1
V
I
•
I
Jlohu
IN TME CUSTODY OF THE
BOSTON PUBLIC LIBRARY.
COMMENTARIES
ON THE
LAW S
O F
ENGLAND.
•i • *
BOOK THE FIRST.
B Y
WILLIAM BLACKSTONE,
VINERIAN PROFESSOR OF LAW,
AND
SOLICITOR GENERAL TO HER MAJESTY.
THE THIRD EDITION.
OXFORD,
PRINTED AT THE CLARENDON PRESS. M. DCC. LXVIII.
"ADAMS
>
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.
^ I ^HE following fleets contain the fubftance of a A courfe of leElures on the laws of England, which were read by the author in the univerfity of OXFORD. His original plan took it's rife in the year 1753 : and, notwithjlanding the novelty of fitch an attempt in this age and country, and the prejudices ufually conceived againft any mnovations in the ejlablifhed mode of education, he had the fatisfaStion to find (a?id he acknowleges it with a mix- ture of pride and gratitude) that his endeavours were encouraged and patronized by thofe, both in the wiiverfay and out of it, whofe good opinion and efteem he was prin- cipally defirous to obtain*
THE death of Mr Vi N E R in 1756, and his ample benefaction to the univerjity for promoting the ftudy of the law, produced about two years afterwards a regular and public eftablifoment of what the author had privately un-
a der taken.
11
PREFACE.
dertaken. The knowlege of our laws and constitution was adopted as a liberal fcience by general academical autho- rity ; competent endowments were decreed for the fupport of a lefturer, and the perpetual encouragement of Jludents; and the compiler of the enfuing commentaries had the ho- nour to be elected the firft Vinerian profejjor.
IN this fituation he was led, both by duty and incli- nation^ to inveftigate the elements of the /aw, and the. grounds of our civil polity ', with greater ajjiduity and at- tention than many have thought it neceffary to do. And yet ally who of late years have attended the public admi- niftration of juftice, muft be fenfible that a majlerly ac- quaintance with the general fpir it of laws and the prin- ciples of unroeffal jur if prudence, combined with an accu- rate knowlege of our own municipal conftitutions, their original^ reafon, and hiftory, hath given a beauty a?id energy to many modern judicial decisions, with which our anceftors were wholly unacquainted. If, in the purfuit of thefe inquiries, the author hath been able to reElify any er- rors which either himfelf or others may have heretofore imbibed, his pains will be fujficiently anfwered : and, if in fome points he is ftill miflaken, the candid and judi- cious reader will make due allowances for the difficulties of a fearch fo new, fo extenfive, and Jo laborious.
THE
PREFACE.
in
T H E labour indeed of thefe refearches, and of a re- gular attention to his duty, for a feries of fo many years ', he hath found inconjiftent with his health, as well as his other avocations : and hath therefore defired the univerfi- tys permijjion to retire from his office, after the conclufwn of the annual courfe in which he is at prefent engaged. But the hints, which he had collected for the tife of his pupils, having been thought by feme of his more experien- ced friends not wholly unworthy of the public eye, it is therefore with the lefs reluftame that he now commits them to the prefs : though probably the little degree of reputa- tion, which their author may have acquired by the candor of an audience (a teft widely different from that of a de- liberate perufal) would have been better confulted by a
total fupprejjion of his lectures ; had that been a
matter intirely within his power.
FOR the truth is, that the prefent publication is as much the effect of necejfity, as it is of choice. The notes which were taken by his hearers, have by fome of them (too partial in his favour) been thought worth revifing and tranfcribing ; and thefe tranfcripU have been fre- quently lent to others. Hence copies have been multiplied, in their nature imperfect, if not erroneous ; fome of which have fallen into mercenary hands, and become the object
a 2 of
IV
PREFACE.
of clandeftine fale. Having therefore fo much reafon to apprehend a furreptitious imprejjton^ he chofe rather to fubmit his own errors to the world^ than to feem anfwer- able for thofe of other men. And^ with this apology ', he commits himfelf to the indulgence of the public.
2 Nov. 1765.
CONTENTS.
INTRODUCTION.
SECT. I. On the STUDY of the LAW. Page j.
SECT. II. Of the NATURE of LAWS in general. 38.
SECT. III. Of the LAWS of ENGLAND. 63.
SECT. IV. Of the COUNTRIES Jubjett to the LAWS of ENGLAND. 93*
BOOK I. Of the RIGHTS of PERSONS.
CHAP. I. Of the abfolute RIGHTS ^INDIVIDUALS. 1 21*.
C H A Ev
CONTENTS.
CHAP. II. Of the PA RLIAMENT, 146.
CHAP. III. Of the KING, and his TITLE. 190.
CHAP. IV. Of the KING'* royal FAMILY. 219.
CHAP. V. Of the COUNCILS belonging to the KING, 227.
CHAP. VI. Of the KING'J DUTIES. 233.
CHAP. VII. Of the KING'J PREROGATIVE. 237.
CHAP. VIII. Of the KING'J REVENUE. 281.
CHAP. IX. Of fubordinate MAGISTRATES. 338.
CHAP. X.
Of the PEOPLE, whether ALIENS, DENIZENS,
or NAT i v E s. 3°°*
CHAP.
CONTENTS.
CHAP. XI. Of the CLERGY. 376.
CHAP. XII. Of the CIVIL STATE. 396.
CHAP. XIII. Of the MILITARY and MARITIME STATES. 407.
CHAP. XIV. Of MASTER and SERVANT. 422.
CHAP. XV. Of HUSBAND and WIFE. 433.
CHAP. XVI. Of PARENT and CHILD. 446.
CHAP, XVII. Of GUARDIAN and WARD. 460.
CHAP. XVIII. Of CORPORATIONS. 467.
COMMENTARIES
ON THE
LAWS OF ENGLAND.
INTRODUCTION.
SECTION THE FIRST.
ON THE STUDY OF THE LAW. *
MR VICE-CH ANC ELLOR, AND GENTLEMEN OF THF UNIVERSI TV,
E general expectation of fo numerous and re- fpedtable an audience, the novelty, and (I may add) the importance of the duty required from this chair, muft unavoidably be productive of great dif- fidence and apprehenlions in him who has the ho- nour to be placed in it. He mufl be fenfible how much will de- pend upon his conduct in the infancy of a ftudy, which is now firft adopted by public academical authority; which has generally been reputed (however unjuftly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto re- ceived a very moderate mare of cultivation. He cannot but re- flect that, if either his plan of inftruction be crude and injudi- cious, or the execution of it lame and fuperficial, it will caft a damp upon the farther progrefs of this moil ufeful and mofl ra- tional branch of learning ; and may defeat for a time the public-
* Read in Oxford at the opening of the Vinerian leftures ; 25 Oft. 1758.
A 2 fpirited
4 On the S T U D Y I NT ROD.
fpirited defign of our wife and munificent benefactor. And this he muft more efpecially dread, when he feels by experience how unequal his abilities are (unaffifted by preceding examples) to complete, in the manner he could wifh, fo extenfive and arduous a talk ; fince he freely confelfes, that his former more private attempts have fallen very fhort of his own ideas of perfection. And yet the candour he has already experienced, and this laft tranfcendent mark of regard, his prefent nomination by the free and unanimous fuffrage of a great and learned univerfity, (an honour to be ever remembered with the deepeft and moft affec- tionate gratitude) thefe teftimonies of your public judgment muft entirely fuperfede his own, and forbid him to believe himfelf to- tally infufficient for the labour at leaft of this employment. One thing he will venture to hope for, and it certainly mall be his conftant aimj by diligence and attention to atone for his other defects ; efteeming, that the bed return, which he can poffibly make for your favourable opinion of his capacity, will be his unwearied endeavours in fome little degree to deferve it.
TH E fcience thus committed to his charge, to be cultivated, methodized, and explained in a courfe of academical lectures, is that of the laws and conftitution of our own country : a fpecies of knowlege, in which the gentlemen of England have been more remarkably deficient than thofe of all Europe befides. In moft of the nations on the continent, where the civil or imperial law under different modifications is clofely interwoven with the municipal laws of the land, no gentleman, or at leaft no fcholar, thinks his education is completed, till he has attended a courfe or two of lectures, both upon the inftitutes of Juftinian and the local conftitutions of his native foil, under the very eminent pro- feffors that abound in their feveral univerfities. And in the nor- thern parts of our own ifland, where alfo the municipal laws are frequently connected with the civil, it is difficult to meet with a perfon of liberal education, who is deftitute of a competent knowlege in that fcience, which is to be the guardian of his natural rights and the rule of his civil conduct.
NOR
§. i. of the L A w. 5
NOR have the imperial laws been totally neglected even in the Englifh nation. A general acquaintance with their decilions has ever been defervedly confidered as no fmall accompliihment of a gentleman ; and a fafhion has prevailed, efpecially of late, to tranfport the growing hopes of this ifland to foreign univerfi- ties, in Switzerland, Germany, and Holland ; which, though infinitely inferior to our own in every other confideration, have been looked upon as better nurferies of the civil, or (which is nearly the fame) of their own municipal law. In the mean time it has been the peculiar Lot of our admirable fyftem of laws, to be neglected, and even unknown, by all but one practical pro- fefiion ; though built upon the foundeft foundations, and appro- ved by the experience of ages,
FA R be it from me to derogate from the ftudy of the civil law, confidered (apart from any binding authority) as a collection of written reafon. No man is more thoroughly perfuaded of the general excellence of it's rules, and the ufual equity of it's deci- fions, nor is better convinced of it's ufe as well as ornament to the fcholar, the divine,, the ftatefman, and even the common lawyer. But we muft not carry our veneration fo far as to facri- fice our Alfred and Edward to the manes of Theodofius and Juf- tinian : we muft not prefer the edict of the praetor, or the re- fcript of the Roman emperor, to our own immemorial cuftoms, or the fanctions of an Englifh parliament ; unlefs we can alfo prefer the defpotic monarchy of Rome and Byzantium, for whofe meridians the former were calculated, to the free conftitution 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 aflert, that if an Englishman muft be ignorant of either the one or the other, he had better be a ftranger to the Roman than the Englifh inft.it uti on s. For I think it an undeniable pofition, that a com- petent knowlege of the laws of that fociety, in which we live,
is
6 Qn the S T u D Y IN TROD.
is the proper accomplishment of every gentleman and fcholar ; an highly ufeful, I had almoft faid effential, part of liberal and polite education. And in this I am warranted by the example of antient Rome ; where, as Cicero informs us% the very boys were obliged to learn the twelve tables by heart, as a carmen neceffdrium or indifpenfable leflbn, to imprint on their tender minds an early knowlege of the laws and conflitutions of their country.
B u T as the long and univerfal neglect of this ftudy, with us in England, feems in fome degree to call in queftion the truth of this evident pofition, it mail therefore be the buiinefs of this in- troductory difcourfe, in the firft place to demonftrate the utility of fome general acquaintance with the municipal law of the land, by pointing out it's particular ufes in all confiderable fituations of life. Some conjectures will then be offered with regard to the caufes of neglecting this ufeful ftudy : to which will be fubjoin- ed a few reflexions on the peculiar propriety of reviving it in our own univerfities.
AND, firft, to demonftrate the utility of fome acquaintance with the laws of the land, let us only reflect a moment on the fmgular frame and polity of that land, which is governed by this fyftem of laws. A land, perhaps the only one in the univerfe, in which political or civil liberty is the very end and fcope of the constitution b. This liberty, rightly underftood, confifts 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 thole equitable rules of action, by which the meaneft individual is pro- tected from the infults and oppreffion of the greateft. As there- fore every fubject is interefted in the prefervation of the laws, it is incumbent upon every man to be acquainted with thofe at lealt, with which he is immediately concerned ; left he incur the cen- fure, as well as inconvenience, of living in fociety without know- ing the obligations which it lays him under. And thus much
a De Lcgg. z. 23. c Facuhas ejus, quod cuique facert libet, ntji
b Monteiq. Efp. L. 1. II. c. 5. quid <vi, ant jure prohibetur. Injl. 1,3. I.
may
§. i. of the L AW. 7
may fuffice for perfons of inferior condition, who have neither tirhe nor capacity to enlarge their views beyond that contracted fphere in which they are appointed to move. But thofe, on whom nature and fortune have beftowed more abilities and greater lei- fure, cannot be fo eafily excufed. Thefe advantages are given them, not for the benefit of themfelves only, but alib of the pub- lic : and yet they cannot, in any fcene of life, difcharge properly their duty either to the public or themfelves, without fome de- gree of knowlege in the laws. To evince this the more clearly, it may not be amifs to defcend to a few particulars.
LET us therefore begin with our gentlemen of independent eftates and fortune, the moft ufeful as well as considerable body of men in the nation ; whom even to fuppofe ignorant in this branch of learning is treated by Mr Locke d as a ftrange abfur- dity. It is their landed property, with it's long and voluminous train of defcents and conveyances, fettlements, entails, and in- cumbrances, that forms the moft intricate and moft extenlive ob- ject of legal knowlege. The thorough comprehenfion of thefe,, in all their minute diftin&ions, is perhaps too laborious a tafk for any but a lawyer by profeffion : yet ftill the understanding of a few leading principles, relating to eftates and conveyancing, may form fome check and guard upon a gentleman's inferior agents, and preferve him at leaft from very grofs and notorious impolition.
AGAIN, the policy of all laws has made fome forms necef- fary in the wording of laft wills and teftaments, and more with regard to their atteftation. An ignorance in thefe muft always be of dangerous confequence, to luch as by choice or neceflity com- pile their own teftaments without any technical affiftance. Thofe who have attended the courts of juftice are the beft witnefTes of the confufion and diftrefles that are hereby occafioned in families ; and of the difficulties that arife in difcerning the true meaning
d Education. §. 187.
Of
8 On the S T u D Y IN TROD,
of the teitator, or fometimes in difcovering any meaning at all : to that in the end his eftate may often be vetted quite contrary to thefe his enigmatical intentions, becaufe perhaps he has omitted one or two formal words, which are neceffary to afcertain the fenfe with indifputable legal precifion, or has executed his will in the prefence of fewer witneffes than the law requires.
BUT to proceed from private concerns to thofe of a more public confideration. All gentlemen of fortune are, in confe- quence of their property, liable to be called upon to eftablim the rights, to eftimate the injuries, to weigh the accufations, and fometimes to difpofe of the lives of their fellow-fubjects, by fer- ving upon juries. In this fituation they have frequently a right to decide, and that upon their oaths, queftions of nice importance, in the folution of which fome legal fkill is requifite ; efpecially where the law and the fact, as it often happens, are intimately blended together. And the general incapacity, even of our beft juries, to do this with any tolerable propriety has greatly debafed their authority ; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverfe their verdicts, than perhaps the constitution intended.
BUT it is not as a juror only that the Englim gentleman is called upon to determine queftions of right, and diftribute juftice to his fellow-fubjects : it is principally with this order of men that the commiffion of the peace is rilled. And here a very ample field is opened for a gentleman to exert his talents, by maintain- ing good order in his neighbourhood ; by punilhing the diffolute and idle ; by protecting the peaceable and induftrious ; and, above all, by healing petty differences and preventing vexatious profecutions. But, in order to attain thefe defirable ends, it is neceffary that the magiftrate Should understand his bufinefs ; and have not only the will, but the power alfo, (under which muft be included the knowlege) of adminiftring legal and effectual juftice. Elfe, when he has miftaken his authority, through paf- fion, through ignorance, or abfurdity, he will be the object of
contempt
§. r. of the LA w. 9
contempt from his inferiors, and of cenfure from thofe to whom he is accountable for his conduct.
YET farther; moft gentlemen of confiderable property, at fome period or other in their lives, are ambitious of reprefenting their country in parliament : and thofe, who are ambitious of receiving fo high a truft, would alfo do well to remember it's nature and importance. They are not thus honourably diftin- guifhed from the reft of their fellow-fubjefts, merely that they may privilege their perfons, their eftates, or their domefticsj that they may lift under party banners ; may grant or with-hold fupplies j may vote with or vote againft a popular or unpopular adminiftration ; but upon confiderations far more interefting and important. They are the guardians of the Englifli conftitution; the makers, repealers, and interpreters of the Englifli laws ; delegated to watch, to check, and to avert every dangerous in- novation, to propofe, to adopt, arid to cherifh any folid and well- weighed improvement j bound by every tie of nature, of honour, and of religion, to tranfmit that conftitution and thofe laws to their pofterity, amended if poffible, at leaft without any dero- gation. And how unbecoming muft it appear in a member of the legiflature to vote for a new law, who is utterly igno- rant of the old ! what kind of interpretation can he be en- abled to give, who is a ftranger to the text upon which he. comments !
INDEED it is perfectly amazing, that there fliould be no other ftate of life, no other occupation, art, or fcience, in which fome method of inftruclion is not looked upon as requifite, except only the fcience of legiflation, the nobleft and moft difficult of any. Apprenticeships are held necefTary to almoft every art, commer- cial or mechanical : a long courfe of reading and ftudy muft form the divine, the phyfician, and the practical profeffor of the laws : but every man of fuperior fortune thinks himfelf born a legiflator. Yet Tully was of a different opinion : " it is necei-
B " fary,
io On the S T u D Y I N T R-O D.
" fary, fays he a, for a fenator to be thoroughly acquainted with " the conftitution ; and this, he declares, is a knowlege of the " mod extenfive nature ; a matter of fcience, of diligence, of " reflexion ; without which no fenator can poffibly be fit for his « office."
THE mifchiefs that have arifen to the public from inconfide- rate alterations in our laws, are too obvious to be called in quef- tion ; and how far they have been owing to the defective educa- tion of our fenators, is a point well worthy the public attention. The common law of England has fared like other venerable edi- fices of antiquity, which rafh and unexperienced workmen have ventured to new-drefs and refine, with all the rage of modern im- provement. Hence frequently it's fymmetry has been deftroyed, it's proportions diftorted, and it's majeftic fimplicity exchanged for fpecious embellishments and fantaftic novelties. For, to fay the truth, almoft all the perplexed queftions, almoft all the nice- ties, intricacies, and delays (which have fometimes difgraced the Englifh, as well as other, courts of juftice) owe their original not to the common law itfelf, but to innovations that have been made in it by acts of parliament; "overladen (as fir Edward "Coke exprefles itf) with provifoes and additions, and many " times on a fudden 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 queftions made upon rights merely depending upon the common law j and warmly laments the confufion introduced by ill-judging and un- learned legiflators. " But if, he fubjoins, acts of parliament were " after the old famion penned, by fuch only as perfectly knew " what the common law was before the making of any act of " parliament concerning that matter, as alfo how far forth for- " mer ftatutes had provided remedy for former mifchiefs, and " defects difcovered by experience ; then mould very few quef-
c De Legg. 3.18. Eft fetiatari neccjjarium f.ne quo paratus effi fenalor nullo fafio pclejl. noffe remfublicam \ idqus late fatet : — genus f 2 Rep. Pref. fioc omne fcieniiae, diligentiae, memoriae efl ;
*< tions
§. i. of the L A w, ii
" tions In law arife, and the learned fliould not fo often and fo «« much perplex their heads to make atonement and peace, by " conftruction of law, between infenfible and difagreeing words, "fentences, and provifoes, as they now do." And if this incon- venience was fo heavily felt in the reign of queen Elizabeth, you may judge how the evil is increafed in later times, when the ftatute book is fwelled to ten times a larger bulk ; unlefs it fliould be found, that the penners of our modern ftatutes have propor- tionably better informed themfelves in the knowlege of the com- mon law.
WHAT is faid of our gentlemen in general, and the propriety of their application to the fludy of the laws of their country, will hold equally ftrong or ftill ftronger with regard to the nobi- lity of this realm, except only in the article of ferving upon ju- ries. But, inftead of this, they have feveral peculiar provinces of far greater confequence and concern -, being not only by birth hereditary counfellors of the crown, and judges upon their ho- nour of the lives of their brother-peers, but alfo arbiters of the property of all their fellow-fubjects, and that in the laft refort, In this their judicial capacity they are bound to decide the niceft and moft critical points of the law ; to examine and correct fuch errors as have efcaped the moft experienced fages of the profef- iion, the lord keeper and the judges of the courts at Weftminfter. Their fentence is final, decifive, irrevocable : no appeal, no cor- rection, not even a review can be had : and to their determina- tion, whatever it be, the inferior courts of juftice muft conform ; otherwife the rule of property would no longer be uniform and fteady.
SHOULD a judge in the moft fubordinate jurifdiction be de- ficient in the knowlege of the law, it would reflect infinite con- tempt upon himfelf and difgrace upon thofe who employ him. And yet the confequence of his ignorance is comparatively very trifling and fmall : his judgment may be examined, and his er- rors rectified, by other courts. But how much more ferious and
B 2 affecting
12 On t&S S- T U D Y I N T R O D,
affefting is the cafe of a fuperior judge, if without any (kill in the laws he will boldly venture to decide a queflion, upon which the welfare and fubfiilence 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 moil alarming nature, an injury without pofiibility of redrefs !
YET, vail as this truil is, it can no where be fo properly re- pofed as in the noble hands where our excellent conftitution has placed it : and therefore placed it, becaufe, from the indepen- dence of their fortune and the dignity of their fhation, they are preiumed to employ that leifure which is the confequence of both, in attaining a more extenfive knowlege of the laws than perfons of inferior rank : and becaufe the founders of our polity relied upon that delicacy of fentiment, fo peculiar to noble birth; which, as on the one hand it will prevent either intereft or af- fection from interfering in queilions of right, fo on the other it will bind a peer in honour, an obligation which the law eileems equal to another's oath, to be mailer of thofe points upon which it is his birthright to decide.
