Source: Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II. Chapter: INTRODUCTION. Of the Study, Nature, and Extent of the Laws of England.
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Mr. Vice-Chancellor and the Gentlemen of the University.
The general expectation of so numerous and respectable an audience, the novelty, and (I may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. He must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical elementary parts, have hitherto received a very moderate share of cultivation. He cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the *
The science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowledge, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides. In most of the nations of the continent, where the civil or imperial law, under different modifications, is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of Justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. And in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowledge in that science which is to be the guardian of his natural rights and the rule of his civil conduct.
Far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason. No man is more thoroughly persuaded of the general excellence of its rules, and the usual equity of its decisions, nor is better convinced of its use as well as ornament to the scholar, the divine, the statesman, and even the common lawyer. But we must not carry our veneration so far as to sacrifice our Alfred and Edward to the manes of Theodosius and Justinian; we must not prefer the edict of the prætor, or the rescript of the Roman emperor, to our own immemorial customs, or the sanctions of an English parliament; unless we can also prefer the despotic monarchy of Rome and Byzantium, for whose meridians the former were calculated, to the free constitution of Britain, which the latter are adapted to perpetuate.
Without detracting, therefore, from the real merits which abound in the imperial law, I hope I may have leave to assert, that if an Englishman must be ignorant of either the one or the other, he had better be a stranger to the Roman than the English institutions. For I think it an undeniable position, that a competent knowledge of the laws of that society *
But, as the long and universal neglect of this study with us in England seems in some degree to call in question the truth of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out its particular uses in all considerable situations of life. Some conjectures will then be offered with regard to the causes of neglecting this useful study: to which will be subjoined a few reflections on the peculiar propriety of reviving it in our own universities.
And, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land which is governed by this system of laws. A land, perhaps, the only one in the universe, in which political or civil liberty is the very end and scope of the constitution.(b) This liberty, rightly understood, consists in the power of doing whatever the laws permit,(c)2 which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action by which the meanest individual is protected from the insults and oppression of the greatest. As therefore every subject is interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those at least with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. And thus much may suffice for *
Let us therefore begin with our gentlemen of independent estates and fortune, the most useful as well as considerable body of men in the nation; whom even to suppose ignorant in this branch of learning is treated by Mr. Locke(d) as a strange absurdity. It is their landed property, with its long and voluminous train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowledge. The thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession; yet still the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman’s inferior agents, and preserve him at least from very gross and notorious imposition.
Again, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more with regard to their attestation. An ignorance in these must always be of dangerous consequence, to such as by choice or necessity compile their own testaments without any technical assistance. Those who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in families; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all; so that in the end his estate *
But to proceed from private concerns to those of a more public consideration. All gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. In this situation they have frequently a right to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. And the general incapacity, even of our best juries, to do this with any tolerable propriety, has greatly debased their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended.
But it is not as a juror only that the English gentleman is called upon to determine questions of right, and distribute justice to his fellow-subjects: it is principally with this order of men that the commission of the peace is filled. And here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punishing the dissolute and idle; by protecting the peaceable and industrious; and, above all, by healing petty differences, and preventing vexatious prosecutions. But, in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also, (under which must be included the knowledge,) of administering legal and effectual justice. Else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of *
Yet farther; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament: and those, who are ambitious of receiving so high a trust, would also do well to remember its nature and importance. They are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or withhold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important. They are the guardians of the English constitution; the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to posterity, amended if possible, at least without any derogation. And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments!
Indeed it is perfectly amazing that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws; but every man of superior fortune thinks himself born a legislator. Yet Tully was of a different opinion: “It is *
The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently its symmetry has been destroyed, its proportions distorted, and its majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays, (which have sometimes disgraced the English, as well as other courts of justice,) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament, “overladen (as Sir Edward Coke expresses it)(f) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law.” This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. “But if,” he subjoins, “acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statues had provided remedy for former mischiefs and defects discovered by experience; then should very few questions in law arise, *
What is said of our gentlemen in general, and the propriety of their application to the study of the laws of their country, will hold equally strong or still stronger with regard to the nobility of this realm, except only in the article of serving upon juries. But, instead of this, they have several peculiar provinces of far greater consequence and concern; being not only by birth hereditary counsellors of the crown, and judges upon their honour of the lives of their brother-peers, but also arbiters of the property of all their fellow-subjects, and that in the last resort. In this their judicial capacity they are bound to decide the nicest and most critical points of the law: to examine and correct such errors as have escaped the most experienced sages of the profession, the lord keeper, and the judges of the courts at Westminster. Their sentence is final, decisive, irrevocable; no appeal, no correction, not even a review, can be had: and to their determination, whatever it be, the inferior courts of justice must conform; otherwise the rule of property would no longer be uniform and steady.
Should a judge in the most subordinate jurisdiction be deficient in the knowledge of the law, it would reflect infinite contempt upon himself, and disgrace upon those who employ him. And yet the consequence of his ignorance is comparatively very trifling and small: his judgment may be examined, and his errors rectified, by other courts. But how much more serious and affecting is the case of a superior judge, *
Yet, vast as this trust is, it can nowhere be so properly reposed as in the noble hands where our excellent constitution has placed it: and therefore placed it, because, from the independence of their fortune and the dignity of their station, they are presumed to employ that leisure which is the consequence of both, in attaining a more extensive knowledge of the laws than persons of inferior rank: and because the founders of our polity relied upon that delicacy of sentiment, so peculiar to noble birth; which, as on the one hand it will prevent either interest or affection from interfering in questions of right, so on the other it will bind a peer in honour, an obligation which the law esteems equal to another’s oath, to be master of those points upon which it is his birth-right to decide.3
The Roman pandects will furnish us with a piece of history not unapplicable to our present purpose. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take the opinion of Quintus Mutius Scævola, the then oracle of the Roman law; but, for want of some knowledge in that science, could not so much as understand even the technical terms, which his friend was obliged to make use of. Upon which Mutius Scævola could not forbear to upbraid him with this memorable reproof,(g) “that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned.” This reproach made so deep an impression on Sulpicius, that he immediately applied himself to the study of the law, wherein he arrived to that *
I would not be thought to recommend to our English nobility and gentry to become as great lawyers as Sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise, indefatigable senator; but the inference which arises from the story is this, that ignorance of the laws of the land hath ever been esteemed dishonourable in those who are intrusted by their country to maintain, to administer, and to amend them.
But surely there is little occasion to enforce this argument any farther to persons of rank and distinction, if we of this place may be allowed to form a general judgment from those who are under our inspection: happy that while we lay down the rule, we can also produce the example. You will therefore permit your professor to indulge both a public and private satisfaction by bearing this open testimony, that, in the infancy of these studies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by those of the noblest birth and most ample patrimony, some of whom are still the ornaments of this seat of learning, and others, at a greater distance, continue doing honour to its institutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home.
Nor will some degree of legal knowledge be found in the least superfluous to persons of inferior rank, especially those of the learned professions. The clergy in particular, besides the common obligations they are under in proportion to their rank and fortune, have also abundant reason, considered *
For the gentlemen of the faculty of physic, I must frankly own that I see no special reason why they in particular should apply themselves to the study of the law, unless in common with other gentlemen, and to complete the character of general and extensive knowledge; a character which their profession, beyond others, has remarkably deserved. They will give me leave however to suggest, and that not ludicrously, that it might frequently be of use to families upon sudden emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least so far as relates to the formal part of their execution.4
But those gentlemen who intend to profess the civil and ecclesiastical laws, in the spiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom; they are no more binding in England than our laws are binding at Rome. But as far as these foreign laws, on account of some peculiar propriety, have in some particular cases, and in some particular courts, been introduced and allowed by our laws, so far they oblige, and no farther; their authority being wholly founded upon that permission and adoption. In which we are not singular in our *
From the general use and necessity of some acquaintance with the common law, the inference were extremely easy with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees resort, as the fountain of all useful knowledge. But how it has come to pass that a design of this sort has never before taken place in the university, and the reason why the study of our laws has in general fallen into disuse, I shall previously proceed to inquire.
Sir John Fortescue, in his panegyric on the laws of England, (which was written in the reign of Henry the Sixth,) puts(n) a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning: “Why the laws of England, being so good, so fruitful and so commodious, are not taught in the universities, as the civil and canon laws are?” In answer to which he gives(o) what seems, with due deference be it spoken, a very jejune and unsatisfactory reason; being, in short, that “as the proceedings at common law were in his time carried on in three different tongues, the English, the Latin, and the French, that science must be necessarily taught in those three several languages; but that in the universities all sciences were taught in the Latin tongue only;” and therefore he concludes, “that they could not be conveniently taught or studied in our universities.” But without attempting to examine seriously the validity of this reason, (the very shadow of which, by the wisdom of your late constitutions, is entirely taken away,) we perhaps may find out a better, or at least a more plausible account, why the study of the municipal laws has been banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil.
But the common law of England, being not committed to writing, but only handed down by tradition, use, and experience, was not so heartily relished by the foreign clergy, who came over hither in shoals during the reign of the conqueror and his two sons, and were utter strangers to our constitution as well as our language. And an accident, which soon after happened, had nearly completed its ruin. A copy of Justinian’s pandects, being newly(u) discovered at Amalfi,6 *
Nor was it long before the prevailing mode of the times reached England For Theobald, a Norman abbot, being elected to the see of Canterbury,(a) and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and, among the rest, Roger, surnamed Vacarius, whom he placed in the university of Oxford(b) to teach it to the people of this country. But it did not meet with the same easy reception in England, where a mild and rational system of laws had been long established, as it did upon the continent; and though the monkish clergy, devoted to the will of a foreign primate, received it with eagerness and zeal, yet the laity, who were more interested to preserve the old constitution, and had already severely felt the effect of many Norman innovations, continued wedded to the use of the common law: King Stephen immediately *
From this time the nation seems to have been divided into two parties, the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon laws, which now came to be inseparably interwoven with each other, and the nobility and laity, who adhered with equal pertinacity to the old common laws; both of them reciprocally jealous of what they were unacquainted with, and neither of them, perhaps, allowing the opposite system that real merit which is abundantly to be found in each. This appears, on the one hand, from the spleen with which the monastic writers(e) speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed at the famous parliament of Merton, when the prelates endeavoured to procure an act to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy church (that is, the canon law) declared such children legitimate; but “all the earls and barons (says the parliament roll)(f) with one voice an swered, that they would not change the laws of England, which had hitherto been used and approved.” And we find the same jealousy prevailing above a century afterwards,(g) when the nobility declared, with a kind of prophetic spirit, “that the realm of England hath never been unto this hour, neither by the consent of our lord the king, and the lords of parliament, shall it ever be *
While things were in this situation, the clergy, finding it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts;7 and to that end, very early in the reign of King Henry the Third, episcopal constitutions were published,(i) forbidding all ecclesiastics to appear as advocates in foro sæculari: nor did they long continue to act as judges there, not caring to take the oath of office which was then found necessary to be administered, that they should in all things determine according to the law and custom of this realm,(k) though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards, as its business increased by degrees, they modelled the process of the court at their own discretion.
But wherever they retired, and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the municipal law. This appears in a particular manner from the spiritual courts of all denominations, from the chancellor’s courts in both our universities, and from the high court of chancery before mentioned; in all of which the proceedings are to this day in a course much conformed to the civil law: for which no tolerable reason can be assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; Pope Innocent the Fourth having forbidden(l) the very reading of it by the clergy, because its decisions were not founded on the imperial constitutions, but merely on the customs of the laity. And if it be considered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to *
And, since the Reformation, many causes have conspired to prevent its becoming a part of academical education. As, first, long usage and established custom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. Secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth; and their total ignorance of the merit of the common law, though its equal at least, and perhaps an improvement on the other. But the principal reason of all, that has hindered the introduction of this branch of learning, is, that the study of the common law being banished from hence in the times of popery, has fallen into a quite different channel, and has hitherto been wholly cultivated in another place. But, as the long usage and established custom of ignorance of the laws of the land, begin now to be thought unreasonable; and as by these means the merit of those *
For, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen: who entertained upon their parts a most hearty aversion to the civil law,(n) and made no scruple to profess their contempt, nay even their ignorance(o) of it in the most public manner. But still as the balance of learning was greatly on the side of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it must have been subjected to many inconveniences, and perhaps would have been gradually lost and overrun by the civil, (a suspicion well justified from the frequent transcripts of Justinian to be met with in Bracton and Fleta,) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to its support.
The incident which I mean was the fixing of the court of common pleas, the grand tribunal for disputes of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. Formerly that, in conjunction with all the other superior *
In consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it necessary to establish a new university of their own. This they did by purchasing at various times certain houses (now called the inns of court and of chancery) between the city of Westminster, the place of holding the king’s courts, and the city of London; for advantage of ready access to the one, and plenty of provisions in the other.(r) Here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil. The degrees were those of barristers (first styled apprentices(s) from apprendre, to *
The crown seems to have soon taken under its protection this infant seminary of common law; and, the more effectually to foster and cherish it, King Henry the Third, in the nineteenth year of his reign, issued out an order directed to the mayor and sheriffs of London, commanding that no regent of any law schools within that city should, for the future, teach law therein.(u) The word law, or leges, being a general term, may create some doubt, at this distance of time, whether the teaching of the civil law or the common, or both, is hereby restrained But in either case it tends to the same end. If the civil law only is prohibited, (which is Mr. Selden’s(w) opinion,) it is then a retaliation upon the clergy, who had excluded the common law from their seats of learning. If the municipal law be also included in the restriction, (as Sir Edward Coke(x) understands it, and which the words seem to import,) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university, which was newly instituted in the suburbs.
Hence it is evident, that (though under the influence of the monks, our universities neglected this study, yet) in the time of Henry the Sixth it was thought highly necessary, and was the universal practice, for the young nobility and gentry to be instructed in the originals and elements of the laws. But by degrees this custom has fallen into disuse; so that, in the reign of Queen Elizabeth, Sir Edward Coke(b) does not reckon above a thousand students, and the number at present is very considerably less. Which seems principally owing to these reasons: first, because the inns of chancery, being now almost totally filled by the inferior branch of the profession, are neither commodious nor proper for the resort of gentlemen of any rank or figure; so that there are very rarely any young students entered at the inns of chancery: secondly, because in the inns of court all sorts of regimen and academical superintendence, either with regard to morals or studies, are found impracticable, and therefore entirely neglected: lastly, because persons of birth and fortune, after having finished their usual courses at the universities, have *
And that these are the proper places, for affording assistances of this kind to gentlemen of all stations and degrees, cannot (I think) with any colour of reason be denied. For not one of the objections, which are made to the inns of court and chancery, and which I have just now enumerated, will hold with regard to the universities. Gentlemen may here associate with gentlemen of their own rank and degree. Nor are their conduct and studies left entirely to their own discretion; but regulated by a discipline so wise and exact, yet so liberal, so sensible, and manly, that their conformity to its rules (which does at present so much honour to our youth) is not more the effect of constraint than of their own inclinations and choice. Neither need they apprehend too long an avocation hereby from their private concerns and amusements, or (what is a more noble object) the service of their friends and their country. This study will go hand in hand with their other pursuits: it will obstruct none of them; it will ornament and assist them all.
But if, upon the whole, there are any still wedded to monastic prejudice, that can entertain a doubt how far this study is properly and regularly academical, such persons I am afraid either have not considered the constitution and design of an university, or else think very meanly of it. It must be a deplorable narrowness of mind, that would confine these seats of instruction to the limited views of one or two learned professions. To the praise of this age be it spoken, a more open *
From a thorough conviction of this truth, our munificent benefactor, Mr. Viner, having employed above half a century in amassing materials for new-modelling and rendering more commodious the rude study of the laws of the land, consigned *
The advantages that might result to the science of the law itself, when a little more attended to in these seats of knowledge, perhaps, would be very considerable. The leisure and abilities of the learned in these retirements might either suggest expedients, or execute those dictated by wiser heads,(k) for improving its method, retrenching its superfluities, and reconciling the little contrarieties, which the practice of many centuries will necessarily create in any human system; a task which those who are deeply employed in business, and the more active scenes of the profession, can hardly condescend to engage in. And as to the interest, or (which is the same) the reputation of the universities themselves, I may venture to pronounce, that if ever this study should arrive to any tolerable perfection, either here or at Cambridge, the nobility and gentry of this kingdom would not shorten their residence upon this account, nor perhaps entertain a worse opinion of the benefits of academical education. Neither should it be considered as a matter of light importance, that while we thus extend the pomæria of university learning, and adopt a new tribe of citizens within these philosophical walls, we interest a very *
For I think it past dispute that those gentlemen who resort to the inns of court with a view to pursue the profession, will find it expedient, whenever it is practicable, to lay the previous foundations of this, as well as every other science, in one of our learned universities. We may appeal to the experience of every sensible lawyer, whether any thing can be more hazardous or discouraging, than the usual entrance on the study of the law. A raw and unexperienced youth, in the most dangerous season of life, is transplanted on a sudden into the midst of allurements to pleasure, without any restraint or check but what his own prudence can suggest; with no public direction in what course to pursue his inquiries; no private assistance to remove the distresses and difficulties which will always embarrass a beginner. In this situation he is expected to sequester himself from the world, and, by a tedious lonely process, to extract the theory of law from a mass of undigested learning; or else, by an assiduous attendance on the courts, to pick up theory and practice together, sufficient to qualify him for the ordinary run of business. How little, therefore, is it to be wondered at, that we hear of so frequent miscarriages; that so many gentlemen of bright imaginations grow weary of so unpromising a search,(l) and addict themselves wholly to amusements, or other less innocent pursuits; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives.
The evident want of some assistance in the rudiments of legal knowledge has given birth to a practice, which, if ever it had grown to be general, must have proved of extremely *
Making, therefore, due allowance for one or two shining exceptions, experience may teach us to foretell that a lawyer, thus educated to the bar, in subservience to attorneys and solicitors,(n) will find he has begun at the wrong end. If practice be the whole he is taught, practice must also be the whole he will ever know: if he be not instructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: ita lex scripta est(o) is the utmost his knowledge will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn, a priori, from the spirit of the laws and the natural foundations of justice.
The inconveniences here pointed out can never be effectually prevented, but by making academical education a previous step to the profession of the common law, and at the same time making the rudiments of the law a part of academical education. For sciences are of a sociable disposition, and flourish best in the neighbourhood of each other; nor is there any branch of learning but may be helped and improved by assistances drawn from other arts. If, therefore, the student in our laws hath formed both his sentiments and style by perusal and imitation of the purest classical writers, among whom the historians and orators will best deserve his regard; if he can reason with precision, and separate argument from fallacy, by the clear simple rules of pure unsophisticated logic; if he can fix his attention, and steadily pursue truth through any the most intricate deduction, by the use of mathematical demonstrations; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine experimental philosophy; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly, he has contemplated those maxims reduced to a practical system in the laws of imperial Rome; if he has done this, or any part of it, (though all may be easily done under as able instructors as ever graced any seats of learning,) a student thus qualified may enter upon the study of the law with incredible advantage and reputation. And if, at the conclusion, or during *
I shall not insist upon such motives as might be drawn from principles of economy, and are applicable to particulars only: I reason upon more general topics. And therefore to the qualities of the head, which I have just enumerated, I cannot but add those of the heart; affectionate loyalty to the king, a zeal for liberty and the constitution, a sense of real honour, and well-grounded principles of religion, as necessary to form a truly valuable English lawyer, a Hyde, a Hale, or a Talbot. And, whatever the ignorance of some, or unkindness of others, may have heretofore untruly suggested, experience will warrant us to affirm, that these endowments of loyalty and public spirit, of honour and religion, are nowhere to be found in more high perfection than in the two universities of this kingdom.
Before I conclude, it may perhaps be expected that I lay before you a short and general account of the method I propose to follow, in endeavouring to execute the trust you have been pleased to repose in my hands. And in these solemn lectures, which are ordained to be read at the entrance of every term, (more perhaps to do public honour to this laudable institution, than for the private instruction of individuals,)(p) I presume it will best answer the intent of our benefactor, and the expectation of this learned body, if I attempt to illustrate at times such detached titles of the law as are the most easy to be understood, and most capable of historical or critical ornament. But in reading the complete course, which is annually consigned to my care, a more regular method will be necessary; and, till a better is proposed, I *
He should consider his course as a general map of the law, marking out the shape of the country, its connections and boundaries, its greater divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet. His attention should be engaged, like that of the readers in Fortescue’s inns of chancery, “in tracing out the originals, and as it were the elements, of the law.” For if, as Justinian(r) has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour delay, and despondence. These originals should be traced to their fountains, as well as our distance will permit; to the customs of the Britons and Germans, as recorded by Cæsar and Tacitus; to the codes of the northern nations on the continent, and more especially to those of our own Saxon princes; to the rules of the Roman law either left here in the days of Papinian, or imported by Vacarius and his *
A plan of this nature, if executed with care and ability, cannot fail of administering a most useful and rational entertainment to students of all ranks and professions; and yet it must be confessed that the study of the laws is not merely a matter of amusement; for, as a very judicious writer(t) has observed upon a similar occasion, the learner “will be considerably disappointed, if he looks for entertainment without the expense of attention.” An attention, however, not greater than is usually bestowed in mastering the rudiments of other sciences, or sometimes pursuing a favourite recreation or exercise. And this attention is not equally necessary to be exerted by every student upon every occasion. Some branches of the law, as the formal process of civil suits, and the subtle distinctions incident to landed property, which are the most difficult to be thoroughly understood, are the least worth the pains of understanding, except to such gentlemen as intend to pursue the profession. To others I may venture to apply, with a slight alteration, the words of Sir John Fortescue(u) when first his royal pupil determines to engage in this study: “It will not be necessary for a gentleman, as such, to examine with a close application the critical niceties of the law. It will fully be sufficient, and he may well enough be denominated a lawyer, if under the instruction of a master he traces up the principles and grounds of the *
To the few therefore (the very few I am persuaded) that entertain such unworthy notions of an university, as to suppose it intended for mere dissipation of thought; to such as mean only to while away the awkward interval from childhood to twenty-one, between the restraints of the school and the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these Mr. Viner gives no invitation to an entertainment which they never can relish. But to the long and illustrious train of noble and ingenuous youth, who are not more distinguished among us by their birth and possessions, than by the regularity of their conduct and their thirst after useful knowledge, to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if such reflections can be now the employment of his thoughts) that he could not more effectually have benefited posterity, or contributed to the service of the public, than by founding an institution which may instruct the rising generation in the wisdom of our civil polity, and inspire them with a desire to be still better acquainted with the laws and constitution of their country.12
Law, in its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.
