot. And, whatever the ignorance of some, or
unkindness of others, may have heretofore untruly suggested,
experience will warrant us to affirm, that these endowments of loyalty
and public spirit, of honour and religion, are no where to be found in
more high perfection than in the two universities of this kingdom.
BEFORE I conclude, it may perhaps be expected, that I lay before you a
short and general account of the method I propose to follow, in
endeavouring to execute the trust you have been pleased to repose in
my hands. And in these solemn lectures, which are ordained to be read
at the entrance of every term, (more perhaps to do public honour to
this laudable institution, than for the private instruction of
individuals[p]) I presume it will best answer the intent of our
benefactor and the expectation of this learned body, if I attempt to
illustrate at times such detached titles of the law, as are the most
easy to be understood, and most capable of historical or critical
ornament. But in reading the complete course, which is annually
consigned to my care, a more regular method will be necessary; and,
till a better is proposed, I shall take the liberty to follow the
same that I have already submitted to the public[q]. To fill up and
finish that outline with propriety and correctness, and to render the
whole intelligible to the uninformed minds of beginners, (whom we are
too apt to suppose acquainted with terms and ideas, which they never
had opportunity to learn) this must be my ardent endeavour, though by
no means my promise to accomplish. You will permit me however very
briefly to describe, rather what I conceive an academical expounder of
the laws should do, than what I have ever known to be done.
[Footnote p: See Lowth's _Oratio Crewiana_, p. 365.]
[Footnote q: The Analysis of the laws of England, first published,
_A.D._ 1756, and exhibiting the order and principal divisions of the
ensuing COMMENTARIES; which were originally submitted to the
university in a private course of lectures, _A.D._ 1753.]
HE should consider his course as a general map of the law, marking out
the shape of the country, it's connexions and boundaries, it's greater
divisions and principal cities: it is not his business to describe
minutely the subordinate limits, or to fix the longitude and latitude
of every inconsiderable hamlet. His attention should be engaged, like
that of the readers in Fortescue's inns of chancery, "in tracing out
the originals and as it were the elements of the law." For if, as
Justinian[r] has observed, the tender understanding of the student be
loaded at the first with a multitude and variety of matter, it will
either occasion him to desert his studies, or will carry him heavily
through them, with much labour, delay, and despondence. These
originals should be traced to their fountains, as well as our distance
will permit; to the customs of the Britons and Germans, as recorded by
Caesar and Tacitus; to the codes of the northern nations on the
continent, and more especially to those of our own Saxon princes; to
the rules of the Roman law, either left here in the days of Papinian,
or imported by Vacarius and his followers; but, above all, to that
inexhaustible reservoir of legal antiquities and learning, the feodal
law, or, as Spelman[s] has entitled it, the law of nations in our
western orb. These primary rules and fundamental principles should be
weighed and compared with the precepts of the law of nature, and the
practice of other countries; should be explained by reasons,
illustrated by examples, and confirmed by undoubted authorities; their
history should be deduced, their changes and revolutions observed, and
it should be shewn how far they are connected with, or have at any
time been affected by, the civil transactions of the kingdom.
[Footnote r: _Incipientibus nobis exponere jura populi Romani, ita
videntur tradi posse commodissime, si primo levi ac simplici via
singula tradantur: Alioqui, si statim ab initio rudem adhuc & infirmum
animum studiosi multitudine ac varietate rerum oneravimus, duorum
alterum, aut desertorem studiorum efficiemus, aut cum magno labore,
saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad
id perducemus, ad quod leviore via ductus, sine magno labore & sine
ulla diffidentia maturius perduci potuisset._ _Inst._ 1. 1. 2.]
[Footnote s: Of Parliaments. 57.]
A PLAN of this nature, if executed with care and ability, cannot fail
of administring a most useful and rational entertainment to students
of all ranks and professions; and yet it must be confessed that the
study of the laws is not merely a matter of amusement: for as a very
judicious writer[t] has observed upon a similar occasion, the learner
"will be considerably disappointed if he looks for entertainment
without the expence of attention." An attention, however, not greater
than is usually bestowed in mastering the rudiments of other sciences,
or sometimes in pursuing a favorite recreation or exercise. And this
attention is not equally necessary to be exerted by every student upon
every occasion. Some branches of the law, as the formal process of
civil suits, and the subtile distinctions incident to landed property,
which are the most difficult to be thoroughly understood, are the
least worth the pains of understanding, except to such gentlemen as
intend to pursue the profession. To others I may venture to apply,
with a slight alteration, the words of sir John Fortescue[u], when
first his royal pupil determines to engage in this study. "It will not
be necessary for a gentleman, as such, to examine with a close
application the critical niceties of the law. It will fully be
sufficient, and he may well enough be denominated a lawyer, if under
the instruction of a master he traces up the principles and grounds of
the law, even to their original elements. Therefore in a very short
period, and with very little labour, he may be sufficiently informed
in the laws of his country, if he will but apply his mind in good
earnest to receive and apprehend them. For, though such knowlege as is
necessary for a judge is hardly to be acquired by the lucubrations of
twenty years, yet with a genius of tolerable perspicacity, that
knowlege which is fit for a person of birth or condition may be
learned in a single year, without neglecting his other improvements."
[Footnote t: Dr Taylor's preface to Elem. of civil law.]
[Footnote u: _Tibi, princeps, necesse non erit mysteria legis Angliae
longo disciplinatu rimare. Sufficiet tibi,--_et fatis _denominari
legista mereberis, si legum principia & causas, usque ad elementa,
discipuli more indagaveris.--Quare tu, princeps serenissime, parvo
tempore, parva industria, sufficienter eris in legibus regni Angliae
eruditus, dummodo ad ejus apprehensionem tu conferas animum
tuum.--Nosco namque ingenii tui perspicacitatem, quo audacter
pronuntio quod in legibus illis (licet earum peritia, qualis judicibus
necessaria est, vix viginti annorum lucubrationibus acquiratur) tu
doctrinam principi congruam in anno uno sufficienter nancisceris; nec
interim militarem disciplinam, ad quam tam ardenter anhelas, negliges;
sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris._
_c._ 8.]
TO the few therefore (the very few, I am persuaded,) that entertain
such unworthy notions of an university, as to suppose it intended for
mere dissipation of thought; to such as mean only to while away the
aukward interval from childhood to twenty one, between the restraints
of the school and the licentiousness of politer life, in a calm middle
state of mental and of moral inactivity; to these Mr Viner gives no
invitation to an entertainment which they never can relish. But to the
long and illustrious train of noble and ingenuous youth, who are not
more distinguished among us by their birth and possessions, than by
the regularity of their conduct and their thirst after useful
knowlege, to these our benefactor has consecrated the fruits of a long
and laborious life, worn out in the duties of his calling; and will
joyfully reflect (if such reflexions can be now the employment of his
thoughts) that he could not more effectually have benefited posterity,
or contributed to the service of the public, than by founding an
institution which may instruct the rising generation in the wisdom of
our civil polity, and inform them with a desire to be still better
acquainted with the laws and constitution of their country.
SECTION THE SECOND.
OF THE NATURE OF LAWS IN GENERAL.
LAW, in it's most general and comprehensive sense, signifies a rule of
action; and is applied indiscriminately to all kinds of action,
whether animate, or inanimate, rational or irrational. Thus we say,
the laws of motion, of gravitation, of optics, or mechanics, as well
as the laws of nature and of nations. And it is that rule of action,
which is prescribed by some superior, and which the inferior is bound
to obey.
THUS when the supreme being formed the universe, and created matter
out of nothing, he impressed certain principles upon that matter, from
which it can never depart, and without which it would cease to be.
When he put that matter into motion, he established certain laws of
motion, to which all moveable bodies must conform. And, to descend
from the greatest operations to the smallest, when a workman forms a
clock, or other piece of mechanism, he establishes at his own pleasure
certain arbitrary laws for it's direction; as that the hand shall
describe a given space in a given time; to which law as long as the
work conforms, so long it continues in perfection, and answers the end
of it's formation.
IF we farther advance, from mere inactive matter to vegetable and
animal life, we shall find them still governed by laws; more numerous
indeed, but equally fixed and invariable. The whole progres of plants,
from the seed to the root, and from thence to the seed again;--the
method of animal nutrition, digestion, secretion, and all other
branches of vital oeconomy;--are not left to chance, or the will of
the creature itself, but are performed in a wondrous involuntary
manner, and guided by unerring rules laid down by the great creator.
THIS then is the general signification of law, a rule of action
dictated by some superior being; and in those creatures that have
neither the power to think, nor to will, such laws must be invariably
obeyed, so long as the creature itself subsists, for it's existence
depends on that obedience. But laws, in their more confined sense, and
in which it is our present business to consider them, denote the
rules, not of action in general, but of _human_ action or conduct:
that is, the precepts by which man, the noblest of all sublunary
beings, a creature endowed with both reason and freewill, is commanded
to make use of those faculties in the general regulation of his
behaviour.
MAN, considered as a creature, must necessarily be subject to the laws
of his creator, for he is entirely a dependent being. A being,
independent of any other, has no rule to pursue, but such as he
prescribes to himself; but a state of dependance 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 dependance consists. This principle therefore
has more or less extent and effect, in proportion as the superiority
of the one and the dependance of the other is greater or less,
absolute or limited. And consequently as man depends absolutely upon
his maker for every thing, it is necessary that he should in all
points conform to his maker's will.