THE Roman pandecls will furnifh us with a piece of hiilory not unapplicable to our prefent purpofe. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occafion to take the opinion of Quintus Mutius Scaevola, the oracle of the Roman law ; but for want of fome knowlege in that fcience, could not fo much as underiland even the technical terms, which his friend was obliged to make ufe of. Upon which Mutius Scaevola could not forbear to upbraid him with this me^ morable reproof6, " that it was a fhame for a patrician, a noble- " man, and an orator of caufes, to be ignorant of that law in " which he was fo peculiarly concerned." This reproach made ib deep an impreffion on Sulpicius, that he immediately applied himfelf to the iludy of the law ; wherein he arrived to that pro-
* Ff. i. 2. 2. §. 43. Turps ejft fatricio, et nolili, et cc.ufas eranti, jus in quo <verf.iretur ignorare,
ficiency,
§. i. of the L AW. 13
ficiency, that he left behind him about a hundred and fourfcors volumes of his own compiling upon the fubjec"l; and became, in the opinion of Cicero h, a much more complete lawyer than even Mutius Scaevola himfelf.
I WOULD not be thought to recommend to our Englifh no- bility and gentry to become as great lawyers as Sulpicius ; though he, together with this character, fuftained likewife that of aa excellent orator, a firm patriot, and a wife indefatigable fenator; but the inference which arifes from the ftory is this, that igno- rance of the laws of the land hath ever been efteemed dimonour- able, in thofe who are entrufted by their country to maintain, tor adminifter, and to amend thenu
BUT furely there is little occafion to enforce this argument any farther to perfons of rank and diftinclion, if we of this place may be allowed to form a general judgment from thofe who are under our infpeclion : happy, that while we lay down the rule, we can alfo produce the example. You will therefore permit your profeffor to indulge both a public and private fatisfadtion, by bearing this open teftimony ; that in the infancy of thefe ftudies among us, they were favoured with the moft diligent attendance, and purfued with the moft unwearied application, by thofe of the nobleft birth and moft ample patrimony : fome of whom are ftill the ornaments of this feat of learning ; and others at a greater diftance continue doing honour to it's inftitutions, by comparing our polity and laws with thofe of other kingdoms abroad, or ex- erting their fenatorial abilities in the councils of the nation at home.
NOR will fome degree of legal knowlege be found in the leaft fuperfluous to perfons of inferior rank ; efpecially thofe of the learned profeffions. The clergy in particular, befides the com- mon obligations they are under in proportion to their rank and fortune, ha-ve alfo abundant reafon, confidered merely as clergy—
h Brut. 41^
men.,.
14. On the S T u D Y IN TROD.
men, to be acquainted with many branches of the law, which are almoft peculiar and appropriated to themfelves alone. Such are the laws relating to advowions, institutions, arid inductions ; to fimony, and fimoniacal contracts; to uniformity, refidence, and pluralities ; to tithes and other ecclefiaftical dues ; to mar- riages (more efpecially of late) and to a variety of other fubjedls, which are coniigned to the care of their order by the proviilons of particular ftatutes. To underftand thefe aright, to difcern what is warranted or enjoined, and what is forbidden by law, demands a fort of legal apprehenfion ; which is no otherwife to be acqui- red than by ufe and a familiar acquaintance with legal writers.
FOR the gentlemen of the faculty of phyiic, I muft frankly own that I fee no fpecial reafon, why they in particular mould apply themfelves to the ftudy of the law ; unlefs in common with other gentlemen, and to complete the character of general and extenlive knowlege ; a character which their profellion, beyond others, has remarkably deferved. They will give me leave how- ever to fuggeft, and that not ludicroully, that it might frequent- ly be of ufe to families upon fudden emergencies, if the phyiician were acquainted with the doctrine of laft wills and tertaments, at leaft fo far as relates to the formal part of their execution.
BUT thofe gentlemen who intend to profefs the civil and ec- clefiaftical laws in the fpiritual and maritime courts of this king- dom, are of all men (next to common lawyers) the moft indif- penfably obliged to apply themfelves ferioufly to the fludy of our municipal laws. For the civil and canon laws, confidered with refpedl to any intrinfic 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 thefe foreign laws, on account of fome peculiar propriety, have in fome particular cafes, and in fome particular courts, been introduced and allowed by our laws, fo far they oblige, and no farther ; their authority being wholly founded upon that permtfllon and adoption. In which we are not fingular in our notions : for even in Holland, where the
imperial
§. i. of the LA w. 15
imperial law is much cultivated and it's decifions pretty generally followed, we are informed by Van Lecuwen ', that, " it receives " it's force from cuftom and the confent of the people, either ta- " citly or expreflly given : for otherwife, he adds, we fhould 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 "aptient nations." Wherefore, in all points in which the diffe- rent fyftems 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 thofe of our Englifh. courts wherein a re- ception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending them- felves to other makers, than are permitted to them ; or if fuch. courts proceed according to the deciiions of thofe laws, in cafes wherein it is controlled by the law of the land, the common law in either inftance both may, and frequently does, prohibit and. •annul their proceedings k : and it will not be a iufficient excufe for them to tell the king's courts at Weftminfler, that their prac- tice is warranted by the laws of Juilinian or Gregory, or is con- formable to the decrees of the Rota or imperial chamber. For which reafon it becomes highly neceffary for every civilian and canonift that would act with fafety as a judge, or with prudence and reputation as an advocate, to know in what cafes and how far the Eiiglifh laws have given fanction to the Roman ; in what points the latter are rejecled ; and where they are both fo inter- mixed and blended together, as to form certain fupplemental parts of the common law of England, diftinguimed by the titles of the king's maritime, the king's military, and the king's eccle- fiaftical law. The propriety of which enquiry the univerfity of Oxford has for more than a century fo thoroughly feen, that in her ftatutes l me appoints, that one of the three queftions to be annually difcuifed at the act by the jurift-inceptors (hall relate to the common law ; fubjoining this reafon, " quia juris chilis ftu~ ** diofos decet hand imperitos eJJ'e juris municipalis, et differentia* ex-
' DedUatio corf ons Juris ci-vilis. Edit.l66^. tarn. 5 Rep. Caudrey's cafe. 2 Inft. 599. k Hale. Hill. C. L. c. 2. Selden in Fie- J Tit. FIL Sea. 2. $. 2.
"teti
1 6 On the S T u D Y IN TROD,
" teri pairiique juris nofas habere." And the ftatutes1" of the uni- verfity of Cambridge fpeak exprefTly to the fame effect.
FROM the general ufe and neceffity of fbme acquaintance with the common law, the inference were extremely eafy, with regard to the propriety of the prefent institution, in a place to which gentlemen of all ranks and degrees refort, as the fountain of all ufeful knowlege. But how it has come to pafs that a defign of this fort has never before taken place in the univerfity, and the reafon why the ftudy of our laws has in general fallen into difufe, I fhall previoufly proceed to enquire.
SIR John Fortefcue, in his panegyric on the laws of England, (which was written in the reign of Henry the fixth) puts " a very obvious queftion in the mouth of the young prince, whom he is exhorting to apply himfelf to that branch of learning -, " why the " laws of England, being fo good, lo fruitful, and fo commo- "dious, are not taught in the univerfities, as the civil and canon " laws are ?" In anfwer to which he gives ° what feeais, with due deference be it fpoken, a very jejune and unfatisfadtory rea- fon ; being in fhort, that " as the proceedings at common law " were in his time carried on in three different tongues, the «' Englifh, the Latin, and the French, that fcience mult be ne- *ccefTarily taught in thofe three feveral languages; but that in " the univerfities all fciences were taught in the Latin tongue " only ; and therefore he concludes, that they could not be con- " veniently taught or fludied in our univerfities." But without attempting to examine ferioufly the validity of this reafon, (the very fhadow of which by the wifdom of your late conftt tutions is entirely taken away) we perhaps may find out a better, or at leaft a more plaufible account, why the ftudy of the municipal laws has been banifhed from thefe feats of fcience, than what the learned chancellor thought it prudent to give to his royal pupil.
m Doflor legiim max a duftoratu dabit ope- ieri patriique juris nofcat. Stat. Eliz. R. c. 14. ram legibu; Angliae, ut nun fit impsritus earum Cowel. Inftitu!. in proetnio. legum qua! habet fua patria, et differentia! ex- ° c. 47. "° c. 48.
THAT
§. i. of the L A w. 17
THAT antient collection of unwritten maxims and cuftoms, which is called the common law, however compounded or from whatever fountains derived, had fubfifted immemorially in this kingdom ; and, though fomewhat altered and impaired by the violence of the times, had in great meafure weathered the rude mock of the Norman conqueft. This had endeared it to the people in general, as well becaufe it's decifions were univerfally known, as becaufe it was found to be excellently adapted to the genius of the Englifh nation. In the knowlege of this law con- fifted great part of the learning of thofe dark ages ; it was then taught, fays Mr Selden p, in the monasteries, in the univerjities, and in the families of the principal nobility. The clergy in par- ticular, as they then engrofled almoft every other branch of learn- ing, fo (like their predeceflbrs the Britifh druidsq) they were peculiarly remarkable for their proficiency in the ftudy of the law. Nullus clericus nifi caufidicus, is the character given of them foon after the conqueft by William of Malmflbury r. The judges therefore were ufually created out of the facred order s, as was likewife the cafe among the Normans ' ; and all the inferior offi- ces were fupplied by the lower clergy, which has occafioned their fucceffors to be denominated clerks to this day.
BUT the common law of England, being not committed to writing, but only handed down by tradition, ufe, and experience, was not fo heartily relimed by the foreign clergy ; who came over hither in fhoals during the reign of the conqueror and his two fons, and were utter flrangers to our conftitution as well as our language. And an accident, which foon after happened, had nearly completed it's ruin. A copy of Juftinian's pandecls, being newly11 difcovered at Amain", foon brought the civil law into
P in Fief am. j. 7. cbanoincs les eglifes catbedraulx, et les autres
* Caefar de bclh Gal. 6. I 2. psrfonnes qiti ont dignitez. in faintle eglij'e ; les ' de gift. reg. 1. 4. abbex, les prieurs caatientaulx, et les gouver-
* Dugdale Orig. jurid. c. 8. neurt des eglifes, We. Grand Ccmjiumier, 1 Les juges font fages psrfonnes et autenti- cb. 9.
qurs, — ficame les archtiiefques, evefqnts, les u eirc. A. D. 1 1 30.
C vogue
1 8 On the S T u D Y I N T R o i>»
vogue all over the weft of Europe, where before it was quite laid afide w and in a manner forgotten j though fome traces of it's authority remained in Italy ' and the eaftern provinces of the em- pire y. This now became in a particular manner the favourite of the popifh clergy, who borrowed the method and many of the maxims of their canon law from this original. The ftudy of it was introduced into feveral univerfities abroad, particularly that of Bologna ; where exercifes were performed, lectures read, and degrees conferred in this faculty, as in other branches of fcience : and many nations on the continent, juft then beginning to reco- ver from the convulfions confequent upon the overthrow of the Roman empire, and fettling by degrees into peaceable forms of government, adopted the civil law, (being the beft written fyf- tem then extant) as the bafis of their feveral conflitutions ; blend- ing and interweaving it among their own feodal cuftoms, in fome places with a more extenfive, in others a more confined authority2.
NOR was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elect- ed to the fee of Canterbury3, and extremely addicted to this new ftudy, brought over with him in his retinue many learned profi- cients therein ; and among the reft Roger firnamed Vacarius, whom he placed in the univerfity of Oxford b, to teach it to the people of this country. But it did not meet with the fame eafy reception in England, where a mild and rational fyftem of laws had been long eftablifhed, as it did upon the continent ; and, though the monkifli clergy (devoted to the will of a foreign pri- mate) received it with eagernefs and zeal, yet the laity who were more interefted to preferve the old conftitution, and had already feverely felt the effect of many Norman innovations, continued wedded to the ufe of the common law. King Stephen imme-
w LL. Wifigotb. 2. 1.9. EfiJloL Innocent. IV. in M.Paris, ad A.
* Capitular. Hludov. Pit. 4. IO2. a A. D. 1138.
y Selden in FIctam. 5 . 5 . b Gervaf. Dorobern. 4fl. Poitif. Cantuar.
11 Domat's treatife of law. c. 13. §.9. col. 1665.
diately
§. i. of the L A w. 19
diately publiihed a proclamation c, forbidding the ftudy 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 procefs into our courts of juftice, yet did not hinder the clergy from reading and teaching it in their own fchools and monasteries,
FROM this time the nation feems to have been divided into two parties ; the bifhops and clergy, many of them foreigners, who applied themfelves wholly to the ftudy of the civil and ca- non laws, which now came to be infeparably 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 oppofite fyftem that real merit which is abundantly to be found in each. This appears on the one hand from the fpleen with which the monaftic writers e fpeak of our municipal laws upon all occafions ; and, on the other, from the firm temper which the nobility mewed at the famous parlia- ment of Merton ; when the prelates endeavoured to procure an act, to declare all baftards legitimate in cafe the parents inter- married at any time afterwards ; alleging this only reafon, becaufe holy church (that is, the canon law) declared fuch children legi- timate : but " all the earls and barons (fays the parliament roll f ) " with one voice anfwered, that they would not change the laws " of England, which had hitherto been ufed and approved." And we find the fame jealoufy prevailing above a century after- wards g, when the nobility declared with a kind of prophetic fpirit, " that the realm of England hath never been unto this "hour, neither by the confent of our lord the king and the lords " of parliament mail it ever be, ruled or governed by the civil
c Rog. Bacon, dtat. per Selden. :/i Fie- ! Stat, Merlon. 20 Hen. III. e.g. Et cmnes
teim.'j.d. in Fortefc. c. 33. & 8 Rep. Pref. fcmites et larones una voce rejportaenait, quad
A Joan. Sarifburiens. Polycrat. 8. 22. nolxat leges Angliae mutare, quae bucufyae ujl-
' Idem, ibi<i.$.\6. Polydor. Vergil. Hijt. tatue j'uiit ft afpnbatae.
I. 9. s uRic. II.
C 2 "lawV!
20 On the S T u D Y I N T R o D.
" lawh." And of this temper between the clergy and laity many more inftances might be given.
WHILE things were in this fituation, the clergy, finding it impoffible to root out the municipal law, began to withdraw themfelves by degrees from the temporal courts ; and to that end1, very early in the reign of king Henry the third, epifcopal confli- tutions were published ', forbidding all ecclefiaftics to appear as advocates In foro Jaeculari ; nor did they long continue to aft as judges there, not caring to take the oath of office which was then found necefTary to be adminiftred, that they mould in all things determine according to the law and cuftom of this realm k; though they flill kept poffeffion of the high office of chancellor, an office then of little juridical power; and afterwards, as it's . bufmefs increafed by degrees, they modelled the procefs of the court at their own difcretion.
BUT wherever they retired, and wherever their authority ex- tended, they carried with them the fame zeal to introduce the rules of the civil, in exclufion of the municipal law. This ap- pears in a particular manner from the fpiritual courts of all de- nominations, 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 courfe much conformed to the civil law : for which no tolerable reafon can be affigned, unlefs that thefe courts were all under the immediate direction of the popifh ecclefiaftics, among whom it was a point of religion to exclude the municipal law; pope Innocent the fourth having forbidden ! the very reading of it by the clergy, becaufe it's de- cifions were not founded on the imperial conftitutions, but merely on the cuftoms of the laity. And if it be confidered, that our univerfities began about that period to receive their prefent form of fcholaftic difcipline ; that they were then, and continued to
k Selden. Jan. Anglor. I, 2. §.43. in For- <vol. l. /. 574 599. tefc. c. 33. k Selden. in t e;am. 9. 3.
' Spelman. ConciL A.D. 1217. Wilkins, ' M. Paris ad A.D. 1254.
be
§. i . of the L A w. 2-1
be till the time of the reformation, entirely under the influence of the popifti clergy ; (fir John Mafon the firft proteftant, being alfo the firft lay, chancellor of Oxford) this will lead us to per- ceive the reafon, why the ftudy of the Roman laws was in thofe days of bigotry m purfued with fuch alacrity in thefe feats of learn- ing ; and why the common law was entirely defpifed, and ef- teemed little better than heretical.
AND, fmce the reformation, many caufes have confpired to prevent it's becoming a part of academical education. As, firft, long ufage and eftablifhed cuftom ; which, as in every thing elfe, fo efpecially in the forms of fcholaftic exercife, have juftly great weight and authority. Secondly, the real intrinfic merit of the civil law, confidered upon the footing of reafon and not of obli- gation, which was well known to the inftru&ors of our youth; and their total ignorance of the merit of the common law, though it's equal at leaft, and perhaps an improvement on the other. But the principal reafon of all, that has hindered the introduc- tion of this branch of learning, is, that the ftudy of the common law, being banifhed 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 ufage and eftabliflied cuftom, of ignorance in the laws of the land, begin now to be thought unreafonable ; and as by this means the merit of thole
m There cannot be a ftronger inflance of "fapientem ; fecundo, quod contra adverfarium
the abfurd and fuperftitious veneration that " ajlutum & fagacem; tertio, quod in cattfa
was paid to thefe laws, than that the moft " dej'perata : fed beatij/tma •virgo, contra ju-
learned writers of the times thought they " dicem fapkntijjlmum, Dominion ; contra ad-
could not form a perfeft character, even of «« <verfarium callidij/imum, dyabolum ; in caufa
the blefled virgin, without making her a " nojlra defperata ; fententiam. eptatam obti-
civilian and a canonifi. Which Albertus " unit." To which an eminent francifcan,
Magnus, the renowned dominican doctor of two centuries afterwards, Bernardinus de
the thirteenth century, thus proves in his Bufti (Mart ale, part. 4. ferm.g.J very gravely
Summa de laudibus cbriftiferae virgiiiis (di<vi- fubjoins this note. " Nee wdetur incingruum
num magis quam humanum opus) qu. 23. §.5. " mulicres halitre peritiam juris. Legitur enim
"Item quod jura ci'vilia, & leges, & decreta " de uxore Joannis Andreae gloj/atoris, quod
" fci'vit in Jummo, probatur hoc motio : fapien- " tantam fprittam in utroque jure babttit, ut
" tia ad'vocaii manifejlatur in trlbus ; unum, " publics in Jcboln legere auja J,t> " quod oltineat otr.nia contra judicem jujlum £3"
laws
22 On the S T U D Y I N T R O D.
laws will probably be more generally known -, we may hope that the method of ftudying them will loon revert to it's antient courfe, and the foundations at lead of that fcience will be laid in the two univerfities ; without being exclufively confined to the chanel which it fell into at the times I have been juft defcribino-.
FOR, being then entirely abandoned by the clergy, a few ftragglers excepted, the ftudy and practice of it devolved of courfe into the hands of laymen ; who entertained upon their parts a moft hearty averfion to the civil l#w ", and made no fcruple to profefs their contempt, nay even their ignorance ° of it, in the moft public manner. But ftill, as the ballance of learn- ing was greatly on the fade of the clergy, and as the common law was no longer taught, as formerly, in any part of the kino-- dom, it muft have been fubjeded to many inconveniences, and perhaps would have been gradually loft and overrun by the civil, (a fulpicion well juftified from the frequent tranfcripts of Jufti- nian to be met with in Brac~lon and Fleta) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to it's fupport.
THE incident I mean was the fixing the court of common pleas, the grand tribunal for difputes of property, to be held in one certain fpot; that the feat of ordinary juftice might be per- manent and notorious to all the nation. Formerly that, in con- junction with all the other fuperior courts, was held before the
n Fortefc. de laud. LL. r. 25. ones was prohibited. Bat Skipwith the
0 This remarkably appeared in the cafe of king's ferjeant, and afterwards chief baron
theabbot of Torun.M. zzEtfav. III. 2^. who of the exchequer, declares them to be flat
had caufsd a certain prior to be fummoned nonfenfc; " in ceux parolx, contra inhibiti-
to anfwer at Avignon for creeling an orato- " onem novi operis, ny ad pas entendment :"
ry contra inhibitionem ao-ui operis; by which and juftice Schardelow mends the matter
words Mr Selden, (/a FA-/. 8. 5.) very jultly but little by informing him, that they iig-
underftands to be meant the title de uwi nify a restitution in tbeir law, for which
operis nuiitiatwne both in the civil and canon reafon he very fagely refolves to pay no fort
laws, (Ff. 39. I. C. 8. 1 1. and Decretal, not of regard to them. " Ceo n'eji yue un rejii-
Extrav. 5. 32.) whereby the ereftion of any " tut ion en lour ley, fur jue a ceo tfavomus
new buildings in prejudice of more antient " regard, £?V."
king's
§. i. of the L A w. 23,
king's capital jufticiary of England, in the aula regis, or fuch of his palaces wherein his royal perfon refided ; and removed with his houfliold from one end of the kingdom to the other. This was found to ocean" on great inconvenience to the fuitors; to re- medy which it was made an article of the great charter of liber- ties, both that of king John and king Henry the third p, that " common pleas mould no longer follow the king's court, but be " held in fome certain place :" in confequence of which they have ever fince been held (a few necefTary removals in times of the plague excepted) in the palace of Weftminfler only. This brought together the profeflbrs of the municipal law, who be- fore were difperfed about the kingdom, and formed them into an aggregate body ; whereby a fockty was eftablimed of perfons, •who (as Spelman q obferves) addidting themfelves wholly to the fludy of the laws of the land, and no longer confidering it as a mere fubordinate fcience for the amufement of leifure hours,, foon railed thofe laws to that pitch of perfection, which they fuddenly attained under the aufpices of our Englim Juftinian,, king Edward the firft.