Thus, when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all movable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction,—as that the hand shall describe a given space in a given time, to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.
If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws, more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal *
This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.1
Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for every thing, it is necessary that he should, in all points, conform to his Maker’s will.
This will of his Maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion, so, when he created man, and endued him with free-will to conduct himself in all parts of *
Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian(a) has reduced the whole doctrine of law.3
But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As, therefore, the Creator is a being not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he *
This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.5
But, in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life, by considering what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.
This has given manifold occasion for the benign interposition of divine Providence, which, in compassion to the frailty, the imperfection, and the blindness of human reason, *
Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points in which both the divine law and the natural leave a man at his own liberty, but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and, from these prohibitions, arises the true unlawfulness of this crime. Those human laws that annex a punishment to it do not at all increase its moral guilt, or *
If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature, and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and, in a state of nature, we are all equal, without any other superior but Him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject,(b) is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called “the law of nations,” which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject; and therefore the civil law(c) very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.7
Municipal law, thus understood, is properly defined to be “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”8 Let us endeavour to explain its several properties, as they arise out of this definition. And, first, it is a rute: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law.9 But an act to declare that the crime of which Titius is accused shall be deemed high treason: this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the maker’s will. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also.
Municipal law is also “a rule of civil conduct.” This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more than that he do contribute, on his part, to the subsistence and peace of the society.
It is likewise “a rule prescribed.” Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed*
But farther: municipal law is “a rule of civil conduct prescribed by the supreme power in a state.” For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.
The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families These formed the first natural society, among themselves; which, every day extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, *
For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be intrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of Him who is emphatically styled the Supreme Being; the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government.
How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by *
The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an aggregate assembly, consisting of all the free members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is intrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.
By the sovereign power, as was before observed, is meant the making of laws, for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases; by constituting one, or a few, or many executive magistrates: and all the other powers of the state must obey the legislative power in the discharge of their several functions, or else the constitution is at an end.12
In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In *
Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry these means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero(f) declares himself of opinion “esse optime constitutam rempublicam quæ ex tribus generibus illis, regali, optimo, et populari, sit modice confusa;” yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure.(g)
But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and despatch, that are to be found in the most absolute monarchy: and, as the legislature of the kingdom is intrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assemblage of persons selected for their piety, *
Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the king and House of Lords, our laws might be providently made and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would *
Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is intrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.
Thus far as to the right of the supreme power to make laws; but farther, it is its duty likewise. For since the *
From what has been advanced, the truth of the former branch of our definition, is (I trust) sufficiently evident; that “municipal law is a rule of civil conduct prescribed by the supreme power in a state.” I proceed now to the latter branch of it; that it is a rule so prescribed, “commanding what is right, and prohibiting what is wrong.”
Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights, and to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.
For this purpose every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and *
With regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemesnors, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, in subordination to the great law-giver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.
Thus much for the declaratory part of the municipal law: and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, “thou shalt not steal,” implies a declaration that stealing is a crime. And we have seen(i) that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them.
The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect *
With regard to the sanction of laws, or the evil that may attend the breach of public duties, it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindicatory than remuneratory, or to consist rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good.(k) For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are intrusted with the care of putting the laws in execution.
Legislators and their laws are said to compel and oblige: not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty; for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.
It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon men’s consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are mala in se: here we are bound in conscience; because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, *
I have now gone through the definition laid down of a municipal law; and have shown that it is “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong;” in the explication of which I have endeavoured to interweave a few useful principles concerning the nature of civil government, and the obligation of human laws Before I conclude this section, it may not be amiss to add a few observations concerning the interpretation of laws.
When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished by every rational civilian from those general constitutions which had only the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us, had once resolved to *
The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.
1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf(o) which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon. Again, terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs of her body, being Protestants,” it becomes necessary to call in the assistance of lawyers to ascertain the precise idea of the words “heirs of her body,” which, in a legal sense, comprise only certain of her lineal descendants.16
3. As to the subject matter, words are always to be understood as having a regard thereto, for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but, when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.
4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf,(p) which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” was held after long debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit.
From this method of interpreting laws by the reason of them, arises what we call equity, which is thus defined by Grotius:(r) “the correction of that wherein the law (by reason of its universality) is deficient.” For, since in laws all cases cannot be foreseen or expressed, it is necessary that, when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, “lex non exacte definit, sed arbitrio boni viri permittit.”22
Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established *
The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.
The lex non scripta, or unwritten law, includes not only general customs, on the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.
When I call these parts of our law leges non scriptæ, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters, which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, because the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic Druids committed all their laws as well as learning to memory;(a) and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant.(b) But, with us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice in books of *
Our ancient lawyers, and particularly Fortescue,(c) insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some; but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though doubtless, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established; thereby, in all probability, improving the texture and wisdom of the whole by the accumulated wisdom of divers particular countries. Our laws, saith Lord Bacon,(d) are mixed as our language; and, as our language is so much the richer, the laws are the more complete.
And indeed our antiquaries and early historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his Dome-Book, or Liber Judicialis, for the general use of the whole kingdom. *
But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse, or at least to be mixed and debased with other laws of a coarser alloy; so that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts: 1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs. 2. The West-Saxon Lage, or laws of the West Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government.(f)
Both these undertakings of king Edgar and Edward the confessor seem to have been no more than a new edition, or fresh promulgation, of Alfred’s code or dome-book, with such additions and improvements as the experience of a century and a half had suggested; for Alfred is generally styled by the same historians the legum Anglicanarum conditor, as Edward the confessor is the restitutor.3 These, however, are the laws which our histories so often mention under the name of the laws of Edward the confessor, which our ancestors struggled so hardly to maintain, under the first princes of the Norman line; and which subsequent princes so frequently promised to keep and restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. These are the laws that so vigorously withstood *
But though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach.5 nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Whence it is that in our law the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority: and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.6
This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 2. Particular customs; which, for the most part, affect only the inhabitants of particular districts. 3. Certain particular laws; which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction.
Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and 2. Established rules and maxims; as, “that the king can do no wrong, that no man shall be bound to accuse himself,” and the like. But I take these to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage: and the only method of proving, that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it.
The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust;8 for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions, and therefore can never be departed from by any modern judge without a breach of his oath and *
The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer’s library. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides, and the reasons the court gave for its judgment; taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain the records, which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of king Edward the Second inclusive; and from this time to that of Henry the *
Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde,12 with some others of ancient date; whose treatises are cited as authority, and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the *
And thus much for the first ground and chief corner-stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.
The Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it, when the written law was deficient. Though the reasons alleged in the digest(v) will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. “For since, (says Julianus,) the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind everybody. For where is the difference, whether the people declare their *
II. The second branch of the unwritten laws of England are particular customs, or laws, which affect only the inhabitants of particular districts.
These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament.(z)
Such is the custom of gavelkind in Kent, and some other parts of the kingdom, (though perhaps it was also general till the Norman conquest,) which ordains, among other things, *
To this head may most properly be referred a particular system of customs used only among one set of the king’s subjects, called the custom of merchants or lex mercatoria: which, however different from the 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 utmost validity in all commercial transactions: for it is a maxim of law, that “cuilibet in sua arte credendum est.”15
The rules relating to particular customs regard either the proof of their exist ence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.
The customs of London differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder;(f) unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c.; for then the law permits them not to certify on their own behalf.(g)
When a custom is actually proved to exist, the next inquiry is into the legality of it; for, if it is not a good custom, it ought to be no longer used. “Malus usus abolendus est” is an established maxim of the law.(h) To make a particular custom good, the following are necessary requisites.
1. That it have been used so long, that the memory of man runneth not to the contrary.16 So that, if any one can show the beginning of it, it is no good custom. For which reason no custom can prevail against an express act of *
2. It must have been continued. Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only, for ten or twenty years, will not destroy the custom.(j) As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for ten years; it only becomes more difficult to prove: but if the right be any how discontinued for a day, the custom is quite at an end.
3. It must have been peaceable, and acquiesced in; not subject to contention and dispute.(k) For as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.
4. Customs must be reasonable;(l) or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke says,(m) to be understood of every unlearned man’s reason, but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to show the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his, and then the tenants will lose all their profits.(n)
6. Customs, though established by consent, must be (when established) comulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all.
7. Lastly, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent; which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another’s garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom.(p)
Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly.19 Thus, by the custom of gavelkind, an infant of fifteen years *
III. The third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws.(s)
It may seem a little improper at first view to rank these laws under the head of leges non scriptæ, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions and treatises of the learned in both branches of the law. But I do this, after the example of Sir Matthew Hale,(t) because it is most plain, that it is not on account of their being written laws that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority, which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors, were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here; for the legislature of England doth not, nor ever did, recognise any foreign power as superior or equal to it in this kingdom, or as having the right to give law to any, the meanest, of its subjects. But all the *
By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprised in the institute, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account.
The Roman law (founded first upon the regal constitutions of their ancient kings, next upon the twelve tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the prætor, and the responsa prudentum, or opinions of learned lawyers, and *
This consists of, 1. The institutes, which contain the elements or first principles of the Roman law, in four books. 2. The digests, or pandects, in fifty books; containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions, in twelve books; the lapse of a whole century having rendered the former code of Theodosius imperfect. 4. The novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Justinian; which, however, fell soon into neglect and oblivion, till about the year 1130, when a copy of the digests was found at Amalfi, in Italy; which accident, concurring with the policy of the Roman ecclesiastics,(w) suddenly gave new vogue and authority to the civil law, introduced it into several nations, and *
The canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy see; all which lay in the same disorder and confusion as the Roman civil law, till, about the year 1151, one Gratian, an Italian monk, animated by the discovery of Justinian’s pandects, reduced the ecclesiastical constitutions also into some method, in three books, which he entitled Concordia Discordantium Canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX., were published in much the same method, under the auspices of that pope, about the year 1230, in five books, entitled Decretalia Gregorii Noni. A sixth book was added by Boniface VIII. about the year 1298, which is called Sextus Decretalium. The Clementine constitutions, or decrees of Clement V., were in like manner authenticated in 1317, by his successor John XXII., who also published twenty constitutions of his own, called the Extravagantes Joannis, all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes, in five books, called Extravagantes Communes: and all these together, Gratian’s decree, Gregory’s decretals, the sixth decretal, the Clementine constitutions, and the extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.
Besides these pontifical collections, which, during the times of popery, were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of natural canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church *
As for the canons enacted by the clergy under James I. in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity,(z) whatever regard the clergy may think proper to pay them.22
There are four species of courts in which the civil and canon laws are permitted, under different restrictions, to be used: 1. The courts of the archbishops and bishops, and their derivative officers, usually called in our law courts Christian, curiæ Christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom, corroborated in the latter instance by act of *
1. And, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and, in case of contumacy, to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.
2. The common law has reserved to itself the exposition of all such acts of parliament as concern either the extent of these courts, or the matters depending before them. And therefore, if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king’s courts at Westminster will grant prohibitions to restrain and control them.
3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own.—And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate, and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king’s ecclesiastical, the king’s military, the king’s maritime, or the king’s academical laws.
The manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. At present we will only take notice of the different kinds of statutes, and of some general rules with regard to their construction.(c)
First, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an *
Statutes also are either declaratory of the common law, or remedial of some defects therein.24 Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2, doth not make any new species of treasons, but only, for the benefit of the subject, declares and enumerates those several kinds of offence which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever. And this being done, either by enlarging the common law, where it was too narrow and circumscribed, or by restraining it *
Secondly, the rules to be observed with regard to the construction of statutes are principally these which follow.26
1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy.(e) Let us instance again in the same restraining statute of 13 Eliz. c. 10: By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors; the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives, or twenty-one years. Now, in the construction of this statute, it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop’s continuance in his see; or, if made by a dean and chapter, they are not void during the continuance of the dean; for the act was made for the benefit and protection of the successor.(f) The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the *
2. A statute, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior.27 So a statute, treating of “deans, prebendaries, parsons, vicars, and others having spiritual promotion,” is held not to extend to bishops, though they have spiritual promotion, deans being the highest persons named, and bishops being of a still higher order.(g)
3. Penal statutes must be construed strictly. Thus the statute 1 Edw. VI. c. 12, having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this should not extend to him that should steal but one horse,28 and therefore procured a new act for that purpose in the following year.(h) And, to come nearer our own times, by the statute 14 Geo II. c. 6, stealing sheep, or other cattle, was made felony, without benefit of clergy. But these general words, “or other cattle,” being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found necessary to make another statute, 15 Geo. II. c. 34, extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.29
4. Statutes against frauds30 are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fire, it is then to be taken strictly; but when the statute acts upon the offence, by setting aside the fraudulent transaction,31 here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5, which avoids all gifts of goods, &c. made to defraud creditors and others, was *
5. One part of a statute must be so construed by another, that the whole may (if possible) stand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A and A. has at that time a lease of it for three years: here A. shall hold it for his term of three years, and afterwards it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work and operate upon. But,
6. A saving, totally repugnant to the body of the act, is void. If, therefore, an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A. in the king, saving the right of A.; in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king.(k)33
7. Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon a general principle of universal law, that “leges posteriores priores contrarias abrogant:” consonant to which it was laid down by a law of the twelve tables at Rome, that “quod populus postremum jussit, id jus ratum esto.” But this is to be understood only when the letter statute is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards enacts, that he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end.(l) But if both acts be merely affirmative, *
8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII., declaring the king to be the supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in Queen Elizabeth’s statute, but these acts of King Henry were impliedly and virtually revived.(n)35
9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1, which directs that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder.(o) Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. “When you repeal the *
10. Lastly, acts of parliament that are impossible to be performed are of no validity: and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void.36 I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel.(q) But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.37
These are the several grounds of the laws of England: over and above which, equity is also frequently called in to *
The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either 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 customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.
Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæsar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostile invasions of the Saxons, when the ancient and Christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to Christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the First, who may justly be styled the conqueror of *
It is enacted by this statute 27 Henry VIII., 1. That the dominion of Wales shall be forever united to the kingdom of England. 2. That all Welshmen born shall have the same liberties as other the king’s subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall *
The kingdom of Scotland, notwithstanding the union of the crowns on the accession of their King James VI. to that of England, continued an entirely separate and distinct kingdom for above a century more, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were anciently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an act of parliament 1 Jac. I. c. 1, it is declared, that these two mighty, famous, and ancient kingdoms, were formerly one. And Sir Edward Coke observes,(d) how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their ancient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same; especially as their most ancient and authentic book, called regiam majestatem, and containing the rules of their ancient common law, is extremely similar to that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.3
1. That on the first of May, 1707, and forever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain.
2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.
3. The united kingdom shall be represented by one parliament.
4. There shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed.
9. When England raises 2,000,000l. by a land tax, Scotland shall raise 48,000l.
16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdoms.
18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; though alterable by the parliament of Great Britain. Yet with this caution: that laws relating to public policy are alterable at the discretion of the parliament: laws relating to private right are not to be altered but for the evident utility of the people of Scotland.
23. The sixteen peers of Scotland shall have all privileges of parliament; and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the House of Lords, and voting on the trial of a peer.5
These are the principal of the twenty-five articles of union, which are ratified and confirmed by statute 5 Ann. c. 8, in which statute there are also two acts of parliament recited; the one of Scotland, whereby the church of Scotland, and also the four universities of that kingdom, are established forever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6, whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the same had been altered by parliament at that time,) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick upon Tweed. And it is enacted, that these two acts “shall forever be observed as fundamental and essential conditions of the union.”
Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and essential conditions of the union.”(e) 2. That whatever else may be deemed “fundamental *
The town of Berwick upon Tweed was originally part of the kingdom of Scotland; and, as such, was for a time reduced *
As to Ireland, that is still a distinct kingdom, though a dependent subordinate kingdom. It was only entitled the dominion or lordship of Ireland,(h) and the king’s style was no other than dominus Hiberniæ, lord of Ireland, till the thirty-third year of king Henry the Eighth, when he assumed the *
At the time of this conquest the Irish were governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons.(k) But king John, in the twelfth year of his reign, went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England:(l) which letters patent Sir Edward Coke(m) apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry the Third(n) and Edward the First(o) were obliged to renew the injunction; and at length, in a parliament holden at Kilkenny, 40 Edw. III., under Lionel duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of queen Elizabeth, the *
But as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed that though the immemorial customs, or common law, of England were made the rule of justice in Ireland also, yet no acts of the English parliament, since the twelfth of king John, extended into that kingdom, unless it were specially named, or included under general words, such as “within any of the king’s dominions.” And this is particularly expressed, and the reason given in the year books:(q) “a tax granted by the parliament of England shall not bind those of Ireland, because they are not summoned to our parliament;” and again, “Ireland hath a parliament of its own, and maketh and altereth laws; and our statutes do not bind them, because they do not send knights to our parliament, but their persons are the king’s subjects, like as the inhabitants of Calais, Gascoigne, and Guienne, while they continued under the king’s subjection.” The general run of laws, enacted by the superior state, are supposed to be calculated for its own internal government, and do not extend to its distant dependent countries, which, bearing no part in the legislature, are not therefore in its ordinary and daily contemplation. But, when the sovereign legislative power sees it necessary to extend its care to any of its subordinate dominions, and mentions them expressly by name, or includes them under general words, there can be no doubt but then they are bound by its laws.(r)
But the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and the measure of justice in both kingdoms becoming thence no longer uniform, it was therefore enacted by another of Poynings’ laws,(y) that all acts of parliament before made in England should be of force within the realm of Ireland.(z) But, by the same rule, that no laws made in England, between king John’s time and Poynings’ law, were then binding in Ireland, it follows that no acts of the English parliament, made since the 10 Hen. VII. do now bind the people of Ireland, unless specially named or included under general words.(a) And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, they are bound by such acts of parliament. For this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of this superiority, in the present case, is what we usually call, though somewhat improperly, the right of conquest: a right allowed by the law of nations, if not by that of nature; but which in reason and civil policy can mean nothing more, than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.(b)
Thus we see how extensively the laws of Ireland communicate with those of England: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those in England; a writ of error (in the nature of an appeal) lying from the King’s Bench in Ireland to the King’s Bench in England,(c) as the appeal from the Chancery in Ireland lies immediately to the House of Lords here: it being expressly declared by the same statute, 6 Geo. I. c. 5, that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, “that, though justice be in general administered by courts of their own, yet that the appeal in the last resort ought to be to the courts of the superior state,” is founded upon these two reasons. 1. Because otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. Because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of England.(d)8
With regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the isle of *
And, first, the isle of Man is a distinct territory from England, and is not governed by our laws: neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there.(e) It was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to king John and Henry III. of England, afterwards to the kings of Scotland; and then again to the crown of England: and at length we find king Henry IV, claiming the island by right of conquest, and disposing of it to the Earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to Sir John de Stanley by letters patent 7 Henry IV.(f) In his lineal descendants it continued for eight generations, till the death of Ferdinando Earl of Derby, ad 1594: when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent,(g) the island was seized into the queen’s hands, and afterwards various grants were made of it by king James the First; all which being expired or surrendered, it was granted afresh in 7 Jac. I. to William Earl of Derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. On the death of James Earl of Derby, ad 1735, the male line of Earl William failing, the Duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had been long disused, the Earls of Derby, as Lords of Man, had maintained a sort of royal authority therein; by assenting or *
The islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an ancient book of very great authority, entitled, le grand Coustumier. The king’s writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common Acts of our parliaments, unless particularly named.(k) All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king and council, in the last resort.