THIS will of his maker is called the law of nature. For as God, when
he created matter, and endued it with a principle of mobility,
established certain rules for the perpetual direction of that motion;
so, when he created man, and endued him with freewill to conduct
himself in all parts of life, he laid down certain immutable laws of
human nature, whereby that freewill is in some degree regulated and
restrained, and gave him also the faculty of reason to discover the
purport of those laws.
CONSIDERING the creator only as a being of infinite _power_, he was
able unquestionably to have prescribed whatever laws he pleased to his
creature, man, however unjust or severe. But as he is also a being of
infinite _wisdom_, he has laid down only such laws as were founded in
those relations of justice, that existed in the nature of things
antecedent to any positive precept. These are the eternal, immutable
laws of good and evil, to which the creator himself in all his
dispensations conforms; and which he has enabled human reason to
discover, so far as they are necessary for the conduct of human
actions. Such among others are these principles: that we should live
honestly, should hurt nobody, and should render to every one it's due;
to which three general precepts Justinian[a] has reduced the whole
doctrine of law.
[Footnote a: _Juris praecepta sunt haec, honeste vivere, alterum non
laedere, suum cuique tribuere._ _Inst._ 1. 1. 3.]
BUT if the discovery of these first principles of the law of nature
depended only upon the due exertion of right reason, and could not
otherwise be attained than by a chain of metaphysical disquisitions,
mankind would have wanted some inducement to have quickened their
inquiries, and the greater part of the world would have rested content
in mental indolence, and ignorance it's inseparable companion. As
therefore the creator is a being, not only of infinite _power_, and
_wisdom_, but also of infinite _goodness_, he has been pleased so to
contrive the constitution and frame of humanity, that we should want
no other prompter to enquire after and pursue the rule of right, but
only our own self-love, that universal principle of action. For he has
so intimately connected, so inseparably interwoven the laws of eternal
justice with the happiness of each individual, that the latter cannot
be attained but by observing the former; and, if the former be
punctually obeyed, it cannot but induce the latter. In consequence of
which mutual connection of justice and human felicity, he has not
perplexed the law of nature with a multitude of abstracted rules and
precepts, referring merely to the fitness or unfitness of things, as
some have vainly surmised; but has graciously reduced the rule of
obedience to this one paternal precept, "that man should pursue his
own 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 tends 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.
THIS law of nature, being co-eval with mankind and dictated by God
himself, is of course superior in obligation to any other. It is
binding over all the globe, in all countries, and at all times: no
human laws are of any validity, if contrary to this; and such of them
as are valid derive all their force, and all their authority,
mediately or immediately, from this original.
BUT in order to apply this to the particular exigencies of each
individual, it is still necessary to have recourse to reason; whose
office it is to discover, as was before observed, what the law of
nature directs in every circumstance of life; by considering, what
method will tend the most effectually to our own substantial
happiness. And if our reason were always, as in our first ancestor
before his transgression, clear and perfect, unruffled by passions,
unclouded by prejudice, unimpaired by disease or intemperance, the
task would be pleasant and easy; we should need no other guide but
this. But every man now finds the contrary in his own experience; that
his reason is corrupt, and his understanding full of ignorance and
error.
THIS has given manifold occasion for the benign interposition of
divine providence; which, in companion to the frailty, the
imperfection, and the blindness of human reason, hath been pleased,
at sundry times and in divers manners, to discover and enforce it's
laws by an immediate and direct revelation. The doctrines thus
delivered we call the revealed or divine law, and they are to be found
only in the holy scriptures. These precepts, when revealed, are found
upon comparison to be really a part of the original law of nature, as
they tend in all their consequences to man's felicity. But we are not
from thence to conclude that the knowlege of these truths was
attainable by reason, in it's present corrupted state; since we find
that, until they were revealed, they were hid from the wisdom of ages.
As then the moral precepts of this law are indeed of the same original
with those of the law of nature, so their intrinsic obligation is of
equal strength and perpetuity. Yet undoubtedly the revealed law is
(humanly speaking) of infinitely more authority than what we generally
call the natural law. Because one is the law of nature, expressly
declared so to be by God himself; the other is only what, by the
assistance of human reason, we imagine to be that law. If we could be
as certain of the latter as we are of the former, both would have an
equal authority; but, till then, they can never be put in any
competition together.
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. There is, it is true, a great
number of indifferent points, in which both the divine law and the
natural leave a man at his own liberty; but which are found necessary
for the benefit of society to be restrained within certain limits. And
herein it is that human laws have their greatest force and efficacy;
for, with regard to such points as are not indifferent, human laws are
only declaratory of, and act in subordination to, the former. To
instance in the case of murder: this is expressly forbidden by the
divine, and demonstrably by the natural law; and from these
prohibitions arises the true unlawfulness of this crime. Those human
laws, that annex a punishment to it, do not at all increase it's moral
guilt, or superadd any fresh obligation _in foro conscientiae_ to
abstain from it's perpetration. Nay, if any human law should allow or
injoin us to commit it, we are bound to transgress that human law, or
else we must offend both the natural and the divine. But with regard
to matters that are in themselves indifferent, and are not commanded
or forbidden by those superior laws; such, for instance, as exporting
of wool into foreign countries; here the inferior legislature has
scope and opportunity to interpose, and to make that action unlawful
which before was not so.
IF man were to live in a state of nature, unconnected with other
individuals, there would be 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, without any other
superior but him who is the author of our being. But man was formed
for society; and, as is demonstrated by the writers on this
subject[b], is neither capable of living alone, nor indeed has the
courage to do it. However, as it is impossible for the whole race of
mankind to be united in one great society, they must necessarily
divide into many; and form separate states, commonwealths, and
nations; entirely independent of each other, and yet liable to a
mutual intercourse. Hence arises a third kind of law to regulate this
mutual intercourse, called "the law of nations;" which, as none of
these states will acknowlege a superiority in the other, cannot be
dictated by either; but depends entirely upon the rules of natural
law, or upon mutual compacts, treaties, leagues, and agreements
between these several 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: and
therefore the civil law[c] very justly observes, that _quod naturalis
ratio inter omnes homines constituit, vocatur jus gentium_.
[Footnote b: Puffendorf, _l._ 7. _c._ 1. compared with Barbeyrac's
commentary.]
[Footnote c: _Ff._ 1. 1. 9.]
THUS much I thought it necessary to premise concerning the law of
nature, the revealed law, and the law of nations, before I proceeded
to treat more fully of the principal subject of this section,
municipal or civil law; that is, the rule by which particular
districts, communities, or nations are governed; being thus defined by
Justinian[d], "_jus civile est quod quisque sibi populus constituit_."
I call it _municipal_ law, in compliance with common speech; for, tho'
strictly that expression denotes the particular customs of one single
_municipium_ or free town, yet it may with sufficient propriety be
applied to any one state or nation, which is governed by the same laws
and customs.
[Footnote d: _Inst._ 1. 2. 1.]
MUNICIPAL law, thus understood, is properly 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." Let us endeavour to
explain it's several properties, as they arise out of this definition.
AND, first, it is a _rule_; not a transient sudden order from a
superior to or concerning a particular person; but something
permanent, uniform, and universal. Therefore a particular act of the
legislature to confiscate the goods of Titius, or to attaint him of
high treason, does not enter into the idea of a municipal law: for the
operation of this act is spent upon Titius only, and has no relation
to the community in general; it is rather a sentence than a law. But
an act to declare that the crime of which Titius is accused shall be
deemed high treason; this has permanency, uniformity, and
universality, and therefore is properly a _rule_. It is also called a
_rule_, to distinguish it from _advice_ or _counsel_, which we are at
liberty to follow or not, as we see proper; and to judge upon the
reasonableness or unreasonableness of the thing advised. Whereas our
obedience to the _law_ depends not upon _our approbation_, but upon
the _maker's will_. Counsel is only matter of persuasion, law is
matter of injunction; counsel acts only upon the willing, law upon the
unwilling also.
IT is also called a _rule_, to distinguish it from a _compact_ or
_agreement_; for a compact is a promise proceeding _from_ us, law is a
command directed _to_ us. The language of a compact is, "I will, or
will not, do this;" that of a law is, "thou shalt, or shalt not, do
it." It is true there is an obligation which a compact carries with
it, equal in point of conscience to that of a law; but then the
original of the obligation is different. In compacts, we ourselves
determine and promise what shall be done, before we are obliged to do
it; in laws, we are obliged to act, without ourselves determining or
promising any thing at all. Upon these accounts law is defined to be
"_a rule_."
MUNICIPAL law is also "a rule _of civil conduct_." This distinguishes
municipal law from the natural, or revealed; the former of which is
the rule of _moral_ conduct, and the latter not only the rule of moral
conduct, but also the rule of faith. These regard man as a creature,
and point out his duty to God, to himself, and to his neighbour,
considered in the light of an individual. But municipal or civil law
regards him also as a citizen, and bound to other duties towards his
neighbour, than those of mere nature and religion: duties, which he
has engaged in by enjoying the benefits of the common union; and which
amount to no more, than that he do contribute, on his part, to the
subsistence and peace of the society.