IN confequence of this lucky aflembl age, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it neceffary to eftablifh a new univerfity of their own. This they did by purchafing at various times cer- tain houfes (now called the inns of court and of chancery) be- tween the city of Weflminfter, the place of holding the king's courts, and the city of London ; for advantage of ready accefs to the one, and plenty of proviiions in the other r. Here exer- cifes were performed, lectures read, and degrees were at length conferred in the common law, as at other univeriities in the ca- non and civil. The degrees were thofe of barrifters (firfl ftiled apprentices s from apprendre, to learn) who anfwered to our ba-
f c. ii. been firft appointed by an ordinance of king
1 Gloffar. 334. Edward the firft in parliament, in the zoth
1 Fortefc. c. 48. year of his reign. (Spelm. Glo/. 37. Dug-
* Apprentices or barrifters fecm to have dale. Orig. jurid. 55.)
chelors ;..
24 On the STUDY INTRO D,
chelors ; as the ftate and degree of a ferjeant ", fervientis ad legem, did to that of dodlor.
THE crown feems to have foon taken under it's prote&ion this infant feminary of common law ; and, the more effe&ually to fofter and cherifh it, king Henry the third in the nineteenth year of his reign iffued out an order directed to the mayor and fheriffs of London, commanding that no regent of any law fchools 'within that city mould for the future teach law therein u. The word, law, or leges, being a general term, may create fome doubt at this diftance of time whether the teaching of the civil law, or the common, or both, is hereby retrained. But in either cafe it tends to the fame 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 feats of learning. If the municipal law be alfo included in the restriction, (as fir Edward Coke x under/lands it, and which the words feem 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 univerfity, which was newly inflituted in the fuburbs.
' The firft mention which I have met with tire fecret ; and to that end wlult ligamenta in our lawbooks of ferjeantspr counters, is coifae fuae folvere, ut palam monftrarct fe ton- in the ftatute of Weftm. 1 . 3 Edw. I. c. 29. Jin-am babere elcricalem ; fed non eft permijjus. and in Horn's Mirror, c.\. §.IO. c. 2. §.5. — — Satelles wro earn arripiens, nun per coifae c. 3. §.l. in the fame reign. But M. Paris ligamina fed per guttur eum apprehendens, traxit in his life of John II, abbot of St. Alban's, ad carcerem. And hence fir H. Spelman con- whichhe wrotein 12;;, 39 Hen. III. fpeaks jeftures, (Gloffar. 335.) that coifs were in- of advocates at the common law, or coun- troduced to hide the tonfure of fuch rene- tors (quos band narratores vulgariter apfel- gade clerks, as were flill tempted to remain lamiis) as of an order of men well known, in the fecular courts in the quality of advo- And we have an example of the antiquity catei or judges, notwithftanding their pro- of the coif in the fame author's hiftory of hibition by canon.
England, A. D. 1259. in the cafe of one u Ne atiquis fcbolas rtgens de legibui en ea-
.William de Bufly; who, being called to dan civitate da eaetero ibidem leges doceat.
account for his great knavery and mal- w in Flet. 8. z.
pra&kes, claimed the benefit of his orders * 2 Inft. proem, or clergy, which till then remained an en-
IN
§. i. of the LAW. 25
IN this juridical univerfity (for fuch it is infifted to have been by Fortefcuey and fir Edward Cokez) there are two forts of col- legiate houfes , one called inns of chancery, in which the younger ftudents of the law were ufually placed, " learning and ftudying, " fays Fortefcue % the originals and as it were the elements of " the law ; who, profiting therein, as they grew to ripenefs fo " were they admitted into the greater inns of the fame ftudy, " called the inns of court." And in thefe inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did ufe to place their children, though they did not defire 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 thoufand ftudents at thefe feveral inns, all of whom he informs us were^/w nobilium, or gentlemen born.
HENCE it is evident, that ( though under the influence of the monks our univerfities neglected this ftudy, yet) in the time of Henry the fixth it was thought highly neceflary and was the univerfal practice, for the young nobility and gentry to be in- ftructed in the originals and elements of the laws. But by degrees this cuftom has fallen into difufe ; fo that in the reign of queen Elizabeth fir Edward Cokeb does not reckon above a thoufand fludents, and the number at prefent is very confiderably lefs. Which feems principally owing to thefe reafons : firft, becaufe the inns of chancery being now almoft totally filled by the infe- rior branch of the profeffion, they are neither commodious nor proper for the refort of gentlemen of any rank or figure j fo that there are very rarely any young ftudents entered at the inns of chancery : fecondly, becaufe in the inns of court all forts of regimen and academical fuperintendance, either with regard to morals or ftudies, are found impracticable and therefore entirely neglected : laftly, becaufe perfons of birth and fortune, after having finifhed their ufual courfes at the univerfities, have feldom
7 C. 49. » Hid.
1 3 Rep. pref. b ibid.
D leifure
26 On the S T u D y IN TROD,
leifure or refolution fufficient to enter upon a new fcheme of ftudy at a new place of inftruction. Wherefore few gentlemen now refort to the inns of court, but fuch for whom the knowlege of practice is abfolutely neceffary ; fuch, I mean, as are intended for the profeffion : the reft of our gentry, (not to fay our nobi- lity alfo) having ufually retired to their eftates, or vifited foreign kingdoms, or entered upon public life, without any inftruction in the laws of the land ; and indeed with hardly any opportunity of gaining inftruction, unlefs it can be afforded them in thefe feats of learning.
AND that thefe are the proper places, for affording afiiftances of this kind to gentlemen of all ftations and degrees, cannot (I think) with any colour of reafon be denied. For not one of the objections, which are made to the inns of court and chancery, and which I have juft enumerated, will hold with regard to the univerfities. Gentlemen may here aflbciate with gentlemen of their own rank and degree. Nor are their conduct and ftudies left entirely to their own difcretion ; but regulated by a difci- pline fo wife and exact, yet fo liberal, fo fenfible and manly, that their conformity to it's rules (which does at prefent fo much honour to our youth) is not more the effect of conftraint, than of their own inclinations and choice. Neither need they appre- hend too long an avocation hereby from their private concerns and amufements, or (what is a more noble object) the fervdce of their friends and their country. This ftudy will go hand in hand with their other purfuits : it will obftrudt none of them ; it will ornament and afiift them all.
BUT if, upon the whole, there are any ftill wedded to mo- naftic prejudice, that can entertain a doubt how far this ftudy is properly and regularly academical, fuch perfons I am afraid either have not confidered the constitution and defign of an univerfity, or elfe think very meanly of it. It muft be a deplorable narrow- nefs of mind, that would confine thefe feats of inftruction to the limited views of one or two learned profeffions. To the praife
of
§. I. of the L AW. 27
of this age be it fpoken, a more open and generous way of think- ing begins now univerfally to prevail. The attainment of liberal and genteel accomplifhments, though not of the intellectual fort, has been thought by our wifeft and moft affectionate patrons % and very lately by the whole univerlity d, no fmall improvement of our antient plan of education ; and therefore I may fafely af- firm that nothing (how umifual foever) is, under due regulations, improper to be taught in this place, which fs proper for a gentle- man to learn. But that a fcience, which diftinguifhes the crite- rions of right and wrong ; which teaches to eftablifh the one, and prevent, punifli, or redrefs the other ; which employs in it's theory the nobleft faculties of the foul, and exerts in it's practice the cardinal virtues of the heart ; a fcience, which is univerfal in it's ufe and extent, accommodated to each individual, yet com- prehending the whole community j that a fcience like this fliould have ever been deemed unneceffary to be ftudied in an univerfi ty, is matter of aftonimment and concern. Surely, if it were not be- fore an object of academical knowlege, it was high time to make it one; and to thofe who can doubt the propriety of it's recep- tion among us (if any fuch there be) we may return an anfwer in their own way ; that ethics are confefTedly a branch of acade- mical learning, and Ariftotle hinifelf has faid, fpeaking of the laws of his own country, that jurifprudence or the knowlege of thofe laws is the principal and moft perfect branch of ethics e.
FROM a thorough conviction of this truth, our munificent benefactor Mr VINER, having employed above half a century in. amafllng materials for new-modelling and rendering more com- modious the rude ftudy of the laws of the land, configned both
c Lord chancellor Clarendon, in his dia- d By accepting in full convocation the
logue of education, among his trafts, p. 3 25. remainder of lord Clarendon's hiftory from
appears to have been very folicitous, that his noble defendants, on condition to ap-
it might be made "a part of the ornament ply the profits arifmg from it's publication
"of our learned academies to teach the to the eftablimment of a manage in the uni-
" qualities of riding, dancing, and fencing, verfity.
" at thofe hours when more ferious exer- e TeA««i p«.\iw »HT», In -m, nXcutt xp.-nt;
" cifes ftould be intermitted." xf>ims £5). Ethic, ad Nictmiach. I. 5. c. 3.
D 2 the
28
On the STUDY
INTROD*
the plan and execution of thefe his public-fpirited defigns to the wifdom of his parent univerlity. Refolving to dedicate his learn- ed labours " to the benefit of pofterity and the perpetual fervice " of his country V he was feniible he could not perform his re- folutions in a better and more effectual manner, than by extend- ing to the youth of this place. thofe afliftances, of which he fo, well remembered and fo heartily regretted the want. And the fenfe, which the univerfity has entertained of this ample and moft ufeful benefaction, muft appear beyond a doubt from their gra- titude in receiving it with all poffible marks of efteem8; from their alacrity and unexampled difpatch in carrying it into execu- tion11; and, above all, from the laws and conftitutions by which they have effectually guarded it from the neglect and abufe to which fuch inftitutions are liable1. We have feen an univerfal emulation, who beft fhould underftand, or moil faithfully pur-
f See the preface to the eighteenth vo- lume of his abridgment.
8 Mr Viner is enrolled among the public benefaftors of the univerfity by decree of convocation.
h Mr Viner died June 5., 1756. His ef- fefts were colleded and fettled, near a vo- lume of his work printed, almoft the whole difpofed of, and the accounts made up, in a year and a half from his deceafe, by the very diligent and worthy adminiilrators with the will annexed, (Dr Weft and Dr Good of Magdalene, Dr Whalley of Oriel, Mr Buckler of All Souls, and Mr Belts of Uni- verfity college ) to whom that care was configned by the univerfity. Another half year was employed in considering and fet- tling a plan of the propofed inftitution, and in framing the ftatutes thereupon, which were finally confirmed by convocation on the 3d of July, 1758. The profeflbr was elefted on the zo'h of Oftober following, and two fcholars on the fucceeding day. And, lallly, it was agreed at the annual audit in 1761, to eftablifh a fellowfhip ; and a fellow was accordingly elected in
January following. — T'ie refidue of this fund, arifmg from the fale of Mr Viner's abridgment, will probably be fufficient here- after to found another fellowiliip and fcho- larfhip, or three more fcholarmips, as mall be thought moft expedient.
* The ftatutes are in fubftance as fol- lows :
1. THAT the accounts of this benefac- tion be feparately kept, and annually au- dited by the delegates of accounts and pro- feffor, and afterwards reported to convoca- tion.
2. TH AT a profe/Torfhip of the laws of England be eftablimed, with a (alary of two hundred pounds per annum ; the profefibr to be elected by convocation, and to be at the time of his eleftion at leaft a mafter of arts or bachelor of civil law in the univer- fity of Oxford, of ten years Handing from his matriculation ; and alfo a barrifter at law of four years ftanding at the bar.
3. THAT fuch profeflbr (by himfelf, or by deputy to be previously approved by
convocation)
§. I. of toe L A w.
fue, the defigns of our generous patron : and with pleafure we recolledt, that thofe who are mofl diftinguifhed by their quality,
convocation ) do read one folemn public lecture on the laws of England, and in the Englifh language, in every academical term, at certain Hated times previous to the com- mencement of the common law term ; or forfeit twenty pounds for every omiffion to MrViner's general fund : and alfo (by him- felf, or by deputy to be approved, if occa- fional, by the vice-chancellor and proctors ; or, if permanent, both the caufe and the deputy to be annually approved by convo- cation) do yearly read one complete courfe of lectures on the laws of England, and in the Englifh language,, confifting of fixty lectures at the leaft ; to be read during the univerfity term time, with fuch proper in- tervals that not more than four lectures may fall within any fmgle week : that the pro- feflbr do give a month's notice of the time when the courfe is to begin, and do read gratis to the fcholars of MrViner's founda- tion ; but may demand of other auditors fuch gratuity as fhall be fettled from time to time by decree of convocation : and that, for every of the faid fixty lectures omitted, the profeflbr, on complaint made to the vice-chancellor within the year, do forfeit forty millings to MrViner's general fund ; the proof of having performed his duty to lie upon the faid profeflbr.
4. TH AT every profeflbr do continue in his office during life, unlefs in cafe of fuch mifbehaviour as mail amount to bannition by the univerfity ftatutes ; or unlefs he de- ferts the profeffion of the law by betaking himfelf to another profeffion ; or unlefs, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant om (Eon : in any of which ca-fes he be deprived by the vice- chancellor, with confent of the houfe of convocation.
5. THAT fuch a number of fellowships with a ftipend of fifty pounds fer annum,
and fcholarfhips with a ftipend of thirty pounds, be eftablifhed, as the convocation fhall from time to time ordain, according to the ftate of Mr Viner's revenues.
6. TH AT every fellow be elected by convocation, and at the time of election be unmarried, and at leaft a mailer of arts or bachelor of civil law, and. a member of fome college, or hall in the univerfity cf Oxford; the fchalars of this foundation or fuch as have been fcholars (if qualified and approved of by convocation) to have the preference : that, if not a barrifter when chofen, he be 'called to the bar within one year after his. election ; but do refide in the univerfity two months in every year, or in cafe of non-refidence do forfeit the ftipend. of that year to Mr Viner's general fund.
7. THAT every fcholar. be elected By convocation, and at the time of election be unmarried, and a member of fc-.ne college or hall in the univerfity of Oxford, who fhall have been matriculated twenty four calendar months at the leafl : that he do take the degree of bachelor of civil law with all convenient fpeed ; (either proceed- ing in arts or otherwi-fe) and previous to his taking the fame, between the fecond and eighth year from his matriculation , be bound to attend two courfes of the profef- for's lectures, to be certified under the pro- feflbr's hand; and within one year after taking the fame to be called to the bar : that he do annually refide fix months till he is of four years ftanding, and four months from that time till he is mafter of arts or bachelor of civil law; after which he be bound to refide two months in every year;, or, in cafe of non-refidence, do forfeit the ftipend of that year to Mr Viner's general fund.
8. THAT the fcholarfliips do become void in cafe of non-attendance on the pro- feflbr, or not taking the degree of bachelor
of
30 On tie S T u D y INT ROD.
their fortune, their ftation, their learning, or their experience, have appeared the moil zealous to promote the fuccefs of Mr Vi- ner's eftablifhment.
TH E advantages that might refult to the fcience of the law itfelf, when a little more attended to in thefe feats of knowlege, perhaps would be very confiderable. The leifure and abilities of the learned in thefe retirements might either fuggeft expedients, or execute thofe dictated by wifer heads k, for improving it's method, retrenching it's fuperfluities, and reconciling the little contrarieties, which the practice of many centuries will necefTarily create in any human fyftem : a tafk, which thofe who are deeply employed in bufmefs, and the more active fcenes of the profef- fion, can hardly condefcend to engage in. And as to the intereft, or (which is the fame) the reputation of the univerfities them- felves, I may venture to pronounce, that if ever this ftudy mould arrive to any tolerable perfection either here or at Cambridge, the nobility and gentry of this kingdom would not fhorten their refidence upon this account, nor perhaps entertain a worfe opi- nion of the benefits of academical education. Neither mould it be confidered as a matter of light importance, that while we thus extend the pomoeria of univerfity learning, and adopt a new tribe of citizens within thefe philosophical walls, we intereft a
of civil law, being duly admonifhed fo to profeflorfliip, fellowfhips, or fcholarfhips, do by the vice-chancellor and prodtors : and the profits of the current year be ratably that both fellowmips and fcholarfhips do ex- divided between the predeceflbr or his re- pire at the end of ten years after each re- prefentatives, and the fucceflbr ; and that a fpeftive election ; and become void in cafe new election be had within one month af- of grofs mifbehaviour, non-refidence for two terwards, unlefs by that means the time of years together, marriage, not being called election mall fall within any vacation, in to the bar within the time before limited, which cafe it be deferred to the firft week (being duly admonilhed fo to be by the in the next fall term. And that before any vice-chancellor and proctors) or deferting convocation mall be held for fuch eleclion, the profefiion of the law by following any or for any other matter relating to Mr VL other profeflion: and that in any of thefe ner's benefaction, ten days public notice be cafes the vice-chancellor, with confent of given to each college and hall of the con- convocation, do declare the place actually vocation, and the caufe of convoking it. void. k See lord Bacon's propofals and offer of 9. TH AT in cafe of any vacancy of the a digeft.
very
§. i. of the L A w. 31
very numerous and very powerful profeffion in the prefervation of our rights and revenues.
Fo R I think it paft difpute that thofe gentlemen, who re- ibrt to the inns of court with a view to purfue the profeffion, will find it expedient (whenever it is practicable) to lay the pre- vious foundations of this, as well as every other fcience, in one of our learned univerfities. We may appeal to the experience of every fenfible lawyer, whether any thing can be more hazardous or difcouraging than the ufual entrance on the ftudy of the law. A raw and unexperienced youth, in the moft dangerous feafon of life, is tranfplanted on a fudden into the midft of allurements to pleafure, without any reftraint or check but what his own pru- dence can fuggeft ; with no public direction in what courfe to purfue his enquiries ; no private afliftance to remove the diftrerTes and difficulties, which will always embarafs a beginner. In this lituation he his expected to fequefter himfelf from the world, and by a tedious lonely procefs to extract the theory of law from a mafs of undigefted learning j or elfe by an affiduous attendance on the courts to pick up theory and practice together, fufficient to qualify him for the ordinary run of bufmefs. How little, therefore is it to be wondered at, that we hear of fo frequent mifcarriages ; that fo many gentlemen of bright imaginations grow weary of fo unpromifing a fearch ', and addict themfelves Avholly to amufements, or other lefs innocent purfuits ; an-d that fo many perfons of moderate capacity confufe themfelves at firft fetting out, and continue ever dark and puzzled during the re- mainder of their lives !
TH E evident want of fome afliftance in the rudiments of le- gal knowlege has given birth to a practice, which, if ever it had grown to be general, muft have proved of extremely perni-
1 Sir Henry Spelman, in the preface to his gloflary, has given us a very lively pic- ture of his own diftrefs upon this occafion. " Emifit me mater Londinum, juris nojlri ca- M pejfcndi gratia ; cujtu cum 'veJUbu.liim falit-
' taffem, n'ferffimfue littg-.taw peregrinam, die- ' lefium barbaram, methodum ineoncinnam, mo- ' km non ingentem foluai fed perp tuis humeris ' fuftinendam, excidit tnibi (fateorj animus,.
' &c>'* cious-
32 On the S T u D Y IN TROD.
cious confequence : I mean the cuftom, by fome fo very warmly recommended, to drop all liberal education, as of no ufe to (Indents in the law; but to place them, in it's ftead, at the defk of fome fkilful attorney ; in order to initiate them early in all the depths of practice, and render them more dextrous in the mechanical part of bulinefs. A few inftances of particular perfons, (men of excellent learning, and unblemifhed integrity) who, in fpight of this method of education, have fhone in* the foremoft ranks of the bar, have afforded fome kind of fanction to this illiberal path to the profeffion, and biafled many parents, of (hortfighted judg- ment, in it's favour : not confidering, that there are fome ge- niufes, formed to overcome all difadvantages, and that from fuch particular instances no general rules can be formed ; nor obfer- ving, that thofe very perfons have frequently recommended by the moft forcible of all examples, the difpofal of their own off- fpring, a very different foundation of legal ftudies, a regular aca- demical education. Perhaps too, in return, I could now direct their eyes to our principal feats of juftice, and fuggeft a few hints, in favour of univerfity learning"1: — but in thefe all who hear me, I know, have already prevented me.
MAKING therefore due allowance for one or two mining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in fubfervience to attorneys and folicitors ", will find he has begun at the wrong end. If practice be the whole he is taught, practice muft alfo be the whole he will ever know : if he be uninftructed in the elements and firft principles upon which the rule of practice is founded^ the leafl variation from eftabliflied precedents will totally diftract and bewilder him : ita lex fcripta eft° is the utmoft his knowlege will arrive at j he muft never afpire to form, and feldom expect to comprehend, any arguments drawn a priori, from the fpirit of the laws and the natural foundations of juftice.
m The four higheft judicial offices were and the fourth a fellow of Trinity college,
at that time filled by gentlemen, two of Cambridge.
whom had been fellows of All Souls col- n See Kennel's life of Somner. p. 67. lege ; another, ftudent of Chrift-Church ; ° Ff. 40. 9. 12. NoR
§. i. of the LA w. 33
N o R is this all ; for (as few perfons of birth, or fortune, or even of fcholaftic education, will fubmit to the drudgery of fer- vitude and the manual labour of copying the tram of an office ) fhould this infatuation prevail to any confiderable degree, we muft rarely expect to fee a gentleman of diftindtion or learning at the bar. And what the confequence may be, to have the in- terpretation and enforcement of the laws (which include the en- tire difpofal of our properties, liberties, and lives} fall wholly into the hands of obfcure or illiterate men, is matter of very public concern.