Besides these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respect subject to the English laws. Plantations or colonies, in distant *
With respect to their interior polity, our colonies are properly of three sorts. 1. Provincial establishments, the constitutions of which depend on the respective commissions issued by the crown to the governors, and the instructions which usually accompany those commissions; under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the laws of England. 2. Proprietary governments, granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior regalities, and subordinate powers of legislation, which formerly belonged to the owners of counties-palatine: yet still with these express conditions, that the ends for which the grant was made be substantially pursued, and that nothing be attempted which may derogate from the sovereignty of the mother-country. 3. Charter governments, in the nature of civil corporations, with the power of making bye-laws for their own interior regulations, not contrary to the laws of England; and with such rights and authorities as are specially given them in their several charters of incorporation. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or, in some proprietary colonies, by the proprietor,) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England. Their general assemblies, which are their House of Commons, together with their council of state, being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies.12 But it is particularly declared by statute 7 and 8 W. III. c. 22, that *
These are the several parts of the dominions of the crown of Great Britain, in which the municipal laws of England are not of force or authority, merely as the municipal laws of England. Most of them have probably copied the spirit of their own law from this original; but then it receives its obligation, and authoritative force, from being the law of the country.
As to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty’s other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the conqueror brought with him, and held in conjunction with the *
We come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales and Berwick, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shown hereafter; but they are not subject to the common law.(p)14 This main sea begins at the low-water mark. But between the high-water mark and the low-water mark, where the sea ebbs and flows, the common law and admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb.(q)
1. The ecclesiastical division is primarily into two provinces, those of Canterbury and York. A province is the circuit of an archbishop’s jurisdiction. Each province contains divers dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty-one, and York three: besides the bishopric of the isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deaneries, which are the circuit of the archdeacon’s and rural dean’s jurisdiction, of whom hereafter: and every deanery is divided into parishes.(r)
A parish is that circuit of ground which is committed to the charge of one parson or vicar, or other minister having cure of souls therein. These districts are computed to be near ten thousand in number.(s) How ancient the division of parishes is, may at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of Christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some; or if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy, and for other pious purposes, according to his own discretion.(t)
Mr. Camden(u) says, England was divided into parishes by Archbishop Honorius about the year 630. Sir Henry Hobart(w) lays it down, that parishes were first erected by the council of Lateran, which was held ad 1179. Each widely differing *
We find the distinction of parishes, nay, even of mother-churches, so early as in the laws of king Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that is, every man paid his own (as was before observed) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king Edgar,(y) that “dentur omnes decimæ primariæ ecclesiæ ad quam parochia pertinet.” However, if any thane, or great lord, had a church, within his own demesnes, distinct from the mother-church, in the nature of a private chapel; then, provided such church had a cemetery or consecrated place of burial belonging to it, he might allot one-third of his tithes for the maintenance of the officiating minister; but if it had no cemetery, the thane must himself have maintained his chaplain by some other means; for in such case all his tithes were ordained to be paid to the primariæ ecclesiæ or mother-church.(z)
This proves that the kingdom was then generally divided into parishes; which division happened probably not all at once, but by degrees. For it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. *
Thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desert places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extra-parochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them for the general good of the church:(a) yet extra-parochial wastes and marsh-lands, when improved and drained, are by the statute 17 Geo. II. c. 37, to be assessed to all parochial rates in the parish next adjoining. And thus much for the ecclesiastical division of this kingdom.
2. The civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towns. Which division, as it now stands, seems to owe its original to king Alfred,15 who, to prevent *
Tithings, towns, or vills, are of the same signification in law; and are said to have had, each of them, originally a church and celebration of divine service, sacraments, and burials:(e) though that seems to be rather an ecclesiastical, than a civil, distinction. The word town or vill is indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or hath been the see of a bishop; and though the bishopric be dissolved, as at Westminster,16 yet it still remaineth a city.(f) A borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament.(g) Other towns there are, to the number, Sir Edward Coke says,(h) of 8803, which are neither cities nor boroughs; some of which have the privileges of markets and others not; but both are equally towns in law. To several of these towns there are small appendages belonging, called *
As ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by a high constable, or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes.(l)17
The subdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred: the institution of hundreds themselves he rather introduced than invented; for they seem to have obtained in Denmark:(m) and we find that in France a regulation of this sort was made above two hundred years before, set on foot by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in its own division. These divisions were, in that country, as well military as civil, and each contained a hundred freemen, who were subject to an officer called the centenarius, a number of which centenarii were themselves subject to a superior officer called the count or comes.(n) And *
An indefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying a division; but a county, comitatus, is plainly derived from comes, the count of the Franks; that is, the earl, or alderman (as the Saxons called him) of the shire, to whom the government of it was intrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English the sheriff, shrieve, or shire-reeve, signifying the officer of the shire, upon whom, by process of time, the civil administration of it is now totally devolved. In some counties there is an intermediate division between the shire and the hundreds, as lathes in Kent, and rapes in Sussex, each of them containing about three or four hundreds apiece. These had formerly their lathe-reeves, and rape-reeves, acting in subordination to the shire-reeve. Where a county is divided into three of these intermediate jurisdictions, they are called trithings,(p) which were anciently governed by a trithing-reeve. These trithings still subsist in the large county of York, where, by an easy corruption, they are denominated ridings; the north, the east, and the west riding. The number of counties in England and Wales have been different at different times; at present they are forty in England and twelve in Wales.
Three of these counties, Chester, Durham, and Lancaster, are called counties palatine. The two former are such by prescription or immemorial custom, or at least as old as *
Of these three, the county of Durham is now the only one remaining in the hands of a subject; for the earldom of Chester, as Camden testifies, was united to the crown by Henry III., and has ever since given title to the king’s eldest son. And the county palatine, or duchy, of Lancaster, was the property of Henry Bolingbroke, the son of John of Gaunt, at the time when he wrested the crown from king Richard II. and assumed the title of king Henry IV. But he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also; for, as Plowden(a) and Sir Edward Coke(b) observe, “he knew he had the duchy of Lancaster by sure and indefeasible title, but that his title to the crown was not so assured; for that, after the decease of Richard II. the right heir of the crown was in the heir of Lionel, duke of Clarence, second son of Edward III.; John of Gaunt, father to this Henry IV., being but the fourth son.” And therefore he procured an act of parliament, in the first year of his reign, ordaining that the duchy of Lancaster, and all other his hereditary estates, with all their royalties and franchises, should remain to him and his heirs forever; and should remain, descend, be administered, and governed, in like manner as if he never had attained the regal dignity: and thus they descended to his son and grandson, Henry V. and Henry VI., many new territories and privileges being annexed to the duchy by the former.(c) Henry VI. being attainted in 1 Edw. IV. this duchy was declared in parliament *
The Isle of Ely is not a county palatine, though sometimes erroneously called so, but only a royal franchise; the bishop having, by grant of king Henry the First, jura regalia within the Isle of Ely, whereby he exercises a jurisdiction over all causes, as well criminal as civil.(g)
[† ] Read in Oxford at the opening of the Vinerian lectures, 25th October, 1758.
The author had been elected first Vinerian professor the 20th of October previously.
[(a) ]De Legg. 2, 23.
[1 ] In the Great Law enacted by the first General Assembly of Pennsylvania, convened at Chester or Upland, Dec. 4, 1682, containing sixty-one chapters, was one requiring the laws to be taught in the schools of the province and territories.—Gordon’s Hist. of Penna., p. 71; Hazard’s Annals, 634.—Sharswood.
[(b) ] Montesq. Esp. L. l. 11, c. 5.
[(c) ]Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur. Inst. 1. 3. 1.
[2 ] This definition has been much criticized. “Consistently with this, a negro slave on a sugar-estate is free: he may do whatever the laws permit him to do.”—Coleridge. If we read what follows as part of the definition, it evidently contemplates just and equal laws,—equitable rules of action. Civil liberty is the power of doing whatsoever we will, except when restrained by just and equal laws. Political liberty is that condition in which a man’s civil liberty is fully secured. Mr. Justice Coleridge cites, as preferable to the text, the following definition from Locke:—“Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power vested in it; a liberty to follow my own will in all things, when the rule prescribes not, and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man.”—On Government, b. xi. c. 4. Mr. Locke’s definition confounds civil with political liberty, which ought always to be carefully distinguished in discussions upon this subject.—Sharswood.
[(d) ] Education, Sec. 187.
[(e) ]De Legg. 3. 18. Est senatori necessarium nosse rempublicam: idque late patet —genus hoc omne scientiæ, diligentiæ memoriæ est; sine quo paratus esse senator nullo parto potest test.
[(f) ] 2 Rep pref.
[3 ] This assertion, that the law esteems the word of honour of a peer as an obligation equal to another’s oath, is not accurate. In the courts of common law, when a nobleman is examined as a witness, he must be sworn to speak the truth, just as a commoner must But, in courts of equity, peers and peeresses are privileged to put in their answers on their honour only, when others are required to be sworn. And so the members of the House of Peers, when sitting judicially upon the trial of impeachments, are upon their pledge of honour only.
It may be remarked also, as qualifying what is said of the jurisdiction of the House of Peers as the highest court of errors and appeals, that this part of their business is transacted by the Lord Chancellor, and those members, who are lawyers by profession and have filled judicial stations. The lay peers, who attend the sessions, abstain from voting in such cases. Baron Parke was recently raised to the peerage, with the title of Lord Wensleydale, for the avowed purpose of strengthening the legal staff in that body. He was first created a baron for life; but, much dissatisfaction having been expressed at such a precedent, as of a dangerous nature in its tendency to increase the influence of the crown, a patent was issued to him entailing the dignity to him and his heirs male.—Sharswood.
[(g) ]Ff. 1. 2. 2. 43. Turpe esse patricio, et nobili, et causas oranti, jus in quo versareiur ignorare.
[(h) ]Brut. 41.
[4 ] It ought, perhaps, to be added in this place, that, as medical men are frequently required to testify as experts in courts of justice, it is quite important that they should possess at least a knowledge of the general principles of the law which apply to those classes of cases in which they are most liable to be called upon. Such are mental capacity to make contracts, wills, and do other legal acts, or to incur liability for crimes, the causes of death, the period of gestation, and other similar questions. The subject of Medical Jurisprudence, or, as it is perhaps more properly termed, Forensic Medicine, has of late years much attracted the attention of the medical profession, and many works have been prepared and published. One of the latest and best is “Wharton and Stille’s Medical Jurisprudence,” an American work which appears to exhaust all the topics which belong to this title,—a title both in law and medicine, which thus links together these two honourable professions.—Sharswood.
[(i) ]Dedicatio corporis juris civilis. Edit. 1663.
[(k) ] Hale Hist. C. L. c. 2. Selden in Fletam. 5 Rep. Cau drey’s case. 2 Inst. 599.
[5 ] The Rota, or Ruota Romana, is the highest papal court of appeal. It has a collegiate constitution, and consists of twelve prelates. Its jurisdiction extends over all Christendom; and it decides not only spiritual controversies, but questions concerning ecclesiastical benefices. The name is said to be derived from the circumstance that the floor of their hall is overlaid with marble slabs in the form of wheels. Others, however, attribute the name to the fact that in ancient Rome a round public building stood upon the place where this tribunal was first established.
The Imperial Chamber was a court of the German Empire, instituted by the Emperor Maximilian I. in 1495. It had concurrent jurisdiction with the Aulic Council, and was intended, among other things, to adjust the disputes between the different members of the German Empire, and between them and the Emperor. It expired in 1506.—Sharswood.
[(l) ]Tit. VII. Sect. 2 2.
[(m) ]Doctor legum mox a doctoratu dabit operam legibus Anglise, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat. Stat. Eliz. R. C. 14. Cowell, Institut. in proemio.
[(n) ] C. 47.
[(o) ] C. 48.
[(p) ]In Fletam, 7, 7.
[(q) ] Cæsar de Bello Gal. 6, 12.
[(r) ]De Gest. Reg. l. 4.
[(s) ] Dugdale, Orig. Jurid. c. 8.
[(t) ]Les juges sont sages personnes et autentiques,—sicome les archevesques, evesques, les chanoines des eglises cathedraulx, et les autres personnes qui ont dignites in saincte eglise; les abbez, les prieurs conventaulx, et les gouverneurs des eglises, &c. Grand Coustumier, ch. 9.
[(u) ]Circ. ad 1130.
[6 ] The common account of this matter is that this copy of the Pandects was transcribed at Constantinople, in the seventh century, by a Greek scribe. It was discovered at Amalfi, ad 1135, by the Pisans, who took that city. Their ally, Lothaire II., granted them the copy in recompense of their services. On Pisa being taken by the Florentines, ad 1406, it was transported to Florence, rebound in purple, placed in a rich casket in the ancient palace of the republic as a sacred relic, and shown to the curious by the monks or magistrates uncovered. It is supposed that all editions of the Pandects trace their origin to this copy.
M. Savigny contests the whole of this account, and, after examination of the historical evidence produced in its favour, pronounces it unsatisfactory, (Hist. Droit. Rom., vol. ii. c. 15.) Mr. Hallam also gives reasons for doubting it, (Middle Ages, vol. ii. p. 520.) The Florentine manuscript is undoubtedly the oldest in existence; but it appears to be the better opinion that many others were copied from still older ones. They were quoted by John of Chartres, who died ad 1117, by Theobald, Archbishop of Canterbury, and by Vacarius, the first professor of civil law in England, in ad 1140.—Colquhoun’s Summary, vol. i. p. 67.—Sharswood.
[(w) ]LL. Wisigoth. 2, 1, 9.
[(x) ]Capitular. Hludov. Pii. 4, 102.
[(y) ] Selden in Fletam. 5, 5.
[(z) ] Domat’s Treatise of Law, c. 13 9. Epistol. Innocent IV. in M. Paris ad ad 1254.
[(a) ]ad 1138.
[(b) ] Gervas. Dorobern. Act. Pontif. Cantuar. col. 1665.
[(c) ] Rog. Bacon citat. per Selden, in Fletam. 7, 6, in Fortesc. c. 33, and 8 Rep. Pref.
[(d) ] Joan Sarisburiens. Polycrat. 8, 22.
[(e) ]Idem, ibid. 5, 16. Polydor. Virgil. Hist. l. 9.
[(f) ]Stat. Merton. 20. Hen. III. c. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Angus mutare, quæ hucusque usitatæ sunt et approbatæ.
[(g) ] 11 Ric. II.
[(h) ] Selden, Jan. Anglor, l. 2. 43, in Fortesc. c. 33.
[7 ] Mr. F. Hargrave, in his notes to the first volume of Blackstone, has here presented an interesting history of the contests which have existed since this event between the clergy and the common lawyers. He shows that prior to the Reformation the latter kept the ecclesiastics within proper bounds,—that they were prominent actors in the events of the Reformation. Subsequently, if we are to believe Whitelocke’s speech to the House of Commons in 1649, (Parl. Hist. iii. 1341,) the lawyers bore no mean part in the field of battle on the side of the Parliament. “The gown,” says he, “does not abate a man’s courage or his wisdom, or make him less capable of using a sword. You all know this to be true by the great services performed by Lieutenant-General Jones, and Commissary Ireton, and many of the members and other lawyers, who, putting off their gowns when you required it, have served you stoutly and successfully as soldiers, and undergone great dangers and hardships.” He remarks, also, that in the Westminster Assembly, Hale, Maynard, Wilde, Selden, Whitelocke, St. John, and other lawyers, successfully resisted the attempts of the Presbyterians to clothe themselves with the jus divinum, which had just been stripped from the deposed hierarchy.
Bishop Burnet, indeed, seems to have thought that antipathy to the national church is an inseparable characteristic of the lawyers. In his account of the contests between the French bishops and the parliament of Paris, in the beginning of the seventeenth century, is the following passage:—“It has been everywhere observed that no host of men have made head against those things which have been called rights of the church, with more zeal and indignation than lawyers and secular courts. This ecclesiastics impute to their enmity to the church and their envy at her prosperity; lawyers, on the other hand, pretend that their studies carry them further than other men into the discovery of those cheats and late inventions by which the world has been imposed on in former ages.”—(Rights of Princes, ch. 8.)—Sharswood.
[(i) ] Spelman, Concil. ad 1217. Wilkins, vol. 1 p. 574, 599.
[(k) ] Selden, in Fletam. 9, 3.
[(l) ] M. Paris, ad 1254.
[(m) ] There cannot be a stronger instance of the absurd and superstitious veneration that was paid to these laws, than that the most learned writers of the times thought they could not form a perfect character, even of the blessed virgin, without making her a civillian and a canonist; which Albertus Magnus, the renowned Dominican doctor of the thirteenth century, thus proves in his Summa de laudibus christifers virginis (divinum magis quam humanum opus) qu. 23 5. “Item quod jura civilia, et leges, et decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum quod obtineat omnia contra judicem justum et sapientem; secundo, quod contra adversarium astutum et sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra judicem sapientissimum, Dominum; contra adversarium callidissimum diabdum; in causa nostra desperata; sententiam optatam obtinuit.” To which an eminent Franciscan, two centuries afterwards, Bernardinus de Busti, (Mariale, part 4, serm. 9,) very gravely subjoins this note: “Nec videtur incongruum mulieres habere peritiam juris. Legitur enim de uxore Joannis Andreæ glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit.”
[(n) ] Fortesc. de Laud. L. L. c. 23.
[(o) ] This remarkably appeared in the case of the Abbot of Torum, M. 22 Edw. III. 24, who had caused a certain prior to be summoned to answer at Avignon for erecting an oratory contra inhibitionem novi operis: by which words Mr. Selden (in Flet. 8, 5) very justly understands to be meant the title de novi operis nuntiatione both in the civil and canon laws, (Ff. 39, 1, c. 8, 11 and Decretal. not Extrav. 5, 32,) whereby the erection of any new buildings in prejudice of more ancient ones was prohibited. But Skipwith, the king’s sergeant, and afterwards Chief Baron of the Exchequer, declares them to be flat nonsense: “in ceux parolx, contra inhibitionem novi operis, ny ad pas entendment;” and Justice Schardelow mends the matter but little by informing him, that they signify a restitution in their law: for which reason he very sagely resolves to pay no sort of regard to them. “Ceo n’est que un restitution en lour ley, pur que a ceo n’avomus regard, &c.”
[(p) ] C. 11.
[(q) ]Glossar. 334.
[(r) ] Fortesc. c. 48.
[(s) ] Apprentices or narristers seem to have been first appointed by an ordinance of king Edward the First in parliament, in the 20th year of his reign. Spelm. Gloss. 37. Dugdale, Orig. Jurid. 55.
[(t) ] The first mention which I have met with in our lawbooks of serjeants or countors is in the statute of Westm. 1, 3 Edw. I. c. 29, and in Horn’s Mirror, c. 1 10, c. 2, 5 c. 3, 1, in the same reign. But M. Paris, in his life of John II., Abbot of St. Alban’s, which he wrote in 1255, 39 Henry III. speaks of advocates at the common law, or countors, (quos banci narratores vulgariter appellamus,)—as of an order of men well known. And we have an example of the antiquity of the coif in the same author’s History of England, ad 1259, in the case of one William de Bussy; who, being called to account for his great knavery and mal-practices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end voluit ligamenta coifæ suæ solvere, ut palam monstraret se tonsuram habere clericalem; sed non est permissus.—Satelles vero eum arripiens, non per coifæ ligamina sed per guttur eum apprehendens, traxit ad carcerem. Hence Sir H. Spelman conjectures (Glossar. 335) that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon.
[(u) ]Ne aliquis scholas regens de legibus in sadem civitate de cætero ibidem leges doceat.
[(w) ]In Flet. 8, 2.
[(x) ] 2 Inst. proem.
[(y) ] C. 49.
[(z) ] 3 Rep. pref.
[(a) ] C. 49.
[8 ] The number was not materially different in the time of Ben Jonson, who has given evidence of their influence and character in the dedication of his comedy of Every Man out of his Humour, which he inscribed “To the noblest nurseries of humanity and liberty in the kingdom,—the Inns of Court.” By humanity is evidently meant classical learning,—a meaning of the word which is now almost lost by disuse. To characterize a law school as the nursery of sound literature and civil liberty is indeed a highly-wrought eulogium of the legal profession,—a tribute, however, which it is believed that its history shows to have been well merited. In the time of Jonson, the Inns of Court were still in a very flourishing condition. In the year 1586, there were in term 1703, out of term 643. There were four Inns of Court,—Gray’s Inn, Lincoln’s Inn, the Middle Temple, and the Inner Temple. These had attached to them certain Inns of Chancery, in all numbering eight. Clifford’s Inn, Clement’s Inn, and Lion’s Inn belonged to the Inner Temple; New Inn, to the Middle Temple; Furnival’s Inn (which has since ceased to exist) and Thavie’s Inn to Lincoln’s Inn, and Staple’s Inn and Barnard’s Inn to Gray’s Inn.
Sir Edward Coke seems to consider the writ of Henry III., mentioned in the text as intended to attack the memory of Magna Charta and the Charter of the Forest, by silencing, in an arbitrary and summary manner, legal teachers who based upon these documents instruction in the laws of England.
It may be doubted whether the opinion of Sir William Blackstone, that the lawyers were collected together at so early a period, will bear examination. Of Lincoln’s Inn Dugdale mentions a tradition as still current among the ancients, that the professors of the law were brought to settle in that place by Henry, Earl of Lincoln, “about the beginning of Edward II.’s time.” This was written more than seventy years after the nineteenth of Henry III. There is an account of Gray’s Inn (formerly the property of the Lords Gray of Wilton) as having been held by lease from them by students of the law, in the time of King Edward III. And Dugdale gives a traditionary account that the temple, having passed to the Knights Hospitallers in the reign of Edward III., came to the lawyers by demise from them.