IT is likewise "a rule _prescribed_." Because a bare resolution,
confined in the breast of the legislator, without manifesting itself
by some external sign, can never be properly a law. It is requisite
that this resolution be notified to the people who are to obey it. But
the manner in which this notification is to be made, is matter of very
great indifference. It may be notified by universal tradition and long
practice, which supposes a previous publication, and is the case of
the common law of England. It may be notified, _viva voce_, by
officers appointed for that purpose, as is done with regard to
proclamations, and such acts of parliament as are appointed to be
publicly read in churches and other assemblies. It may lastly be
notified by writing, printing, or the like; which is the general
course taken with all our acts of parliament. Yet, whatever way is
made use of, it is incumbent on the promulgators to do it in the most
public and perspicuous manner; not like Caligula, who (according to
Dio Cassius) wrote his laws in a very small character, and hung them
up upon high pillars, the more effectually to ensnare the people.
There is still a more unreasonable method than this, which is called
making of laws _ex post facto_; when _after_ an action is committed,
the legislator then for the first time declares it to have been a
crime, and inflicts a punishment upon the person who has committed it;
here it is impossible that the party could foresee that an action,
innocent when it was done, should be afterwards converted to guilt by
a subsequent law; he had therefore no cause to abstain from it; and
all punishment for not abstaining must of consequence be cruel and
unjust[e]. All laws should be therefore made to commence _in futuro_,
and be notified before their commencement; which is implied in the
term "_prescribed_." But when this rule is in the usual manner
notified, or prescribed, it is then the subject's business to be
thoroughly acquainted therewith; for if ignorance, of what he _might_
know, were admitted as a legitimate excuse, the laws would be of no
effect, but might always be eluded with impunity.
[Footnote e: Such laws among the Romans were denominated _privilegia_,
or private laws, of which Cicero _de leg._ 3. 19. and in his oration
_pro domo_, 17. thus speaks; "_Vetant leges sacratae, vetant duodecim
tabulae, leges privatis hominibus irrogari; id enim est privilegium.
Nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod
minus haec civitas ferre possit_."]
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 by the supreme power. Sovereignty and
legislature are indeed convertible terms; one cannot subsist without
the other.
THIS will naturally lead us into a short enquiry concerning the nature
of society and civil government; and the natural, inherent right that
belongs to the sovereignty of a state, wherever that sovereignty be
lodged, of making and enforcing laws.
THE only true and natural foundations of society are the wants and the
fears of individuals. Not that we can believe, with some theoretical
writers, that there ever was a time when there was no such thing as
society; and that, from the impulse of reason, and through a sense of
their wants and weaknesses, individuals met together in a large plain,
entered into an original contract, and chose the tallest man present
to be their governor. This notion, of an actually existing unconnected
state of nature, is too wild to be seriously admitted; and besides it
is plainly contradictory to the revealed accounts of the primitive
origin of mankind, and their preservation two thousand years
afterwards; both which were effected by the means of single families.
These formed the first society, among themselves; which every day
extended it's limits, and when it grew too large to subsist with
convenience in that pastoral state, wherein the patriarchs appear to
have lived, it necessarily subdivided itself by various migrations
into more. Afterwards, as agriculture increased, which employs and can
maintain a much greater number of hands, migrations became less
frequent; and various tribes, which had formerly separated, re-united
again; sometimes by compulsion and conquest, sometimes by accident,
and sometimes perhaps by compact. But though society had not it's
formal beginning from any convention of individuals, actuated by their
wants and their fears; yet it is the _sense_ of their weakness and
imperfection that _keeps_ mankind together; that demonstrates the
necessity of this union; and that therefore is the solid and natural
foundation, as well as the cement, of society. And this is what we
mean by the original contract of society; which, though perhaps in no
instance it has ever been formally expressed at the first institution
of a state, yet in nature and reason must always be understood and
implied, in the very act of associating together: namely, that the
whole should protect all it's parts, and that every part should pay
obedience to the will of the whole; or, in other words, that 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; without which submission of all it was
impossible that protection could be certainly extended to any.
FOR when society is once formed, government results of course, as
necessary to preserve and to keep that society in order. Unless some
superior were constituted, whose commands and decisions all the
members are bound to obey, they would still remain as in a state of
nature, without any judge upon earth to define their several rights,
and redress their several wrongs. But, as all the members of society
are naturally equal, it may be asked, in whose hands are the reins of
government to be entrusted? To this the general answer is easy; but
the application of it to particular cases has occasioned one half of
those mischiefs which are apt to proceed from misguided political
zeal. In general, all mankind will agree that government should be
reposed in such persons, in whom those qualities are most likely to be
found, the perfection of which are among the attributes of him who is
emphatically stiled the supreme being; 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
knowlege and intention into action. These are the natural foundations
of sovereignty, and these are the requisites that ought to be found in
every well constituted frame of government.
HOW the several forms of government we now see in the world at first
actually began, is matter of great uncertainty, and has occasioned
infinite disputes. It is not my business or intention to enter into
any of them. However they began, or by what right soever they
subsist, there is and must be in all of them a supreme, irresistible,
absolute, uncontrolled authority, in which the _jura summi imperii_,
or the rights of sovereignty, reside. And this authority is placed in
those hands, wherein (according to the opinion of the founders of such
respective states, either expressly given, or collected from their
tacit approbation) the qualities requisite for supremacy, wisdom,
goodness, and power, are the most likely to be found.
THE political writers of antiquity will not allow more than three
regular forms of government; the first, when the sovereign power is
lodged in an aggregate assembly consisting of all the members of a
community, which is called a democracy; the second, when it is lodged
in a council, composed of select members, and then it is stiled an
aristocracy; the last, when it is entrusted in the hands of a single
person, and then it takes the name of a monarchy. All other species of
government, they say, are either corruptions of, or reducible to,
these three.
BY the sovereign power, as was before observed, is meant the making of
laws; for wherever that power resides, all others must conform to, and
be directed by it, whatever appearance the outward form and
administration of the government may put on. For it is at any time in
the option of the legislature to alter that form and administration by
a new edict or rule, and to put the execution of the laws into
whatever hands it pleases: and all the other powers of the state must
obey the legislative power in the execution of their several
functions, or else the constitution is at an end.
IN a democracy, where the right of making laws resides in the people
at large, public virtue, or goodness of intention, is more likely to
be found, than either of the other qualities of government. 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. In
aristocracies there is more wisdom to be found, than in the other
frames of government; being composed, or intended to be composed, of
the most experienced citizens; but there is less honesty than in a
republic, and less strength than in a monarchy. A monarchy is indeed
the most powerful of any, all the sinews of government being knit
together, and united in the hand of the prince; but then there is
imminent danger of his employing that strength to improvident or
oppressive purposes.
THUS these three species of government have, all of them, their
several perfections and imperfections. Democracies are usually the
best calculated to direct the end of a law; aristocracies to invent
the means by which that end shall be obtained; and monarchies to carry
those means into execution. And the antients, as was observed, had in
general no idea of any other permanent form of government but these
three; for though Cicero[f] declares himself of opinion, "_esse optime
constitutam rempublicam, quae ex tribus generibus illis, regali,
optimo, et populari, sit modice confusa_;" yet Tacitus treats this
notion of a mixed government, formed out of them all, and partaking of
the advantages of each, as a visionary whim; and one that, if
effected, could never be lasting or secure[g].
[Footnote f: In his fragments _de rep._ _l._ 2.]
[Footnote g: "_Cunctas nationes et urbes populus, aut primores, aut
singuli regunt: delecta ex his, et constituta reipublicae forma
laudari facilius quam evenire, vel, si evenit, haud diuturna esse
potest._" _Ann._ _l._ 4.]
BUT happily for us of this island, the British constitution has long
remained, and I trust will long continue, a standing exception to the
truth of this observation. For, as 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; as this aggregate body, actuated by
different springs, and attentive to different interests, composes the
British parliament, and has the supreme disposal of every thing; there
can no inconvenience be attempted by either of the three branches, but
will be withstood by one of the other two; each branch being armed
with a negative power, sufficient to repel any innovation which it
shall think inexpedient or dangerous.
HERE then is lodged the sovereignty of the British constitution; and
lodged as beneficially as is possible for society. For in no other
shape could we be so certain of finding the three great qualities of
government so well and so happily united. If the supreme power were
lodged in any one of the three branches separately, we must be exposed
to the inconveniences of either absolute monarchy, aristocracy, or
democracy; and so want two of the three principal ingredients of good
polity, either virtue, wisdom, or power. If it were lodged in any two
of the branches; for instance, in the king and house of lords, our
laws might be providently made, and well executed, but they might not
always have the good of the people in view: if lodged in the king and
commons, we should want that circumspection and mediatory caution,
which the wisdom of the peers is to afford: if the supreme rights of
legislature were lodged in the two houses only, and the king had no
negative upon their proceedings, they might be tempted to encroach
upon the royal prerogative, or perhaps to abolish the kingly office,
and thereby weaken (if not totally destroy) the strength of the
executive power. But the constitutional government of this island is
so admirably tempered and compounded, that nothing can endanger or
hurt it, but destroying the equilibrium of power between one branch of
the legislature and the rest. For if ever it should happen that the
independence of any one of the three should be lost, or that it should
become subservient to the views of either of the other two, there
would soon be an end of our constitution. The legislature would be
changed from that, which was originally set up by the general consent
and fundamental act of the society; and such a change, however
effected, is according to Mr Locke[h] (who perhaps carries his theory
too far) at once an entire dissolution of the bands of government; and
the people would be reduced to a state of anarchy, with liberty to
constitute to themselves a new legislative power.
[Footnote h: On government, part 2. §. 212.]