THE inconveniences here pointed out can never be eftedually prevented, but by making academical education a previous ftep to the profeffion of the common law, and at the fame time ma- king the rudiments of the law a part of academical education. For fciences are of a fociable difpofition, and flourim beft in the neighbourhood of each other : nor is there any branch of learn- ing, but may be helped and improved by afliftances drawn from other arts. If therefore the fludent in our laws hath formed both his fentiments and ftyle, by perufal and imitation of the pureft claflical writers, among whom the hiftorians and orators will beft deferve his regard ; if he can reafon with precifion, and feparate argument from fallacy, by the clear fimple rules of pure unfo- phifticated logic ; if he can fix his attention, and fteadily purfue truth through any the moft intricate deduction, by the ufe of mathematical demonftrations ; if he has enlarged his conceptions of nature and art, by a view of the feveral branches of genuine, experimental, philofophy; if he has imprefled on his mind the found maxims of the law of nature, the beft and moft authentic foundation of human laws ; if, laftly, he has contemplated thofe maxims reduced to a practical fyftem in the laws of imperial Rome; if he has done this or any part of it, (though all may be eafily done under as able inftructors as ever graced any feats of learning) a ftudent thus qualified may enter upon the ftudy of the law with incredible advantage and reputation. And if,
E at
3 4. On the S T u D Y I N T R o D.
at the conclufion, or during the acquifition pf thefe accomplim- ments, he will afford himieif here a year or two's farther leifure, to lay the foundation of his future labours in a folid fcientifical method, without thirfting too early to attend that practice which it is impoitible he mould rightly comprehend, he will afterwards proceed with the greateil eafe, and will unfold the moft intricate points with an intuitive rapidity and clearnefs.
I SHALL not infift upon fuch motives as might be drawn from principles of oeconomy, and are applicable to particulars only : I realbn upon more general topics. And therefore to the qualities of the head, which I have juft enumerated, I cannot but add thofe of the heart ; affectionate loyalty to the king, a zeal for liberty and the conftitution, a fenfe of real honour, and well grounded principles of religion ; as neceflary to form a truly valuable Engliih lawyer, a Hyde, a Hale, or a Talbot. And, whatever the ignorance of fome, or unkindnefs of others, may have heretofore untruly fuggefted, experience will warrant us to affirm, that thefe endowments of loyalty and public fpirit, of honour and religion, are no where to be found in more high per- fection than in the two univeriities of this kingdom.
BEFORE I conclude, it may perhaps be expected, that I lay before you a fhort and general account of the method I propofe to follow, in endeavouring to execute the truft you have been pleafed to repofe in my hands. And in thefe folemn lectures, which are ordained to be read at the entrance of every term, ( more perhaps to do public honour to this laudable inftitution, than for the private inftruction of individuals15) I prefume it will beft anfwer the intent of our benefactor and the expectation of this learned body, if I attempt to illuftrate at times fuch detached titles of the law, as are the moft eafy to be underftood, and moft capable of hiftorical or critical ornament. But in reading the complete courfe, which is annually configned to my care, a more regular method will be neceffary ; and, till a better is propofed,
T See Lowth's Oratio Creivicna, p. ;6c.
I {hall
§. i. of the LAW. 35
I mall take the liberty to follow the fame that I have already fub- mitted to the public q. To fill up and finim that outline with propriety and corredlnefs, and to render the whole intelligible to the uninformed minds of beginners, (whom we are too apt to fuppofe acquainted with terms and ideas, which they never had opportunity to learn) this muft be my ardent endeavour, though by no means my promife to accomplifh. You will permit me however very briefly to defcribe, rather what I conceive an aca- demical expounder of the laws ihould do, than what I have ever known to be done.
HE mould confider his courfe as a general map of the law, marking out the fhape of the country, it's connexions and boun- daries, it's greater divifions and principal cities : it is not his bufi- nefs to defcribe minutely the fubordinate limits, or to fix the lon- gitude and latitude of every inconfiderable hamlet. His attention ihould be engaged, like that of the readers in Fortefcue's inns of chancery, " in tracing out the originals and as it were the eler " ments of the law." For if, as Juftinian r has obferved, the tender understanding of the ftudent be loaded at the firfl with a multitude and variety of matter, it will either occalion him to defert his ftudies, or will carry him heavily through them, with much labour, delay, and defpondence. Thefe originals mould be traced to their fountains, as well as our diflance will permit ; to the cuftoms of the Britons and Germans, as recorded by Cae- far and Tacitus ; to the codes of the northern nations on the con- tinent, and more efpecially to thofe 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
•i The Analyfis of the laws of England, Alioqui, Ji ftatim al initio rudem aJhuc et in-
firtt publifhed, j4.D.l-$6, and exhibiting frmum animum Jludiofi mult itudine aciiarietate
the order and principal divifions of the en- rerun oner animus, duorum alterum, out dej'tr-
fuing COMMENTARIES; which were torem ftudiorum efficiemus, aut cum magno labo-
originally fubmitted to the univerfity in a re, faepe etiam cum diffidattia (quae plerumque
private courfe of leftures, A. D. 1753. ju-ve/ies averlit) ferius ad id ptrduce'mus, aj
' Incipientikuf nobis exponere jura ptpuli Fo- quod, h-Tjiort "jiei duflus, fine magno labore et
man'', it a widen! ur tradi pcjje commodij/ime , Ji Jiiie ulla diffidentia maturius perdue i patuijjet.
prima levi ac fimplici via jiigula traduntur : /«/?. I. 1.2.
E 2 all,
36 On the. S T u D Y IN TROD.
all, to that inexhauftible refervoir of legal antiquities and learn- ing, the feodal law, or, as Spelman5 has entitled it, the law of nations in our weftern orb. Thefe primary rules and fundamen- tal principles mould be weighed and compared with the precepts of the law of nature, and the practice of other countries ; mould be explained by reafons, illuftrated by examples, and confirmed by undoubted authorities ; their hiftory mould be deduced, their changes and revolutions obferved, and it mould be fliewn how far they are connected with, or have at any time been affected by, the civil tranfactions of the kingdom.
A PLAN of this nature, if executed with care and ability, cannot fail of adminiftring a moft ufeful and rational entertain- ment to ftudents of all ranks and profeffions ; and yet it mufl be confefied that the ftudy of the laws is not merely a matter of amufement : for, as a very judicious writer' has obferved upon a llmilar occafion, the learner " will be confiderably difappointed " if he looks for entertainment without the expenfe of attention." An attention, however, not greater than is ufually beftowed in mattering the rudiments of other fciences, or fometirnes in pur- fuing a favorite recreation or exercife. And this attention is not equally necerTary to be exerted by every ftudent upon every occa- fion. Some branches of the law, as the formal procefs of civil fuits, and the fubtile diftinctions incident to landed property, which are the moft difficult to be thoroughly underftood, are the leaft worth the pains of under/landing, except to fuch gentlemen as intend to purfue the profeflion. To others I may venture to apply, with a flight alteration, the words of fir John Fortefcue",
' Of parliaments. 57. mum tuum. — Nofco namque ingcnii tui perfpi-
* Dr Taylor's pref. to Elem. of civil law. cacitatcm, qua audafier prcnitntio quod in kgi-
" Till, princeps, necejje nan erit myftcria Ic- bus Hit's (licet earttm peritia, qualis jitdicibu:
fis Angliae hngo difciflinatu r mare. Sitfficiet neceffaria ej), i<ix iiiginti annonan lucubi'atio-
itbi, — et fatis denom':nari legijla mereberis, fi nikus acquiraturj tu daflrhmm princ'ipi con-
legutn priticipia et caufas, ujque ad element!*., gruam in anno uno Jufficienter nancifcerii ', nee
difeifvli more indagmjeris. — Square tu, prin- interim militarem difciplhiam, ad quam tarn ar-
cepsferenijpme, par--vo tempore, parva indujlria, denter anhelas, negliges; fed ca, recreaticnis
Sufficient er eris in hgibiis regni Angliae eruditus, loco, etiam anno illo in ad libitum ptrfnierii.
dummodo ad ejas afprebenjjonem tu confer as ani- c. 8.
when
§. i. of the LAW. 37
when firft his royal pupil determines to engage in this ftudy. « It will not be neceffary for a gentleman, as fuch, to examine " with a clofe application the critical niceties of the law. It will « fully be fufficient, and he may well enough be denominated a " lawyer, if under the inftruction of a mailer he traces up the « principles and grounds of the law, even to their original ele- « ments. Therefore in a very fhort period, and with very little «' labour, "he may be fufficiently informed in the laws of his « country, if he will but apply his mind in good earneft to re- " ceive and apprehend them. For, though fuch knowlege as is " neceflary for a judge is hardly to be acquired by the lucubra- " tions of twenty years, yet with a genius of tolerable perfpica- " city, that knowlege which is fit for a perfon of birth or con- " dition may be learned in a lingle year, without neglecting his " other improvements."
To the few therefore (the very few, I am perfuaded,.) that entertain fuch unworthy notions of an univerfity, as to fuppofe it intended for mere difiipation of thought j to fuch as mean only to while away the aukward interval from childhood to twenty one, between the reftraints of the fchool and the licentioufnefs of politer life, in a calm middle ftate of mental and of moral inactivity ; to thefe Mr Viner gives no invitation to an entertain- ment which they never can relilh. But to the long and illuftrious train of noble and ingenuous youth, who are not more diflin- guifhed among us by their birth and poflefilons, than by the re- gularity of their conduct and their thirfl after ufeful knowlege, to thefe our benefactor has confecrated the fruits of a long and laborious life, worn out in the duties of his calling ; and will joyfully reflect (if fuch reflexions can be now the employment of his thoughts) that he could not more effectually have benefited pofterity, or contributed to the fervice of the public, than by founding an inftitution which may inftruct the rifing generation in the wifdom of our civil polity, and inform them with a defire to be flill better acquainted with the laws and conflitution of their country.
38 Of the NATURE of IN TROD.
SECTION THE SECOND. OF THE NATURE OF LAWS IN GENERAL.
I AW, in it's moft general and comprehenfive fenfe, fignifies _^ a rule of action ; and is applied indifcriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we lay, 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 prefcribed by fome fuperior, and which the inferior is bound to obey.
TH u s when the fupreme being formed the univerfe, and created matter out of nothing, he impreffed certain principles upon that matter, from which it can never depart, and without which it would ceafe to be. When he put that matter into mo- tion, he eftablimed certain laws of motion, to which all move- able bodies muft conform. And, to defcend from the greatest operations to the fmalleft, when a workman forms a clock, or other piece of mechanifm, he eftablifhes at his own pleafure cer- tain arbitrary laws for it's direction ; as that the hand mall de- fcribe a given fpace in a given time ; to which law as long as the work conforms, fo long it continues in perfection, and anfwers the end of it's formation.
I F we farther advance, from mere inactive matter to vegetable and animal life, we mall find them ftill governed by laws ; more numerous indeed, but equally fixed and invariable. The whole progreis of plants, from the feed to the root, and from thence to the feed again; — the method of animal nutrition, digeftion,
fecretion,
§. 2. LAWS in general. 39
fecretion, and all other branches of vital oeconomy;--- are not left to chance, or the will of the creature itfelf, but are perform- ed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.
THIS then is the general fignification of law, a rule of ac- tion dictated by feme fuperior being ; and in thofe creatures that have neither the power to think, nor to will, fuch laws muft be invariably obeyed, fo long as the creature itfelf fubfiits, for it's exiftence depends on that obedience. But laws, in their more confined fenfe, and in which it is our prefent bulinefs to confider them, denote the rules, not of action in genera], but of human action or conduct : that is, the precepts by which man, the no- bleft of all fublunary beings, a creature endowed with both rea- fon and freewill, is commanded to make ufe of thofe faculties irt the general regulation of his behaviour..
MAN, confidered as a creature, mufl neceiTarily be fubject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to purfue, but fuch as he prefcribes to himfelf;. but a ftate of dependance will in- evitably 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 thofe points wherein his dependance con- fifts. This principle therefore has more or lefs extent and effect, in proportion as the fuperiority of the one and the dependance of the other is greater or lefs, abfolute or limited. And confe- quently, as man depends abfolutely upon his maker for every thing, it is neceflary that he mould in all points conform to his- maker's will.
THIS will of his maker is called the law of nature. For as God, when h^. created matter, and endued it with a principle of mobility, eftablifhed certain rules for the perpetual direction of that motion ; fo, when he created man, and endued him with freewill to conduct himfelf in all parts of life, he laid down cer- tain
4O Of the NATURE of INTRO D,
tain immutable laws of human nature, whereby that freewill is in fome degree regulated and reftrained, and gave him alfo the faculty of reafon to difcover the purport of thofe laws.
CONSIDERING the creator only as a being of infinite power, he was able unqueftionably to have prefcribed whatever laws he pleafed to his creature, man, however unjuft or fevere. But as he is alfo a being of infinite ivifdom, he has laid down only fuch laws as were founded in thofe relations of juftice, that exifted in the nature of things antecedent to any pofitive precept. Thefe are the eternal, immutable laws of good and evil, to which the creator himfelf in all his difpenfations conforms ; and which he has enabled human reafon to difcover, fo far as they are neceflary for the conduct of human actions. Such among others are thefe principles : that we fhould live honeftly, mould hurt nobody, and mould render to every one his due ; to which three general precepts JuftinianMias reduced the whole doctrine of law.
BUT if the dilcovery of thefe firfl principles of the law of nature depended only upon the due exertion of right reafon, and could not otherwife be attained than by a chain of metaphyfical difquifitions, mankind would have wanted fome inducement to have quickened their inquiries, and the greater part of the world would have refted content in mental indolence, and ignorance it's infeparable companion. As therefore the creator is a being, not only of infinite power, and icifdom, but alfo of infinite goodnefs, he has been pleafed fo to contrive the conftitution and frame of humanity, that we fhould want no other prompter to enquire after and purfue the rule of right, but only our own felf-love, that univerfal principle of action. For he has fo intimately con- nected, fo infeparably interwoven the laws of eternal juftice with the happinefs of each individual, that the latter cannot be attained but by obferving the former ; and, if the former be punctually obeyed, it cannot but induce the latter. In confequence of which mutual connection of juftice and human felicity, he has not per-
a Juris praceepta /'tint bticc, /.' .:.v /',• il'^crc, .ilterum KOI: l.icJtrc, fu urn ctiique tr.lucre. Inft. 1.1.3.
plexed
§.2. LAWS in general. 41
plexed the law of nature with a multitude of abflracted rules and precepts, referring merely to the fitnefs or unfitnefs of things, as fome have vainly furmifed ; but has gracioufly reduced the rule of obedience to this one paternal precept, "that man mould " purfue his own happinefs." This is the foundation of what we call ethics, or natural law. For the feveral articles, into which it is branched in our fyftems, amount to no more than demon- ftrating, that this or that action tends to man's real happinefs, and therefore very juftly concluding that the performance of it is a part of the law of nature j or, on the other hand, that this or that action is destructive of man's real happinefs, and therefore that the law of nature forbids it.
THIS law of nature, being co-eval with mankind and dicta- ted by God himfelf, is of courfe fuperior 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 fuch of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.
B u T in order to apply this to the particular exigencies of each individual, it is flill neceffary to have recourfe to reafon : whofe office it is to difcover, as was before obferved, what the law of nature directs in every circumflance of life ; by confider- ing, what method will tend the moil effectually to our own fub- ftantial happinefs. And if our reafon were always, as in our firfl anceftor before his tranfgreffion, clear and perfect, unruffled by pafllons, unclouded by prejudice, unimpaired by difeafe or in- temperance, the talk would be pleafant and eafy ; we mould need no other guide but this. But every man now finds the contrary in his own experience ; that his reafon is corrupt, and his under- ftanding full of ignorance and error.
THIS has given manifold occafion for the benign interpofition of divine providence ; which, in companion to the frailty, the imperfection, and the blindnefs of human reafon, hath been
F pleafed,
42 Of the NATURE of INTRO D.
pleafed, at fundry times and in divers manners, to difcover and enforce it's laws by an immediate and direct revelation. The doc- trines thus delivered we call the revealed or divine law, and they are to be found only in the holy fcriptures. Thefe precepts, when revealed, are found upon companion to be really a part of the original law of nature, as they tend in all their confequences to man's felicity. But we are not from thence to conclude that the knowlege of thefe truths was attainable by reafon, in it's prefent corrupted ftate ; fince we find that, until they were revealed, they were hid from the wifdom of ages. As then the moral precepts of this law are indeed of the fame original with thofe of the law of nature, fo their intrinfic obligation is of equal ilrength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral fyltem, which is framed by ethical writers, and denominated the natural law. Becaufe one is the law of nature, expreffly declared fo to be by God himfelf ; the other is only what, by the afliftance of human reafon, 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 compe- tition together.
UPON thefe two foundations, the law of nature and the law of revelation, depend all human laws ; that is to fay, no human laws mould be fuffered to contradict thefe. 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 neceffary for the benefit of fociety to be restrained within certain limits. And herein it is that human laws have their greateft force and efficacy ; for, with regard to fuch points as are not indifferent, human laws are only declaratory of, and act in fubordination to, the former. To inftance in the cafe of murder : this is expreflly forbidden by the divine, and demon- ftrably by the natural law ; and from thefe prohibitions arifes the true unlawfulnefs of this crime. Thofe human laws, that annex a puniftiment to it, do not at all iacreate it's moral guilt, or
fuperadd
§.2. LAWS in general. 43
fuperadd any frefli obligation in foro confdentiae to abftain from it's perpetration. Nay, if any human law mould allow or injoin us to commit it, we are bound to tranfgrefs that human law, or elfe we muft offend both the natural and the divine. But with re- gard to matters that are in themfelves indifferent, and are not com- manded or forbidden by thofe fuperior laws; fuch, for inftance, as exporting of wool inte foreign countries ; here the inferior legif- lature has fcope and opportunity to interpofe, and to make that action unlawful which before was not fo.
I F man were to live in a ftate of nature, unconnected with other individuals, there would be no occaiion for any other laws, than the law of nature, and the law of God. Neither could any other law poffibly exift ; for a law always fuppofes fome fuperior who is to make it ; and in a flate of nature we are all equal, without any other fuperior but him who is the author of our be- ing. But man was formed for fociety ; and, as is demonftrated by the writers on this fubjectb, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impoffible for the whole race of mankind to be united in one great fociety, they muft necefTarily divide into many -, and form feparate dates, commonwealths, and nations; entirely independent of each other, and yet liable to a mutual intercourfe. Hence arifes a third kind of law to regulate this mutual intercourfe, called " the law of *' nations ;" which, as none of thefe ftates will acknowlege a fuperiority in the other, cannot be dictated by either ; but de- pends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between thefe feveral communities : in the construction alfo of which compacts we have no other rule to refort to, but the law of nature ; being the only one to which both communities are equally fubject : and therefore the civil law c very juftly obferves, that quod naturdis ratio inter omnes homines cojiJUtuit, vocatur jus gentium.
k Puffendcrf, /. 7. c. I. compared with Barbeyrac's commentary. c Ff.i.i.g.
F 2 THUS
44 Of the NATURE of IN TROD.
TH u s much I thought it neceflary to. premife concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal fubjedt of this fedtion, municipal or civil law ; that is, the rule by which parti- cular diftricts, communities, or nations are governed ; being thus defined by Juftinian d, "jus chile eft quod quifque fibi populus con- "JUtuit." I call it municipal law, in compliance with common fpeech ; for, though ftridtly that expreffion denotes the particular cuftoms of one fingle municiphim or free town, yet it may with fufficient propriety be applied to any one ftate or nation, which is governed by the fame laws and cuftoms,
MUNICIPAL law, thus underftood, is properly defined to be " a rule of civil conduct prefcribed by the fupreme power in " a ftate, commanding what is right and prohibiting what is " wrong." Let us endeavour to explain it's feveral properties,, as they arife out of this definition.
AND, firft, it is a rule ; not a tranfient fudden order from a fuperior to or concerning a particular perfon ; but fomething per- manent, uniform, and univerfal. Therefore a particular act of the legislature to confifcate the goods of Titius, or to attaint him of high treafon, does not enter into the idea of a mufticipal law : for the operation of this act is fpent upon Titius only, and has no relation to the community in general ; it is rather a fentence than a law. But an aft to declare that the crime of which Titius is accufed mail be deemed high treafon ; this has permanency,, uniformity, and univerfality, and therefore is properly a rule. It is alfo called a rule, to diftinguifh it from advice or counfel, which we are at liberty to follow or not, as we fee proper; and to judge upon the reafonablenefs or unreafonablenefs of the thing advifed. Whereas our obedience to the law depends not upon our approbation, but upon the maker's 'will. Counfel is only mat- ter of perfuafion, law is matter of injunction ; counfel acts only upon the willing, law upon the unwilling alfo.