The word Inns was anciently used to denote town-houses, in which the nobility and gentry resided when they were in attendance at court; and it is frequently employed by the old poets to denote a noble mansion. The Inns of Court were in French termed hostells. In all our Latin records they are called hospitia; while diversoria is the name applied to public lodging-houses, which are now commonly known as inns. The buildings originally purchased for the purposes of these legal societies, having been at the time handsome private residences, still retained in their new use the ancient names by which they were designated. The Middle and Inner Temple were formerly dwellings of the Knights Templars. Lincoln’s and Gray’s Inns anciently belonged to the Earls of Lincoln and Gray. So the names of the several Inns of Chancery are taken from the names of their original proprietors, except New Inn, Staple’s Inn, which belonged to the Merchants of the Staple, and Lion’s Inn, which was a common inn with the sign of a lion.
At a very early period Holborn was a quiet suburban village of London, watered by a little rivulet which descended to the river Fleet, with an extensive prospect of the adjacent country. It was called Old Bourne, from which it derived its modern name. It was in and near this secluded and beautiful spot that the professors and practitioners of the common law of England established their chambers and university. Situated between the city of Westminster, the place of holding the king’s courts, on the one side, and the city of London on the other, they enjoyed the advantage of “ready access to the one and plenty of provisions in the other.” A river separated them from the city, flowing from Battle Bridge past the foot of Holborn Hill, and joining the Thames at Blackfriars. This river was called the Fleet or Swift River, and gave their names to Fleet Street and Fleet Prison.
The Inns of Chancery were originally in fact, what in later years they became only in name,—preparatory seminaries for the study of the grounds and principles of the law. Such men as More, Coke, and Holt were chosen to deliver lectures. They were governed by principals and ancients, elected by the members, exercising their authority in subordination to the benchers of the Inns of Court to which they respectively belonged. The readings, in time, came to be attended with costly entertainments, which eventually led to the suspension of these valuable exercises. The Inns of Court were much celebrated for the magnificence of their revels. The last of these took place in 1773, in the Inner Temple, in honour of Mr. Talbot, when he took leave of that house, of which he was a bencher, on having the Great Seal delivered to him. Something of the same kind was exhibited in Lincoln’s Inn in 1845, on the occasion of the queen’s visit at the opening of the New Hall, when Prince Albert was made a barrister and bencher.
In modern times, lectures and examinations have been reintroduced into these establishments; but attendance upon them is entirely voluntary. To entitle a person to be called, he must keep twelve terms. A term is kept by the student being present at a certain number of dinners, generally five in each term. He must also have gone nine times through a certain ceremony which is called performing an exercise. The student is furnished by the steward with a piece of paper, on which is supposed to be written an argument on some point of law; but, owing to the negligence of successive copyists, the writing now consists of a piece of legal jargon wholly unintelligible. When, after dinner, grace has been said, the student advances to the barristers’ table and commences reading from this paper; upon which one of the senior barristers present makes him a bow, takes the paper from him, and tells him that it is quite sufficient. With the payment of the necessary fees and taking certain oaths, the student, having kept his terms and performed his exercises, receives his call to the bar.
“The original institution of the Inns of Court nowhere precisely appears; but it is certain that they are not corporations, and have no charter from the crown. They are voluntary societies, which for ages have submitted to a government analogous to that of the seminaries of learning.”—Lord Mansfield.
The student who desires to be more fully informed on this subject is referred to Dugdale’s Origines Juridicales, Herbert’s Antiquities of the Inns of Court and Chancery, and Pearce’s History of the Inns of Court.
A commission was issued May 8, 1854, by the crown to several distinguished lawyers, to inquire into the arrangements in the Inns of Court and Inns of Chancery for the promoting the study of the law and jurisprudence. Their report was made Aug. 10, 1855, and contains a mass of the most interesting and valuable information, not only in regard to the state, revenues, and management of the institutions, which were the subject of the inquiry, but as to the state of legal education not only in England and Scotland, but in the different countries of Europe and the United States of America. The commissioners recommend that a university be constituted, with the power of conferring degrees in law; the chancellor of the university to be elected for life, the electors being all barristers (including serjeants) and masters of law; the senate, consisting of thirty-two members, to be elected eight by each Inn of Court. They contemplate a preliminary examination prior to admission as a student, unless in the case of one who has obtained the degree of Bachelor of Arts, or Master or Bachelor in Law, at some university within the British dominions; and that no person shall be called to the bar without having passed an examination satisfactory in at least one subject of each of the following two branches: First branch: a, constitutional law and legal history; b, jurisprudence; c, the Roman civil law. Second branch: a, common law; b, equity; c, the law of real property.—Sharswood.
[(b) ] 3 Rep. pref.
[(c) ] Lord Chancellor Clarendon, in his dialogue of education, among his tracts, p. 325, appears to have been very solicitous, that it might be made “a part of the ornament of our learned academies, to teach the qualities of riding, dancing, and fencing, at those hours when more serious exercises should be intermitted.”
[(d) ] By accepting in full convocation the remainder of Lord Clarendon’s history from his noble descendants, on condition to apply the profits arising from its publication to the establishment of a manege in the university.
[9 ] This brief eulogium upon the science of the laws has been the subject of deserved admiration. We may add to it the following, which have been equally celebrated:—
“Of law there can be no less acknowledged than that her seat is the bosom of God her voice the harmony of the world. All things in heaven and earth do her homage,—the very least as feeling her care, the greatest as not exempted from her power: both angels and men and creatures, of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.”—Hooker’s Eccl. Pol.
“I might instance in other professions the obligation men lie under of applying to certain parts of history; and I can hardly forbear doing it in that of the law,—in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most pernicious. A lawyer now is nothing more, (I speak of ninety-nine in a hundred at least,) to use some of Tully’s words, ‘Nisi leguleius quidam cautus, et acutus præco actionum, cantor formularum, auceps syllabarum.’ But there have been lawyers that were orators, philosophers, historians. There have been Bacons and Clarendons. There will be none such any more till, in some better age, true ambition or the love of fame prevails over avarice, and till men find leisure and encouragement to prepare themselves for the exercise of this profession by climbing up to the vantage-ground—so my Lord Bacon calls it—of science, instead of grovelling all their lives below in a mean but gainful application to all the little arts of chicane. Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions; and, whenever it happens, one of the vantage-grounds to which men must climb is metaphysical, and the other historical, knowledge. They must pry into the secret recesses of the human heart and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws; and they must trace the laws of particular states—especially of their own—from the first rough sketches to the more perfect draughts,—from the first causes or occasions that produced them, through all the effects, good and bad, that they produced.”—Bolingbroke:Study of History.
“Law,” said Dr. Johnson, “is the science in which the greatest powers of the understanding are applied to the greatest number of facts.” “And no one,” said Sir James Mackintosh, “who is acquainted with the variety and multiplicity of the subjects of jurisprudence, and with the prodigious powers of discrimination employed upon them, can doubt the truth of this observation.”
“The science of jurisprudence is the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns. One of the first and noblest of human sciences,—a science which does more to quicken and invigorate the human understanding than all other kinds of human learning put together; but it is not apt, except in persons very happily born, to open and liberalize the mind exactly in the same proportion.”—Edmund Burke.
“There is not, in my opinion, in the whole compass of human affairs so noble a spectacle as that which is displayed in the progress of jurisprudence; where we may contemplate the cautious and unwearied exertions of wise men through a long course of ages, withdrawing every case, as it arises, from the dangerous power of discretion and subjecting it to inflexible rules, extending the dominion of justice and reason, and gradually contracting within the narrowest possible limits the domain of brutal force and arbitrary will.”—(Sir James Mackintosh.)—Sharswood.
[(e) ] Τελεια μαλιστα αρετη, δτι της τελειας αρετης χρησις εστι. Ethic. ad Nicomach. l. 5, c. 3.
[(f) ] See the Preface to the 18th volume of his abridgment.
[(g) ] Mr. Viner is enrolled among the public benefactors of the university by decree of convocation.
[(h) ] Mr. Viner died June 5, 1756. His effects were collected and settled, near a volume of his work printed, almost the whole disposed of, and the accounts made up, in a year and a half from his decease, by the very diligent and worthy administrators, with the will annexed, (Dr. West and Dr. Good, of Magdalene; Dr. Whaley, of Oriel; Mr. Buckler, of All Souls; and Mr. Betts, of University college;) to whom that care was consigned by the university. Another half year was employed in considering and setting a plan of the proposed institution, and in framing the statutes thereupon, which were finally confirmed by convocation on the 3d of July, 1758. The professor was elected on the 20th October following, and two scholars on the succeeding day. And, lastly, it was agreed at the annual audit in 1761, to establish a fellowship; and a fellow was accordingly elected in January following. The residue of this fund, arising from the sale of Mr. Viner’s abridgment, will probably be sufficient hereafter to found another fellowship and scholarship, or three more scholarships, as shall be thought most expedient.
[(i) ] The statutes are in substance as follows:—
1. That the accounts of this benefaction be separately kept, and annually audited by the delegates of accounts and professor, and afterwards reported to convocation.
2. That a professorship of the laws of England be established, with a salary of two hundred pounds per annum; the professor to be elected by convocation, and to be at the time of his election at least a master of arts or bachelor of civil law in the university of Oxford, of ten years’ standing from his matriculation: and also a barrister at law, of four years’ standing at the bar.
3. That such professor (by himself, or by deputy to be previously approved by convocation) do read one solemn public lecture on the laws of England, and in the English language, in every academical term, at certain stated times previous to the commencement of the common law term, or forfeit twenty pounds for every omission to Mr. Viner’s general fund: and also (by himself or by deputy to be approved, if occasional, by the vice-chancellor and proctors; or, if permanent, both the cause and the deputy to be annually approved by convocation,) do yearly read one complete course of lectures on the laws of England, and in the English language, consisting of sixty lectures at the least, to be read during the university term time, with such proper intervals, that not more than four lectures may fall within any single week; that the professor do give a month’s notice of the time when the course is to begin, and do read gratis to the scholars of Mr. Viner’s foundation; but may demand of other auditors such gratuity as shall be settled from time to time by decree of convocation, and that for every of the said sixty lectures omitted, the professor, on complaint made to the vice-chancellor within the year, do forfeit forty shillings to Mr. Viner’s general fund, the proof of having performed his duty to lie upon the said professor.
4. That every professor do continue in his office during life, unless in case of such misbehaviour as shall amount to banuition by the university statutes, or unless he deserts the profession of the law by betaking himself to another profession; or unless, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omission; in any of which cases he be deprived by the vice-chancellor, with consent of the house of convocation.
5. That such a number of fellowships, with a stipend of fifty pounds per annum, and scholarships with a stipend of thirty pounds, be established, as the convocation shall from time to time ordain, according to the state of Mr. Viner’s revenues.
6. That every fellow be elected by convocation, and at the time of election be unmarried, and at least a master of arts or a bachelor of civil law, and a member of some college or hall in the university of Oxford; the scholars of this foundation, or such as have been scholars, (if qualified and approved of by convocation,) to have the preference: that if not a barrister when chosen, he be called to the bar within one year after his election; but do reside in the university two months in every year, or, in case of non-residence, do forfeit the stipend of that year to Mr. Viner’s general fund.
7. That every scholar be elected by convocation, and at the time of election be unmarried, and a member of some college or hall in the university of Oxford, who shall have been matriculated twenty-four calendar months at the least; that he do take the degree of bachelor of civil law with all convenient speed (either proceeding in arts or otherwise); and previous to his taking the same, between the second and eighth year from his matriculation, be bound to attend two courses of the professor’s lectures, to be certified under the professor’s hand; and within one year after taking the same to be called to the bar; that he do annually reside six months, till he is of four years’ standing, and four months from that time till he is master of arts or bachelor of civil law; after which he be bound to reside two months in every year; or, in case of non-residence, do forfeit the stipend of that year to Mr. Viner’s general fund.
8. That the scholarships do become void in case of non-attendance on the professor, or not taking the degree of bachelor of civil law, being duly admonished so to do by the vice-chancellor and proctors; and that both fellowships and scholarships do expire at the end of ten years after each respective election; and become void in case of gross misbehaviour, non-residence for two years together, marriage, not being called to the bar within the time before limited, (being duly admonished so to be by the vice-chancellor and proctors,) or deserting the profession of the law by following any other profession; and that in any of these cases the vice-chancellor, with consent of convocation, do declare the place actually void.
9. That in case of any vacancy of the professorship, fellowships, or scholarships, the profits of the current year be ratably divided between the predecessor, or his representatives, and the successor; and that a new election be had within one month afterwards, unless by that means the time of election shall fall within any vacation, in which case it be deferred to the first week in the next full term. And that before any convocation shall be held for such election, or for any other matter relating to Mr. Viner’s benefaction, ten days’ public notice be given to each college and hall of the convocation, and the cause of convoking it.
[(k) ] See Lord Bacon’s proposals and offer of a digest.
[10 ] Hitherto, however, the study of the law at the English universities has not been cultivated with much success, even where facilities have been afforded to it. In 1758 a professorship of law was founded under the will of Mr. Viner, and Blackstone was the first Vinerian professor. The professorship, although commenced under such brilliant auspices, has, according to Mr. Christian, long sunk into the inglorious duty of receiving the stipend. But the report of the Oxford University commission gives strong reason for expecting, not only an active revival of the duties of that learned professor, but also the establishment of a law school in the University, on the very principles contended for by Blackstone. From the Downing professorship of law at Cambridge, founded in 1800, results equally beneficial may be expected. In the latter university, also, the civil law classes (in which English and international law also find place) have for some years past been working with good results. The evidence taken by the university commissioners is much in favour of the present system; but they recommend a complete fusion of the studies of English civil and international law with a board of legal studies. “The faculty of law,” they say, “should embrace an examination of the principles upon which existing systems of laws are founded, and investigations of the principles on which all laws ought to be founded.” And they are of opinion that the foundation of professional education should be laid at the university. Within the last few years some additional facilities for this study have been afforded in the metropolis. Two professorships of law have been established,—the one at King’s College, the other at the London University, where courses of lectures on various branches of the law are delivered. Law lectures are also regularly given at the Incorporated Law Society.
It has long been much regretted that no part of the resources of the Inns of Court should be devoted to the endowment of lectureships on the various branches of the law, and to a general scheme of legal education. It is to the honour of the present rulers of these institutions that they have at length, and after much deliberation, taken steps to wipe off this stain on the character of the Inns of Court as seminaries of legal learning. A scheme, which, if not so comprehensive as the subject would admit, is an admirable commencement, has been adopted by the Inns of Court, whereby readerships have been established on—1. Constitutional law and legal history; 2. Jurisprudence and the civil law; 3. The law of real property; 4. The common law; and 5. Equity. A year’s attendance at the lectures of the readers is now compulsory on all candidates for the bar who had not, by the first day of Trinity Term, 1852, kept twelve terms. Examinations are held on the subjects lectured upon, and studentships and certificates of merit are conferred. It is to be maturely considered, however, whether these examinations should not be made compulsory before any law degree is conferred.—Stewart.
[(l) ] Sir Henry Spelman, in the preface to his glossary, has given us a very lively picture of his own distress upon this occasion: “Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbarum, methodum inconcinnam, molem non ingentem solum sed perpetuis humeris sustinendam, excidit mihi (fateor) animus. &c.”
[(m) ] The four highest judicial offices were at that time filled by gentlemen, two of whom had been fellows of All Souls College; another, student of Christ Church; and the fourth, a fellow of Trinity College, Cambridge.
[11 ] Lord Northington and Lord Chief-Justice Willes, of All Souls College, Lord Mansfield, of Christ Church, and Sir Thomas Sewall, Master of the Rolls, of Trinity College, Cambridge, then occupied the highest judicial offices.—Sharswood.
[(n) ] See Kennet’s Life of Somner, p. 67.
[(o) ]Ff. 40, 9, 12.
[(p) ] See Lowth’s Oratio Crewiana, p. 365.
[(q) ] The Analysis of the Laws of England, first published ad 1756, and exhibiting the order and principal divisions of the ensuing Commentaries, which were originally submitted to the university in a private course of lectures ad 1753.
[(r) ]Incipientibus nobis exponere jura populi Romani, ita videntur tradi posse commodissime, si primo levi ac simplici via singula tradantur: alioqui, si statim ab initio rudem adhuc et infirmum animum studiosi multitudine ac varietate rerum oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut cum magno labore, sæpe etiam cum diffidentia (quæ plerumque juvenes avertit) serius ad id perducemus ad quod, leviore via ductus, sine magno labore. et sine ulla diffidentie maturius perduci potuisset. Inst. I. 1 2.
[(s) ] Of parliaments, 57.
[(t) ] Dr. Taylor’s Pref. to Elem. of Civil Law.
[(u) ]De Laud. Leg. c. 8.
[12 ] It is proposed to present a few considerations upon the proper mode of training for the practice of the profession of the law in this country. They will be altogether of a practical character.
The bar in the United States is open to all who wish to enter it. It is mostly under the regulation of the various courts, and their rules have been framed upon the most liberal principles. Generally a certain period of study has been prescribed, never, it is believed, exceeding three years. In some States, however, even this restriction is not found. The applicant for admission is examined, as to his knowledge and qualifications either by the courts or by a committee of members of the bar.
The profession is the avenue to political honours and influence. Those who attain eminence in it are largely rewarded, and, with ordinary prudence, cannot fail to accumulate a handsome competence. Hence the young and ambitious are found crowding into it.
There is a great—perhaps an overdue—haste in American youth to enter upon the active and stirring scenes of life. Hence it is undoubtedly true that many men are to be found in the ranks of the profession without adequate preparation. Very often the difficulties presented by the want of a suitable education are overcome by native energy, application, and perseverance; but more commonly they prevent permanent success, and confine the unlettered advocate to the lower walks of the profession, which promise neither profit nor honour. Unless in cases of extraordinary enthusiasm and where there are evident marks of bright natural talents, a young man without the advantages of education should be discouraged from commencing the study of the law. Not that a collegiate or classical course of training should be insisted on as essential,—although it is, doubtless, of the highest importance. Classical studies are especially calculated to exercise the mental faculties in habits of close investigation and searching analysis, as well as to form the taste upon models of the purest eloquence. The orators and historians of Greece and of Rome are a school in which exalted patriotism, high-toned moral feeling, and a generous enthusiasm can be most successfully cultivated. With a good English education, however, many a man has made a respectable figure at the bar.
Lord Campbell has said that “he who is not a good lawyer before he comes to the bar will never be a good one after it.” It is, no doubt, highly necessary that the years of preparation should be years of earnest, diligent study; but it is entirely too much to say, with us, that a course of three years’ reading, at so early a stage, will make a good lawyer. In truth, the most important part of every lawyer’s education begins with his admission to practice. He that ceases then to follow a close and systematical course of reading, although he may succeed in acquiring a considerable amount of practical knowledge, from the necessity he will be under of investigating different questions, yet it will not be of that deep-laid character necessary to sustain him in every emergency. It may be safe, then, to divide the period of a lawyer’s preparation into—first, a course of two or three years’ reading before his admission, and, second, one of five or seven years’ close and continued application after that event.
At the commencement of his studies in the office of his legal preceptor, the cardinal maxim by which he should be governed in his reading should be non multa, sed multum. Indeed, it was an observation of Lord Mansfield, that the quantity of professional reading absolutely necessary, or even really useful, to a lawyer, was not so great as was usually imagined. The Commentaries of Blackstone and of Chancellor Kent should be read, and read again and again. The elementary principles so well and elegantly presented and illustrated in these two justly-celebrated works should be rendered familiar. They form, too, a general plan or outline of the science, by which the student will be able to arrange and systematize all his subsequent acquisitions. To these may be added a few books of a more practical cast; such as Tidd’s Practice, Stephens on Pleading, Greenleaf’s Evidence, Stephens or Leigh’s Nisi Prius, Mitford or Story’s Equity Pleading, which, with such reading of the local law of the State in which he purposes to settle as may be necessary, make up the best part of office-reading. It will be better to have well mastered thus much than to have run over three times as many books hastily and superficially. Let the student often stop and examine himself upon what he has read. It would be an excellent mode of proceeding for him, after having read a lecture or chapter, to lay aside the book and endeavour to commit the substance of it to writing, trusting entirely to his memory for the matter, and using his own language. After having done this, let him reperuse the section, by which he will not only discern what parts have escaped his memory, but the whole will be more certainly impressed upon his mind, and become incorporated with it as if it had been originally his own work. Let him cultivate intercourse with others pursuing the same studies, and converse frequently upon the subject of their reading. The biographer of Lord-Keeper North has recorded of him that “he fell into the way of putting cases, (as they call it,) which much improved him, and he was most sensible of the benefit of discourse; for I have observed him often say that (after his day’s reading) at his night’s congress with his professional friends, whatever the subject was, he made it the subject of discourse in the company; for, said he, I read many things which I am sensible I forgot; but I found, withal, that if I had once talked over what I had read, I never forgot that.”