HAVING thus cursorily considered the three usual species of
government, and our own singular constitution, selected and compounded
from them all, I proceed to observe, that, as the power of making laws
constitutes the supreme authority, so wherever the supreme authority
in any state resides, it is the right of that authority to make laws;
that is, in the words of our definition, _to prescribe the rule of
civil action_. And this may be discovered from the very end and
institution of civil states. For a state is a collective body,
composed of a multitude of individuals, united for their safety and
convenience, and intending to act together as one man. If it therefore
is to act as one man, it ought to act by one uniform will. But,
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_.
THUS far as to the _right_ of the supreme power to make laws; but
farther, it is it's _duty_ likewise. For since the respective members
are bound to conform themselves to the will of the state, it is
expedient that they receive directions from the state declaratory of
that it's will. But since it is impossible, in so great a multitude,
to give injunctions to every particular man, relative to each
particular action, therefore the state establishes general rules, for
the perpetual information and direction of all persons in all points,
whether of positive or negative duty. And this, in order that every
man may know what to look upon as his own, what as another's; what
absolute and what relative duties are required at his hands; what is
to be esteemed honest, dishonest, or indifferent; what degree every
man retains of his natural liberty; what he has given up as the price
of the benefits of society; and after what manner each person is to
moderate the use and exercise of those rights which the state assigns
him, in order to promote and secure the public tranquillity.
FROM what has been advanced, the truth of the former branch of our
definition, is (I trust) sufficiently evident; that "_municipal law is
a rule of civil conduct prescribed by the supreme power in a state_."
I proceed now to the latter branch of it; that it is a rule so
prescribed, "_commanding what is right, and prohibiting what is
wrong_."
NOW in order to do this completely, it is first of all necessary that
the boundaries of right and wrong be established and ascertained by
law. And when this is once done, it will follow of course that it is
likewise the business of the law, considered as a rule of civil
conduct, to enforce these rights and to restrain or redress these
wrongs. It remains therefore only to consider in what manner the law
is said to ascertain the boundaries of right and wrong; and the
methods which it takes to command the one and prohibit the other.
FOR this purpose every law may be said to consist of several parts:
one, _declaratory_; whereby the rights to be observed, and the wrongs
to be eschewed, are clearly defined and laid down: another,
_directory_, whereby the subject is instructed and enjoined to observe
those rights, and to abstain from the commission of those wrongs: a
third, _remedial_; whereby a method is pointed out to recover a man's
private rights, or redress his private wrongs: to which may be added a
fourth, usually termed the _sanction_, or _vindicatory_ branch of the
law; whereby it is signified what evil or penalty shall be incurred by
such as commit any public wrongs, and transgress or neglect their
duty.
WITH regard to the first of these, the _declaratory_ part of the
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. §. 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.]
BOTH these undertakings, of king Edgar and Edward the confessor, seem
to have been no more than a new edition, or fresh promulgation, of
Alfred's code or dome-book, with such additions and improvements as
the experience of a century and an half had suggested. For Alfred is
generally stiled by the same historians the _legum Anglicanarum
conditor_, as Edward the confessor is the _restitutor_. These however
are the laws which our histories so often mention under the name of
the laws of Edward the confessor; which our ancestors struggled so
hardly to maintain, under the first princes of the Norman line; and
which subsequent princes so frequently promised to keep and to
restore, as the most popular act they could do, when pressed by
foreign emergencies or domestic discontents. These are the laws, that
so vigorously withstood the repeated attacks of the civil law; which
established in the twelfth century a new Roman empire over most of the
states on the continent: states that have lost, and perhaps upon that
account, their political liberties; while the free constitution of
England, perhaps upon the same account, has been rather improved than
debased. These, in short, are the laws which gave rise and original to
that collection of maxims and customs, which is now known by the name
of the common law. A name either given to it, in contradistinction to
other laws, as the statute law, the civil law, the law merchant, and
the like; or, more probably, as a law _common_ to all the realm, the
_jus commune_ or _folcright_ mentioned by king Edward the elder, after
the abolition of the several provincial customs and particular laws
beforementioned.
BUT though this is the most likely foundation of this collection of
maxims and customs, yet the maxims and customs, so collected, are of
higher antiquity than memory or history can reach: nothing being more
difficult than to ascertain the precise beginning and first spring of
an antient and long established custom. Whence it is that in our law
the goodness of a custom depends upon it's having been used time out
of mind; or, in the solemnity of our legal phrase, time whereof the
memory of man runneth not to the contrary. This it is that gives it
it's weight and authority; and of this nature are the maxims and
customs which compose the common law, or _lex non scripta_, of this
kingdom.
THIS unwritten, or common, law is properly distinguishable into three
kinds: 1. General customs; which are the universal rule of the whole
kingdom, and form the common law, in it's stricter and more usual
signification. 2. Particular customs; which for the most part affect
only the inhabitants of particular districts. 3. Certain particular
laws; which by custom are adopted and used by some particular courts,
of pretty general and extensive jurisdiction.
I. AS to general customs, or the common law, properly so called; this
is that law, by which proceedings and determinations in the king's
ordinary courts of justice are guided and directed. This, for the most
part, settles the course in which lands descend by inheritance; the
manner and form of acquiring and transferring property; the
solemnities and obligation of contracts; the rules of expounding
wills, deeds, and acts of parliament; the respective remedies of civil
injuries; the several species of temporal offences, with the manner
and degree of punishment; and an infinite number of minuter
particulars, which diffuse themselves as extensively as the ordinary
distribution of common justice requires. Thus, for example, that there
shall be four superior courts of record, the chancery, the king's
bench, the common pleas, and the exchequer;--that the eldest son alone
is heir to his ancestor;--that property may be acquired and
transferred by writing;--that a deed is of no validity unless
sealed;--that wills shall be construed more favorably, and deeds more
strictly;--that money lent upon bond is recoverable by action of
debt;--that breaking the public peace is an offence, and punishable by
fine and imprisonment;--all these are doctrines that are not set down
in any written statute or ordinance, but depend merely upon immemorial
usage, that is, upon common law, for their support.
SOME have divided the common law into two principal grounds or
foundations: 1. established customs; such as that where there are
three brothers, the eldest brother shall be heir to the second, in
exclusion of the youngest: and 2. established rules and maxims; as,
"that the king can do no wrong, that no man shall be bound to accuse
himself," and the like. But I take these to be one and the same thing.
For the authority of these maxims rests entirely upon general
reception and usage; and the only method of proving, that this or that
maxim is a rule of the common law, is by shewing that it hath been
always the custom to observe it.
BUT here a very natural, and very material, question arises: how are
these customs or maxims to be known, and by whom is their validity to
be determined? The answer is, by the judges in the several courts of
justice. They are the depositary of the laws; the living oracles, who
must decide in all cases of doubt, and who are bound by an oath to
decide according to the law of the land. Their knowlege of that law is
derived from experience and study; from the "_viginti annorum
lucubrationes_," which Fortescue[n] mentions; and from being long
personally accustomed to the judicial decisions of their predecessors.
And indeed these judicial decisions are the principal and most
authoritative evidence, that can be given, of the existence of such a
custom as shall form a part of the common law. The judgment itself,
and all the proceedings previous thereto, are carefully registered and
preserved, under the name of _records_, in publick repositories set
apart for that particular purpose; and to them frequent recourse is
had, when any critical question arises, in the determination of which
former precedents may give light or assistance. And therefore, even so
early as the conquest, we find the "_praeteritorum memoria eventorum_"
reckoned up as one of the chief qualifications of those who were held
to be "_legibus patriae optime instituti_[o]." For it is an
established rule to abide by former precedents, where the same points
come again in litigation; as well to keep the scale of justice even
and steady, and not liable to waver with every new judge's opinion; as
also because the law in that case being solemnly declared and
determined, what before was uncertain, and perhaps indifferent, is now
become a permanent rule, which it is not in the breast of any
subsequent judge to alter or vary from, according to his private
sentiments: he being sworn to determine, not according to his own
private judgment, but according to the known laws and customs of the
land; not delegated to pronounce a new law, but to maintain and
expound the old one. Yet this rule admits of exception, where the
former determination is most evidently contrary to reason; much more
if it be contrary to the divine law. But even in such cases the
subsequent judges do not pretend to make a new law, but to vindicate
the old one from misrepresentation. For if it be found that the former
decision is manifestly absurd or unjust, it is declared, not that such
a sentence was _bad law_, but that it was _not law_; that is, that it
is not the established custom of the realm, as has been erroneously
determined. And hence it is that our lawyers are with justice so
copious in their encomiums on the reason of the common law; that they
tell us, that the law is the perfection of reason, that it always
intends to conform thereto, and that what is not reason is not law.
Not that the particular reason of every rule in the law can at this
distance of time be always precisely assigned; but it is sufficient
that there be nothing in the rule flatly contradictory to reason, and
then the law will presume it to be well founded[p]. And it hath been
an antient observation in the laws of England, that whenever a
standing rule of law, of which the reason perhaps could not be
remembered or discerned, hath been wantonly broke in upon by statutes
or new resolutions, the wisdom of the rule hath in the end appeared
from the inconveniences that have followed the innovation.
[Footnote n: _cap._ 8.]
[Footnote o: Seld. review of Tith. c. 8.]
[Footnote p: Herein agreeing with the civil law, _Ff._ 1. 3. 20, 21.