*//»/?. 1.2. i. IT
§.2. LAWS in general. 45
.-
IT is alfo called a rule, to diftinguifh it from a compatt or agreement ; for a compact is a promife proceeding from us, lav/ is a command directed A? us. The language of a compact is, " I " will, or will not, do this ;" that of a law is, " thou malt, or " malt not, do it." It is true there is an obligation which a compact carries with it, equal in point of confcience to that of a law; but then the original of the obligation is different. In com- pacts, we ourfelves determine and promife what mall be done, before we are obliged to do it ; in laws, we are obliged to act, without ourfelves determining or promifing any thing at all. Upon thefe accounts law is denned to be " a rule."
MUNICIPAL law is alfo "a rule of civil conduSl." This dif- tinguimes municipal law from the natural, or revealed ; the for- mer of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but alfo the rule of faith. Thefe regard man as a creature, and point out his duty to God, to him- felf, and to his neighbour, coniidered in the light of an indivi- dual. But municipal or civil law regards him alfo as a citizen, and bound to other duties towards his neighbour, than thofe 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 fub- fiflence and peace of the fociety.
I T is likewife " a rule prefcribed" Becaufe a bare refolution> confined in the breaft of the leginator, without manifefting itfelf by fome external fign, can never be properly a law. It is requi- fite that this refolution 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 univerfal tradition and long practice, which fuppofes a previous publica- tion, and is the cafe of the common law of England. It may be notified, viva voce, by officers appointed for that purpofe, as is done with regard to proclamations, and fuch acts of parliament
as
46 Of the NATURE of INTROD.
as are appointed to be publicly read in churches and other aSTem- blies. It may laltly be notified by writing, printing, or the like; which is the general courfe taken with all our acts of parliament. Yet, whatever way is made ufe of, it is incumbent on the pro- mulgators to do it in the moft public and perSpicuous manner ; not like Caligula, who (according to Dio Caffius) wrote his laws in a very fmall character, and hung them up upon high pillars, the more effectually to enfnare the people. There is Still a more unreafonable method than this, which is called making of laws ex poft fatto ; when after an action (indifferent in itfelf ) is com- mitted, the legiflator then for the firSt time declares it to have been a crime, and inflicts a puniShment upon the perfon who has committed it ; here it is impoiTible that the party could forefee that an action, innocent when it was done, fhould be afterwards converted to guilt by a fubfequent law ; he had therefore no caufe to abstain from it ; and all puniShment for not abstaining muff, of confequence be cruel and unjuSt e. All laws fhould be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "preferred." But when this rule is in the ufual manner notified, or prefcribed, it is then the Subject's bufinefs to be thoroughly acquainted there- with ; for if ignorance, of what he might know, were admitted as a legitimate excufe, the laws would be of no effect, but might always be eluded with impunity.
BUT farther: municipal law is "a rule of civil conduct pre- «' fcribed by the fupreme power in ajlate." For legislature, as was before obferved, is the greateSt act of fuperiority that can be ex- ercifed by one being over another. Wherefore it is requisite to the very eSfence of a law, that it be made by the fupreme power. Sovereignty and legislature are indeed convertible terms ; one cannot fubfiSt without the other.
0 Such laws among; the Romans were de- " vat is kominibus irrogari ; id enim eft pri-vi-
nominated privilegia, or private laws, of "legiuax. Ntaioioiqiuantidit,iuhileftcntddius,
which Cicero de leg. 3-19- and in his ora- " nibi! pernicicjtus, nikil quod minus bate ciiii-
tion prodomo, 17. thus fpeaks ; " Vet ant Ifges " tas ferre poffit"
" facratae, vetant duedccint tabulae, leges pri- THIS
§.2. LAWS m general. 47
THIS will naturally lead us into a ihort enquiry concerning the nature of fociety and civil government; and the natural, in- herent right that belongs to the fovereignty of a ftate, wherever that fovereignty be lodged, of making and enforcing laws.
THE only true and natural foundations of fociety are the wants and the fears of individuals. Not that we can believe, with fome theoretical writers, that there ever was a time when there was no fuch thing as fociety ; and that, from the impulfe of reafon, and through a fenfe of their wants and weakneffes, individuals met together in a large plain, entered into an original contract, and chofe the talleft man prefent to be their governor. This notion, of an actually exifting unconnected ftate of nature, is too wild to be ferioufly admitted; and belides it is plainly con- tradictory to the revealed accounts of the primitive origin of man- kind, and their prefervation two thoufand years afterwards ; both-, which were effected by the means of fmgle families. Thefe formed the firft fociety, among themfelves ; which every day extended it's limits, and when it grew too large to fubiift with convenience in that paftoral ftate, wherein the patriarchs appear to have lived, it neceflarily fubdivided iti'elf by various migrations into more. Afterwards, as agriculture increaied, which employs and can main- tain a much greater number of hands, migrations became lefs frequent ; and various tribes, which had formerly feparated,- re- united again ; fometimes by compulsion and conqueft, fometimes by accident, and fometimes perhaps by compact. But though fociety had not it's formal beginning from any convention of in- dividuals, actuated by their wants "and their fears ; yet it is the fenfe of their weaknefs and imperfection that keeps mankind to- gether ; that demonstrates the necefiity of this union ; and that therefore is the folid and natural foundation, as well as the ce- ment, of fociety. And this is what we mean by the original contrail of fociety; which, though perhaps in no inftance it has ever been formally expreifed at the firft inititution of a ftate, yet in nature and reafon muft always be underftood and implied,
in
Of the NATURE of I NT ROD.
in the very adl of aflbciating together : namely, that the whole Should protect all it's parts, and that every part {hould pay obe- dience to the will of the whole ; or, in other words, that the community fhould guard the rights of each individual member, and that (in return for this protection) each individual mould fubmit to the laws of the community; without which fubmifTion of all it was impoffible that protection could be certainly extend- ed to any.
FOR when fociety is once formed, government refults of courfe, as necefTary to preferve and to keep that fociety in order. Unlefs fome fuperior were constituted, whofe commands and decilions all the members are bound to obey, they would flill re- main as in a flate of nature, without .any judge upon earth to define their feveral rights, and redrefs their feveral wrongs. But, as all the members of fociety are naturally equal, it may be afked, in whofe hands are the reins of government to be entrufled ? To this the general anfwer is eafy j but the application of it to particular cafes has occafioned one half of thofe mifchiefs which are apt to proceed from mifguided political zeal. In general, all mankind will agree that government mould be repofed in fuch perfons, in whom thofe qualities are moil likely to be found, the perfection of which are among the attributes of him who is em- phatically fliled the fupreme being ; the three grand requifites, I mean, of wifdom, of goodnefs, and of power : wifdom, to difcern the real interefl of the community ; goodnefs, to endea- vour always to purfue that real interefl ; and flrength, or power, to carry this knowlege and intention into adtion. Thefe are the natural foundations of fovereignty, and thefe are the requifites that ought to be found in every well conflituted frame of govern- ment.
How the feveral forms of government we now fee in the world at firfl actually began, is matter of great uncertainty, and has occafioned infinite difputes. It is not my bufinefs or inten- tion to enter into any of them. However they began, or by
what
§.2. L A w s in general. 49
what right foever they fubfift, there is and muft be in all of them a fupreme, irrefiftible, abfolute, uncontrolled authority, in which the jurafummi imperil, or the rights of fovereignty, refide. And this authority is placed in thofe hands, wherein (according to the opinion of the founders of fuch refpective ftates, either exprefTly given, or collected from their tacit approbation) the qualities re- quilite for fupremacy, wifdom, goodnefs, and power, are the moft likely to be found.
TH E political writers of antiquity will not allow more than three regular forms of government ; the firft, when the fovereign power is lodged in an aggregate aflembly confifting of all the members of a community, which is called a democracy ; the fecond, when it is lodged in a council, compofed of felect mem- bers, and then it is ftiled an ariftocracy ; the laft, when it is en- trufted in the hands of a tingle perfon, and then it takes the name of a monarchy. All other fpecies of government, they fay, are either corruptions of, or reducible to, thefe three.
B Y the fovereign power, as was before obferved, is meant the making of laws ; for wherever that power refides, all others muft conform to, and be directed by it, whatever appearance the out- ward form and administration of the government may put on. For it is at any time in the option of the legiflature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleafes : and all the other powers of the ftale muft obey the legiflative power in the execution of their feveral functions, or elfe the conftitution is at an end.
IN a democracy, where the right of making laws refides in the people at large, public virtue, or goodnefs of intention, is more likely to be found, than either of the other qualities of go- vernment. Popular aflemblies are frequently foolifh in their con- trivance, and weak in their execution ; but generally mean to do the thing that is right and juft, and have always a degree of pa-
G triotifm
50 Of the NATURE tf/* IN TROD.
triotifm or public fpirit. In ariftocracies there is more wifdom to be found, than in the other frames of government ; being com- pofed, or intended to be compofed, of the moft experienced citizens ; but there is lefs honefty than in a republic, and lefs ftrength than in a monarchy. A monarchy is indeed the moft powerful of any, all the finews of government being knit to- gether, and united in the hand of the prince ; but then there is imminent danger of his employing that ftrength to improvident or oppreffive purpofes.
THUS thefe three fpecies of government have, all of them, their feveral perfections and imperfections. Democracies are ufually the beft calculated to direct the end of a law ; ariftocra- cies to invent the means by which that end mail be obtained ; and monarchies to carry thofe means into execution. And the antients, as was obferved, had in general no idea of any other permanent form of government but thefe three : for though Cicero f declares himlelf of opinion, " eJJ'e optime conftitutam rem- " public am t quae ex tribus generibus illis, regali, Optimo, et popular} , "Jit modice confuja ;" yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the ad- vantages of each, as a vifionary whim, and one that, if effected, could never be lafting or fecure E.
BUT, happily for us of this ifland, the Britim conftitutiori has long remained, and I truft will long continue, a (landing ex- ception to the truth of this obfervation. For, as with us the executive power of the laws is lodged in a fingle perfon, they have all the advantages of ftrength and difpatch, that are to be found in the moft abfolute monarchy ; and, as the legiflature of the kingdom is entrufted to three diftinct powers, entirely inde- pendent of each other j firft, the king ; fecondly, the lords fpi- ritual and temporal, which is an ariftocratical aflembly of perfons
1 In his fragments de rep. 1. 2. " et conftituta reipublicae forma lauttari facilixi
* " Cunfias nat tones ft urbes populus, ant " qiiam e-venirt, <vel, ji evenit, kaud diuturna " frimom, ant finguli regunt : delcfla tx his " fffe poteft," Ann, I. 4.
felected
§.2. L A w s in general. 51
feleded for their piety, their birth, their wifdom, their valour, or their property ; and, thirdly, the houfe of commons, freely chofen by the people from among themfelves, whicli makes it a kind of democracy ; as this aggregate body, actuated by diffe- rent fprings, and attentive to different interefts, compofes the Britifh parliament, and has the fupreme difpofal of every thing j there can no inconvenience be attempted by either of the three branches, but will be withftood by one of the other two ; each branch being armed with a negative power, fufficient to repel any innovation which it mall think inexpedient or dangerous,
HERE then is lodged the fovereignty of the Britifh conftitu- tion ; and lodged as beneficially as is poffible for fociety. For in no other fhape could we be fo certain of finding the three great qualities of government fo well and fo happily united. If the fupreme power were lodged in any one of the three branches fe- parately, we muft be expofed to the inconveniences of either abfolute monarchy, ariftocracy, or democracy ; and fo want two of the three principal ingredients of good polity, either virtue, wifdom, or power. If it were lodged in any two of the branches j for instance, in the king and houfe 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 mould want that circumfpeclion and mediatory caution, which the wifdom of the peers is to afford : if the fu- preme rights of legiflature were lodged in the two houfes only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolifh the kingly office, and thereby weaken (if not totally de- ilroy) the flrength of the executive power. But the conftitutional government of this ifland is fo admirably tempered and com- pounded, that nothing can endanger or hurt it, but deftroying the equilibrium of power between one branch of the legiflature and the reft. For if ever it fhould happen that the independence of any one of the three mould be loft, or that it mould become fubfervient to the views of either of the other two, there would
G 2 foon
52 Of the NATURE of IN TROD.
foon be an end of our conftitution. The legillature would be changed from that, which was originally fet up by the general confent and fundamental adl of the fociety ; and fuch a change, however effected, is according to Mr Locke h (who perhaps car- ries his theory too far) at once an entire diffolution of the bands of government -, and the people would be reduced to a ftate of anarchy, with liberty to conftitute to themfelves a new legislative power.
HAV i N G thus curforily confidered the three ufual fpecies of government, and our own fingular conflitution, felefted and com- pounded from them all, I proceed to obferve, that, as the power of making laws conftitutes the fupreme authority, fo wherever the fupreme authority in any ftate refides, it is the right of that authority to make laws ; that is, in the words of our definition, fo prefcribe the rule of civil attion. And this may be difcovered from the very end and inftitution of civil ftates. For a ftate is a collective body, compofed of a multitude of individuals, united for their fafety and convenience, and intending to acl: together as one man. If it therefore is to adl as one man, it ought to ad~l by one uniform will. But, inafmuch as political communities are made up of many natural perfons, each of whom has his particular will and inclination, thefe feveral wills cannot by any natural union be joined together, or tempered and difpofed into a lafting harmony, fo as to conftitute and produce that one uni- form will of the whole. It can therefore be no otherwife pro- duced than by a political union ; by the confent of all perfons to fubmit their own private wills to the will of one man, or of one or more affemblies of men, to whom the fupreme authority is entrufted : and this will of that one man, or afTemblage of men, is in different ftates, according to their different conftitutions, underftood to be law.
THUS far as to the right of the fupreme power to make laws ; but farther, it is it's duty likewife. For fmce the refpec-
k On government, part. 2. § 212.
tive
§.2. L A w s in general. 53
tive members are bound to conform themfelves to the will of the ftate, it is expedient that they receive directions from the ftate declaratory of that it's will. But fince it is impoflible, in fo great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the ftate eftablifhes general rules, for the perpetual information and direction of all perfons in all points, whether of pofitive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's ; what abfolute and what relative du- ties are required at his hands ; what is to be efteemed honeft, difhoneft, or indifferent ; what degree every man retains of his natural liberty ; what he has given up as the price of the bene- fits of fociety j and after what manner each perfon is to mode- rate the ufe and exercife of thofe rights which the ftate afligns him, in order to promote and fecure the public tranquillity.
FROM what has been advanced, the truth of the former branch of our definition, is (I truft) fufficiently evident ; that *' municipal law is a rule of civil conduSl prefcribed by the fupreme "power in a Jlate" I proceed now to the latter branch of it; that it is a rule fo prefcribed, " commanding ivhat is right, and "prohibiting what is ivrong."
N o w in order to do this completely, it is firft of all necefTary that the boundaries of right and wrong be eftabliihed and afcer- tained by law. And when this is once done, it will follow of coude that it is likewife the buiinefs of the law, confidered as a rule of civil conduct, to enforce thefe rights and to reftrain or redrefs thefe wrongs. It remains therefore only to confider in what manner the law is faid to afcertain the boundaries of right and wrong ; and the methods which, it takes to command the one and prohibit the other.
FOR this purpofe every law may be faid to confift of feveral parts : one, declaratory ; whereby the rights to be obferved, and the wrongs to be efchewed, are clearly defined and laid down:
anotherj
54 Of the NATURE of INTRO D.
another, • directory, whereby the fubject is instructed and enjoined to obferve thofe rights, and to abflain from the commiffion of thofe wrongs : a third, remedial; whereby a method is pointed out to recover a man's private rights, or redrefs his private wrongs : to which may be added a fourth, ufually termed t\\zfancJion, or vindicatory branch of the law ; whereby it is Signified what evil or penalty mall be incurred by fuch as commit any public wrongs., and tranfgrefs or neglect their duty.
WITH regard to the firfr. of thefe, the declaratory part of the municipal law, this depends not fo much upon the law of reve- lation or of nature, as upon the wifdom and will of the legifla- tor. This doctrine, which before was flightly touched, deferves a more particular explication. Thofe rights then which God and nature have eftablifhed, and are therefore called natural rights, fuch as are life and liberty, need not the aid of human laws to be more effectually inverted in every man than they are ; neither do they receive any additional Strength when declared by the mu- nicipal laws to be inviolable. On the contrary, no human legif- lature has power to abridge or deflroy them, unlefs the owner fhall himfelf commit fome act that amounts to a forfeiture. Nei- ther do divine or natural duties (fuch as, for inStance, the worShip of God, the maintenance of children, and the like) receive any flronger fanction from being alfo declared to be duties by the law of the land. The cafe is the fame as to crimes and mifdemefnors, that are forbidden by the fuperior laws, and therefore Stiled mala infe, fuch as murder, theft, and perjury j which contract no ad- ditional turpitude from being declared unlawful by the inferior legiflature. For that legiflature in all thefe cafes acts only, as was before obferved, in fubordination to the great lawgiver, tranf- cribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or opera- tion at all, with regard to actions that are naturally and intrinfi- cally right or wrong.
BUT,
§.2. L A w s in general. 55
BUT, with regard to things in themfelves indifferent, the cafe is entirely altered. Thefe become either right or wrong, juft or unjuft, duties or mifdemefnors, according as the municipal legif- lator fees proper, for promoting the welfare of the fociety, and more effectually carrying on the purpofes of civil life. Thus our own common law has declared, that the goods of the wife do inftantly upon marriage become the property and right of the hufband ; and our ftatute law has declared all monopolies a pub- lic offence : yet that right, and this offence, have no foundation, in nature ; but are merely created by the law, for the purpofes of civil fociety. And fometimes, where the thing itfelf has it's rife from the law of nature, the particular circumflances and mode of doing it become right or wrong, as the laws of the land fhall direct. Thus, for inftance, in civil duties ; obedience to fu- periors is the doctrine of revealed as well as natural religion : but who thofe fuperiors fhall be, and in what circumftances, or to what degrees they fhall be obeyed, is the province of human, laws to determine. And fo, as to injuries or crimes, it mufl be left to our own legiflature to decide, in what cafes the feifing another's cattle fhall amount to the crime of robbery ; and where it fhall be a juftifiable action, as when a landlord takes them by way of diflrefs for rent.
THUS much for the declaratory part of the municipal law : and the directory ftands much upon the fame footing ; for this virtually includes the former, the declaration being ufually col- lected from the direction. The law that fays, " thou fhalt not " fteal," implies a declaration that flealing is a crime. And we have feen * that, in things naturally indifferent, the very effence of right and wrong depends upon the direction of the laws to do or to omit them.
T H- E remedial part of a law is fo neceffary a confequence of the former two, that laws muft be very vague and imperfect
' See pag. 43.
without
56 • Of the NATURE of INTRO D.
without it. For in vain would rights be declared, in vain directed to be obferved, if there were no method of recovering and aflert- ing thofe rights, when wrongfully withheld or invaded. This is what we mean properly, when we fpeak of the protection of the law. When, for inftance, the declaratory part of the law has faid " that the field or inheritance, which belonged to Titius's " father, is vefted 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 j" if Gaius after this will prefume to take poffeflion of the land, the remedial part of the law will then interpofe it's office ; will make Gaius reftore the pofTeffion to Titius, and alfo pay him damages for the invafion.
WITH regard to the fanSlion of laws, or the evil that may attend the breach of public duties ; it is obferved, that human legiflators have for the moft part chofen to make the fanction of their laws rather 'vindicatory than remuneratory, or to confift ra- ther in punifhments, than in actual particular rewards. Becaufe, in the firft place, the quiet enjoyment and protection of all our civil rights and liberties, which are the fure and general confe- quence of obedience to the municipal law, are in themfelves the beft and moft valuable of all rewards. Becaufe alfo, were the exercife of every virtue to be enforced by the propofal of parti- cular rewards, it were inipoffible for any ftate to furnifli ftock enough for fo profufe a bounty. And farther, becaufe the dread of evil is a much more forcible principle of human actions than the profpect'of good '. For which reafons, though a prudent beftowing of rewards is fometimes of exquillte ufe, yet we find that thofe civil laws, which enforce and enjoin our duty, do feldom, if ever, propofe any privilege or gift to fuch as obey the law; but do constantly come armed with a penalty denounced againft tranfgreflbrs, either expreffly defining the nature and quantity of the punifliment, or elfe leaving it to the dilcretion of the judges, and thofe who are entrufted with the care of putting the laws in execution.
' Locke, Hum. Und. b. 2. c. 21.
OF
§.2. LAWS in 'general. 57
O F all the parts of a law the moft effectual is the vindicatory. For it is but loft labour to fay, " do this, or avoid that," unlefs we alfo declare, " this fhall be the confequence of your non-com- "pliance." We muft therefore obferve, that the main ftrength and force of a law conlifts in the penalty annexed to it. Herein is to be found the principal obligation of human laws.
LEGISLATORS and their laws are faid to compel and oblige ; not that by any natural violence they fo con drain a man, as to render it impoffible for him to adl otherwife than as they direct, which is the ftrict fenfe of obligation : but becaufe, by declaring and exhibiting a penalty again ft offenders, they bring it to pafs that no man can eafily choofe to tranfgrefs the law ; fince, by reafon of the impending correction, compliance is in a high de- gree preferable to difobedience. And, even where rewards are propofed as well as punifhments threatened, the obligation of the law feems chiefly to confift in the penalty : for rewards, in their nature,. can only perfuade and allure; nothing is compulfory but punifliment.