Much, of course, will depend upon what may be termed the mental temperament of the student himself, which no one can so well observe as his immediate preceptor; and he will be governed accordingly in the selection of the works to be placed in his hands, and his general course of training. No lawyer does his duty who does not frequently examine his student,—not merely as an important means of exciting him to attention and application, but in order to acquire such an acquaintance with the character of his pupil’s mind—its quickness or slowness, its concentrativeness or discursiveness—as to be able to form a judgment as to whether he requires the curb or the spur. It is an inestimable advantage to a young man to have a judicious and experienced friend watching anxiously his progress, and competent to direct him when, if left to himself, he will most probably wander in darkness and danger.
In regard to the more thorough and extended course of reading which may and ought to be prosecuted after admission to the bar, the remarks of one of the most distinguished men, who has ever graced the American bar, whose own example has enforced and illustrated their value, may be commended to the serious consideration of the student. “There are two very different methods of acquiring a knowledge of the laws of England,” says Horace Binney, (art. Edward Tilghman, Encyclopedia Americana, vol. xiv.,) “and by each of them men have succeeded in public estimation to an almost equal extent. One of them, which may be called the old way, is a methodical study of the general system of law, and of its grounds and reasons, beginning with the fundamental law of estates and tenures, and pursuing the derivative branches in logical succession, and the collateral subjects in due order; by which the student acquires a knowledge of principles that rule in all departments of the science, and learns to feel, as much as to know, what is in harmony with the system and what not. The other is, to get an outline of the system, by the aid of commentaries, and to fill it up by desultory reading of treatises and reports, according to the bent of the student, without much shape or certainty in the knowledge so acquired, until it is given by investigation in the courts of practice. A good deal of law may be put together by a facile or flexible man in the second of these modes, and the public are often satisfied; but the profession itself knows the first, by its fruits, to be the most effectual way of making a great lawyer.”
Under this view, the following course of reading may be pursued. The whole subject is divided into heads, and the order of proceeding is suggested. All the books named may not be within the student’s reach: some may be omitted, or others may be substituted. It may, however, be somewhat irksome to pursue any one branch for too long a period unvaried. When that is found to be the case, the last five heads may be adopted as collateral studies, and pursued simultaneously with the first three.
I.Real Estate and Equity.—Hale’s History of the Common Law. Reeves’s History of the English Law. Robertson’s Charles V. Hallam’s Middle Ages. Datrymple on Feudal Property. Wright on Tenures. Finch’s Law. Doctor and Student. Littleton’s Tenures. Coke upon Littleton. Preston on Estates. Fearne on Contingent Remainders. Sheppard’s Touchstone. Preston on Abstracts. Preston on Conveyancing. Jeremy on Equity. Story’s Equity Jurisprudence. Powell on Mortgages. Bacon on Uses. Sanders on Uses and Trusts. Sugden on Powers. Sugden on Vendors and Purchasers. Powell on Devises. Jarman on Wills. Washburn on Real Property.
II.Practice, Pleading, and Evidence.—Sellon’s Practice. Tidd’s Practice. Stephen on Pleading. Williams’s Saunders. Greenleaf on Evidence. Mitford’s Equity Pleading. Barton’s Suit in Equity. Newland’s Chancery. Gresley on Equity Evidence.
III.Crimes and Forfeitures.—Hale’s Pleas of the Crown. Foster’s Crown Law. Yorke on Forfeiture. Coke’s Institutes, Part III. Russell on Crimes and Misdemeanors. Roscoe on Criminal Evidence. Chitty’s Criminal Law. Wharton’s Criminal Law. Bishop’s Criminal Law.
IV.Natural and International Law.—Burlamaqui’s Natural and Political Law, Grotius de Jure Belli et Pacis. Rutherford’s Institutes. Vattel’s Law of Nations. Bynkershoeck Quæstiones Publici Juris. Wicquefort’s Ambassador. Bynkershoeck de Foro Legatorum. Mackintosh’s Discourse. Wheaton’s History of International Law. Robinson’s Admiralty Reports. Cases in the Supreme Court U. S. Dunlap’s Admiralty Practice.
V.Constitutional Law.—Coke’s Institutes, Part II. Hallam’s Constitutional History. Wynne’s Eunomus. De Lolme, with Stephens’s Introduction. The Federalist. Rawle on the Constitution. Story on the Constitution. Baldwin’s Constitutional Views. Upshur’s Brief Enquiry. Calhoun’s Works, vol. i. All the Cases on the Subject in the S. C. U. S.
VI.Civil Law.—Butler’s Horæ Juridicæ. Gibbon’s History of the Rise and Fall, chap. 44. Justinian’s Institutes. Taylor’s Elements. Mackeldy’s Compendium. Colquhoun’s Summary. Domat’s Civil Law. Savigny’s Histoire du Droit Romain. Savigny’s Traité du Droit Romain.
VII.Persons and Personal Property.—Reeves on Domestic Relations. Bingham on Infancy and Coverture. Roper on Husband and Wife. Angell and Ames on Corporations. Pothier’s Works. Smith on Contracts. Jones on Bailments. Story on Bailments. Story on Partnerships. Byles on Bills. Abbott on Shipping. Duer on Insurance. Emerigon Traité des Assurances. Boulay-Paty Cours de Droit Commercial. Story on the Conflict of Laws. Parsons on Contracts. Parsons’s Elements of Mercantile Law. Parsons on Shipping, Insurance, and Admiralty; being a Treatise on Maritime Law. Phillips on Insurance.
VIII.Executors and Administrators.—Roper on Legacies. Toller on Executors. Williams on Executors. Lovelass’s Law’s Disposal.
Very few Report books are set down in this list as to be read in course. In his regular reading, the student should constantly, where it is in his power, resort to and examine the leading cases referred to and commented upon by his authors. In this way he will read them more intelligently, and they will be better impressed on his memory.
It is believed that the course thus sketched, if steadily and laboriously pursued, will make a very thorough lawyer. There is certainly nothing in the plan beyond the reach of any young man with industry and application, in a period of from five to seven years, with a considerable allowance for the interruptions of business and relaxation. He must have, however, certain fixed and regular hours for his law-studies, and he must not suffer the charms of a light literature to allure him aside. The fruits of study cannot be gathered without its toil. In the law, a young man must be the architect of his own character, as well as of his fortune. “The profession of the law,” says Mr. Ritso, “is that, of all others, which imposes the most extensive obligations upon those who have had the confidence to make choice of it; and, indeed, there is no other path of life in which the unassumed superiority of individual merit is more conspicuously distinguished according to the respective abilities of the parties. The laurels that grow within these precincts are to be gathered with no vulgar hands: they resist the unhallowed grasp, like the golden branch with which the hero of the Æneid threw open the adamantine gates that led to Elysium.”—Sharswood.
[1 ] This, perhaps, is the only sense in which the word law can be strictly used; for in all cases where it is not applied to human conduct, it may be considered as a metaphor, and in every instance a more appropriate term may be found. When it is used to express the operations of the Deity or Creator, it comprehends ideas very different from those which are included in its signification when it is applied to man, or his other creatures. The volitions of the Almighty are his laws: he had only to will, ?ως γενεσθω και εγενετι. When we apply the word law to motion, matter, or the works of nature or of art, we shall find in every case, that with equal or greater propriety and perspicuity we might have used the words quality, property, or peculiarity.—We say that it is a law of motion, that a body put in motion in vacuo must forever go forward in a straight line with the same velocity; that it is a law of nature, that particles of matter shall attract each other with a force that varies inversely as the square of the distance from each other; and mathematicians say, that a series of numbers observes a certain law, when each subsequent term bears a certain relation or proportion to the preceding term: but, in all these instances, we might as well have used the word property or quality, it being as much the property of all matter to move in a straight line, or to gravitate, as it is to be solid or extended; and when we say that it is the law of a series that each term is the square or square-root of the preceding term, we mean nothing more than that such is its property or peculiarity. And the word law is used in this sense in those cases only which are sanctioned by usage; as it would be thought a harsh expression to say, that it is a law that snow should be white, or that fire should burn. When a mechanic forms a clock, he establishes a model of it either in fact or in his mind, according to his pleasure; but if he should resolve that the wheels of his clock should move contrary to the usual rotation of similar pieces of mechanism, we could hardly with any propriety established by usage apply the term law to his scheme. When law is applied to any other object than man, it ceases to contain two of its essential ingredient ideas, viz. disobedience and punishment.
Hooker, in the beginning of his Ecclesiastical Polity, like the learned judge, has with incomparable eloquence interpreted law in its most general and comprehensive sense. And most writers who treat law as a science begin with such an explanation. But the editor, though it may seem presumptuous to question such authority, has thought it his duty to suggest these few observations upon the signification of the word law.—Christian.
It has been objected that law, in its proper sense, is confined to the conduct of intelligent beings. It is to be observed, however, that we apply the term in the English language to any rule whatever which we conceive to have been established by a superior. In this sense, all the operations of nature may be considered as the result of certain rules laid down by the Supreme Being in creation; in other words, that every existence, spiritual, animal, vegetable, or mineral, had impressed upon it certain rules of action. They may be called qualities, properties, or peculiarities; but, considering them all as the work of an Almighty Creator, it is perfectly accurate and most proper to call them laws. By the use of this word we keep constantly in mind, as we ought, that the universe was not the result of a blind chance, but the work of Intelligence. A perfectly correct, as well as most general, definition of the word law is, the command of a superior.
In most languages there are two words,—one expressive of law in its general or abstract, and another in its concrete, sense. Thus, in Latin, jus expresses the former, lex the latter; in French, droit and loi; in German, recht and gesetz. The word right, in English, might be adopted for the abstract sense of law; but it has not been. Usus non jus facit norma loquendi. Considering the word law as comprehending this general and abstract sense, there is no objection to the text.—Sharswood.
[2 ] The laws of our moral being are the necessary relations sustained by us to our Maker and to other beings. The existence of a Supreme Being—a Spirit infinite, eternal, omniscient, omnipotent—is a first truth of moral science. It may be assumed safely as an admitted truth. Having created us such as we are, our relations to him and to one another arose not from his will, but from those eternal principles of rectitude which were coeternal with his will. “Erat enim ratio profecta a rerum natura et ad recti faciendum impellens, et a delicto avocans; quæ tum denique incepit lex esse non cum scripta est, sed tum, cum orta est; orta autem simul est cum mente divina.”—Cic. de Legg., I. ii. s. 4. The same may be affirmed of other than moral relations. We may say without the slightest irreverence that, having created things having extension, God could not make two things, both equal to a third, which would not at the same time be equal to one another. There is, in like manner, an inherent difference between right and wrong, independently of the will of any being. God himself cannot make right wrong or wrong right. Right and wrong are eternal as the Deity. They depend upon the relations of moral beings; and, even before such beings were created, those relations existed in possibility, though not in act. The will of God existed coeternally with himself; and that will, infinitely perfect and incorrupt, never could do else than choose the right and refuse the wrong. Right and wrong are not created existences, but the moral qualities of created existences.
It may well be questioned, then, whether the learned commentator, in starting with the assertion that the law of nature is the will of the Creator, has not assumed an erroneous principle as the foundation of his reasoning. In his sense, the law of nature denotes “the rules of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.” It is clear that this law respects entirely the question of what is right and wrong. It is true that, in willing to create moral beings, our Maker knew what their necessary relations both to himself and each other would be; and, in a secondary sense, he may be said to have willed the existence of those relations. But this is an entirely different thing from the idea that the rules of right and wrong resulting from those relations were simple creations of his will; for that implies that he might have made them other than they are.—Sharswood.
[(a) ]Juris præcepta sunt hæc, honeste vivere, alterum non lædere, suum cuique tribuere. Inst. I. i. 3.
[3 ] It is rather remarkable, that both Harris, in his translation of Justinian’s Institutes, and the learned Commentator, whose profound learning and elegant taste in the classics no one will question, should render in English, honeste vivere, to live honestly. The language of the Institutes is far too pure to admit of that interpretation; and besides, our idea of honesty is fully conveyed by the words suum cuique tribuere. I should presume to think that honeste vivere signifies to live honourably, or with decorum, or bienséance; and that this precept was intended to comprise that class of duties of which the violations are ruinous to society, and not by immediate but remote consequences, as drunkenness, debauchery, profaneness, extravagance, gaming, &c.—Christian.
[4 ] There is in every moral being a faculty or sense by which he is enabled to distinguish right from wrong. There have been a great number of theories among those who have rejected the doctrine of a moral sense. They have succeeded each man in showing every other theory but his own to be baseless. The reductio ad absurdum of every other system, which ingenuity has ever framed; would alone seem to leave the advocates of a moral sense in possession of the field. The appeal, after all, must be made to every man’s consciousness. And why not? Every other faculty is proved in the same way. Let any one attempt to demonstrate that there is in men a natural taste for beauty. He will be met by precisely the same course of argument as that which attacks the existence of the moral sense, or, as it may well be termed, the taste for moral beauty. All men have it not in the same perfection. In some it is undeveloped, in some it is corrupted. Indeed, the same objections may be urged against the perceptions of the palate or of any other natural sense. That some men love the taste of tobacco by no means proves that there is not a natural faculty in all men which distinguishes between the qualities of sweet and bitter.
The commentator appears to have adopted the idea that utility is the standard of right and wrong; in other words, that we are determined in our judgment of the moral qualities of an action solely by a consideration of its effect on our happiness. Such a doctrine contradicts the common sense and feeling of mankind. If a gross instance of ingratitude to a benefactor—of filial impiety—of marital cruelty—is presented to the mind, no man stops to estimate its consequences before pronouncing judgment of condemnation or feeling a sense of detestation. If a grovelling miser were robbed of his treasure by a philanthropist in order to devote every cent of it to the relief of suffering humanity, nay, though the result should be peace and joy to many families, without one element of unhappiness to the sordid wretch whose property was thus wrested from him, the common sense and feeling of mankind would condemn the act as wrong. It would be right on the utilitarian scheme, even if you give the widest scope to the idea of utility, as Archdeacon Paley has done; for even the precedent, if we confine its authority (as all precedents must be) to the very case given, would not be bad.
“According to this view,” says the Rev. Dr. Alexander, “unless a man is persuaded that he shall gain something by keeping his word, he is under no obligation to do it. Even if God should clearly make known his will and lay upon him his command, he is under no obligation to obey, unless certain that he shall receive benefit by so doing. This is, indeed, to make virtue a mercenary thing and reduce all motives to a level. And, as self-love or the desire of happiness is the only rational motive, (and all men possess this in a sufficient degree of strength,) the only conceivable difference between the good and the bad consists in the superior sagacity which the one has above the other to discern what will most contribute to happiness. And if what we call vice or sin could be made to contribute to happiness, then it would change its nature and become virtue.”—Elements of Moral Science, p. 57.
Right and wrong, indeed, are words which are often employed in common speech in a much larger sense than is attached to them by moral science; and it is necessary to distinguish this popular from their strictly philosophical meaning. Right, in this popular sense, is synonymous with expediency,—fitness to an end. In the strict sense of the word, as a moral quality, right is conformity to that rule of moral conduct which the conscience approves; wrong, that which it disapproves. It is not the conscience, but the understanding, which is called into exercise when we judge of questions of expediency or utility,—of the fitness of certain things or actions to certain ends. That feeling of complacency which, in its higher or lower degrees, we term admiration or approbation, must always accompany a judgment of moral right; detestation or disapprobation, a judgment of moral wrong.—Sharswood.
[5 ] Mr. Justice Coleridge remarks that he understands the author to mean by this merely that a human law against the law of nature has no binding force on the conscience, and that if a man submits to the penalty of disobedience he stands acquitted; and that, in this sense, the position seems unquestionable. He subsequently states that the burden of proof and the moral responsibility in case of error lie on him who disobeys; that is, on him who sets up his own understanding of the divine law as a ground in conscience for refusing to submit to the lawfully-constituted legislature of the country.
It appears to me, however, that, in such a case, the subject or citizen has only one of two alternatives: revolution,—an appeal to the ultimate power which exists in every society, after he has tried all the ordinary forms of the constitution to obtain a repeal of the obnoxious law,—or removal to another country. I cannot agree that when a law, decided to be constitutional, is in full force, its provisions can be conscientiously violated, even though its penalty be submitted to. It may be necessary to do so for a time, and such necessity may afford a sufficient justification in foro conscientiæ. I do not say that a man’s circumstances, and especially his relation to his family, may not be such as to make this justification permanently a good one. All I mean to say is that he ought not voluntarily to place himself, or remain, in such a position.—Sharswood.
[(b) ] Puffendorf, l. 7, c. 1, compared with Barbeyrac’s Commentary.
[(c) ]Ff. i. 1, 9.
[7 ] The law of nature, or morality, which teaches the duty towards one’s neighbour, would scarce be wanted in a solitary state, where man is unconnected with man. A state of nature, to which the laws of nature, or of morals, more particularly refer, must signify the state of men, when they associate together previous to, or independent of, the institutions of regular government. The ideal equality of men in such a state no more precludes the idea of a law, than the supposed equality of subjects in a republic. The superior, who would prescribe and enforce the law in a state of nature, would be the collective force of the wise and good, as the superior in a perfect republic is a majority of the people, or the power to which the majority delegate their authority.—Christian.
Modern writers have agreed that the term International Law is more proper than Law of Nations. Jus gentium is rather what Adam Smith has called natural jurisprudence, which he says is “a theory of the principles which ought to run through, and to be the foundation of, the laws of all nations.” The two phrases jus naturæ and jus gentium are used by the Roman lawyers almost indiscriminately. Jus feciale more properly was employed to express among the Romans what we mean by the law of nations. They had a college of heralds, by whose ministry the declaration of war was always announced to the enemy, and by whom occasionally, no doubt, questions connected with the relation of states were considered. The history of Rome is a history of continual wars. From Numa to Augustus, the gates of the temple of Janus were never closed. Hence most of the questions which arose must necessarily have been connected with a state of war. On the other hand, the definition of jus gentium by the Digest is, Quod naturalis ratio inter omnes homines constituit, idque apud omnes peræque custoditur vocaturque jus gentium.—Dig. i. 9. What is termed the Law of Nations was more accurately called the jus inter gentes—the law between or among nations—by Dr. Zouch, an English civilian, distinguished in the celebrated controversy between the civil and common lawyers, during the reign of Charles II., as to the extent of the admiralty jurisdiction. He suggested this term as more appropriate to express the real scope and object of the law. An equivalent term in the French language was subsequently proposed by Chancellor D’Aguesseau, as better adapted to express the idea properly annexed to that system of jurisprudence commonly called le droit des gens, but which, according to him, ought to be called le droit entre les gens. The term International Law has since been advocated by Mr. Bentham, as well adapted to express in our language, “in a more significant manner, that branch of jurisprudence which goes under the name of law of nations,—a denomination [he remarks] so uncharacteristic, that, were it not for the force of custom, it would rather seem to refer to internal or municipal jurisprudence.” The terms International Law and Droit international have now taken root in our legal nomenclature, and are constantly used in all discussions connected with this important science.—Sharswood.
[(d) ]Inst. i. 2, 1.
[8 ] Though the learned judge treats this as a favourite definition, yet, when it is examined, it will not perhaps appear so satisfactory as the definition of civil or municipal law, or the law of the land, cited above from Justinian’s Institutes, viz. Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est vocaturque jus civile, quasi jus proprium ipsius civitatis.
A municipal law is completely expressed by the first branch of the definition: “A rule of civil conduct prescribed by the supreme power in a state.” And the latter branch, “commanding what is right, and prohibiting what is wrong,” must either be superfluous, or convey a defective idea of a municipal law; for if right and wrong are referred to the municipal law itself, then whatever it commands is right, and what it prohibits is wrong, and the clause would be insignificant tautology. But if right and wrong are to be referred to the law of nature, then the definition will become deficient or erroneous; for though the municipal law may seldom or never command what is wrong, yet in ten thousand instances it forbids what is right.—It forbids an unqualified person to kill a hare or a partridge; it forbids a man to exercise a trade without having served seven years as an apprentice; it forbids a man to keep a horse or a servant without paying the tax. Now all these acts were perfectly right before the prohibition of the municipal law. The latter clause of this definition seems to have been taken from Cicero’s definition of a law of nature, though perhaps it is there free from the objections here suggested: Lex est summa ratio insita à naturâ quæ jubet ea, quæ facienda sunt prohibetque contraria.—Cic. de Leg. lib. i. c. 6.
The description of law given by Demosthenes is perhaps the most perfect and satisfactory that can either be found or conceived: Ο? δ? ν?μοι τ? δ?καιον κα? τ? καλ?ν κα? τ? συμφ?ρον βο?λονται, κα? το?το ζητο?σι. κα? ?πειδ?ν ε?ρεθ?, κοιν?ν το?το πρ??αγμα ?πεδε?χθν, π?σιν ?σον κα? ομοιον. κα? το?τ’, ??ι ·ν?μος, ? π?ντας προσ?κει πε?θεσθαι δι? πολλ? κα? μ?λισθ’, ?τι π?ς ??ι ν?μος ε?ρημα μ?ν κα? δ?ρον θε?ν, δ?γμα δ’ ?νθρ?πον ?ρον?μων, ?παν?ρθωμα δε των ?κουσ?ων κα? ?κουσ?ων ?μαρτνμ?των, π?λεως δ? συιθ?κη κοιν?· καθ ?ν π?σι προσ?κει ζ?ν το?ς ?ν τ? π?λει. “The design and object of the laws is to ascertain what is just, honourable, and expedient; and, when that is discovered, it is proclaimed as a general ordinance, equal and impartial to all. This is the origin of law, which, for various reasons, all are under an obligation to obey; but especially because all law is the invention and gift of heaven, the sentiment of wise men, the correction of every offence, and the general compact of the state; to live in conformity with which is the duty of every individual in society.”—Orat. 1, cont. Aristogit.—Christian.