"_Non omnium, quae a majoribus nostris constituta sunt, ratio reddi
potest. Et ideo rationes eorum quae constituuntur, inquiri non
oportet: alioquin multa ex his, quae certa sunt, subvertuntur._"]
THE doctrine of the law then is this: that precedents and rules must
be followed, unless flatly absurd or unjust: for though their reason
be not obvious at first view, yet we owe such a deference to former
times as not to suppose they acted wholly without consideration. To
illustrate this doctrine by examples. It has been determined, time out
of mind, that a brother of the half blood (i.e. where they have only
one parent the same, and the other different) shall never succeed as
heir to the estate of his half brother, but it shall rather escheat to
the king, or other superior lord. Now this is a positive law, fixed
and established by custom, which custom is evidenced by judicial
decisions; and therefore can never be departed from by any modern
judge without a breach of his oath and the law. For herein there is
nothing repugnant to natural justice; though the reason of it, drawn
from the feodal law, may not be quite obvious to every body. And
therefore, on account of a supposed hardship upon the half brother, a
modern judge might wish it had been otherwise settled; yet it is not
in his power to alter it. But if any court were now to determine, that
an elder brother of the half blood might enter upon and seise any
lands that were purchased by his younger brother, no subsequent judges
would scruple to declare that such prior determination was unjust, was
unreasonable, and therefore was _not law_. So that _the law_, and the
_opinion of the judge_ are not always convertible terms, or one and
the same thing; since it sometimes may happen that the judge may
_mistake_ the law. Upon the whole however, we may take it as a general
rule, "that the decisions of courts of justice are the evidence of
what is common law:" in the same manner as, in the civil law, what the
emperor had once determined was to serve for a guide for the
future[q].
[Footnote q: "_Si imperialis majestas causam cognitionaliter
examinaverit, et partibus cominus constitutis sententiam dixerit,
omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse
legem, non solum illi causae pro qua producta est, sed et in omnibus
similibus._" _C._ 1. 14. 12.]
THE decisions therefore of courts are held in the highest regard, and
are not only preserved as authentic records in the treasuries of the
several courts, but are handed out to public view in the numerous
volumes of _reports_ which furnish the lawyer's library. These reports
are histories of the several cases, with a short summary of the
proceedings, which are preserved at large in the record; the arguments
on both sides; and the reasons the court gave for their judgment;
taken down in short notes by persons present at the determination. And
these serve as indexes to, and also to explain, the records; which
always, in matters of consequence and nicety, the judges direct to be
searched. The reports are extant in a regular series from the reign of
king Edward the second inclusive; and from his time to that of Henry
the eighth were taken by the prothonotaries, or chief scribes of the
court, at the expence of the crown, and published _annually_, whence
they are known under the denomination of the _year books_. And it is
much to be wished that this beneficial custom had, under proper
regulations, been continued to this day: for, though king James the
first at the instance of lord Bacon appointed two reporters with a
handsome stipend for this purpose, yet that wise institution was soon
neglected, and from the reign of Henry the eighth to the present time
this task has been executed by many private and cotemporary hands; who
sometimes through haste and inaccuracy, sometimes through mistake and
want of skill, have published very crude and imperfect (perhaps
contradictory) accounts of one and the same determination. Some of the
most valuable of the antient reports are those published by lord chief
justice Coke; a man of infinite learning in his profession, though not
a little infected with the pedantry and quaintness of the times he
lived in, which appear strongly in all his works. However his writings
are so highly esteemed, that they are generally cited without the
author's name[r].
[Footnote r: His reports, for instance, are stiled, [Greek: kat'
exochên], _the reports_; and in quoting them we usually say, 1 or 2
Rep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of
judge Croke are also cited in a peculiar manner, by the name of those
princes, in whose reigns the cases reported in his three volumes were
determined; viz. Qu. Elizabeth, K. James, and K. Charles the first; as
well as by the number of each volume. For sometimes we call them, 1,
2, and 3 Cro. but more commonly Cro. Eliz. Cro. Jac. and Cro. Car.]
BESIDES these reporters, there are also other authors, to whom great
veneration and respect is paid by the students of the common law. Such
are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert,
with some others of antient date, whose treatises are cited as
authority; and are evidence that cases have formerly happened in which
such and such points were determined, which are now become settled and
first principles. One of the last of these methodical writers in point
of time, whose works are of any intrinsic authority in the courts of
justice, and do not entirely depend on the strength of their
quotations from older authors, is the same learned judge we have just
mentioned, sir Edward Coke; who hath written four volumes of
institutes, as he is pleased to call them, though they have little of
the institutional method to warrant such a title. The first volume is
a very extensive comment upon a little excellent treatise of tenures,
compiled by judge Littleton in the reign of Edward the fourth. This
comment is a rich mine of valuable common law learning, collected and
heaped together from the antient reports and year books, but greatly
defective in method[s]. The second volume is a comment upon many old
acts of parliament, without any systematical order; the third a more
methodical treatise of the pleas of the crown; and the fourth an
account of the several species of courts[t].
[Footnote s: It is usually cited either by the name of Co. Litt. or as
1 Inst.]
[Footnote t: These are cited as 2, 3, or 4 Inst. without any author's
name. An honorary distinction, which, we observed, was paid to the
works of no other writer; the generality of reports and other tracts
being quoted in the name of the compiler, as 2 Ventris, 4 Leonard, 1
Siderfin, and the like.]
AND thus much for the first ground and chief corner stone of the laws
of England, which is, general immemorial custom, or common law, from
time to time declared in the decisions of the courts of justice; which
decisions are preserved among our public records, explained in our
reports, and digested for general use in the authoritative writings of
the venerable sages of the law.
THE Roman law, as practised in the times of it's liberty, paid also a
great regard to custom; but not so much as our law: it only then
adopting it, when the written law is deficient. Though the reasons
alleged in the digest[u] will fully justify our practice, in making it
of equal authority with, when it is not contradicted by, the written
law. "For since, says Julianus, the written law binds us for no other
reason but because it is approved by the judgment of the people,
therefore those laws which the people hath approved without writing
ought also to bind every body. For where is the difference, whether
the people declare their assent to a law by suffrage, or by a uniform
course of acting accordingly?" Thus did they reason while Rome had
some remains of her freedom; but when the imperial tyranny came to be
fully established, the civil laws speak a very different language.
"_Quod principi placuit legis habet vigorem, cum populus ei et in eum
omne suum imperium et potestatem conferat_," says Ulpian[w].
"_Imperator solus et conditor et interpres legis existimatur_," says
the code[x]. And again, "_sacrilegii instar est rescripto principis
obviare_[y]." And indeed it is one of the characteristic marks of
English liberty, that our common law depends upon custom; which
carries this internal evidence of freedom along with it, that it
probably was introduced by the voluntary consent of the people.
[Footnote u: _Ff._ 1. 3. 32.]
[Footnote w: _Ff._ 1. 4. 1.]
[Footnote x: _C._ 1. 14. 12.]
[Footnote y: _C._ 1. 23. 5.]
II. THE second branch of the unwritten laws of England are particular
customs, or laws which affect only the inhabitants of particular
districts.
THESE particular customs, or some of them, are without doubt the
remains of that multitude of local customs before mentioned, out of
which the common law, as it now stands, was collected at first by king
Alfred, and afterwards by king Edgar and Edward the confessor: each
district mutually sacrificing some of it's own special usages, in
order that the whole kingdom might enjoy the benefit of one uniform
and universal system of laws. But, for reasons that have been now long
forgotten, particular counties, cities, towns, manors, and lordships,
were very early indulged with the privilege of abiding by their own
customs, in contradistinction to the rest of the nation at large:
which privilege is confirmed to them by several acts of parliament[z].
[Footnote z: Mag. Cart. c. 9.--1 Edw. III. st. 2. c. 9.--14 Edw. III.
st. 1. c. 1.--and 2 Hen. IV. c. 1.]
SUCH is the custom of gavelkind in Kent and some other parts of the
kingdom (though perhaps it was also general till the Norman conquest)
which ordains, among other things, that not the eldest son only of the
father shall succeed to his inheritance, but all the sons alike: and
that, though the ancestor be attainted and hanged, yet the heir shall
succeed to his estate, without any escheat to the lord.--Such is the
custom that prevails in divers antient boroughs, and therefore called
borough-english, that the youngest son shall inherit the estate, in
preference to all his elder brothers.--Such is the custom in other
boroughs that a widow shall be intitled, for her dower, to all her
husband's lands; whereas at the common law she shall be endowed of one
third part only.--Such also are the special and particular customs of
manors, of which every one has more or less, and which bind all the
copyhold-tenants that hold of the said manors.--Such likewise is the
custom of holding divers inferior courts, with power of trying causes,
in cities and trading towns; the right of holding which, when no royal
grant can be shewn, depends entirely upon immemorial and established
usage.--Such, lastly, are many particular customs within the city of
London, with regard to trade, apprentices, widows, orphans, and a
variety of other matters; which are all contrary to the general law of
the land, and are good only by special custom, though those of London
are also confirmed by act of parliament[a].
[Footnote a: 8 Rep. 126. Cro. Car. 347.]
TO this head may most properly be referred a particular system of
customs used only among one set of the king's subjects, called the
custom of merchants or _lex mercatoria_; which, however different from
the common law, is allowed for the benefit of trade, to be of the
utmost validity in all commercial transactions; the maxim of law
being, that "_cuilibet in sua arte credendum est_."
THE rules relating to particular customs regard either the proof of
their existence; their legality when proved; or their usual method of
allowance. And first we will consider the rules of proof.