IT is held, it is true, and very juftly, by the principal of our ethical writers, that human laws are binding upon mens con- fciences. But if that were the only, or moft forcible obligation, the good only would regard the laws, and the bad would fet them at defiance. And, true as this principle is, it muft ftill be underftood with fome reftriclion. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of confcience no longer to withhold or to invade it. So alfo in regard to natural duties, and fuch offences as are mala in fe : here we are bound in confcience, becaufe we are bound by fuperior laws, before thofe human laws were in being, to perform the one and abftain from the other. But in relation to thofe laws which enjoin only pofitiiie duties, and forbid only fuch things as are not mala in fe but mala prohibita merely, an-
H nexing
58 Of the NATURE of INTROD.
nexing a penalty to non-compliance, here I apprehend confcience is no farther concerned, than by directing a fubmiffion to the penalty, in cafe of our breach of thofe laws : for otherwife the multitude of penal laws in a ftate would not only be looked upon as an impolitic, but would allb be a very wicked thing ; if every fuch law were a fnare for the confcience of the fubjecT:. But in thefe cafes the alternative is offered to every man; " either ab- " flain from this, or fubmit to fuch a penalty •" and his con- fcience will be clear, whichever fide of the alternative he thinks proper to embrace. Thus, by the ftatutes for preferving the game, a penalty is denounced againft every unqualified perfon that kills a hare. Now this prohibitory law does not make the tranfgreflion a moral offence : the only obligation in confcience is to fubmit to the penalty if levied.
I H A v E now gone through the definition laid down of a mu- nicipal law; and have {hewn that it is " a rule — of civil con- " duel: — prefcribed — by the fupreme power in a ftate — com- " manding what is right, and prohibiting what is wrong :" in the explication of which I have endeavoured to interweave a few ufeful principles, concerning the nature of civil government, and the obligation of human laws. Before I conclude this fection, it may not be amifs to add a few obfervations concerning the inter- pretation of laws.
W HEN any doubt arofe upon the conftruction of the Roman laws, the ufage was to ftate the cafe to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legiflature to decide parti- cular difputes, is not only endlefs, but affords great room for partiality and oppreflion. The anfwers of the emperor were called his refcripts, and thefe had in fucceeding cafes the force of per- petual laws ; though they ought to be carefully diftinguifhed, by every rational civilian, from thofe general conftitutions, which had only the nature of things for their guide. The emperor Ma- crinus, as his hiftorian Capitolinus informs us, had once refolved
to
§.2. LAWS in general. 59
to abolifli thefe refcripts, and retain only the general edicts ; he could not bear that the hafty and crude anfwers of fuch princes as Commodus and Caracalla fhould be reverenced as laws. But Juftinian thought otherwifek, and he has preferved them all. In like manner the canon laws, or decretal epiftles of the popes, are all of them refcripts in the ftrifteft fenfe. Contrary to all true forms of reafoning, they argue from particulars to generals.
TH E faireft and moft rational method to interpret the will of the legiflator, is by exploring his intentions at the time when the law was made, by Jlgns the moft natural and probable. And thefe figns are either the words, the context, the fubject matter, the effects and confequence, or the fpirit and reafon of the law. Let us take a mort view of them all.
i. WOR D s are generally to be underflood in their ufual and moft known fignification ; not fo much regarding the propriety of grammar, as their general arid popular ufe. Thus the law men- tioned by PufFendorf ', which forbad a layman to lay hands on a prieft, was adjudged to extend to him, who had hurt a prieft with a weapon. Again ; terms of art, or technical terms, muft be taken according to the acceptation of the learned in each art, trade, and fcience. So in the act of fettlement, where the crown of England is limited " to the princefs Sophia, and the heirs "of her body, being proteftants," it becomes neceflary to call in the affiftance of lawyers, to afcertain the precife idea of the words " heirs of her body ;" which in a legal fenfe comprize only certain of her lineal defcendants. Laflly, where words are clearly repugnant in two laws, the latter law takes place of the elder : leges pojleriores priores contrarias abrogant is a maxim of univerfal law, as well as of our own conftitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod po~ pulus poftremum juflit, id jus ratum ejlo.
*/»/?. 1.2.6. ' L.ofN. andN-s.12. 3.
H 2 2. IF
60 Of the NATURE of INTRO D»
2. IF words happen to be ftill dubious, we may eftablim their meaning from the context ; with which it may be of fingular ufe to compare a word, or a fentence, whenever they are ambi- guous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an aft of parliament. Of the fame nature and ufe is the comparifon of a law with other laws, that are made by the fame legiflator, that have fome affi- nity with the fubject, or that expreffly relate to the fame point. Thus, when the law of England declares murder to be felony without benefit of clergy, we muft refort to the fame law of England to learn what the benefit of clergy is : and, when the common law cenfures fimoniacal contracts, it affords great light to the fubject to confider what the canon law has adjudged to be iimony.
3. As to the fubject matter, words are always to be under- ftood as having a regard thereto ; for that is always fuppofed to be in the eye of the legiflator, and all his expreflions directed to that end. Thus, when a law of our Edward III forbids all ec- clefiaftical perfons to purchafe provifions at Rome, it might feem to prohibit the buying of grain and other victual ; but when we confider that the ftatute was made to reprefs the ufurpations of the papal fee, and that the nominations to benefices by the pope were called provf/ions, we (hall fee that the reftraint is intended to be laid upon fuch provifions only.
4. As to the effects and confequence, the rule is, where words bear either none, or a very abfurd fignification, if literally under- ftood, we muft a little deviate from the received fenfe of them. Therefore the Bolognian law, mentioned by Puffendorf m, which enacted "that whoever drew blood in the ftreets mould be puniih- "ed with the utmoft feverity," was held after long debate not to extend to the furgeon, who opened the vein of a perfon that fell down in the ftreet with a fit.
n 7.5. c, 12. §.s.
5. BUT,
§.2. LAWS in general. 61
5. BUT, laftly, the moft univerfal and effectual way of dii- covering the true meaning of a law, when the words are dubious, is by confidering the reafon and fpirit of it ; or the caufe which moved the legiflator to enacl: it. For when this reafon ceafes, the law itfelf ought likewife to ceafe with it. An inftance of this is given in a cafe put by Cicero, or whoever was the author of the rhetorical treatife infcribed to Herennius". There was a law,- that thofe who in a florm forfook the {hip mould forfeit all pro- perty therein j and the fhip and lading mould belong entirely to thofe who (laid in it. In a dangerous tempefl all the mariners forfook the fhip, except only one fick paffenger, who by reafon of his difeafe was unable to get out and efcape. By chance the fhip came fafe to port. The fick man kept polTefTion and claim- ed the benefit of the law. Now here all the learned agree, that the fick man is not within the reafon of the law ; for the reafon of making it was, to give encouragement to fuch as fliould ven- ture their lives to fave the veffel : but this is a merit, which he could never pretend to, who neither flaid in the fhip upon that account, nor contributed any thing to it's prefervation.
FROM this method of interpreting laws, by the reafon of them, arifes what we call equity; which is thus defined by Grotius0, " the correction of that, wherein the law (by reafon of it's uni- " verfality) is deficient." For fmce in laws all cafes cannot be forefeen or expreiled, it is neceflary, that when the general decrees of the law come to be applied to particular cafes, there fhould be fomewhere a power veiled of defining thofe circumflances, which (had they been forefeen) the legiflator himfelf would have expreffed. And thefe are the cafes, which, according to Grotius, " lex non exaSle definit, fed arbitrio bonl viri permlttit"
E QJJ i TY thus depending, eflentially, upon the particular cir- cumflances of each individual cafe, there can be no cflablilhed
n /. i. c. II. ° He aequitate.
rules'
62 Of the NATURE, &c. IN TROD.
rules and fixed precepts of equity laid down, without deftroying it's very effence, and reducing it to a pofitive law. And, on the other hand, the liberty of confidering all cafes in an equitable light muft not be indulged too far, left thereby we deftroy all law, and leave the decifion of every queftion entirely in the breaft of the judge. And law, without equity, though hard and dif- agreeable, is much more defirable for the public good, than equity without law; which would make every judge a legiflator, and introduce moft infinite confufion -, as there would then be almoft as many different rules of action laid down in our courts, as there are differences of capacity and fentiment in the human mind.
63
SECTION THE THIRD. OF THE LAWS OF ENGLAND.
THE municipal law of England, or the rule of civil con- duel prefcribed to the inhabitants of this kingdom, may with fufficient propriety be divided into two kinds ; the lex non fcripta, the unwritten, or common law ; and die lex fcripta, the written, or flatute law.
THE lex non fcripta, or unwritten law, includes not -only ge- neral sujlomsy or the common law properly fo called ; but alfo the particular cujloms of certain parts of the kingdom ; and like- wife thofe particular laws, that are by cuftom obferved only in. certain courts and jurifdiclions.
WHEN I call thefe parts of our law leges nonfcriptae> I would' not be understood as if all thofe laws were at prefent merely era/, or communicated from the former ages to the prefent folely byword of mouth. It is true indeed that, in the profound igno- rance of letters which formerly overfpread the whole weftern world, all laws were intirely traditional, for this plain reafon, that the nations among which they prevailed had but little idea of writing. Thus the Britifh as well as the Gallic druids committed all their laws as well as learning to memory a ; and it is laid of the primitive Saxons here, as well as their brethren on the conti- nent, that leges fola memona et uju retinebant b. But, with us at- prefent, the monuments and evidences of our legal cuiloms are contained in the records of the feveral courts of juftice, in books
a Caef. tie b, G. lib. 6. c. 13. b Spelm. G/. 362.
of
64- Of the LAWS I NT ROD.
of reports and judicial decifions, and in the treadles of learned fages of the profeflion, preferved and handed down to us from the times of higheft antiquity. However I therefore ftile thefe parts of our law leges non fcriptae, becaufe their original inftitu- tion and authority are not fet down in writing, as afts of parlia- ment, are, but they receive their binding power, and the force of laws, by long and immemorial ufage, and by their univerfal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non fcriptum to be that, which is " tacit o " et illiterate hominum conjenfu et moribus expreffum"
OUR antient lawyers, and particularly Fortefcue c, infill with abundance of warmth, that thefe cuftoms are as old as the pri- mitive Britons, and continued down, through the feveral muta- tions of government and inhabitants, to the prefent time, un- changed and unadulterated. This may be the cafe as to fome : but in general, as Mr Selden in his notes obferves, this affertion muft be uriderftood with many grains of allowance ; and ought only to fignify, as the truth feems to be, that there never was any formal exchange of one fyftem of laws for another : though doubtlefs by the intermixture of adventitious nations, the Ro- mans, the Picls, the Saxons, the Danes, and the Normans, they muft have infenfibly introduced and incorporated many of their own cuftoms with thofe that were before eftabiimed : thereby in all probability improving the texture and wifdom of the whole, by the accumulated wifdom of divers particular countries. Our laws, faith lord Bacon d, are mixed as our language : and as our language is fo much the richer, the laws are the more complete.
AND indeed our antiquarians and firft hiftorians do all pofi- tively allure us, that our body of laws is of this compounded nature. For they tell us, that in the time of Alfred the local cuftoms of the feveral provinces of the kingdom were grown fo various, that he found it expedient to compile his dome-book or liber judiciaUs, for the general ufe of the whole kingdom. This
c c. 17. d See his propofals for a digeft.
book
§. 3. of E N G L A N D. 65
book is faid to have been extant fo late as the reign of king Ed- ward the fourth, but is now unfortunately loft. It contained, we may probably fuppofe, the principal maxims of the common law, the penalties for mifdemefnors, and the forms of judicial proceedings. Thus much may at leaft be collected from that in- junction to obferve it, which we find in the laws of king Edward the elder, the fon of Alfred =. "Omnibus qui reipublicae praefwit " etiam atque etiam mando, ut omnibus aequos fe praebeant judices, " perinde ac in judiciali Hbro (Saxonice, ^om-bzc) Jcriptum habetur; " nee quicquam formident quin jus commune (Saxonice, polcpihre^ " audaSler libereque dicant."
BUT the irruption and eftabliiliment of the Danes in England, which followed foon after, introduced new cuftoms, and caufe'd this code of Alfred in many provinces to fall into difufe ; or at leaft to be mixed and debafed with other laws of a coarfer alloy. So that about the beginning of the eleventh century there were three principal fyftems of laws prevailing in different diftricts. i . The Mercen-Lage, or Mercian laws, which were obferved in many of the midland counties, and thofe bordering on the prin- cipality of Wales, the retreat of the antient Britons ; and there- fore very probably intermixed with the Britifh or Druidical cuf- toms. 2. The Weft- Saxon- Lage, or laws of the weft Saxons, which obtained in the counties to the fouth and weft of the illand, from Kent to Devonshire. Thefe were probably much the fame with the laws of Alfred above-mentioned, being the mu- nicipal law of the far moft confiderable part of his dominions, and particularly including Berkfhire, the feat of his peculiar re- iidence. 3. The Dane-Lage, or Danifh law, the very name of which fpeaks it's original and compofition. This was princi- pally maintained in the reft of the midland counties, and alfo on the eaftern coaft, the part moft expofed to the vilits of that piratical people. As for the very northern provinces, they were at that-, time under a diftincl government f.
' c.i. { Hal. Hifl.jj.
I OUT
66 Of the L A w s INTRO D.
O u T of thefe three laws, Roger Hoveden e and Ranulphus Ceftrenfis h inform us, king Edward the confeffor extracted one uniform law or digeft of laws, to be obferved throughout the whole kingdom; though Hoveden and the author of an old ma- nufcript chronicle ' affure us likewife, that this work was pro- jected and begun by his grandfather king Edgar. And indeed a general digeft of the fame nature has been conftantly found expe- dient, and therefore put in practice by other great nations, which, were formed from an aflemblage of little provinces, governed by peculiar cuftoms. 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 cuftoms into one uni- form law, in the celebrated code entitled las partidas '. And in Sweden, about the fame aera, a univerfal body of common law was compiled out of the particular cuftoms eftablifhed by the laghman of every province, and intitled the land's high) being analagous to the common law of England™.
BOTH thefe undertakings, of king Edgar and Edward the confeffor, feem to have been no more than a new edition, or frefh promulgation, of Alfred's code or dome-book, with fuch additions and improvements as the experience of a century and an half had fuggefted. For Alfred is generally ftiled by the fame hiftorians the legum Anglic cmarum conditor, as Edward the con- feffor is the reftitutor. Thefe however are the laws which our hiftories fo often mention under the name of the laws of Edward the confeffor ; which our anceftors ftruggled fo hardly to main- tain, under the firft princes of the Norman line ; and which fub- fequent princes fo frequently promifed to keep and to reftore, as the moft popular act they could do, when preffed by foreign emergencies or domeftic difcontents. Thefe are the laws, that
* in Hen. II. k Mod. Un. Hifl. xxii. 135.
k ;/; Ea-~M. Confeffor. ' Ibid. XX. 211.
1 in SelJ. atiEattmer.6. a Ibid, xxxlii. 21. 58.
fo
§.3. f>f E N G L A N D. 67
fo vigoroufly whhflood the repeated attacks of the civil law ; which eflablifhed in the twelfth century a new Roman empire over mofl of the flates on the continent : flates that have loft, and perhaps upon that account, their political liberties ; while the free conflitution of England, perhaps upon the fame account, has been rather improved than debafed. Thefe, in fhort, are the laws which gave rife and original to that collection of maxims and cufloms, which is now known by the name of the common laws. A name either given to it, in contradiflinction to other laws, as the flatute law, the civil law, the law merchant, and the like ; or, more probably, as a law common to all the realm, the jus commune orfolcrigbt mentioned by king Edward the elder, after the abolition of the feveral provincial cufloms and particu- lar laws before-mentioned.
BUT though this is the mofl likely foundation of this collec- tion of maxims and cufloms, yet the maxims and cufloms, fo collected, are of higher antiquity than memory or hiflory can reach : nothing being more difficult than to afcertain the precife beginning and firfl fpring of an antient and long eflablifhed cuf- tom. Whence it is that in our law the goodnefs of a cuflom de- pends upon it's having been ufed time out of mind ; or, in the folemnity of our legal phrafe, 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 cufloms which compofe the common law, or lex non fcripta, of this kingdom.
THIS unwritten, or common, law is properly diflinguilh- able into three kinds : i . General cufloms -, which are the uni- verfal rule of the whole kingdom, and form the common law, in it's flridter and more ufual fignincation. 2. Particular cufloms ; which for the moil part affect only the inhabitants of particular diflricts. 3 . Certain particular laws ; which by cuflom are adopted and ufed by fome particular courts, of pretty general and ex- tenfive jurifdiction.
I 2 I. As
68 Of the LAWS INTROD,
I. As to general cuftoms, or the common law, properly (b called ; this is that law, by which proceedings and determinations in the king's ordinary courts of juftice are guided and directed. This, for the moft part, fettles the courfe in which lands defcend by inheritance; the manner and form of acquiring and transfer- ring property; the folemnities and obligation of contrails ; the rules of expounding wills, deeds, and acts of parliament; the refpective remedies of civil injuries; the feveral fpecies of tem- poral offences, with the manner and degree of punimment ; and an infinite number of minuter particulars, which difFufe them- felves as extenfively as the ordinary diftribution of common juf- tice requires. Thus, for example, that there lliall be four fupe- rior courts of record, the chancery, the king's bench, the com- mon pleas, and the exchequer ; — that the eldeft fon alone is heir to his anceftor ; — that property may be acquired and trans- ferred by writing; — that a deed is of no validity unlefs fealed and delivered; — that wills mall be conftrued more favorably, and deeds more ftrictly; — that money lent upon bond is reco- verable by action of debt ; — that breaking the public peace is an offence, and punifhable by fine and imprifonment ; — all thefe are doctrines that are not let down in any written flatute or ordinance, but depend merely upon immemorial ufage, that is, upon common law, for their fupport.
SOME have divided the common law into two principal grounds or foundations : i . Eftabliihed cuftoms ; fuch as that where there are three brothers, the eldeft brother mall be heir to the fecond, in exclufion of the youngeft : and 2. Eftablilhed rules and maxims ; as, " that the king can do no wrong, that no " man fhall be bound to accufe himfelf," and the like. But^ take thefe to be one and the fame thing. For the authority of thefe maxims refts entirely upon general reception and ufage ; and the only method of proving, that this or that maxim is a rule of the common lav/, is by mewing that it hath been always the cuftom to obierve it.
BUT
§. j. 0/" ENGLAND. 69
BUT here a very natural, and very material, queftion arifes : how are thefe cuftoms or maxims to be known, and by whom is their validity to be determined ? The anfwer is, by the judges in the feveral courts of juftice. They are the depolitary of the laws ; the living oracles, who muft decide in all cafes 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 ftudy ; from the "viginti annorum luciibrationes" which For- tefcue n mentions ; and from being long perfonally accuftomed to the judicial decifions of their predeceffors. And indeed thefe judicial decifions are the principal and moft authoritative evi- dence, that can be given, of the exiftence of fuch a cuftom as {hall form a part of the common law. The judgment itfelf, and .all the proceedings previous thereto, are carefully regiftered and preferved, under the name of records, in public repositories fet apart for that particular purpofe -, and to them frequent recourfe is had, when any critical queftion arifes, in the determination of which former precedents may give light or affiftance. And there- fore, even fo early as the conqueft, we find the " prae teritorum " memoria eventorwn" reckoned up as one of the chief qualifica- tions of thofe who were held to be " legiius patriae optime injli- " tuti°" For it is an eftabliflied rule to abide by former prece- dents, where the fame points come again in litigation ; as well to keep the fcale of juftice even and fteady, and not liable to waver with every new judge's opinion ; as alfo becaufe the law in that cafe being folemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a perma- nent rule, which it is not in the breaft of any fubfequent judge to alter or vary from, according to his private fentiments : he being fworn to determine,, not according to his own private judg- ment, but according to the known laws and cuftoms of the land; not delegated to pronounce a new law, but to maintain and ex- pound the old one. Yet this rule admits of exception, where the former determination is moft evidently contrary to reafon ;
* <af. 8. » Sfld. review of Tith. c. 8.
much
70 Of the LAWS INTROD.
much more if it be contrary to the divine law. But even in fuch cafes the fubfequent judges do not pretend to make a new law, but to vindicate the old one from mifreprefentation. For if it be found that the former decilion is manifestly abfurd or unjuft, it is declared, not that fuch a fentence was bad law, but that it was not law ; that is, that it is not the eftablifhed cuftom of the realm, as has been erroneoufly determined. And hence it is that our lawyers are with juftice fo copious in their encomiums on the reafon of the common law ; that they tell us, that the law is the perfection of reafori, that it always intends to conform thereto, and that what is not reafon is not law. Not that the particular reafon of every rule in the law can at this distance of time be al- ways precifely aSfigned ; but it is fufficient that there be nothing in the rule flatly contradictory to reafon, and then the law will prefume it to be well founded p. And it hath been an antient obfervation in the laws of England, that whenever a Standing rule of law, of which the reafon perhaps could not be remem- bered or difcerned, hath been wantonly broke in upon by Statutes or new refolutions, the wifdom of the rule hath in the end ap- peared from the inconveniences that have followed the innova- tion.