It has been justly observed that the last clause of this definition is surplusage, if the meaning be that what the law commands is therefore right, and what it prohibits wrong. But mere law, the command of a superior, cannot per se annex the moral quality of right or wrong to the action in itself considered, commanded or prohibited. Right or wrong are abstract moral qualities, resulting necessarily from the relations of persons or things. No law can make that right which is itself wrong. The definition of Cicero certainly avoids this objectionable feature of Blackstone’s language:—Lex est summa ratio insita à naturâ, quæ jubet ea, quæ facienda sunt prohibetque contraria. If the definition of the text were modified so as to conform to this idea, it would be better:—“Municipal law is a rule of civil conduct prescribed by the supreme power in a state, commanding what is to be done, and forbidding the contrary.”—Sharswood.
[9 ] The act to confiscate the goods of Titius would, in Latin, be lex, not jus; in French, loi, not droit; in English, however, it is called law. Public and private acts of the legislature are indiscriminately termed laws.—Sharswood.
[(e) ] Such laws among the Romans were denominated privilegia,* or private laws, of which Cicero (de leg. 3, 19, and in his oration, pro domo, 17) thus speaks: “Vetant leges sacratæ, vetant duodecim tabulæ, leges privatis homimbus irrogari; id enim est privilegium. Nemo unquam tulit nihil est crudelius, nihil perniciosius, nihil quod minus hæc civitas ferre possit.”
[* ] An ex post facto law may be either of a public or of a private nature; and when we speak generally of an ex post facto law, we perhaps always mean a law which comprehends the whole community.
The Roman privilegia seem to correspond to our bills of attainder, and bills of pains and penalties, which, though in their nature they are ex post facto laws, yet are never called so.—Christian.
[10 ] Many instances formerly occurred of acts of parliament taking effect prior to the passing thereof, by legal relation from the first day of the session. See 1, Lev. 91, 4 T. R. 660; but this is remedied by 33 Geo. III. c. 13; and frequently it is provided that the act shall commence at a future-named day.
In New York, every law, unless a different time is prescribed therein, takes effect on the twentieth day after the day of its final passage. 1 R. S. 157.
The statutes of the United States take effect from their date. 1 Kent’s Com. 426; 1 Gallis. 62; 7 Wheat. 164. The constitution of the United States prevents Congress from passing any ex post facto law. Article 1, sec. 2, 3. So, article 1, sect. 10, 1, prevents any State from passing any ex post facto law, or law impairing the obligation of contracts. By ex post facto laws is only meant laws relating to criminal, not civil, matters. 7 Johns. R. 477; 3 Dallas, 386. See, however, 2 Peters 681,—Mr. Justice Johnson’s opinion.
According to the rule of the English law, acts of parliament took effect by relation to the first day of the session of parliament at which they were passed, unless some other day was specially named in the body of the act. The entire session of parliament was regarded by a fiction as one day. In the case of the King vs. Thurston, this doctrine of carrying a statute back by relation to the first day of the session was admitted in the King’s Bench, although the consequence of it was to render an act murder which would not have been so without such relation. (1 Lev. 91.) By the stat. 33 Geo. III. c. 13, it was declared that statutes are to have effect only from the time they receive the royal assent; and the former rule was abolished, to use the words of the statute, by reason of “its great and manifest injustice.”
In the United States, an act of Congress takes effect from the time of its passage. So wide-spread is the territory the inhabitants of which may be affected by the provisions of such act, that it is impossible they can have notice of the existence of the law until some time after it has been passed.
The Code Napoleon declared that laws were binding from the moment their promulgation could be known; and that the promulgation should be considered as known in the department of the Imperial residence one day after that promulgation, and in each of the other departments of the French empire after the expiration of the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place. The New York Revised Statutes have also declared that every law, unless a different time be prescribed therein, shall take effect throughout the State on and not before the twentieth day after the day of its final passage.
By the constitution of the United States, art. 1, s. 8 and 10, Congress and the States are forbidden to pass ex post facto laws. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Every law that makes an act done before the passing of the law, and which was innocent when done, criminal, or which aggravates a crime and makes it greater than it was when it was committed, or which changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed, or which alters the legal rules of evidence and makes less or different testimony than the law required at the time of the commission of the offence sufficient in order to convict the offender, falls within this definition. Ex post facto laws relate to penal and criminal proceedings, which impose punishments or forfeitures, and not to civil proceedings, which affect private rights retrospectively. Retrospective laws and State laws divesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition contained in the constitution of the United States, however repugnant they may be to the principles of sound legislation. Of retrospective laws Lord Bacon says, “Cujus generis leges; raro et magna cum cautione sunt adhibendæ: neque enim placet Janus in legibus.”—Tract. de Just. Univ., aphorisin xlvii. 1 Kent Com. 405. Calder vs. Bull, 3 Dall. 386 Fletcher vs. Peck, 6 Cranch, 135. Satterlee vs. Matthewson, 2 Peters, 413. Watson vs. Mercer, 8 Peters, 88.—Sharswood.
[11 ] Man is by nature a social being. He is made to live in the society of other moral beings. He cannot be contented in a state of solitude. He would rather “dwell in the midst of alarm than reign” in a desert. The commentator is right when he says that “man was formed for society, and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor, indeed, has the courage to do it.” But it is not consistent with this admission to say, as he afterwards does, that “the only true and natural foundations of society are the wants and fears of individuals.” It may be fearlessly asserted that a state of solitude would be unnatural and unsuited to a man if he had no wants and no fears. He confounds in this passage society and government. It is true that the wants and fears of individuals in society tend to government; or, as he after wards expresses it, government “results of course, as necessary to preserve and keep society in order.” But it would be more philosophical to go one step further back to that principle in human nature which makes the wants and fears of men in society tend necessarily to government. That principle is, that, strong as the social feelings are, the individual or selfish (using the word in a sense not necessarily bad) are still stronger. Each man, in consequence, looks more to his own interest and happiness than those of others, and conflicts must take place,—universal discord and confusion, destructive of the social state and the ends for which it is ordained. There must be a controlling power somewhere lodged; and, wherever or whatever it is, that is Government.
It having been shown that government is a necessary relation of man from his natural constitution, it follows that government is right. The moral government of the Supreme Being over the universe of matter and mind has this same moral quality. It is therefore in a secondary sense that all government—and, of course, human government—may be said to be of divine ordination. In the creation of moral beings with social natures, this relation of government resulted as necessarily as the equality of the three angles of a triangle to two right angles. It is in this sense we are to receive the declaration that “the powers that be are ordained of God.”—Rom. xiii. 1.
Writers have amused themselves with supposing an original compact in every society. The nearest approach to such a thing in history is to be found in the original settlement of the United States. The different colonies were constituted under charters from the crown of Great Britain; and the original adventurers, as well as those who succeeded, may without much violence be considered as having, either expressly or tacitly, become parties to a compact of society founded upon the terms set forth in those charters. Each colony was a separate state or nation. They all agreed in recognising the King of Great Britain as their supreme executive magistrate, and the power of the British Parliament to extend over them in certain respects; but, in the main, their local laws were to be made by them through their Representative Assemblies. At the Revolution, they threw off their dependence upon the British crown and declared themselves “free and independent States.” The Declaration of Independence was the joint and several act of the colonies, and its effect was to constitute each separate colony a free and independent State. So they themselves considered; for, as they had done before, they continued to act by a Congress of States, each State, by its delegates, having one vote in the Congress; and when, subsequently, they entered into articles of confederation, it was declared expressly, “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled.”
The fundamental principle announced to the world in the Declaration of Independence was that governments derive their just powers from the consent of the governed, that it is the right of the people to alter or abolish their form of government and institute a new one, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness. This may be treated as the established doctrine of this country. Nor is it inconsistent with any thing before advanced in these notes; for, while government is a moral relation necessarily resulting from the nature of men, and therefore of divine ordination, the particular form of government is evidently of human contrivance. The great majority of governments have been the result of force or fraud; yet even these may be considered as resting upon the tacit consent or acquiescence of the governed. If they have the physical power, they are competent to overthrow it; nor are other nations justified in interfering in such domestic conflicts. It is to be remarked that in the freest nations—even in the republics which compose the United States—the consent of the entire body of the people has never been expressly obtained. The people comprehend all the men, women, and children of every age and class. A certain number of the men have assumed to act in the name of all the community. The qualifications of electors or voters was in general settled by the colonial charters, and so continued until altered subsequently by the authority of the same body. It was settled, too, that the acts of the majority of such body of electors were binding on the whole number.
Very plainly, then, it is essential to the American doctrine to hold that every citizen shall have a right at any time to expatriate himself. It is well known that it is settled to the contrary in the English courts. Nemo potest exuere patriam. But how can the consent of the governed be in any sense implied if the citizen is coerced to remain a member of the state through all the changes which its form of government may undergo, whether with or without his approbation? It is clear that in any such change he may remove himself and his property to another country if he chooses, and should be allowed a reasonable time in which to make his election. This course was adopted at the period of the American Revolution. All persons, whether natives or inhabitants, were considered entitled to make their choice either to remain subjects of the British crown or to become citizens of one or other of the United States. This choice was necessarily to be made within a reasonable time. In some cases, that time was pointed out by express acts of the legislature; and the fact of abiding within the State after its assumed independence, or after some other specified period, was declared to be an election to become a citizen. That was the course in Massachusetts, New York, New Jersey, and Pennsylvania. In other States, no special laws were passed, but each case was left to be decided upon its own circumstances, according to the voluntary acts and conduct of the party.—Sharswood.
[12 ] The sovereignty or supreme power in every state resides ultimately in the body of the people. Blackstone supposes the jura summi imperii, or the right of sovereignty, to reside in those hands in which the exercise of the power of making laws is placed. Our simple and more reasonable idea is, that the government is a mere agency established by the people for the exercise of those powers which reside in them. The powers of government are not, in strictness, granted, but delegated, powers. As all delegated powers are, they are trust powers, and may be revoked. It results that no portion of sovereignty resides in government. A man makes no grant of his estate when he constitutes an attorney to manage it. The sovereignty—the jura summi imperii—resides in the body of the state or nation by whose consent, expressed or implied, a form of government was at one time established as the organ to make known its sovereign will. This sovereignty is indivisible, and can be lost only in one way,—by a voluntary or forced subjection to, or merger with, some other state or people.
That act of the people which constitutes the form of government we call the constitution. It may be a general unlimited delegation of all the power of the people to certain prescribed functionaries. This is the case with the English constitution. The king, Lords, and Commons are vested with unlimited power. They can change at any time the established form of the government, and have done so in many instances, as in the change of the succession to the throne, the powers and organization of the Lords and House of Commons. What is popularly termed the English constitution are certain principles according to which the government has been organized, and which, according to the most liberal view, forms an implied restriction upon the omnipotence of the king, Lords, and Commons. Yet it is certain that, if Parliament were to pass a law clearly inconsistent with those principles, no court in England would venture to pronounce it void. And if it could not be repealed by the force of the popular will, by the same power which made it, it would have to be submitted to as the law of the land, unless the people chose to resort to a revolution. Revolution means nothing more nor less than a peaceable or forcible change by a people of their constitution.
The constitutions of our American Republics have always been written. The charters which prescribed the forms of government were so. Those adopted by the several States at the period of the Revolution were all so. They not only organized the several departments,—the legislative, executive, and judicial,—but by various Bills of Rights, as well as express restrictions, prescribed limitations to the power of the government. In other words, certain of the powers of sovereignty they refused to delegate, and as to others, provided that they should only be exercised in a prescribed manner. It results that the provisions of the constitution, emanating directly from the people, are the expression of their permanent will, and no act of the government inconsistent with it of any validity. The courts will pronounce such acts invalid, null, and void. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of the conflicting rules governs the case. This is of the essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law. This doctrine must subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet in practice completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.”—C.J. Marshall, in Marbury vs. Madison, 1 Cranch, 177.
In general, in our State constitutions the right of suffrage is almost universally extended to all free white male citizens, and the principle is to give effect to the will of the numerical majority of the voters. Yet the States are not pure, but representative, democracies. The legislative functions are vested in two separate bodies, differently constituted,—a Senate and a House,—whose concurrence is required to the passage of laws, and a qualified veto is generally allowed to the executive. But, as the representatives of the people in the legislatures are elected by separate districts, it may so happen, if there are large majorities for some of the representatives, while those of different views are chosen by small majorities, that either or both branches may not truly represent the views of a majority of all the voters. While the bare numerical majority may be safely intrusted with the election of the executive magistrate, and in general, directly or indirectly, with the disposition of the offices of trust and profit, it has long been a prevailing opinion that something more than a bare numerical majority should be required in the passage of laws. Stability is of the highest importance in regard to measures of financial and jurisprudential policy; and, where parties are pretty nearly equally divided, a sudden gust of popular excitement—a flying camp of voters easily swayed by passion or interest from one side to another—what is still worse, a small neutral party with one idea, ready to make its terms with either of the others—will often change the politics of a state so frequently as to be very injurious to the best interests of the commonwealth. The difficulty is, and has been felt to be, how to arrange such a system which, while not denying to the numerical majority its legitimate influence, will operate to afford such a check upon it as to secure the rights and interests of the minority. Perhaps the adoption of a different basis for the two branches, as of territory for the Senate, and of population for the lower house, comes nearer practicability than any other plan.
Besides the constitutions of the several States, there is also the constitution of the United States, with paramount authority over the people of all the States. By that constitution certain specified powers were delegated to a general or federal government,—all powers not delegated being reserved to the States or to the people. The special powers thus delegated are principally such as concern the foreign relations of the country, the rights of war and peace, the regulation of foreign and domestic commerce, and other objects most appropriately assigned to the general government. The government invested with the exercise of these powers is distributed into legislative, executive, and judicial departments. The legislative is divided into two branches,—a Senate, composed of two members from each State, elected by the legislature thereof, and a House, composed of representatives from each State in proportion to their respective numbers, determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three-fifths of all other persons. The voters in each State are such persons as by the constitution thereof are the electors of the most numerous branch of the State legislature. The executive power is vested in a President, who is chosen by electors chosen in each State as its legislature may prescribe,—each State being entitled to as many electors as it has Senators and representatives. He has a qualified veto upon the acts of the legislature. The judicial power is vested in a supreme court, and such inferior courts as may be established by law,—the judges receiving their appointment from the President by and with the advice and consent of the Senate, and holding, their office by the tenure of good behaviour. It is unnecessary to proceed with further details on this subject. The student must be referred to the instrument itself, with which he should make himself familiar at an early stage of his professional studies; and it would be well worth his while to commit it to memory so as to have its very words at all times at command.—Sharswood.
[(f) ] In his fragments, de rep. l. 2.
[(g) ] “Cunclas nationes et urbes populus aut primores, aut unguli regunt; delecta ex his et constituta reipublicæ forma laudari facilius quam evenire, vel si evenit, haud diuturna esse potest.” Ann. l. 4.
[13 ] If it be true that there would be an end of the constitution if at any time any one of the three should become subservient to the views of either of the other branches, then assuredly the constitution is at an end; for it would be difficult to contend that in the times of Henry VIII. and Elizabeth the two Houses of Parliament were not subservient to the crown, or that before the Reform Act the House of Lords had not the ascendency, or that since that act the House of Commons have not had it. Indeed, it does not seem easy to name any eventful period of our constitutional history when the exact equilibrium of power, referred to by Blackstone, existed. That this supposed theory of our constitution is now denied by political writers of different parties is, at any rate, in disputable.—Stewart.
[(h) ] On government, part 2, 212.
[(i) ] See page 43.
[(k) ] Locke, Hum. Und., b. ii. c. 21.
[(l) ] See book ii. page 420.
[14 ] By stat. 54 Geo. III., c. 96, this law, and by stat. 54 Geo. III., c. 108 that for not burying in woollen, are repealed.—Chitty.
[15 ] This is a doctrine to which the editor cannot subscribe. It is an important question, and deserves a more extensive discussion than can conveniently be introduced into a note. The solution of it may not only affect the quiet of the minds of conscientious men, but may be the foundation of arguments and decisions in every branch of the law. To form a true judgment upon this subject, it is necessary to take into consideration the nature of moral and positive laws. The principle of both is the same,—viz., utility, or the general happiness and true interests of mankind, “atque ipsa utilitas justi prope mater et æqui.”
But the necessity of one set of laws is seen prior to experience; of the other, posterior. A moral rule is such, that every man’s reason, if not perverted, dictates it to him as soon as he associates with other men. It is universal, and must be the same in every part of the world. Do not kill, do not steal, do not violate promises, must be equally obligatory in England, Lapland, Turkey, and China. But a positive law is discovered by experience to be useful and necessary only to men in certain districts, or under peculiar circumstances. It is said that it is a capital crime in Holland to kill a stork, because that animal destroys the vermin which would undermine the dykes, or banks, upon which the existence of the country depends. This may be a wise law in Holland; but the life of a stork in England would be of no more value than that of a sparrow, and such a law would be useless and cruel in this country.
By the laws of nature and reason, every man is permitted to build his house in any manner he pleases; but, from the experience of the destructive effects of fire in London, the legislature, with great wisdom, enacted that all party-walls should be of a certain thickness; and it is somewhat surprising that they did not extend this provident act to all other great towns. (14 Geo. III., c. 78.)
It was also discovered, by experience, that dreadful consequences ensued when seafaring people, who returned from distant countries infected with the plague, were permitted immediately to come on shore and mix with the healthy inhabitants. It was, therefore, a wise and merciful law, though restrictive of natural right and liberty, which compelled such persons to be purified from all contagion by performing quarantine (Book iv., 161.)
He who, by the breach of these positive laws, introduces conflagration and pestilence, is surely guilty of a much greater crime than he is who deprives another of his purse or his horse.
The laws against smuggling are entirely juris positivi; but the criminality of actions can only be measured by their consequences; and he who saves a sum of money by evading the payment of a tax does exactly the same injury to society as he who steals so much from the treasury, and is therefore guilty of as great immorality, or as great an act of dishonesty. Or, smuggling has been compared to that species of fraud which a man would practise who should join with his friends in ordering a dinner at a tavern, and, after the festivity and gratifications of the day, should steal away and leave his companions to pay his share of the reckoning.
Punishments or penalties are never intended as an equivalent or a composition for the commission of the offence; but they are that degree of pain or inconvenience which is supposed to be sufficient to deter men from introducing that greater degree of inconvenience which would result to the community from the general permission of that act which the law prohibits. It is no recompense to a man’s country for the consequences of an illegal act that he should afterwards be whipped, or should stand in the pillory, or lie in a jail. But in positive laws, as in moral rules, it is equally false that omnia peccata paria sunt. If there are laws (such as the game-laws) which, in the public opinion, produce little benefit or no salutary effect to society, a conscientious man will feel, perhaps, no further regard for the observance of them than from the consideration that his example may encourage others to violate those laws which are certainly beneficial to the community. Indeed, the last sentence of the learned judge upon this subject is an answer to his own doctrine; for the disobedience of any law in existence must be presumed to involve in it either public mischief or private injury. It is related of Socrates that he made a promise with himself to observe the laws of his country; but this is nothing more than what every good man ought both to promise and perform; and he ought to promise, still further, that he will exert all his power to compel others to obey them. As the chief design of established government is the prevention of crimes and the enforcement of the moral duties of man, obedience to that government necessarily becomes one of the highest of moral obligations; and the principle of moral and positive laws being precisely the same, they become so blended that the discrimination between them is frequently difficult or impracticable, or, as the author of “The Doctor and Student” has expressed it with beautiful simplicity, “In every law positive well made is somewhat of the law of reason and of the law of God; and to discern the law of God and the law of reason from the law positive is very hard.” 1 Dial. c. 4. An eloquent modern divine has also said, “Let the great general duty of submission to civil authority be engraven on our hearts, wrought into the very habit of the mind, and made a part of our elementary morality.” Hall’s Sermon, Oct. 1803.—Christian.