AS to gavelkind, and borough-english, the law takes particular notice
of them[b], and there is no occasion to prove that such customs
actually exist, but only that the lands in question are subject
thereto. All other private customs must be particularly pleaded[c],
and as well the existence of such customs must be shewn, as that the
thing in dispute is within the custom alleged. The trial in both cases
(both to shew the existence of the custom, as, "that in the manor of
Dale lands shall descend only to the heirs male, and never to the
heirs female;" and also to shew that the lands in question are within
that manor) is by a jury of twelve men, and not by the judges, except
the same particular custom has been before tried, determined, and
recorded in the same court[d].
[Footnote b: Co. Litt. 175 _b._]
[Footnote c: Litt. §. 265.]
[Footnote d: Dr and St. 1. 10.]
THE customs of London differ from all others in point of trial: for,
if the existence of the custom be brought in question, it shall not be
tried by a jury, but by certificate from the lord mayor and aldermen
by the mouth of their recorder[e]; unless it be such a custom as the
corporation is itself interested in, as a right of taking toll, &c,
for then the law permits them not to certify on their own behalf[f].
[Footnote e: Cro. Car. 516.]
[Footnote f: Hob. 85.]
WHEN a custom is actually proved to exist, the next enquiry is into
the legality of it; for if it is not a good custom it ought to be no
longer used. "_Malus usus abolendus est_" is an established maxim of
the law[g]. To make a particular custom good, the following are
necessary requisites.
[Footnote g: Litt. §. 212. 4 Inst. 274.]
1. THAT it have been used so long, that the memory of man runneth not
to the contrary. So that if any one can shew the beginning of it, it
is no good custom. For which reason no custom can prevail against an
express act of parliament; since the statute itself is a proof of a
time when such a custom did not exist[h].
[Footnote h: Co. Litt. 113 _b._]
2. IT must have been _continued_. Any interruption would cause a
temporary ceasing: the revival gives it a new beginning, which will be
within time of memory, and thereupon the custom will be void. But this
must be understood with regard to an interruption of the _right_; for
an interruption of the _possession_ only, for ten or twenty years,
will not destroy the custom[i]. As if I have a right of way by custom
over another's field, the custom is not destroyed, though I do not
pass over it for ten years; it only becomes more difficult to prove:
but if the _right_ be any how discontinued for a day, the custom is
quite at an end.
[Footnote i: Co. Litt. 114 _b._]
3. IT must have been _peaceable_, and acquiesced in; not subject to
contention and dispute[k]. For as customs owe their original to common
consent, their being immemorially disputed either at law or otherwise
is a proof that such consent was wanting.
[Footnote k: Co. Litt. 114.]
4. CUSTOMS must be _reasonable_[l]; or rather, taken negatively, they
must not be unreasonable. Which is not always, as sir Edward Coke
says[m], to be understood of every unlearned man's reason, but of
artificial and legal reason, warranted by authority of law. Upon which
account a custom may be good, though the particular reason of it
cannot be assigned; for it sufficeth, if no good legal reason can be
assigned against it. Thus a custom in a parish, that no man shall put
his beasts into the common till the third of october, would be good;
and yet it would be hard to shew the reason why that day in particular
is fixed upon, rather than the day before or after. But a custom that
no cattle shall be put in till the lord of the manor has first put in
his, is unreasonable, and therefore bad: for peradventure the lord
will never put in his; and then the tenants will lose all their
profits[n].
[Footnote l: Litt. §. 212.]
[Footnote m: 1 Inst. 62.]
[Footnote n: Co. Copyh. §. 33.]
5. CUSTOMS ought to be _certain_. A custom, that lands shall descend
to the most worthy of the owner's blood, is void; for how shall this
worth be determined? But a custom to descend to the next male of the
blood, exclusive of females, is certain, and therefore good[o]. A
custom, to pay two pence an acre in lieu of tythes, is good; but to
pay sometimes two pence and sometimes three pence, as the occupier of
the land pleases, is bad for it's uncertainty. Yet a custom, to pay a
year's improved value for a fine on a copyhold estate, is good: though
the value is a thing uncertain. For the value may at any time be
ascertained; and the maxim of law is, _id certum est, quod certum
reddi potest_.
[Footnote o: 1 Roll. Abr. 565.]
6. CUSTOMS, though established by consent, must be (when established)
_compulsory_; and not left to the option of every man, whether he will
use them or no. Therefore a custom, that all the inhabitants shall be
rated toward the maintenance of a bridge, will be good; but a custom,
that every man is to contribute thereto at his own pleasure, is idle
and absurd, and, indeed, no custom at all.
7. LASTLY, customs must be _consistent_ with each other: one custom
cannot be set up in opposition to another. For if both are really
customs, then both are of equal antiquity, and both established by
mutual consent: which to say of contradictory customs is absurd.
Therefore, if one man prescribes that by custom he has a right to have
windows looking into another's garden; the other cannot claim a right
by custom to stop up or obstruct those windows: for these two
contradictory customs cannot both be good, nor both stand together. He
ought rather to deny the existence of the former custom[p].
[Footnote p: 9 Rep. 58.]
NEXT, as to the allowance of special customs. Customs, in derogation
of the common law, must be construed strictly. Thus, by the custom of
gavelkind, an infant of fifteen years may by one species of
conveyance (called a deed of feoffment) convey away his lands in fee
simple, or for ever. Yet this custom does not impower him to use any
other conveyance, or even to lease them for seven years: for the
custom must be strictly pursued[q]. And, moreover, all special customs
must submit to the king's prerogative. Therefore, if the king
purchases lands of the nature of gavelkind, where all the sons inherit
equally; yet, upon the king's demise, his eldest son shall succeed to
those lands alone[r]. And thus much for the second part of the _leges
non scriptae_, or those particular customs which affect particular
persons or districts only.
[Footnote q: Co. Cop. §. 33.]
[Footnote r: Co. Litt. 15 _b._]
III. THE third branch of them are those peculiar laws, which by custom
are adopted and used only in certain peculiar courts and
jurisdictions. And by these I understand the civil and canon laws.
IT may seem a little improper at first view to rank these laws under
the head of _leges non scriptae_, or unwritten laws, seeing they are
set forth by authority in their pandects, their codes, and their
institutions; their councils, decrees, and decretals; and enforced by
an immense number of expositions, decisions, and treatises of the
learned in both branches of the law. But I do this, after the example
of sir Matthew Hale[s], because it is most plain, that it is not on
account of their being _written_ laws, that either the canon law, or
the civil law, have any obligation within this kingdom; neither do
their force and efficacy depend upon their own intrinsic authority;
which is the case of our written laws, or acts of parliament. They
bind not the subjects of England, because their materials were
collected from popes or emperors; were digested by Justinian, or
declared to be authentic by Gregory. These considerations give them no
authority here: for the legislature of England doth not, nor ever did,
recognize any foreign power, as superior or equal to it in this
kingdom; or as having the right to give law to any, the meanest, of
it's subjects. But all the strength that either the papal or imperial
laws have obtained in this realm, or indeed in any other kingdom in
Europe, is only because they have been admitted and received by
immemorial usage and custom in some particular cases, and some
particular courts; and then they form a branch of the _leges non
scriptae_, or customary law: or else, because they are in some other
cases introduced by consent of parliament, and then they owe their
validity to the _leges scriptae_, or statute law. This is expressly
declared in those remarkable words of the statute 25 Hen. VIII. c. 21.
addressed to the king's royal majesty.--"This your grace's realm,
recognizing no superior under God but only your grace, hath been and
is free from subjection to any man's laws, but only to such as have
been devised, made, and ordained _within_ this realm for the wealth of
the same; or to such other, as by sufferance of your grace and your
progenitors, the people of this your realm, have taken at their free
liberty, by their own consent, to be used among them; and have bound
themselves by long use and custom to the observance of the same: not
as to the observance of the laws of any foreign prince, potentate, or
prelate; but as to the _customed_ and antient laws of this realm,
originally established as laws of the same, by the said sufferance,
consents, and custom; and none otherwise."
[Footnote s: Hist. C.L. c. 2.]
BY the civil law, absolutely taken, is generally understood the civil
or municipal law of the Roman empire, as comprized in the institutes,
the code, and the digest of the emperor Justinian, and the novel
constitutions of himself and some of his successors. Of which, as
there will frequently be occasion to cite them, by way of illustrating
our own laws, it may not be amiss to give a short and general account.
THE Roman law (founded first upon the regal constitutions of their
antient kings, next upon the twelve tables of the _decemviri_, then
upon the laws or statutes enacted by the senate or people, the edicts
of the praetor, and the _responsa prudentum_ or opinions of learned
lawyers, and lastly upon the imperial decrees, or constitutions of
successive emperors) had grown to so great a bulk, or as Livy
expresses it[t], "_tam immensus aliarum super alias acervatarum legum
cumulus_," that they were computed to be many camels' load by an
author who preceded Justinian[u]. This was in part remedied by the
collections of three private lawyers, Gregorius, Hermogenes, and
Papirius; and then by the emperor Theodosius the younger, by whose
orders a code was compiled, _A.D._ 438, being a methodical collection
of all the imperial constitutions then in force: which Theodosian code
was the only book of civil law received as authentic in the western
part of Europe till many centuries after; and to this it is probable
that the Franks and Goths might frequently pay some regard, in framing
legal constitutions for their newly erected kingdoms. For Justinian
commanded only in the eastern remains of the empire; and it was under
his auspices, that the present body of civil law was compiled and
finished by Tribonian and other lawyers, about the year 533.