TH E doctrine of the law then is this : that precedents and rules muft be followed, unlefs flatly abfurd or unjuft : for though their reafon be not obvious at firft view, yet we owe fuch a de- ference to former times as not to fuppofe they acted wholly with- out coniideration. To illuStrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood ihall never fucceed as heir to the eftate of his half bro- ther, but it mall rather efcheat to the king, or other Superior lord. Now this is a politive law, fixed and established by cuf- tom, which cuftom is evidenced by judicial decifions ; and there- fore can never be departed from by any modern judge without a
P Herein agreeing with the civil law, " Et idea rat i ones eofum qsiae conjiltuitntur, i/i- Ff. 1.3. 20, 21 . " Non omnium, quae a tnajo- " quiri non cfortet : alicquin mutta ex bis, quae " ribtts »ojlr:s tonflituia Junt, ratio reddi fcteji. " ter/a funt, fubvertUHtur,"
breach
|, 3. ^ENGLAND.
breach of his oath and the law. For herein there is nothing re- pugnant to natural juftice; though the realbn of it, drawn from the feodal law, may not be quite obvious to every body. And therefore, on account of a fuppofed hardfhip upon the half bro- ther, a modern judge might wifli it had been otherwife fettled ; 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 feife any lands that were purchafed by his younger brother, no fubfequent judges would fcruple to declare that fuch prior determination was unjurt, was unreafonable, and therefore was not law. So that the law, and the opinion of the judge are not always convertible terms, or one and the fame thing ; iince it fometimes may happen that the judge may nrijiake the law. Upon the whole however, we may take it as a general rule, " that the " decifions of courts of justice are the evidence of what is com- " mon law :" in the fame manner as, in the civil law, what the emperor had once determined was to ferve for a guide for the future q.
TH E decifions therefore of courts are held in the higheft re- gard, and are not only preferved as authentic records in the trea- luries of the feveral courts, but are handed out to public view in the numerous volumes of reports which furnilh the lawyer's li- brary. Thefe reports are hiflories of the feveral cafes, with a iliort fummary of the proceedings, which are preferved at large in the record j the arguments on both lides ; and the reafons the court gave for it's judgment; taken down in fhort notes by perfons prefent at the determination. And thefe ferve as indexes to, and alfo to explain, the records; which always, in matters- of confequence and nicety, the judges direcl: to be fearched. The reports are extant in a regular feries from the reign of king Ed- ward the fecond inclufive ; and from his time to that of Henry
1 " Si imperialis tr.ajtftai caufiim ccgnitio-ia- " qui f:ib r.cftro hnficrio f;tnt, fciant hanc effe " liter examinaiierii, et fartil-us cominus confti- " Ic^em, i:t:t jolv.m illi caujae pro qua product* " tutis feiitentiam dixeril, omnes omnino jitdices, " £/!-, Jed ci hi cmnibus j militus," C. 1 . 1 4. 1 2.
the
72 Of the LAWS INT ROD.
the eighth were taken by the prothonotaries, or chief fcribes of the court, at the expenfe of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wiihed that this beneficial cuftom had, un- der proper regulations, been continued to this day : for, though king James the firft at the inftance of lord Bacon appointed two reporters with a handfome flipend for this purpofe, yet that wife inftitution was foon neglected, and from the reign of Henry the eighth to the prefent time this talk has been executed by many private and cotemporary hands ; who fometimes through hafte and: inaccuracy, fometimes through miftake and want of fkill, have published very crude and imperfect (perhaps contradictory) accounts of one and the fame determination. Some of the moil valuable of the antient reports are thofe publifhed by lord chief juftice Coke ; a man of infinite learning in his profefTion, though not a little infected with the pedantry and quaintnefs of the times he lived in, which appear ftrongly in all his works. How- ever his writings are fo highly efteemed, that they are generally cited without the author's name r.
BESIDES thefe reporters, there are alfo other authors, to whom great veneration and refpect is paid by the ftudents of the common law. Such are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert, with fome others of antient date, whole treatifes are cited as authority -, and are evidence that cafes have formerly happened in which fuch and fuch points were determi- ned, which are now become fettled and firft principles. One of the laft of thefe methodical writers in point of time, whofe works are of any intrinfic authority in the courts of juftice, and do not entirely depend on the ftrength of their quotations from older
r His reports, for inftance, are (Hied, three volumes were determined ; -viz. queen
K*T tlw, tbe reports ; and in quoting them Elizabeth, king James, and king Charles
we iruallyfay, loriRep. not i orzCoke's the firft; as well as by the number of each
Rep. as in citing other authors. There- volume. For fometimes we call them i, 2,
ports of judge Croke are alfo cited in a pe- and 3 Cro. but more commonly Cro. Eliz.
culiar manner, by the name of thofe prin- Cro. Jac. and Cro. Car. ces, in whofe reigns the cafes reported in h:s
authors,
§. 3- of ENGLAND. 73
authors, is the fame learned judge we have juft mentioned, fir Edward Coke ; who hath written four volumes of inftitutes, as he is pleafed to call them, though they have little of the inftitu- tional method to warrant fuch a title. The firft volume is a very extenfive comment upon a little excellent treatife of tenures, com- piled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common law learning, collect - ed and heaped together from the antient reports and year books, but greatly defective in method3. The fecond volume is a com- ment upon many old acts of parliament, without any fyftematical order ; the third a more methodical treatife of the pleas of the crown ; and the fourth an account of the feveral fpecies of courts c.
AND thus much for the firft ground and chief corner ftone of the laws of England, which is, general immemorial cuftom, or common law, from time to time declared in the decifions of the courts of jufticej which decifions are preferved among our public records, explained in our reports, and digefted for general ufe in the authoritative writings of the venerable fages of the law.
THE Roman law, as pradtifed in the times of it's liberty, paid alfo a great regard to cuftom ; but not fo much as our law : it only then adopting it, when the written law was deficient. Though the reafons alleged in the digeft" will fully juftify our practice, in making it of equal authority with, when it is not contradicted by, the written law. " For fince, fays Julianus, the " written law binds us for no other reafon but becaufe it is ap- " proved by the judgment of the people, therefore thofe laws " which the people have approved without writing ought alfo to "bind every body. For where is the difference, whether the " people declare their affent to a law by fuffrage, or by a uniform
! It is ufually cited either by the name the works of no other writer ; the genera-
of Co. Litt. or as I Inft. lity of reports and other trails being quoted
' Thefe are cited as 2, 3, or 4 Inft. with- in the name of the compiler, as z Ventris,
out any author's name. An honorary dif- 4 Leonard, i Siderfin, and the like, tin&ion, which, we obferved, is paid to u Ff. i. 3.32.
K " courfe
74 Of the L A w s I N T R o D.
<fcourfe of acting accordingly?" Thus did they reafon while Rome had fome remains of her freedom ; but, when the imperial tyranny came to be fully eftablifhed, the civil laws fpeak a very different language. " Quod prmcipi placuit legis babet vigor em, " curn populus el et in eum omne Junm imperium et pot eft at em confe- " rat," fays Ulpian w. " Imperator fohis et conditor et interpret le- " gis exiftimatur," fays the codex. And again, "facrilegii inftar " eft refcripto principis obviare y," And indeed it is one of the cha- racteriftic marks of Englifh liberty, that our common law de- pends upon cuftom ; which carries this internal evidence of free- dom along with it, that it probably was introduced by the volun- tary confent of the people.
II. THE fecond branch of the unwritten laws of England are particular cuftoms, or laws which affect only the inhabitants of particular diftricts.
THESE particular cufloms, or fome of them, are without doubt the remains of that multitude of local cuftoms before-men- tioned, out of which the common law, as it now ftands, was collected at firft by king Alfred, and afterwards by king Edgar and Edward the confeffor : each diftrict mutually facrificing fome of it's own fpecial ufages, in order that the whole kingdom might enjoy the benefit of one uniform and univerfal fyftem of laws. But, for reafons that have been now long forgotten, particular counties, cities, towns, manors, and lordfhips, were very early indulged with the privilege of abiding by their own cuftoms, in contradiftinction to the reft of the nation at large : which pri- yilege is confirmed to them by feveral acts of parliament z.
SUCH is the cuftom of gavelkind in Kent and fome other parts of the kingdom (though perhaps it was alfo general till the Norman conqueft) which ordains, among other things, that not
w Ff. i. 4. i. z Mag. Cart. €.9. — I Edw. III. ft. 2.
* C. i. 14. 12. c. 9. — 14 Edw. III. ft. i. c.i. — and
» C. i. 23. 5. 2 Hen. IV. c. !.
the
§. 3. ^ENGLAND. 75
the deleft fon only of the father fhall fucceed to his inheritance, but all the fons alike : and that, though the anceftor be attainted and hanged, yet the heir fhall fucceed to his eftate, without any efcheat to the lord. — Such is the cuftom that prevails in divers antient boroughs, and therefore called borough-englifh, that the youngeft fon fhall inherit the eftate, in preference to all his elder brothers. — Such is the cuftom in other boroughs that a widow fhall be intitled, for her dower, to all her hufband's lands; whereas at the common law fhe fhall be endowed of one third part only. — Such alfo are the fpecial and particular cuftoms of manors, of which every one has more or lefs, and which bind all the copy- hold-tenants that hold of the faid manors. — Such likewife is the cuftom of holding divers inferior courts, with power of try- ing caufes, in cities and trading towns ; the right of holding which, when no royal grant can be fhewn, depends entirely up- on immemorial and eftablifhed ufage. — Such, laftly, are many particular cuftoms within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other mat- ters. All thefe are contrary to the general law of the land, and are good only by fpecial ufage, though the cuftoms of London are alfo confirmed by adl of parliament a.
To this head may moft properly be referred a particular fyf- tem of cuftoms ufed only among one fet of the king's fubje&s, called the cuftom of merchants or lex mercatoria : which, how- ever different from the general rules of the common law, is yet ingrafted into it, and made a part of it b ; being allowed, for the benefit of trade, to be of the utmoft validity in all commercial tranfactions : for it is a maxim of law, that " cuilibet in fua arts " credendum eft."
THE rules relating to particular cuftoms regard either the proof of their exiftence ; their legality when proved j or their ufual method of allowance. And firft we will confider the rules of •proof.
» 8 Rep, 126. Cfo. Car. 347. t> Winch. 24,
K 2 As
76 Of the L A w s IN TROD,
A s to gavelkind, and borough-englifh, the law takes parti- cular notice of them c, and there is no occafion to prove that fuch cuftoms actually exift, but only that the lands in queftion are fubject thereto. All other private cuftoms rnuft be particu- larly pleaded d, and as well the exiftence of fuch cuftoms muft be fhewn, as that the thing in difpute is within the cuftom alleged. The trial in both cafes (both to mew the exiftence of the cuftom,, as, " that in the manor of Dale lands mall defceud only to the " heirs male, and never to the heirs female ;" and alfo to fhew " that the lands in queftion are within that manor") is by a jury of twelve men, and not by the judges ; except the fame particular cuftom has been before tried, determined, and recorded in the fame court °.
THE cuftoms of London differ from all others in point of trial : for, if the exiftence of the cuftom be brought in queftion, it {hall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder f ; unlefs it- be fuch a cuftom as the corporation is itfelf interefted in, as a right of taking toll, &c, for then the law permits them not to certify on their own behalf g.
WH E N a cuftom is actually proved to exift, the next enquiry is into the legality of it ; for, if it is not a good cuftom, it ought to be no longer ufed. " Mains iifus abokndns eft" is an eftablimed maxim of the lawh. To make a particular cuftom good, the following are neceflary requifites.
i. THAT it have been ufed fo long, that the memory of man runneth not to the contrary. So that, if any one can mew the beginning of it, it is no good cuftom. For which reafon no cuftom can prevail againft an exprefs act of parliament ; fince
c Co. Lm. 175. f Cro. Car. 516.
* Lltt. §.265. f Hob. 85.
' Dr & St. i.io. k Litt. §. 212. 4 Inft. 274.
the
§. 3> of ENGLAND. 77
the ftatute itfelf is a proof of a time when fuch a cuflom did not exiftj.
2. IT muft have been continued. Any interruption would caufe a temporary ceafing : the revival gives it a new beginning, which will be within time of memory, and thereupon the cuf- tom will be void. But this muft be underftood with regard to an interruption of the right ; for an interruption of the poffejjion only, for ten or twenty yeara, will not deftroy the cuftom '. As if the inhabitants of a parifh have a cuftomary right of watering' their cattle at a certain pool, the cuftom is not deftroyed, though1 they do not ufe it for ten years ; it only becomes more difficult to prove : but if the right be any how difcontinued for a day, the cuftom is quite at an end.
3. IT muft have been peaceable, and acquiefced in ; not fub- jedt to contention and difpute k. For as cuftoms owe their origi- nal to common confent, their being immemorially difputed either at law or otherwife is a proof that fuch confent was wanting.
4. CUSTOMS muft be reasonable J ; or rather, taken nega- tively, they muft not be unreafonable. Which is not always, as fir Edward Coke faysm, to be underftood of every unlearned man's* reafon, but of artificial and legal reafon, warranted by authority of law. Upon which account a cuftom may be good, though the particular reafon of it cannot be affigned ; for it fufficeth, if no good legal reafon can be affigned againft it. Thus a cuftom in a parifh, that no man fhall put his beafts into the common till the third of October, would be good ; and yet it would be hard to mew the reafon why that day in particular is fixed upon, ra- ther than the day before or after. But a cuftom, that no cattla mail be put in till the lord of the manor has firft put in his, is unreafonable, and therefore bad : for peradventure the lord will never put in his ; and then the tenants will lofe all their profits n,.
j Co. Liu. 113. i Litt. $.212.
' Ibid. 114. m I Inft. 62.
" ItiJ. » Co. Copyh. §.33. r. CUS-
78 Of the LAWS IN TROD.
5. CUSTOMS ought to be certain. A cuflom, that lands (hall defcend to the mofl worthy of the owner's blood, is void; for how fhall this worth be determined ? but a cuflom to defcend to the next male of the blood, exclufive of females, is certain, and therefore good °. A cuflom, to pay two pence an acre in lieu of tithes, is good ; but to pay fometimes two pence and fome- times three pence, as the occupier of the land pleafes, is bad for it's uncertainty. Yet a cuflom, to pay a year's improved value for a fine on a copyhold eflate, is good : though the value is a thing uncertain : for the value may at any time be afcertained ; and the maxim of law is, id certum ejlt quod cerium reddi potejl.
6. CUSTOMS, though eflablifhed by confent, mufl be (when eflablifhed) compulfory ; and not left to the option of every man, whether he will ufe them or no. Therefore a cuflom, that all the inhabitants mall be rated toward the maintenance of a bridge, will be good ; but a cuflom, that every man is to contribute thereto at his own pleafure, is idle and abfurd, and, indeed, no cuflom at all.
7. LASTLY, cufloms mufl be conjiftent with each other: one cuflom cannot be fet up in oppofition to another. For if both are really cufloms, then both are of equal antiquity, and both eflablifhed by mutual confent : which to fay of contradic- tory cufloms is abfurd. Therefore, if one man prefcribes that by cuflom he has a right to have windows looking into another's garden ; the other cannot claim a right by cuflom to flop up or obflruct thofe windows : for thefe two contradictory cufloms cannot both be good, nor both fland together. He ought rather to deny the exiflence of the former cuilom p.
NEXT, as to the allowance of fpecial cufloms. Cufloms, in derogation of the common law, mufl be conflrued flridlly. Thus, by the cuflom of gavelkind, an infant of fifteen years may by one
0 i Roll. Abr. 565. P 9 Rep. 58.
fpecies
E N G L A N D. 79
fpecies of conveyance (called a deed of feofFment) convey away his lands in fee-fimple, or for ever. Yet this cufiom docs not impower him to ufe any other conveyance, or even to leafe them for feven years : for the cuftom mud be ftrictly purfued q. And, moreover, all fpecial cuftoms mufl fubmit to the king's prerogative. Therefore, if the king purchafes lands of the nature of gavelkind, where all the fons inherit equally ; yet, upon the king's demife, his eldefl fon mail fucceed to thofe lands alone r. And thus much for the fecond part of the leges non fcriptae, or thofe particular cuftoms which affect particular perfons or diftricts only.
III. THE third branch of them are thofe peculiar laws, which by cuftom are adopted and ufed only in certain peculiar courts and jurifdictions. And by thefe I underftand the civil and canon laws.
I T may feem a little improper at firft view to rank thefe laws under the head of leges non fcriptae, or unwritten laws, feeing they are fet forth by authority in their pandects, their codes, and their inftitutions; their councils, decrees, and decretals; and enforced by an immenfe number of expofitions, decifions, and treatifes of the learned in both branches of the law. But I do this, after the example of fir Matthew Hale5, becaufe it is moil 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 intrinfic authority ; which is the cafe of our written laws, or acts of parliament. They bind not the fubjects of Eng- land, becaufe their materials were collected from popes or empe- rors ; were digefted by Juftinian, or declared to be authentic by Gregory. Thefe confiderations give them no authority here : for the legiflature of England doth not, nor ever did, recognize any foreign power, as fuperior or equal to it in this kingdom ; or as having the right to give law to any, the meaneft, of it's
9 Co. Cop. §. 33. » Hifl. C. L. c. 2.
1 Co. Liu. 15.
fubjects.
'8o Of the L A w s I N T R o D.
•fubjects. But all the ftrength that either the papal or imperial laws have obtained in this realm (or indeed in any other kingdom in Europe) is only becaufe they have been admitted and received by immemorial ufage and cuftom in fome particular cafes, and fome particular courts ; and then they form a branch of the leges nonfcriptae, or cuftomary law : or elfe, becaufe they are in fome other cafes introduced by confent of parliament, and then they owe their validity to the leges fcriptae, or ftatute law. This is expreffly declared in thofe remarkable words of the flatute 25 Hen. VIII. c. 21. addreffed to the king's royal majefty. — "This your grace's " realm, recognizing no fuperior under God but only your grace, " hath been and is free from fubjection to any man's laws, but " only to fuch as have been deviled, made, and ordained within " this realm for the wealth of the fame -, or to fuch other as, by " fufferance of your grace and your progenitors, the people of «' this your realm have taken at their free liberty, by their own " confent, to be ufed among them ; and have bound themfelves "by long ufe and cuftom to the obfervance of the fame : not as <( to the obfervance of the laws of any foreign prince, potentate, «' or prelate ; but as to the cujlomed arid antient laws of this realm, " originally eftablifhed as laws of the fame, by the faid fuffer- •" ance, confents, and cuftom ; and none otherwife."
BY the civil law, abfolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprized in the inftitutes, the code, and the digeft of the emperor Juftinian, and the novel conftitutions of himfelf and fome of his fuccefTors. Of which, as there will frequently be occafion to cite them, by way of illuftrating our own laws, it may not be amifs to give a (hort and general account.
THE Roman law (founded firft upon the regal conftitutions of their antient kings, next upon the twelve tables of the decemviri, then upon the laws or ftatutes enacted by the fenate or people, the edidls of the praetor, and the refponja prudentum or opinions of learned lawyers, and laftly upon the imperial decrees, or con- ftitutions
§„ 3« Of E N G L A N D. 8l
ftitutions of fucceffive emperors) had grown to fo great a bulk, or, as Livy expreffes it', " tarn immenfus allarum fuper alias acer- " vat arum legum cumulus" that they were computed to be many camels' load by an author who preceded Juftinian n. This was in part remedied by the collections of three private lawyers, Gre- gorius, Hermogenes, and Papirius ; and then by the emperor Theodolius the younger, by whofe orders a code was compiled, A.D. 438, being a methodical collection of all the imperial con- ftitutions then in force : which Theodolian code was the only book of civil law received as authentic in the weftern part of Europe till many centuries after; and to this it is probable that the Franks and Goths might frequently pay fome regard, in framing legal constitutions for their newly creeled kingdoms. For Juftinian commanded only in the eaftern remains of the empire ; and it was under his aufpices, that the prefent body of civil law was compiled and finimed by Tribonian and other lawyers, about the year 533.
THIS confifls of, i . The inftitutes, which contain the ele- ments or firft principles of the Roman law, in four books. 2. The digefts, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digefted in a fyftematical method. 3. A new code, or collection of imperial conftitutions, the lapfe of a whole century having rendered the former code, of Theo- dofius, imperfect. 4. The novels, or new conftitutions, pofterior in time to the other books, and amounting to a fupplement to the code ; containing new decrees of fucceffive emperors, as new questions happened to arife. Thefe form the body of Roman law, or corpus juris chilis, as publifhed about the time of Juftinian : which however fell foon into neglect and oblivion, till about the year 1130, when a copy of the digefts was found at Amalfi in Italy ; which accident, concurring with the policy of the Romifh ecclefiaftics w, fuddenly gave new vogue and authority to the ci- vil law, introduced it into feveral nations, and occasioned that
' /• 3- f-34- w See §. i. pag. 18.
u Taylor's elements of civil law. 17.
L mighty
8 2 Of the LAWS IN TROD,
mighty inundation of voluminous comments, with which this fyftem of law, more than any other, is now loaded.
THE canon law is a body of Roman ecclefiaftical law, relative to fuch matters as that church either has, or pretends to have, the proper jurifdi<ftion over. This is compiled from the opinions' of the antient Latin fathers, the decrees of general councils, the decretal epiftles and bulles of the holy fee. All which lay in the fame diforder and confufion as the Roman civil law, till about the year 1151 one Gratian an Italian monk, animated by the difcovery of Juftinian's pandects, reduced the ecclefiaftical conflitutions alfo into fome method in three books, which he entitled concordia dif- cordanthim canonum, but which are generally known by the name of decretum Gratiani. Thefe reached as low as the time of pope Alexander III. The fubfequent papal decrees, to the pontificate of Gregory IX, were publifhed in much the fame method un- der the aufpices of that pope, about the year 1230, in five books entitled decretalla Gregorii noni^ A fixth book was added by Boniface VIII, about the year 1298, which is called fextus decre- talium. The Clementine conftitutions, or decrees of Clement V,. were in like manner authenticated in 1317 by his fucceflbr John XXII •, who alfo publifhed twenty conftitutions of his own, called the extravagant is Jcannis : all which in fome meafure anfwer to the novels of the civil law. To thefe have been lince added fome decrees of later popes in five books, called extra- vagantes communes. And all thefe together, Gratian's decree, Gregory's decretals, the fixth decretal, the Clementine conftitu- tions, and the extravagants of John and his fucceflbrs, form the corpus juris canonic? > or body of the Roman canon law.