The morality of this position of the learned commentator has been well questioned. Its soundness as a legal principle, though it once had sway in the courts, has been since repudiated. With all the qualifications which have been cautiously annexed to it in the text,—namely, that the thing forbidden or enjoined is wholly a matter of indifference, and the penalty inflicted an adequate compensation for the civil inconvenience supposed to arise from the offence,—it must be admitted to be fraught with practical danger to society. There is a moral obligation resting on every individual to obey the laws of that community in which he lives. The breach of any known law is a violation of that obligation. If the laws be so multiplied that the citizen cannot be expected to know or understand them, then, although in the eye of the law he may not be excused,—legis ignorantia neminem excusat,—yet it is different in foro conscientiæ. This is the answer to the suggestion that such laws would be a snare to the conscience. But if the subject knows, or ought to know, the law, if he had exercised ordinary diligence, he has no right to set up his own judgment as to the indifference of the action which the legislature has prohibited or enjoined. Every penalty implies a prohibition, even if not expressed. It is now well settled that every contract to do a thing made penal by statute is void as unlawful. Aubert vs. Maze, 2 Bos. & Pul. 371. Cannon vs. Bryce, 3 B. & Ald. 179. De Begnis vs. Armistead, 10 Bingh. 107. Mitchell vs. Smith, 4 Dall. 269; 1 Binn. 118. Elkins vs. Parkhurst, 17 Verm. 105.—Sharswood.
[(m) ]Lex pure poenalis obligat tantum ad poenam, non item ad culpam: lex poenalis mixta et ad culpam obligat, et ad poenam. (Sanderson de conscient. obligat. prael. viii. 17. 24.)
[(n) ]Inst. 1, 2, 6.
[(o) ] L. of N. and N. 5, 12, 3.
[16 ] If words or expressions have acquired a definite meaning in law, they must be so expounded. 2 M. & Sel. 230. 1 Term. Rep. 723.
The natural import of the words is to be adopted; and if technical words are used, they are in general to have assigned to them their technical sense. Ex parte Hall, 1 Pick. 261. The State vs. Smith, 5 Humph. 392. Bank vs. Cook, 4 Pick. 405. Where a word has a clear and settled meaning at common law, it ought to have the same meaning in construing a statute in which it is used. Adams vs. Turrentine, 8 Iredell, 147. Where a law is plain and unambiguous, whether expressed in general or limited terms, there is no room left for construction, and a resort to extrinsic facts is not permitted to ascertain its meaning. Bartlett vs. Morris, 9 Porter, 266. No mere misnomer in the name of a natural person or corporation is fatal to the validity of an act if the person or corporation intended can be collected from the words. Blanchard vs. Sprague, 3 Summer, 279. The term “person” in a statute embraces not only natural but artificial persons or corporations, unless the language indicates that it was used in a more limited sense. Bank vs. Andrews, 8 Porter, 404. U.S. vs. Ammedy, 11 Wheat. 392. Where provision is made that criminal prosecutions are to be instituted “on complaint,” a complaint under oath or affirmation is implied as a part of the technical meaning of the terms. Campbell vs. Thompson, 4 Shep. 117. The word “may” always is held to mean “must” or “shall” in cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power delegated should be exercised. Ex parte Simonton, 9 Porter, 390. Minor vs. Bank, 1 Peters, 64. Schuyler Co. vs. Mercer Co., 4 Gilman, 20. Turnpike vs. Miller, 5 Johns. Ch. Rep. 101. A conjunctive may be taken in a disjunctive sense: in other words, “and” may be construed to be “or.” Barker vs. Esty, 19 Vermont, 131. By judicial construction, in some instances the extent and force of the term “void” when used in statutes has been limited so as to mean “voidable;” that is, to be made void by some plea or act of the party in whose favour the statutes are set up. Green vs. Kemp, 13 Mass. 515. Smith vs. Saxton, 6 Pick. 483.—Sharswood.
[17 ] But a positive enactment is not to be considered restrained by the preamble. 1 Term. Rep. 44. 4 Term. Rep. 790. 3 M. & Sel. 66. Lofft’s Rep. 783.—Chitty.
[18 ] It is an established rule of construction that statutes in pari materiâ, or upon the same subject, must be construed with reference to each other; that is, that what is clear in one statute shall be called in aid to explain what is obscure and ambiguous in another. Thus, the last qualification act to kill game (22 and 23 Car. II., c. 25) enacts “that every person not having lands or tenements, or some other estate of inheritance, of the clear yearly value of 100l. or for life, or having lease or leases of ninety-nine years of the clear yearly value of 150l.,” (except certain persons,) shall not be allowed to kill game. Upon this statute a doubt arose whether the words or for life should be referred to the 100l. or to the 150l. per annum. The Court of King’s Bench, having looked into the former qualification acts, and having found that it was clear by the first qualification act (13 R. I. st. 1, c. 13) that a layman should have 40s. a year, and a priest 10l. a year, and that, by the 1 Ja. c. 27, the qualifications were clearly an estate of inheritance of 10l. a year, and an estate for life of 30l. a year, they presumed that it still was the intention of the legislature to make the yearly value of an estate for life greater than that of an estate of inheritance, though the same proportions were not preserved; and thereupon decided that clergymen, and all others possessed of a life-estate, only must have 150l. a year to be qualified to kill game. Lowndes vs. Lewis, E. T. 22 Geo. III.
The same rule to discover the intention of a testator is applied to wills,—viz.: the whole of a will shall be taken under consideration in order to decipher the meaning of an obscure passage in it.—Christian. See 5 Cowen, 421.
[19 ] It may be laid down that the intention of the makers of a statute is to govern, even though the construction grounded upon such intention may appear to be contrary to the literal import of the words. Every technical rule as to the construction or form of particular terms must yield to the clear expression of the paramount will of the legislature. Wilkinson vs. Leland, 2 Peters, 661. In construing statutes, penal as well as others, an interpretation must never be adopted, which will defeat the evident purpose of the law, if it will admit of any other reasonable construction. The Emily and Caroline, 9 Wheat. 388.
All the parts of a statute—title and preamble as well as the body—may be consulted for the purpose of arriving at a knowledge of the general intention of the lawgivers. The title and preamble, however, yield always to the clear expressions of the body of the act, and are referred to as explanatory only when an ambiguity exists. Jackson vs. Gilchrist, 15 Johns. 89. Holbrook vs. Holbrook, 1 Pick. 248. Eastman vs. McAlpin, 1 Kelly, 157. Bartlett vs. Morris, 9 Porter, 266. When the language of the enacting part or body of a law is doubtful and may admit of a larger or more restricted interpretation, the preamble may be referred to in order to determine which sense was intended by the legislature. The U.S. vs. Webster, Davies, 38. The true rule seems to be that, where an inconvenience or particular mischief would arise from giving the enacting words their broad and general meaning, they shall in that case be restrained by the preamble, but not otherwise. Seidenbender vs. Charles, 4 S. & R. 166. Lucas vs. McBlair, 12 Gill. & Johns. 1. James vs. Dubois, 1 Harring, 285.
Statutes in pari materiâ are to be construed together. Schooner Harriet, 1 Story, 51 Soctt vs. Searles, 1 S. & M. 590. Harrison vs. Walker, 1 Kelly, 32. If it can be gathered from a subsequent statute what meaning the legislature attached to the words of a former one, this will amount to a legislative declaration of its meaning. U.S. vs. Freeman. 3 How. U.S. 556. The general system of legislation upon the subject-matter may be taken into view, in order to throw light upon a particular act relating to the same subject. Fort vs. Burch, 6 Barb. S. C. 60. Thus, the history of legislation, including the language of repealed statutes, may be referred to and considered. Henry vs. Tilson, 17 Verm. 479.—Sharswood.
[(p) ]l. 5, c. 12, 8.
[20 ] The ends contemplated are to be considered, and general words may be thereby restrained. 3 Maule and Selwyn, 510.—Chitty.
[(q) ]l. 1, c. 11.
[21 ] See a very sensible chapter upon the interpretation of laws in general, in Rutherforth’s Institutes of Natural Law, b. ii. c. 7.—Christian.
[(r) ]De Æquitate, 3.
[22 ] The only equity, according to this description, which exists in our government, either resides in the king, who can prevent the summum jus from becoming summa injuria, by an absolute or a conditional pardon, or in juries, who determine whether any, or to what extent, damages shall be rendered. But equity, as here explained, is by no means applicable to the court of chancery; for the learned judge has elsewhere truly said, that “the system of our courts of equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection.” Book iii. 432.—Christian.
What the learned commentator here says is certainly inaccurate, if it leads to the supposition that any other rules of interpretation are applied to statutes in courts of equity than in courts of law. On the contrary, herein equity follows the law, just as it does in the construction of wills and other instruments. In England, the court of chancery often sends cases to the common law courts, in order to procure their opinion on such points. The system administered in that court differs from the common law mainly in its means of getting at the truth by enforcing a discovery by the defendant under oath, and by the peculiar remedy it affords by injunction and the decree for specific performance.
What the commentator does mean, perhaps, is what is generally termed the equity of a statute, which is in reality a compendious mode of expressing his fifth rule of interpretation. Those cases are said to be within the equity of a statute which, though not directly comprehended by its language, are nevertheless within the intention of the lawgiver, reached by its reason and spirit.
It seems that when, had the legislature foreseen the occurrence of a particular contingency, the letter of the statute would have been enlarged to receive it, this is sufficient warrant for the courts to bring it within the spirit. Brinker vs. Brinker, 7 Barr, 23.—Sharswood.
[(a) ] Cæs. de B. G. lib. 6, c. 13.
[(b) ] Spelm. Gl. 362.
[(c) ] C. 17.
[(d) ] See his proposals for a digest.
[1 ] Both Hallam and Turner doubted the fact that such a work ever existed. It has, however, recently been brought to light, and may be seen, in both Saxon and English in “The Ancient Laws and Institutes of England,” published by the Record Commissioners, vol. i. pp. 45-101. At the head of it stand the Ten Commandments, followed by many of the Mosaic precepts, with the express and solemn sanction given them by our Saviour in the Gospel:—“Think not that I am come to destroy the law or the prophets: I am not come to destroy, but to fulfil.” After quoting the canons of the apostolical council at Jerusalem, Alfred refers to the divine commandment, “As ye would that men should do to you, do ye also to them,” adding, “from this one doom, a man may remember that he judge every one righteously: he need heed no other doom-book.” A noble and affecting incident this in the history of our laws,—which, though since swollen into an enormous bulk and complexity and fed from many sources, still bear the same relations to religion, which we observe in the rude and simple elements of these laws in the days of our illustrious Alfred. The work, however, is little more than a collection of punishments for offences, and has no pretensions to be regarded as a general system of municipal law.—Warren. Spence says there is no trace of it. 1 Spence, 61 n.
[(e) ] C. 1.
[(f) ] Hal. Hist. 55.
[(g) ]In Hen. II.
[(h) ]In Edw. Confessor.
[(i) ]In Seld. ad Eadmer, 6.
[(k) ] Mod. Un. Hist. xxii. 135.
[(l) ]Ibid. xx. 211.
[(m) ]Ibid. xxxiii. 21, 58.
[2 ] The commentators on the old French law cite Littleton for illustration; and, for the same reason, the antiquarian lawyer will cite Les Coutumes de Beavoisis, collected by Beaumanoir, first printed at Bourges, 1690, for the purpose of illustrating Littleton. Beaumanoir’s compilation was made long antecedent to our venerable author, or, as he has been called, father of our law.—Lee.
[3 ] To assign, however, to the common law no other original than this, would be to take an imperfect and erroneous view of the subject. Our system of tenures was chiefly constructed, if not first founded, by the Norman conqueror; our judicial forms and pleadings, while they have nothing in common with the Anglo-Saxon style, are in striking conformity with the Norman; and it has been remarked with great truth that the general language of our jurisprudence and its terms of art are exclusively of French extraction. (Crag. Jus. Feud. l. 1, d. 7.) We cannot hesitate, therefore, to recognise in the ancient law of Normandy another parent of the common law, and one from which it has inherited some of its most remarkable features.—Stephen.
[4 ] The student who may be desirous of pursuing this investigation further may add to his own conjectures those of Dr. Wilkins, in his code of ancient laws; Selden, in his Notes on Eadmer; and of Garberon, editor of the works of Anselm.—Lee.
[5 ] What Lord Hale says is undoubtedly true, that “the original of the common law is as undiscoverable as the head of the Nile.” Hist. Com. Law, 55.—Christian.
[6 ] There is no common law of the country designated geographically as the United States. The Union is composed of sovereign and independent States, each of which may have its local usages, customs, and common law. There is no principle which per vades the Union and has the authority of law that is not embodied in the constitutior and acts of Congress. As the federal government has no powers not specially delegated, and no jurisdiction over the regulation of real and personal property, nor over crimes, except such as relate to federal subjects, the common law neither is, nor could it by legislative adoption be made, a part of the federal system.
It is true that the common law was the substratum of the jurisprudence of the thirteen States by whom the constitution of the United States was at first adopted. The men by whom it was framed had been educated under that system, and many of them lawyers. No doubt, upon the commonly-received principles of interpretation, the language of that instrument, and the technical terms employed in it, are to be construed by the common law. Of the remaining States, Vermont was formed out of territory originally belonging to New Hampshire, and Maine from Massachusetts. Of the States which have since acceded to the Union, Kentucky, Tennessee, Ohio, Indiana, Mississippi, Illinois, Alabama, Michigan, Wisconsin, Iowa, comprise territory which originally belonged to one or more of the thirteen States and was ceded by them to the United States. Louisiana, Missouri, and Arkansas were formed out of territory ceded to the United States by France by the treaty of April 30, 1803. Florida was formed out of territory ceded by Spain by the treaty of February 22, 1819. Texas, an independent republic, but originally one of the United States of Mexico, was received into the Union by a joint resolution of Congress, approved March 1, 1845. California was formed of part of the territory ceded to the United States by the Mexican Republic by the treaty of Guadaloupe Hidalgo, February 2, 1848.
In Texas, Missouri, Arkansas, and California, the common law has been adopted by express legislative enactment, so that Louisiana is the only State in which any other law prevails. In that State the law of France, which is the Roman civil law with such modifications as obtained at the time of her purchase, is the foundation of her jurisprudence; for it is a well-settled principle of international law, that whenever a country is conquered by or ceded to another, the law of that country as it was at the time of its cession or conquest remains until it is changed by its new master.—Sharswood.
[(n) ]Cup. 8.
[(o) ] Seld. Review of Tith. c. 8.
[7 ] But it cannot be dissembled, that both in our law, and in all other laws, there are decisions drawn from established principles and maxims, which are good law, though such decisions may be both manifestly absurd and unjust. But notwithstanding this, they must be rigorously adhered to by the judges in all courts, who are not to assume the characters of legislators. It is their province jus dicere, and not jus dare. Lord Coke, in his enthusiastic fondness for the common law, goes farther than the learned commentator: he lays down, that argumentum ab inconvenienti plurimum valet in lege, because nihil quod est inconveniens est licitum. Mr. Hargrave’s note upon this is well conceived and expressed:—“Arguments from inconvenience certainly deserve the greatest attention, and, where the weight of other reasoning is nearly on an equipoise, ought to turn the scale. But if the rule of law is clear and explicit, it is in vain to insist upon inconveniences; nor can it be true that nothing which is inconvenient is lawful, for that supposes in those who make laws a perfection which the most exalted human wisdom is incapable of attaining, and would be an invincible argument against ever changing the law.”—Harg. Co. Lit. 66—Christian.
[(p) ] Herein agreeing with the civil law, Ff. 1, 3, 20, 21. “Non omnium, quæ a majoribus nostris constituta sunt, ratio reddi potest. Et ideo rationes eorum, quæ constituuntur, inquiri non oportet: alioquin multa ex his, quæ certa sunt, subvertuntur.”
[8 ] Precedents and rules must be followed even when they are flatly absurd and unjust, if they are agreeable to ancient principles. If an act of parliament had been brought in at the close of a session, and passed on the last day, which made an innocent act criminal or even a capital crime; and if no day was fixed for the commencement of its operation, it had the same efficacy as if it had been passed on the first day of the session, and all who, during a long session, had been doing an act which at the time was legal and inoffensive, were liable to suffer the punishment prescribed by the statute. (4 Inst. 25; 4 Term. Rep. 660.) This was both flatly absurd and unjust; but it was the clear law of England, and could only be abrogated by the united authority of the king, Lords, and Commons in parliament assembled, who, by the 33 Geo. III, c. 13, enacted that when the operation of an act of parliament is not directed to commence from any time specified within it, the clerk of the parliament shall endorse upon it the day upon which it receives the royal assent, and that day shall be the date of its commencement. Many other similar instances might be adduced.
It is therefore justly said in the civil law, that non omnium, quæ a majoribus constituta sunt, ratio reddi potest; et ideo rationes eorum quæ constituuntur, inquiri non oportet: alioquin multa ex his, quæ certa sunt, subvertuntur. Domat, 8.—Christian.
Professor Christian maintains that precedents and rules must be followed, even when they are flatly absurd and unjust, if they are agreeable to ancient principles; a condition which, it is apprehended, extracts the whole negation with which he would reverse the maxim in the text. Mr. Sedgwick contends, on the other hand, that Sir William Blackstone urges the doctrine too far, and sets up a distinction between legal precedents and laws, which, however sound in itself, does not aid the argument it is intended to enforce. “A law,” he says, “is a public statute, solemnly framed by the legislative, and confirmed by the executive, power. The decrees and determinations of the magistrates are not, rigorously speaking, laws: legal precedents ought therefore not despotically to govern, but discreetly to guide. With laws it is otherwise: to them the judge in his adjudications must conform,” &c. Now, it is evident that our author is speaking of the common law, and his commentators must so understand him; which common law is as absolute as the parliamentary statutes, and must be as rigidly observed by the judicature. Assuming that the legal precedent, or the statute, is absurd and unjust, the only question is, by what authority shall it be abrogated? Mr. Sedgwick points to the judges on the bench; and Professor Christian maintains the sole and supreme right of the legislature to exercise this function. The spirit and practice of the constitution is with him, and it is well for the interests of public justice that they are so. In the multitude of counsels there is wisdom; and the business of legislation, even upon the substitution of a wholesome law in the place of an absurd or unjust precedent, may well employ the highest wisdom in the state. There may be a difference of opinion as to what is absurd and unjust. For instance, the law of primogeniture has fallen under that censure from the lips of men whose station in society recommend even their hasty notions to the respect of their contemporaries. It would be difficult to reconcile the preference of the first-born to the exclusion of all the other offspring of the same family, with the law of nature, or the law of God; yet no judge would dare to treat this rule of law as absurd or unjust, and substitute an equal division of the patrimony among all the children, upon the question being brought before him. Had he such power given him by the constitution, his fellows might exercise it also; and it is no overstrained conjecture to say that fluctuating and conflicting adjudications would be the consequence, producing much more mischief than can ensue from the enforcement of any precedent or rule of law, however absurd or unjust, till the legislature provides the proper remedy.
So, it being a rule of law, that a person born in England owes a natural allegiance, from which he cannot release himself, it was held, that a person born in England, of French parents, but removed out of England immediately after his birth, and educated in France, was guilty of treason in joining the French in war against England. Foster, Co. L. 59—Chitty.
[9 ] But it is certainly repugnant to natural reason, where a father leaves two sons by two different mothers, and dies intestate, and a large estate descends to his eldest son, who dies a minor or intestate, that this estate should go to the lord of the manor, or to the king, rather than to the younger son. When such a case happens in the family of a nobleman or a man of great property, this law will then appear so absurd and unreasonable that it will not be suffered to remain long afterwards to disgrace our books. See book ii. p. 231.—Christian.
[10 ] The more advanced student may consult Mr. Humphrey’s “Observations on the Actual State of the English Laws of Real Property, with the Outline of a Code;” a production indicative of great mental vigour. He states the evil with perspicuity; whether it be fundamental, or whether it be one merely of inconvenient anomaly; and, with equal clearness, and, to many, with irresistible reason on his side, suggests the antidote.—Chitty.
[(q) ] “Si imperialis majestas causam cognitionaliter examinaverit, et partibus, cominus constitutis, sententiam dixerit, omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causæ pro qua producta est, sed et in omnibus similibus.” C. 1, 14, 12.
[11 ] It is not possible to lay down, with mathematical precision, any rule in regard to the authority of precedents. Every judge and every court must consider that their function is jus aïcere and not jus dare. How far previous determinations ought to be regarded as definitely settling any point or principle of law, will depend very much upon circumstances. The character of the court, and of the times in which such decision took place, will have its weight; and not a little, after all, will depend upon the tone and tendency of prevailing opinions. No constitutional lawyer would now think of citing precedents in State trials during the Tudors. The rule anciently applied in actions of slander with ridiculous particularity—verba sunt accipienda in mitiori sensu—has been exploded, and a large class of solemn adjudications, made while it prevailed, are of no authority. Thus: “You have poisoned your husband.” “Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved her head: the one part lay on one shoulder, and the other on the other:” in both cases held not actionable. 1 Roll. Abr. 71. Cro. Jac. 184. For, though she poisoned her husband, he might not have died: Though he cleaved the cook’s head into two parts, the wound might not have been mortal. So in regard to the bar of the statute of limitations. Almost any admission or acknowledgment was greedily caught at to take the case out of the statute. “Prove your debt, and I will pay you: I am ready to account; but nothing is due.” Cowp. 548. “As to the matters between you and me, they will be rectified.” 2 T. R. 760. “What an extravagant bill you have sent me!” Peake, 93. “I do not consider myself to owe a farthing, it being more than six years since I contracted.” 4 East. 599. These are some of the acknowledgements held sufficient. These cases are not now considered as authority. Many other changes of the judicial current might be cited illustrative of the position that the declaration of what the law is rests in the sound, conscientious judgment of the court; the weight to be allowed to prior determinations depending altogether upon the circumstances of the case. A recent decision, which has not been frequently recognised nor grown into a landmark, is not entitled to so much respect as one of older date, of which such a remark may be predicated. Hardly a modern report-book appears in which some prior case is not found in express terms overruled. A court or judge ought to be very cautious even in regard to recent cases, much more in regard to older ones, especially such as have been subsequently recognised and acted on. It is best to err on the safe side; and the safe side is stare decisis.—Sharswood.