[Footnote t: _l._ 3. _c._ 34.]
[Footnote u: Taylor's elements of civil law. 17.]
THIS consists of, 1. The institutes, which contain the elements or
first principles of the Roman law, in four books. 2. The digests, or
pandects, in fifty books, containing the opinions and writings of
eminent lawyers, digested in a systematical method. 3. A new code, or
collection of imperial constitutions, the lapse of a whole century
having rendered the former code, of Theodosius, imperfect. 4. The
novels, or new constitutions, posterior in time to the other books,
and amounting to a supplement to the code; containing new decrees of
successive emperors, as new questions happened to arise. These form
the body of Roman law, or _corpus juris civilis_, as published about
the time of Justinian: which however fell soon into neglect and
oblivion, till about the year 1130, when a copy of the digests was
found at Amalfi in Italy; which accident, concurring with the policy
of the Romish ecclesiastics[w], suddenly gave new vogue and authority
to the civil law, introduced it into several nations, and occasioned
that mighty inundation of voluminous comments, with which this system
of law, more than any other, is now loaded.
[Footnote w: See §. 1. pag. 18.]
THE canon law is a body of Roman ecclesiastical law, relative to such
matters as that church either has, or pretends to have, the proper
jurisdiction over. This is compiled from the opinions of the antient
Latin fathers, the decrees of general councils, the decretal epistles
and bulles of the holy see. All which lay in the same disorder and
confusion as the Roman civil law, till about the year 1151, one
Gratian an Italian monk, animated by the discovery of Justinian's
pandects at Amalfi, reduced them into some method in three books,
which he entitled _concordia discordantium canonum_, but which are
generally known by the name of _decretum Gratiani_. These reached as
low as the time of pope Alexander III. The subsequent papal decrees,
to the pontificate of Gregory IX, were published in much the same
method under the auspices of that pope, about the year 1230, in five
books entitled _decretalia Gregorii noni_. A sixth book was added by
Boniface VIII, about the year 1298, which is called _sextus
decretalium_. The Clementine constitutions, or decrees of Clement V,
were in like manner authenticated in 1317 by his successor John XXII;
who also published twenty constitutions of his own, called the
_extravagantes Joannis_: all which in some measure answer to the
novels of the civil law. To these have been since added some decrees
of later popes in five books, called _extravagantes communes_. And all
these together, Gratian's decree, Gregory's decretals, the sixth
decretal, the Clementine constitutions, and the extravagants of John
and his successors, form the _corpus juris canonici_, or body of the
Roman canon law.
BESIDES these pontificial collections, which during the times of
popery were received as authentic in this island, as well as in other
parts of christendom, there is also a kind of national canon law,
composed of _legatine_ and _provincial_ constitutions, and adapted
only to the exigencies of this church and kingdom. The _legatine_
constitutions were ecclesiastical laws, enacted in national synods,
held under the cardinals Otho and Othobon, legates from pope Gregory
IX and pope Adrian IV, in the reign of king Henry III about the years
1220 and 1268. The _provincial_ constitutions are principally the
decrees of provincial synods, held under divers arch-bishops of
Canterbury, from Stephen Langton in the reign of Henry III to Henry
Chichele in the reign of Henry V; and adopted also by the province of
York[x] in the reign of Henry VI. At the dawn of the reformation, in
the reign of king Henry VIII, it was enacted in parliament[y] that a
review should be had of the canon law; and, till such review should be
made, all canons, constitutions, ordinances, and synodals provincial,
being then already made, and not repugnant to the law of the land or
the king's prerogative, should still be used and executed. And, as no
such review has yet been perfected, upon this statute now depends the
authority of the canon law in England.
[Footnote x: Burn's eccl. law, pref. viii.]
[Footnote y: Statute 25 Hen. VIII. c. 19; revived and confirmed by 1
Eliz. c. 1.]
AS for the canons enacted by the clergy under James I, in the year
1603, and never confirmed in parliament, it has been solemnly adjudged
upon the principles of law and the constitution, that where they are
not merely declaratory of the antient canon law, but are introductory
of new regulations, they do not bind the laity[z]; whatever regard the
clergy may think proper to pay them.
[Footnote z: Stra. 1057.]
THERE are four species of courts in which the civil and canon laws are
permitted under different restrictions to be used. 1. The courts of
the arch-bishops and bishops and their derivative officers, usually
called in our law courts christian, _curiae christianitatis_, or the
ecclesiastical courts. 2. The military courts. 3. The courts of
admiralty. 4. The courts of the two universities. In all, their
reception in general, and the different degrees of that reception, are
grounded intirely upon custom; corroborated in the latter instance by
act of parliament, ratifying those charters which confirm the
customary law of the universities. The more minute consideration of
these will fall properly under that part of these commentaries which
treats of the jurisdiction of courts. It will suffice at present to
remark a few particulars relative to them all, which may serve to
inculcate more strongly the doctrine laid down concerning them[a].
[Footnote a: Hale Hist. c. 2.]
1. AND, first, the courts of common law have the superintendency over
these courts; to keep them within their jurisdictions, to determine
wherein they exceed them, to restrain and prohibit such excess, and
(in case of contumacy) to punish the officer who executes, and in some
cases the judge who enforces, the sentence so declared to be illegal.
2. THE common law has reserved to itself the exposition of all such
acts of parliament, as concern either the extent of these courts or
the matters depending before them. And therefore if these courts
either refuse to allow these acts of parliament, or will expound them
in any other sense than what the common law puts upon them, the king's
courts at Westminster will grant prohibitions to restrain and control
them.
3. AN appeal lies from all these courts to the king, in the last
resort; which proves that the jurisdiction exercised in them is
derived from the crown of England, and not from any foreign potentate,
or intrinsic authority of their own.--And, from these three strong
marks and ensigns of superiority, it appears beyond a doubt that the
civil and canon laws, though admitted in some cases by custom in some
courts, are only subordinate and _leges sub graviori lege_; and that,
thus admitted, restrained, altered, new-modelled, and amended, they
are by no means with us a distinct independent species of laws, but
are inferior branches of the customary or unwritten laws of England,
properly called, the king's ecclesiastical, the king's military, the
king's maritime, or the king's academical, laws.
LET us next proceed to the _leges scriptae_, the written laws of the
kingdom, which are statutes, acts, or edicts, made by the king's
majesty by and with the advice and content of the lords spiritual and
temporal and commons in parliament assembled[b]. The oldest of these
now extant, and printed in our statute books, is the famous _magna
carta_, as confirmed in parliament 9 Hen. III: though doubtless there
were many acts before that time, the records of which are now lost,
and the determinations of them perhaps at present currently received
for the maxims of the old common law.
[Footnote b: 8 Rep. 20.]
THE manner of making these statutes will be better considered
hereafter, when we examine the constitution of parliaments. At present
we will only take notice of the different kinds of statutes; and of
some general rules with regard to their construction[c].
[Footnote c: The method of citing these acts of parliament is various.
Many of our antient statutes are called after the name of the place,
where the parliament was held that made them: as the statutes of
Merton and Marlbridge, of Westminster, Glocester, and Winchester.
Others are denominated entirely from their subject; as the statutes of
Wales and Ireland, the _articuli cleri_, and the _praerogativa regis_.
Some are distinguished by their initial words, a method of citing very
antient; being used by the Jews in denominating the books of the
pentateuch; by the christian church in distinguishing their hymns and
divine offices; by the Romanists in describing their papal bulles; and
in short by the whole body of antient civilians and canonists, among
whom this method of citation generally prevailed, not only with regard
to chapters, but inferior sections also: in imitation of all which we
still call some of our old statutes by their initial words, as the
statute of _quia emptores_, and that of _circumspecte agatis_. But the
most usual method of citing them, especially since the time of Edward
the second, is by naming the year of the king's reign in which the
statute was made, together with the chapter, or particular act,
according to it's numeral order; as, 9 Geo. II. c. 4. For all the acts
of one session of parliament taken together make properly but one
statute; and therefore when two sessions have been held in one year,
we usually mention stat. 1. or 2. Thus the bill of rights is cited, as
1 W. & M. st. 2. c. 2. signifying that it is the second chapter or
act, of the second statute or the laws made in the second sessions of
parliament, held in the first year of king William and queen Mary.]
FIRST, as to their several kinds. Statutes are either _general_ or
_special_, _public_ or _private_. A general or public act is an
universal rule, that regards the whole community; and of these the
courts of law are bound to take notice judicially and _ex officio_;
without the statute being particularly pleaded, or formally set forth
by the party who claims an advantage under it. Special or private acts
are rather exceptions than rules, being those which only operate upon
particular persons, and private concerns; such as the Romans intitled
_senatus-decreta_, in contradistinction to the _senatus-consulta_,
which regarded the whole community[d]: and of these the judges are not
bound to take notice, unless they be formally shewn and pleaded. Thus,
to shew the distinction, the statute 13 Eliz. c. 10. to prevent
spiritual persons from making leases for longer terms than twenty one
years, or three lives, is a public act; it being a rule prescribed to
the whole body of spiritual persons in the nation: but an act to
enable the bishop of Chester to make a lease to A.B. for sixty years,
is an exception to this rule; it concerns only the parties and the
bishop's successors; and is therefore a private act.
[Footnote d: Gravin. _Orig._ 1. §. 24.]