BESIDES thefe pontificial collections, which during the times of popery were received as authentic in this illand, as well as in other parts of chriftendom, there is alfo a kind of national canon law, compofed o£/egattne and provincial conftitutions, and adapted only to the exigencies of this church and kingdom. The hgatine conftitutions were ecclefiaftical laws, enacted in national fynods,
held
§. 3« of E N G L A N D. 83
held under the cardinals Otho and Othobon, legates from pope Gregory IX and pope Clement IV, in the reign of king Henry III about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial fynods, held under divers arch-bifhops of Canterbury, from Stephen Langton in the reign of Henry III to Henry Chichele in the reign of Henry V ; and adopted alfo by the province of Yorkx 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 fhould be had of the canon law; and, till fuch review mould be made, all canons, con- ilitutions, ordinances, and fynodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, fhould ftill be ufed and executed. And, as no fuch review has yet been perfected, upon this flatute now depends the authority of the canon law in England.
A s for the canons enacted by the clergy under James I, in the year 1603, and never confirmed in parliament, it has been folemnly 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 zi whatever regard the clergy may think proper to pay them.
THERE are four fpecies of courts in which the civil and ca- non laws are permitted under different restrictions to be ufed. i. The courts of the arch-bifhops and bimops and their deri- vative officers, ufually called in our law courts cb.rifr.ian, curiae chriftianitatis, or the ecclefiaftical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two univer- fities. In all, their reception in general, and the different de- grees of that reception, are grounded intirely upon cuflom ; cor* roborated in the latter inftance by act of parliament, ratifying thofe charters which confirm the cuftomary law of the univerfities.
*
Burn's eccl. law, prcf. viii. and confirmed by i Eliz. c. I.
Statute 25 Hen. VIII. 0.19; revived z Stra. 1057.
L 2 The
84 Of the L A w s I N T R o D.
The more minute consideration of thefe will fall properly under that part of thefe commentaries which treats of the jurifdiction of courts. It will fuffice at prefent to remark a few particulars relative to them all, which may ferve to inculcate more ftrongly the doctrine laid down concerning them a.
r. AND, firft, the courts of common law have the fuperin- tendency over thefe courts j to keep them within their jurifdic- tions, to determine wherein they exceed them, to reftrain and prohibit fuch excefs, and (in cafe of contumacy) to punifh the officer who executes, and in fome cafes the judge who enforces, the fentence fo declared to be illegal.
2. THE common law has referved to itfelf the expofition of all fuch acts of parliament, as concern either the extent of thefe courts or the matters depending before them. And therefore if thefe courts either refufe ta allow thefe acts of parliament, or will expound them in any other fenfe than what the common law puts upon them, the king's courts at Weflminfter will grant prohibitions to reflrain and control them.
3. AN appeal lies from all thefe courts to the king, in the laii refort; which proves that the jurifdiction exercifed in them is derived from the crown of England, and not from any foreign potentate, or intrinfic authority of their own. — And, from thefe three ftrong marks and enfigns of fuperiority, it appears beyond a doubt that the civil and canon laws, though admitted in fome cafes by cuftom in fome courts, are only fubordinate and leges
fub graviori lege ; and that, thus admitted, retrained, altered, new-modelled, and amended, they are by no means with us a diftindt independent fpecies of laws, but are inferior branches of the cuftomary or unwritten laws of England, properly called, the king's ecclefiaftical, the king's military, the king's maritime, or the king's academical, laws.
1 Ha!e Hift. c. z.
LE T
§.3. of E N G L A N D. 85
LET us next proceed to the leges feriptae, the written laws of the kingdom, which are ftatutes, acts, or edicts, made by the king's majefty by and with the advice and conient of the lords fpiritual and temporal and commons in parliament aiTembled b. The oldeft of thefe now extant, and printed in our flatute books,, is the famous magna carta, as confirmed in parliament 9 Hen. Ill : though doubtlefs there were many adls before that time, the re- cords of which are now loft, and the determinations of them perhaps at prefent currently received for the maxims of the old common law.
THE manner of making thefe flatutes will be better confidered hereafter, when we examine the constitution of parliaments. At prefent we will only take notice of the different kinds of flatutes ; and of fome general rules with regard to their conduction0.
FIKST, as to their feveral kinds. Statutes are either general er fpecial, public or private. A general or public act is an uni-
b 8 Rep. 20. rior fedlions alfb : in imitation of all which
c The method of citing thefe acts of we ftill call fome of our old ftatutes by their
parliament is various. Many of our antient initial words, as the ftatute of quia emptores,
flatutes are called after the name of the and that of circumfptHe agatis. But the moft
place, where the parliament was held that ufual method of citing them, efpecially
made them ; as the flatutes of Merton and fince the time of Edward the fecond, is by
Marlbridge,. of Weftminfter, Glocefter, and naming the year of the king's reign in
Winchefter. Others are denominated en- which the ftatute was made, together with
tirely from their fubjecl; as the ftatutes of the chapter, or particular aft, according to
Wales and Ireland, the articuli cleri, and it's numeral order ; as, 9 Geo. II. c. 4.
the prerogati<va regis. Some are diftin- For all the afls or one feffion of parliament
guifhed by their initial words ; a method of taken together make properly but one fta-
citing very antient, being ufed by the Jews tute ; and therefore when two feffions have
in denominating the books of the penta- been held in one year ; we ufually mention
tcuch ; by the chriflian church in diftin- flat, l . or 2. Thus the bill of rights is ci-
guifhing their hymns and divine offices ; by ted, as-iW. & M. ft. 2. c. 2. fignifying
the Romanifls in defcribing their papal that it is the fecond chapter or aft, of the
bulles ; and in fhort by the whole body of fecond ftatute or the laws made in the fe-
antient civilians andcanonifts, among whom cond felTions of parliament, held in the fir (I
this method of citation generally prevailed, year of king Wiiliam and queen Mary. not only with regard to chapters,, but infer
verfal
86 Of the LAWS IN TROD.
verfal rule, that regards the whole community ; and of this the courts of law are bound to take notice judicially and ex officio ; without the ftatute being particularly pleaded, or formally fet forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being thofe which only operate upon particular perfons, and private concerns ; fuch as the Romans intitledfenatus-decrefa, in contradistinction to the fenatus-confulta, which regarded the whole community d : and of thefe the judges are not bound to take notice, unlefs they be formally fliewn and pleaded. Thus, to mew the diftinction, the ftatute i^Eliz. c. 10. to prevent fpiritual perfons from making leafes for longer terms than twenty one years, or three lives, is a public act ; it being a rule prefcribed to the whole body of fpi- ritual perfons in the nation : but an act, to enable the biihop of Cheiler to make a leafe to A. B. for lixty years, is an exception to this rule -, it concerns only the parties and the bifhop's fuc- -ceflbrs -, and is therefore a private act.
STATUTES alfo are either declaratory of the common law, or remedial of fome defects therein. Declaratory, where the old cuftom of the kingdom is almoft fallen into difufe, or become difputable ; in which cafe the parliament has thought proper, in perpetuum rei tejlirnonium, and for avoiding all doubts and difficul- ties, to declare what the common law is and ever has been. Thus the ftatute of treafons, 25 Edw. III. cap. 2. doth not make any new fpecies of treafons ; but only, for the benefit of the fubject, declares and enumerates thofe feveral kinds of offence, which before were trealbn at the common law. Remedial fla- tutes are thofe which are made to fupply fuch defects, and abridge fuch fuperfluities, in the common law, as arife either from the general imperfection of all human laws, from change of time and circumftances, from the miftakes and unadvifed. determinations of unlearned judges, or from any other caufe whatfoever. And this being done, either by enlarging the com- mon law where it was too narrow and circumfcribed, or by re-
d Gravin. Orig. I. §.24.
{training
§, 3. of E N G L A N D, 87
draining it where it was too lax and luxuriant, hath occafion- ed another fubordinate divifion of remedial acts of parliament into enlarging and retraining ftatutes. To inftance again in the cafe of treafon. Clipping the current coin of the kingdom was an offence not fufficiently guarded againfl by the common law : therefore it was thought expedient by ftatute 5 Eliz. c. 1 1 .' to make it high treafon, which it was not at -the common law : fo that this was an enlarging ftatute. At common law alfo fpiritual corporations might leafe out their eftates for any term of years, till prevented by the ftatute 1 3 Eliz. before-mentioned : this was therefore a retraining ftatute.
i
SECONDLY, the rules to be obferved with regard to the con- ftruction of ftatutes are principally thefe which follow.
i., THERE are three points to be confidered in the conftruc- tion of all remedial ftatutes ; the old law, the mifchief, and the remedy : that is, how the common law flood at the making o£ the acij what the mifchief was, for which the common lav/ did not provide ; and what remedy the parliament hath provided to cure this mifchief. And it is the bufinefs of the judges fo to,, conftrue the adl, as to fupprefs the mifchief and advance the re- medy6. Let us inftance again in the fame restraining ftatute of the 1 3 Eliz. By the common law ecclefiaftical corporations might let as long leafes as they thought proper : the mifchief was, that they let long and unreafonable leafes, to the impoverishment of their fucceflbrs : the remedy applied by the ftatute was by making void all leafes by ecclefiaftical bodies for longer terms than three lives or twenty one years. Now in the conftruclion of this fta- tute it is held, that leafes, though for a longer term, if made by a bifhop, are not void during the bifhop's life ; or, if made by a dean and chapter, they are not void during the life of the dean : for the adl was made for the -benefit and protection of the fuc- cefibr f. The mifchief is therefore fufficiently fupprefled by va- cating them after the death of the grantors -, but the leafes, du-
e 3 Rep. 7. Co. Litt. n. 42. f Co. Litt. 45. 3 Rep. 60.
ring
8-8 Of the L A w s I N T R o D.
ring their lives, being not within the mifchief, are not within the remedy.
2. A STATUTE, which treats of things or perfons of an inferior rank, cannot by any general words be extended to thofe of a fuperior. So a ftatute, treating of " deans, prebendaries, " parfons, vicars, and others having fpiritual promotion," is held not to extend to bifhops, though they have fpiritual promotion ; deans being the higheft perfons named, and biiliops being of a ftill higher order 6.
3. PENAL ftatutes muft be conftrued ftrictly. Thus the ftatute i Edw.VI. c. 12. having enacted that thofe who are convicted of ftealing horfes mould not have the benefit of clergy, the judges conceived that this did not extend to him that mould fteal but one horfe, and therefore procured a new act for that purpofe in the following year h. And, to come nearer our own times, by the ftatute i4Geo. II. c. 6. ftealing fheep, or other cattle, was made felony without benefit of clergy. But thefe general words, " or " other cattle," being looked upon as much too loofe to create a capital offence, the act was held to extend to nothing but mere meep. And therefore, in the next fefTions, it was found neceffary to make another ftatute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, fleers, bullocks, heifers, calves, and lambs, by name.
4. STATUTES againft frauds are to be liberally and benefi- cial'y expounded. This may feem a contradiction to the laft rule; moft ftatutes againft frauds being in their confequences penal. But this difference is here to be taken : where the ftatute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken ftrictly : but when the ftatute acts upon the offence, by fetting afide the fraudulent tranfaction, here it is to be conftrued liberally. Upon this footing the ftatute of 13 Eliz. c. 5. which avoids all gifts of goods, &c, made to defraud cre- ss 2 Rep. 46. h z & 3 Edw.VI. c. 33. Bac. Elem. c. i z.
ditors
§.3. c/" ENGLAND.
ditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture1.
5. O N E part of a ilatute muil be fo conilrued by another, that the whole may (if poflible) iland : lit res magis valeat, quam pereat. As if land be veiled in the king and his heirs by adl of parliament, faving the right of A ; and A has at that time a leafe of it for three years : here A mall hold it for his term of three years, and afterwards it mail go to the king. For this in- terpretation furniihes matter for every claufe of the flatute to work and operate upon. But
6. A SAVI N G, totally repugnant to the body of the adt, is void. If therefore an act of parliament veils land in the king and his heirs, faving the right of all perfons whatfoever ; or veils the land of A in the king, faving the right of A : in either of thefe cafes the faving is totally repugnant to the body of the fla- tute, and (if good) would render the ilatute of no effect or ope- ration ; and therefore the faving is void, and the land veils abfo- lutely in the king k.
7. WH ERE the common law and a ilatute differ, the com- mon law gives place to the ilatute ; and an old ilatute gives place to a new one. And this upon the general principle laid down in the lail fection, that " leges pofteriores priores contrarias abrogant." But this is to be underilood, only when the latter ilatute is couched in negative terms, or by it's matter neceflarily implies a negative. As if a former adl fays, that a juror upon fuch a trial mall have twenty pounds a year j and a new ftatute comes and fays, he mall have twenty marks : here the latter ilatute, though it does not exprefs, yet neceffarily implies a negative, and vir- tually repeals the former. For if twenty marks be made qualifi- cation fufficient, the former ilatute which requires twenty pounds is at an end '. But if both acts be merely affirmative, and the
j 3 Rep. 82. i Jenk. Cent. 2.73.
k i Rep. 47.
M fubftance
Of the L A w s I N T R o D.
fubftance fuch that both may ftand together, here the latter does not repeal the former, but they mail both have a concurrent ef- ficacy. If by a former law an offence be indictable at the quar- ter feffions, and a latter law makes the fame offence indictable at the affifes j here the jurifdiction of the feffions is not taken away, but both have a concurrent jurifdiction, and the offender may be profecuted at either ; unlefs the new ftatute fubjoins exprefs ne- gative words, as, that the offence mail be indictable at the affifes,. and not elfeivhere m.
8. IF a ftatute, that repeals another, is itfelf repealed after- wards, the firft ftatute is hereby revived, without any formal words for that purpofe. So when the ftatutes of 26 and 35 Hen. VIII, declaring the king to be the fupreme head of the church, were repealed by a ftatute i 6c 2 Philip and Mary, and this latter ftatute was afterwards repealed by an act of i Eliz. there needed not any exprefs words of revival in queen Elizabeth's ftatute, but thefe acts of king Henry were impliedly and virtually re- vived ".
9. ACTS of parliament derogatory from the power of fubfe- quent parliaments bind not. So the ftatute u Hen. VII. c. i. which directs, that no perfon for affifting a king de fatto fhall be attainted of treafon by act of parliament or otherwife, is held to be good only as to common profecutions for high treafon ; but will not reftrain or clog any parliamentary attainder °. Becaufe the legislature, being in truth the fovereign power, is always of equal, always of abfolute authority : it acknowleges no fuperior upon earth, which the prior legiflature muft have been, if it's ordinances could bind the prefent parliament. And upon the fame principle Cicero, in his letters to Atticus, treats with a proper contempt thefe reftraining claufes which endeavour to tie up the hands of Succeeding legislatures. " When you repeal the law it-
* 11 Rep. 63. ° ilnft. 43.
« felf,
§.3. Of E N G L A N D.
'« felf, fays he, you at the fame time repeal the prohibitory " claufe, which guards againft fuch repeal p."
10. LASTLY, acts of parliament that are impoflible to be performed are of no validity ; and if there arife out of them col- laterally any abfurd confequences, manifeflly contradictory to common reafon, they are, with regard to thole collateral confe- quences, void. I lay down the rule with thefe restrictions j though I know it is generally laid down more largely, that acts of par- liament contrary to reafon are void. But if the parliament will pofitively enact a thing to be done which is unreafonable, I know of no power that can control it : and the examples ufually al- leged in fupport of this fenfe of the rule do none of them prove, that where the main object of a ftatute is unreafonable the judges are at liberty to reject it -, for that were to fet the judicial power above that of the legiflature, which would be fubvernve of all government. But where fome collateral matter arifes out of the general words, and happens to be unreafonable ; there the judges are in decency to conclude that this confequence was not forefeen by the parliament, and therefore they are at liberty to expound the ftatute by equity, and only quoad hoc difregard it. Thus if an act of parliament gives a man power to try all-caufes, that arife within his manor of Dale -, yet, if a caufe mould arife in which he himfelf is party, the act is conftrued not to extend to that, becaufe it is unreafonable that any man mould deter- mine his own quarrel q. But, if we could conceive it poffible for the parliament to enact, that he fhould try as well his own caufes as thofe of other perfons, there is no court that has power to de- feat the intent of the legiflature, when couched in fuch evident and exprefs words, as leave no doubt whether it was the intent of the legiflature or no.
TH E s E are the feveral grounds of the laws of England : over and above which, equity is alfo frequently called in to affift, to
I" Cum lex alrogatur, illuii if/urn abrcgatur, 1 8 Rep. 1 1 8. fxo nun earn abrogari eferteat. I. 3. ep, 23.
M 2 moderate,
92 Of the LAWS, &c. IN TROD.
moderate, and to explain them. What equity is, and how impof- lible in it's very eflence to be reduced to flated rules, hath been fliewn in the preceding fection. I {hall therefore only add, that there are courts of this kind eflablifhed for the benefit of the fubject, to correct and foften the rigor of the law, when through it's generality it bears too hard in particular cafes ; to detect and punifh latent frauds, which the law is not minute enough to reach ; to enforce the execution of fuch matters of truft and confidence, as are binding in confcience, though perhaps not ftridtly legal •> to deliver from fuch dangers as are owing to mi£- fortune or overfight ; and, in fhort, to relieve in all fuch cafes as are, bona Jide, objects of relief. This is the bufmefs of our courts of equity, which however are only converfant. in matters of property. For the freedom of our constitution will not per- mit, that in criminal cafes a power mould be lodged in any judge, to conftrue the law otherwife than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot fuffer more punifh- ment than the law affigns, but he may fuffer lefs. The laws can^ not be flrained by partiality to inflict a penalty beyond what the letter will warrant ; but, in cafes where the letter induces any apparent hardship, the crown has the power to pardon.
C 93 J
SECTION THE FOURTH,
OF THE COUNTRIES SUBJECT TO THE. LAWS OE ENGLAND.
f | ^HE kingdom of England, over which our municipal laws JL have jurifdidlion, includes not, by the common law, ei- ther Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local cuftoms of this territory do now obtain, in part or in all, with more or lefs reftridlions, in thefe and many other adjacent countries; of which it will be proper firfh to take a review, before we confider the kingdom of England itfelf, the original and proper fubject of thefe laws..
WALES had continued independent of England, unconquered and uncultivated, in the primitive paftoral flate which Caelar and Tacitus afcribe to Britain in general, for many centuries ; even from the time of the hoftile invaiions of the Saxons, when the antient and chriflian inhabitants of the ifland retired to thofe na- tural intrenchments, for protection from their pagan vifitants. But when thefe invaders themfelves were converted to chriftianity, and fettled into regular and potent governments, this retreat of the antient Britons grew every day narrower ; they were overrun by little and little, gradually driven from one faftnefs to another, and by repeated loffes abridged of their wild independence. Very early in our hiftory we find their princes doing homage to the crown of England ; till at length in the reign of Edward the firfl, who may juftly be fliled the conqueror of Wales, the line
of
94 Of the COUNTRIES fubjeEl to INTROD.
of their antient princes was abolifhed, and the king of England's eldeft fon became, as a matter of courfe, their titular prince : the territory of Wales being then entirely re-annexed (by a kind of feodal resumption) to the dominion of the crown of England3; or, as the flatute of Rutland b expreffes it, " terra Walliae cum " incolis fuisj prius regi jure feodali fubjefta, (of which homage "was the iign) jam in proprietatis dominium totaliter et cum inte- " gritate converfa eji, et coronae regni Angliae tanquam pars corpo- " ris ejufdem annexa et unita" By the ftatute alfo of Wales0 very material alterations were made in divers parts of their laws, fo as to reduce them nearer to the Englifh ftandard, efpecially in the forms of their judicial proceedings : but they ftill retained very much of their original polity, particularly their rule of inherit- ance, viz. that their lands were divided equally among all the iffue male, and did not defcend to the eldeft fon alone. By other fubfequent ftatutes their provincial immunities were ftill farther abridged : but the finishing ftroke to their independency, was given by the ftatute 27 Hen. VIII. c. 26. which at the fame time gave the utmoft advancement to their civil profperity, by admit- ting them to a thorough communication of laws with the fub- jecls of England. Thus were this brave people gradually con- quered into the enjoyment of true liberty ; being infenfibly put upon the fame footing, and made fellow-citizens with their con- querors. A generous method of triumph, which the republic of Rome practiied with great fuccefs ; till me reduced all Italy to her obedience, by admitting the vanquifhed ftates to partake of .the Roman privileges.
I T is enadled by this ftatHte 27 Hen.VIH, i. That the do- minion of Wales mall be for ever united to the kingdom of England. 2. That all Welchmen born mall have the fame li- berties as other the king's fubjec~ls. 3. That lands in Wales fliall be inheritable according to the Englirti tenures and rules of de- fcent. 4. That the laws of England, and no other, mail be ufed
* Vaugh. 400. c i2Edw. I.
b 10 Ed w.I.
in
§. 4» the L A w s of E N G L A N D.
in Wales : befides many other regulations of the police of this principality. An