Commentaries on the Laws of England Part 4

[Footnote h: On government, part 2. --. 212.]

HAVING thus cursorily considered the three usual species of government, and our own singular const.i.tution, selected and compounded from them all, I proceed to observe, that, as the power of making laws const.i.tutes 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 inst.i.tution of civil states. For a state is a collective body, composed of a mult.i.tude 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 const.i.tute 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 a.s.semblies of men, to whom the supreme authority is entrusted: and this will of that one man, or a.s.semblage of men, is in different states, according to their different const.i.tutions, 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 mult.i.tude, 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 a.s.signs 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 "_munic.i.p.al 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 munic.i.p.al 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 G.o.d 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 munic.i.p.al 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 wors.h.i.+p of G.o.d, 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 publis.h.i.+ng his precepts. So that, upon the whole, the declaratory part of the munic.i.p.al 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 munic.i.p.al 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 circ.u.mstances 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 circ.u.mstances, 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 munic.i.p.al 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 a.s.serting 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 t.i.tius's father, is vested by his death in t.i.tius;"

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 t.i.tius, 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 munic.i.p.al 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 quant.i.ty 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 princ.i.p.al 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 pa.s.s 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 princ.i.p.al 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 t.i.tius, 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 mult.i.tude 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 munic.i.p.al 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 const.i.tutions, 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 a.s.sistance 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 const.i.tutions. 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 s.h.i.+p should forfeit all property therein; and the s.h.i.+p and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the s.h.i.+p, except only one sick pa.s.senger, who by reason of his disease was unable to get out and escape. By chance the s.h.i.+p 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 s.h.i.+p 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 circ.u.mstances, 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 permitt.i.t_."

[Footnote o: _de aequitate._]

EQUITY thus depending, essentially, upon the particular circ.u.mstances 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 munic.i.p.al 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 inst.i.tution 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 a.s.sertion 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 advent.i.tious 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 acc.u.mulated 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 a.s.sure 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 princ.i.p.al 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 coa.r.s.er alloy. So that about the beginning of the eleventh century there were three princ.i.p.al 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 princ.i.p.ality 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 Devons.h.i.+re. These were probably much the same with the laws of Alfred abovementioned, being the munic.i.p.al law of the far most considerable part of his dominions, and particularly including Berks.h.i.+re, 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 princ.i.p.ally 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 ma.n.u.script chronicle[i] a.s.sure 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 a.s.semblage 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 ent.i.tled _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 int.i.tled the _land's lagh_, being a.n.a.logous to the _common law_ of England[m].