STATUTES also are either _declaratory_ of the common law, or
_remedial_ of some defects therein. Declaratory, where the old custom
of the kingdom is almost fallen into disuse, or become disputable; in
which case the parliament has thought proper, _in perpetuum rei
testimonium_, and for avoiding all doubts and difficulties, to declare
what the common law is and ever hath been. Thus the statute of
treasons, 25 Edw. III. cap. 2. doth not make any new species of
treasons; but only, for the benefit of the subject, declares and
enumerates those several kinds of offence, which before were treason
at the common law. Remedial statutes are those which are made to
supply such defects, and abridge such superfluities, in the common
law, as arise either from the general imperfection of all human laws,
from change of time and circumstances, from the mistakes and unadvised
determinations of unlearned judges, or from any other cause
whatsoever. And, this being done either by enlarging the common law
where it was too narrow and circumscribed, or by restraining it where
it was too lax and luxuriant, this has occasioned another subordinate
division of remedial acts of parliament into _enlarging_ and
_restraining_ statutes. To instance again in the case of treason.
Clipping the current coin of the kingdom was an offence not
sufficiently guarded against by the common law: therefore it was
thought expedient by statute 5 Eliz. c. 11. to make it high treason,
which it was not at the common law: so that this was an _enlarging_
statute. At common law also spiritual corporations might lease out
their estates for any term of years, till prevented by the statute 13
Eliz. beforementioned: this was therefore a _restraining_ statute.
SECONDLY, the rules to be observed with regard to the construction of
statutes are principally these which follow.
1. THERE are three points to be considered in the construction of all
remedial statutes; the old law, the mischief, and the remedy: that is,
how the common law stood at the making of the act; what the mischief
was, for which the common law did not provide; and what remedy the
parliament hath provided to cure this mischief. And it is the business
of the judges so to construe the act, as to suppress the mischief and
advance the remedy[e]. Let us instance again in the same restraining
statute of the 13 Eliz. By the common law ecclesiastical corporations
might let as long leases as they thought proper: the mischief was,
that they let long and unreasonable leases, to the impoverishment of
their successors: the remedy applied by the statute was by making void
all leases by ecclesiastical bodies for longer terms than three lives
or twenty one years. Now in the construction of this statute it is
held, that leases, though for a longer term, if made by a bishop, are
not void during the bishop's life; or, if made by a dean with
concurrence of his chapter, they are not void during the life of the
dean: for the act was made for the benefit and protection of the
successor[f]. The mischief is therefore sufficiently suppressed by
vacating them after the death of the grantor; but the leases, during
their lives, being not within the mischief, are not within the remedy.
[Footnote e: 3 Rep. 7 _b._ Co. Litt. 11 _b._ 42.]
[Footnote f: Co. Litt. 45. 3 Rep. 60.]
2. A STATUTE, which treats of things or persons of an inferior rank,
cannot by any _general words_ be extended to those of a superior. So a
statute, treating of "deans, prebendaries, parsons, vicars, _and
others having spiritual promotion_," is held not to extend to bishops,
though they have spiritual promotion; deans being the highest persons
named, and bishops being of a still higher order[g].
[Footnote g: 2 Rep. 46.]
3. PENAL statutes must be construed strictly. Thus a statute 1 Edw.
VI. having enacted that those who are convicted of stealing _horses_
should not have the benefit of clergy, the judges conceived that this
did not extend to him that should steal but _one horse_, and therefore
procured a new act for that purpose in the following year[h]. And, to
come nearer our own times, by the statute 14 Geo. II. c. 6. stealing
sheep, _or other cattle_, was made felony without benefit of clergy.
But these general words, "or other cattle," being looked upon as much
too loose to create a capital offence, the act was held to extend to
nothing but mere sheep. And therefore, in the next sessions, it was
found necessary to make another statute, 15 Geo. II. c. 34. extending
the former to bulls, cows, oxen, steers, bullocks, heifers, calves,
and lambs, by name.
[Footnote h: Bac. Elem. c. 12.]
4. STATUTES against frauds are to be liberally and beneficially
expounded. This may seem a contradiction to the last rule; most
statutes against frauds being in their consequences penal. But this
difference is here to be taken: where the statute acts upon the
offender, and inflicts a penalty, as the pillory or a fine, it is then
to be taken strictly: but when the statute acts upon the offence, by
setting aside the fraudulent transaction, here it is to be construed
liberally. Upon this footing the statute of 13 Eliz. c. 5. which
avoids all gifts of goods, &c, made to defraud creditors _and
others_, was held to extend by the general words to a gift made to
defraud the queen of a forfeiture[i].
[Footnote i: 3 Rep. 82.]
5. ONE part of a statute must be so construed by another, that the
whole may if possible stand: _ut res magis valeat, quam pereat_. As if
land be vested in the king and his heirs by act of parliament, saving
the right of A; and A has at that time a lease of it for three years:
here A shall hold it for his term of three years, and afterwards it
shall go to the king. For this interpretation furnishes matter for
every clause of the statute to work and operate upon. But
6. A SAVING, totally repugnant to the body of the act, is void. If
therefore an act of parliament vests land in the king and his heirs,
saving the right of all persons whatsoever; or vests the land of A in
the king, saving the right of A: in either of these cases the saving
is totally repugnant to the body of the statute, and (if good) would
render the statute of no effect or operation; and therefore the saving
is void, and the land vests absolutely in the king[k].
[Footnote k: 1 Rep. 47.]
7. WHERE the common law and a statute differ, the common law gives
place to the statute; and an old statute gives place to a new one. And
this upon the general principle laid down in the last section, that
"_leges posteriores priores contrarias abrogant_." But this is to be
understood, only when the latter statute is couched in negative terms,
or by it's matter necessarily implies a negative. As if a former act
says, that a juror upon such a trial shall have twenty pounds a year;
and a new statute comes and says, he shall have twenty marks: here the
latter statute, though it does not express, yet necessarily implies a
negative, and virtually repeals the former. For if twenty marks be
made qualification sufficient, the former statute which requires
twenty pounds is at an end[l]. But if both acts be merely affirmative,
and the substance such that both may stand together, here the latter
does not repeal the former, but they shall both have a concurrent
efficacy. If by a former law an offence be indictable at the quarter
sessions, and a latter law makes the same offence indictable at the
assises; here the jurisdiction of the sessions is not taken away, but
both have a concurrent jurisdiction, and the offender may be
prosecuted at either; unless the new statute subjoins express negative
words, as, that the offence shall be indictable at the assises, _and
not elsewhere_[m].
[Footnote l: Jenk. Cent. 2. 73.]
[Footnote m: 11 Rep. 63.]
8. IF a statute, that repeals another, is itself repealed afterwards,
the first statute is hereby revived, without any formal words for that
purpose. So when the statutes of 26 and 35 Hen. VIII, declaring the
king to be the supreme head of the church, were repealed by a statute
1 & 2 Ph. and Mary, and this latter statute was afterwards repealed by
an act of 1 Eliz. there needed not any express words of revival in
queen Elizabeth's statute, but these acts of king Henry were impliedly
and virtually revived[n].
[Footnote n: 4 Inst. 325.]
9. ACTS of parliament derogatory from the power of subsequent
parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs,
that no person for assisting a king _de facto_ shall be attainted of
treason by act of parliament or otherwise, is held to be good only as
to common prosecutions for high treason; but will not restrain or clog
any parliamentary attainder[o]. Because the legislature, being in
truth the sovereign power, is always of equal, always of absolute
authority: it acknowleges no superior upon earth, which the prior
legislature must have been, if it's ordinances could bind the present
parliament. And upon the same principle Cicero, in his letters to
Atticus, treats with a proper contempt these restraining clauses which
endeavour to tie up the hands of succeeding legislatures. "When you
repeal the law itself, says he, you at the same time repeal the
prohibitory clause, which guards against such repeal[p]."
[Footnote o: 4 Inst. 43.]
[Footnote p: _Cum lex abrogatur, illud ipsum abrogatur, quo non eam
abrogari oporteat._ _l._ 3. _ep._ 23.]
10. LASTLY, acts of parliament that are impossible to be performed are
of no validity; and if there arise out of them collaterally any absurd
consequences, manifestly contradictory to common reason, they are,
with regard to those collateral consequences, void. I lay down the
rule with these restrictions; though I know it is generally laid down
more largely, that acts of parliament contrary to reason are void. But
if the parliament will positively enact a thing to be done which is
unreasonable, I know of no power that can control it: and the examples
usually alleged in support of this sense of the rule do none of them
prove, that where the main object of a statute is unreasonable the
judges are at liberty to reject it; for that were to set the judicial
power above that of the legislature, which would be subversive of all
government. But where some collateral matter arises out of the general
words, and happens to be unreasonable; there the judges are in decency
to conclude that this consequence was not foreseen by the parliament,
and therefore they are at liberty to expound the statute by equity,
and only _quoad hoc_ disregard it. Thus if an act of parliament gives
a man power to try all causes, that arise within his manor of Dale;
yet, if a cause should arise in which he himself is party, the act is
construed not to extend to that; because it is unreasonable that any
man should determine his own quarrel[q]. But, if we could conceive it
possible for the parliament to enact, that he should try as well his
own causes as those of other persons, there is no court that has power
to defeat the intent of the legislature, when couched in such evident
and express words, as leave no doubt whether it was the intent of the
legislature or no.
[Footnote q: 8 Rep. 118.]
THESE are the several grounds of the laws of Engla
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