[(r) ]Pat. 15, Jac. I. p. 18, 17 Rym. 26.
[(s) ] His reports, for instance, are styled κατ’ εξοχην, the reports; and, in quoting them, we usually say, 1 or 2 Rep., not 1 or 2 Coke’s Rep. as in citing other authors. The reports of Judge Croke are also cited in a peculiar manner, by the names of those princes in whose reigns the cases reported in his three volumes were determined; viz. Queen Elizabeth, King James, and King Charles the First; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. but more commonly Cro. Eliz., Cro. Jac., and Cro. Car.
[12 ] The works of these authors are distinguished by the following titles:—“Glanvil’s Treatise of the Laws and Customs of England,” written in the time of Henry II., edit. 1780; “Bracton’s Treatise of the Laws and Customs of England,” written in the reign of Henry III., edit. 1569; “Britton, corrected by Wingate,” edit. 1640; “Fleta, or a Commentary upon the English Law,” written by an anonymous author (a prisoner in the Fleet) in the time of Edw. I., with a small Treatise, called “Fet Assavoir,” annexed, and Mr. Selden’s “Dissertations,” edit. 1685; “Hengham, [Chief-Justice of the King’s Bench in the time of Edw. I.] Summa Magna and Parva, treating of Essoigns and Defaults in Writs of Right, Writs of Assize and Dower, &c.,” which is printed with “Fortescue de Laudibus Legum Angliæ,” edit. 1775; “Littleton’s Tenures,” various edits. “Statham’s Abridgment, containing the Cases down to the End of Henry VI.:” only one edit., without date; “Brooke’s Grand Abridgment of the Law,” 1573; “Fitzherbert’s Grand Abridgment of the Law,” 1665; “Staundforde’s Pleas of the Crown,” to which is added an “Exposition of the King’s Prerogative,” 1607.—Chitty.
[(t) ] It is usually cited either by the name of Co. Litt. or as 1 Inst.
[(u) ] These are cited as 2, 3, or 4 Inst. without any author’s name. An honorary distinction, which, we observed, is paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler as 2 Ventris, 4 Leonard, 1 Siderfin, and the like.
[(v) ]Ff. 1, 3, 32.
[13 ] This is the first sentence of the definition of a constitution in the beginning of the Institutes. It ought to be cited at length, that it may receive the execration it deserves. It is no wonder, from this specimen, that the civil law should have experienced such protection and patronage from all the despotic governments of Europe, and such opposition and detestation from the sturdy English barons.
Constitutio.—Sed et quod principi placuit, legis habet vigorem: quum lege regia, quæ de ejus imperio lata est, populus ei, et in eum omne imperium suum et potestatem concedat. Quodcunqus ergo imperator per epistolam constituit; vel cognoscens decrevit, vel edicto præcepit, legem esse constat; hæc sunt, quæ constitutiones appellantur. Planè ex his quædam sunt personales, quæ nec ad exemplum trahuntur quoniam non hoc princeps vult, nam quod alicui ob meritum indulsit, vel si quam pænam irrogavit, ve si cui sine exemplo subvenit, personam non transgreditur. Aliæ autem, quum generales sint, omnes procul dubio tenent. Inst. 1, 2, 6.—Christian.
[(w) ]Ff. 1, 4, 1.
[(x) ]C. 1, 14, 12.
[(y) ]C. 1, 23, 5.
[14 ] Lord Chief-Justice Wilmot has said that “the statute law is the will of the legislature in writing; the common law is nothing else but statutes worn out by time. All our law began by consent of the legislature, and whether it is now law by usage or writing is the same thing. (2 Wils. 348.) And statute law, and common law, both originally flowed from the same fountain.” (Ib. 350.) And to the same effect Lord Hale declares “that many of those things that we now take for common law, were undoubtedly acts of parliament, though now not to be found of record.” (Hist. Com. Law, 66.) Though this is the probable origin of the greatest part of the common law, yet much of it certainly has been introduced by usage, even of modern date, which general convenience has adopted. As in the civil law, sine scripto jus venit, quod usus approbavit, nam diuturni mores consensu utentium comprobati legem imitantur. (Inst. 1, 2, 9.) Of this nature in this country is the law of the road, viz.: that horses and carriages should pass each other on the whip-hand. This law has not been enacted by statute, and is so modern, that perhaps this is the first time that it has been noticed in a book of law. But general convenience discovered the necessity of it, and our judges have so far confirmed it, as to declare frequently, at nisi prius, that he who disregards this salutary rule is answerable in damages for all the consequences.
The action in which this rule is applied, viz.: for negligently driving a carriage, by which any one is injured, is as ancient as the common law; but the uniform determination of the judges that the non-observance of this rule is negligence is of modern date.
It is now decided, that, where an injury is done by a man’s driving his carriage on the wrong side of the road, the action must be trespass, vi et armis. Lord Ellenborough and the court laid down generally, that, where there is an immediate injury from an immediate act of force, the proper remedy is trespass, and wilfulness is not necessary to constitute trespass. 3 East, 593.
When two carriages meet, the impact is a reciprocal act of force; but the force of that only is wrongful which is on the wrong side of the way.—Christian.
It should be remembered, however, that, when the carriage is driven by a servant, the action against the master must always be trespass on the case, unless, indeed, the wrong was committed by the immediate command of the master.—Sharswood.
[(z) ]Mag. Cart. 9 Hen. III. c. 9.—1 Edw. III. st. 2. c. 9.—14 Edw. III. st. 1. c. 1.—and 2 Hen. IV. c. 1.
[(a) ] 8 Rep. 126; Cro. Car. 347.
[(b) ] Winch. 24.
[15 ] The lex mercatoria, or the custom of merchants, like the lex et consuetudo parliamenti. describes only a great division of the law of England. The laws relating to bills of exchange, insurance, and all mercantile contracts, are as much the general law of the land as the laws relating to marriage or murder. But the expression has very unfortunately led merchants to suppose, that all their crude and new-fangled fashions and devices immediately become the law of the land; a notion which, perhaps, has been too much encouraged by our courts. Merchants ought to take their law from the courts, and not the courts from merchants; and when the law is found inconvenient for the purposes of extended commerce, application ought to be made to parliament for redress. Merchants ought to be considered in no higher degree their own legislators or judges upon subjects of commerce, than farmers or sportsmen in questions upon leases or the gamelaws. For the position of Lord Coke ought never to be forgotten:—“That the common law has no controller in any part of it, but the high court of parliament; and if it be not abrogated or altered by parliament, it remains still, as Littleton saith.” (Co. Litt. 115.) This is agreeable to the opinion of Mr. Justice Foster, who maintains that “the custom of merchants is the general law of the kingdom, and therefore ought not to be left to a jury after it has been settled by judicial determinations.” 2 Bur. 1226.—Christian.
That large branch of law which relates to the transactions of commerce is now a part of the municipal law of the country, whether it be found in statutes or codes, or adopted by general reasoning and the authority of the opinions of jurists and civilians. It is taken notice of judicially by the courts, and is not decided by the jury, as a mere custom would be. Mercantile usage is often appealed to in order to explain doubtful words in a contract, but never to contradict or vary any settled rule or principle of law. The sources of the mercantile law are, mainly, the Roman law, the various codes of modern European nations, and the writings of general jurists; but it is not to be denied that these questions were originally treated in England as matters of custom, and were referred to the decision of a jury of merchants. After one point of such custom was ascertained by the verdict of a jury, it was not considered proper to submit the same question to another jury, but it was thereafter judicially noticed and applied by the court. “Before the time of Lord Mansfield,” says Mr. J. Buller, “we find that, in courts of law, all the evidence in mercantile cases was thrown together: they were left generally to a jury, and they produced no established principle. From that time, we all know, the great study has been to find out some certain general principles, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard those principles stated, reasoned upon, enlarged, and explained, till we have been lost in admiration of the strength and stretch of the human understanding. And I should be very sorry to find myself under a necessity of differing from any case, which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country.” (2 T. R. 73.) “The law merchant,” said Lord Denman, “forms a branch of the law of England; and those customs which have been universally and notoriously prevalent amongst merchants, and have been found by experience to be of public use, have been adopted as a part of it, upon a principle of convenience, and for the benefit of trade and commerce; and, when so adopted, it is unnecessary to plead and prove them. They are binding on all without proof. Accordingly, we find that usages affecting bills of exchange and bills of lading are taken notice of judicially.” 6 Man. & Gr. 665.—Sharswood.
[(c) ] Co. Litt. 175.
[(d) ] Litt. 265.
[(e) ] Dr. and St. 1, 10.
[(f) ] Cro. Car. 516.
[(g) ] Hob. 85.
[(h) ] Litt. 212; 4 Inst. 274.
[16 ] It seems that a custom beginning within any time after the first year of the reign of king Richard I. is bad.—Chitty.
[17 ] Therefore, a custom that every pound of butter sold in a certain market should weigh eighteen ounces is bad, because it is directly contrary to 13 and 14 Car. II. c. 26, which directs that every pound, throughout the kingdom, should contain sixteen ounces. (3 T. R. 271.) But there could be no doubt, I conceive, but it would be a good custom to sell lumps of butter containing eighteen ounces; for, if it is lawful to sell a pound, it must be so to sell a pound and any aliquot part of one. The inconvenience and deception arise from calling that a pound in one place which is not a pound in another.—Christian. Therefore, where a contract is made to sell specified goods by quantities of weight or measure, this must mean statute weight or measure. As, if a plaintiff declares for breach of contract, in not delivering “four hundred bushels of oats,” and it is proved the agreement was for four hundred bushels in some particular measure other than the Winchester bushel, which is the statute measure, this is a fatal variance, and the plaintiff would be nonsuited. See 4 T. R. 314. 6 T. R. 338. 4 Taunton, 102. 11 East, 300.—Chitty.
[(i) ] Co. Litt. 114.
[(j) ] Co. Litt. 114.
[(l) ] Litt. 212.
[(m) ] 1 Inst. 62.
[(n) ] Co. Copyh. 33.
[(o) ] 1 Roll. Abr. 565.
[18 ] A custom that poor housekeepers shall carry away rotten wood in a chase is bad, being too vague and uncertain. 2 T. R. 758. A right to glean in the harvest-field can not be claimed at common law; neither have the poor of a parish legally settled such right within the parish. 1 H. Bl. 51, 52. So, a custom for every inhabitant of an ancient messuage within a parish to take a profit a prendre in the land of an individual is bad. But such a right may be enjoyed by prescription or grant. 4 Term Rep. 717, 718. 2 H. Bl. 393. 1 Ld. Raym. 407. 1 Saund. 341, n. 3; 346, n. 3.—Christian.
[(p) ] 9 Rep. 58.
[19 ] This rule is founded upon the consideration that a variety of customs in different places upon the same subject is a general inconvenience. The courts, therefore, will not admit such customs but upon the clearest proof. So, where there is a custom that lands shall descend to the eldest sister, the courts will not extend this custom to the eldest niece, or to any other eldest female relation, but upon the same authority by which the custom between sisters is supported. 1 T. R. 466.—Christian.
[(q) ] Co. Cop. 33.
[20 ] There does not appear to be any authority for this; but, on the contrary, Sir Edward Coke, in the same section, says that a custom is not to be confined to literal Interpretation; for, if there be a custom within a manor that copyhold lands may be granted in fee-simple, by the same custom they may be granted in tail for life, for years, or any other extent whatever, because cui licet quod majus non debet quod minus est non licere.—Stewart.
[(r) ] Co. Litt. 15.
[21 ] In some of the States—as in Pennsylvania, for instance—general customs and usage on certain subjects prevailed to such an extent as to produce a distinctive common law. In very few of the States, however, do any mere local customs exist such as are treated of by the commentator in this section. They, however, are to be carefully distinguished from usages of trade or business. These are everywhere allowed their just influence and operation. A usage of trade and business clearly proved to exist, to be ancient, notorious, reasonable, and consistent with law, is permitted to explain the meaning of ambiguous words in written contracts, and to control the mode and extent of their rights where the parties have been silent. But it is never admitted against the expressed agreement of the parties, nor in violation of any statute or well-established rule of law. Perhaps in some cases the courts have gone further than is here indicated; but the current of judicial decisions of late years has been to restrain and limit the allowance and influence of special usages.—Sharswood.
[(s) ] Hist. C. L. c. 2.
[(t) ] Hist. C. L. c. 2.
[(u) ]l. 3, c. 34.
[(v) ] Taylor’s Elements of Civil Law, 17.
[(w) ] See 1, page 18.
[(x) ] Burn’s Eccl. Law, pref. viii.
[(y) ] Statute 25 Hen. VIII. c. 19, revised and confirmed by 1 Eliz. c. 1.
[(z) ] Stra. 1057.
[22 ] Lord Hardwicke cites the opinion of Lord Holt, and declares it is not denied by any one, that it is very plain all the clergy are bound by the canons confirmed by the king only, but they must be confirmed by the parliament to bind the laity. (2 Atk. 605.) Hence, if the archbishop of Canterbury grants a dispensation to hold two livings distant from each other more than thirty miles, no advantage can be taken of it by lapse or otherwise in the temporal courts, for the restriction to thirty miles was introduced by a canon made since the 25 Hen. VIII. 2 Bl. Rep. 968.—Christian.
[(a) ] Hale, Hist. c. 2.
[(b) ] 8 Rep. 20.
[(c) ] The method of citing these acts of parliament is various. Many of our ancient statutes are called after the name of the place where the parliament was held that made them; as the statutes of Merton and Marleberge, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject, as the statutes of Wales and Ireland, the articuli cleri, and the prærogativa regis. Some are distinguished by their initial words, a method of citing very ancient, being used by the Jews in denominating the books of the Pentateuch; by the Christian church in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulls; and, in short, by the whole body of ancient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also; in imitation of all which we still call some of our old statutes by their initial words, as the statute of quia emptores, and that of circumspecte agatis. But the most usual method of citing them, especially since the time of Edward the Second, is by naming the year of the king’s reign in which the statute was made, together with the chapter, or particular act, according to its numeral order, as 9 Geo. II. c. 4, for all the acts of one session of parliament taken together make properly but one statute; and therefore, when two sessions have been held in one year, we usually mention stat. 1 or 2. Thus the bill of rights is cited as 1 W. and M. st. 2. c. 2, signifying that it is the second chapter or act of the second statute, or the laws made in the second session of parliament, in the first year of king William and queen Mary.
[(d) ] Gravin. Orig. i. 24.
[23 ] See other cases upon the distinction between public and private acts. Bac. Ab. Statute F. The distinction between public and private acts is marked with admirable precision by Mr. Abbot, (the present Lord Colchester,) in the following note, in the printed report from the committee for the promulgation of the statutes:—public and private acts.—1. In legal language,—1. Acts are deemed to be public and general acts which the judges will take notice of without pleading,—viz., acts concerning the king, the queen, and the prince; those concerning all prelates, nobles, and great officers; those concerning the whole spirituality, and those which concern all officers in general, such as all sheriffs, &c. Acts concerning trade in general, or any specific trade; acts concerning all persons generally, though it be a special or particular thing, such as a statute concerning assizes, or woods in forests, chases, &c. &c. Com. Dig. tit. Parliament, (R. 6.) Bac. Ab. Statute F. 2. Private acts are those which concern only a particular species, thing, or person, of which the judges will not take notice without pleading them,—viz., acts relating to the bishops only; acts for toleration of dissenters; acts relating to any particular place, or to divers particular towns, or to one or divers particular counties, or to the colleges only in the universities. Com. Dig. tit. Parliament, (R. 7.) 3. In a general act there may be a private clause, ibid. and a private act, if recognised by a public act, must afterwards be noticed by the courts as such. 2 Term Rep. 569. 2. In parliamentary language,—1. The distinction between public and private bills stands upon different grounds as to fees. All bills whatever from which private persons, corporations, &c. derive benefit, are subject to the payment of fees; and such bills are in this respect denominated private bills. Instances of bills within this description are enumerated in the second volume of Mr. Hatsel’s Precedents of Proceedings in the House of Commons, edit. 1796, p. 267, &c. 2. In parliamentary language another sort of distinction is also used: and some acts are called public general acts, others public local acts,—viz., church acts, canal acts, &c. To this class may also be added some acts which, though public, are merely personal,—viz., acts of attainder, and patent acts. &c. Others are called private acts. of which latter class some are local,—viz., enclosure acts, &c.; and some personal,—viz., such as relate to names, estates, divorces, &c.
In many statutes which would otherwise have been private, there are clauses by which they are declared to be public statutes. Bac. Ab. Statutes F.—Chitty.
[24 ] This division is generally expressed by declaratory statutes and statutes introductory of a new law. Remedial statutes are generally mentioned in contradistinction to penal statutes. See note 19, p. 88.—Christian.
[25 ] This statute against clipping the coin hardly corresponds with the general notion either of a remedial or an enlarging statute. In ordinary legal language remedial statutes are contradistinguished to penal statutes. An enlarging or an enabling statute is one which increases, not restrains, the power of action, as the 32 Hen. VIII. c. 28, which gave bishops and all other sole ecclesiastical corporations, except parsons and vicars, a power of making leases, which they did not possess before, is always called an enabling statute. The 13 Eliz. c. 10, which afterwards limited that power, is, on the contrary, styled a restraining or disabling statute. See this fully explained by the learned commentator, 2 Book, p. 319.—Christian.
[26 ] Where there are conflicting decisions upon the construction of a statute, the court must refer to that which ought to be the source of all such decisions,—that is, the words of the statute itself, per Lord Ellenborough. 16 East, 122.
The power of construing a statute is in the judges of the temporal courts, who, in cases of doubtful construction, are to mould them according to reason and convenience, to the best use. Hob. 346. Plowd. 109. 3 Co. 7.—Chitty.
[(e) ] 3 Rep. 7; Co. Litt. 11, 42.
[(f) ] Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.
[27 ] Modern statutes of importance have what is commonly called a “dictionary clause,” the object of which is to define what persons, things, places, &c. shall be included in every general word used in the act. For example, the first section of the Limitation of Actions, act 3 and 4 Wm. IV. c. 27, defines what shall be included in the words “land,” “rent,” and “person.”—Hargrave.
[(g) ] 2 Rep. 46.
[28 ] Lord Hale thinks that the scruple of the judges did not merely depend upon the words being in the plural number, because no doubt had ever occurred respecting former statutes in the plural number; as, for instance, it was enacted by the 32 Hen. VIII. c. 1 that no person convicted of burning any dwelling-houses should be admitted to clergy. But the reason of the difficulty in this case was, because the statute of 37 Hen. VIII. c. 8 was expressly penned in the singular number,—If any man do steal any horse, mare, or filly; and then this statute, varying the number, and at the same time expressly repealing all other exclusions of clergy introduced since the beginning of Hen. VIII., it raised a doubt whether it were not intended by the legislature to restore clergy where only one horse was stolen. 2 H. P. C. 365.
It has since been decided, that where statutes use the plural number, a single instance will be comprehended. The 2 Geo. II. c. 25 enacts, that it shall be felony to steal any bank-notes; and it has been determined that the offence is complete by stealing one bank-note. Hassel’s Case, Leach, Cr. L. 1.—Christian.
[(h) ] 2 and 3 Edw. VI. c. 33. Bav. Elem. c. 12.
[29 ] There are some kinds of statutes in the construction of which the courts have considered themselves bound to adhere more closely to the words than in other cases. This is termed strict construction. The text confines it to penal statutes; but there are others also of this class. As to penal statutes, however, it is to be observed that such laws are not to be construed so strictly as to defeat the obvious intention of the legislature. The United States vs. Wiltberger, 5 Wheat. 76. They are to be construed strictly in that sense that the case in hand must be brought within the definition of the law, but not so strictly as to exclude a case which is within its words taken in their ordinary acceptation: that is to say, there is no peculiar technical meaning given to language in penal any more than in remedial laws. U.S. vs. Wilson, Baldw. C. C. Rep. 78. Hall vs. The State, 20 Ohio, 7. But, besides penal statutes, laws made in derogation of common right are to be construed strictly; as, for instance, statutes for any cause disabling any person of full age and sound mind to make contracts. Smith vs. Spooner, 3 Pick. 229. So statutes conferring exclusive privileges on corporations or individuals fall under this rule Sprague vs. Birdsall, 2 Cowen, 419. Young vs. McKensie, 3 Kelly, 31. Charters of incorporation are to be construed most strongly against those corporations or persons who claim rights or powers under them, and most favourably for the public. Mayor vs. Railroad Co., 7 Georgia, 221. Railroad Co. vs. Briggs, 2 N. Jersey, 623. In the same class are statutes which impose restrictions on trade or common occupations, or which levy a tax upon them. Sewall vs. Jones, 9 Pick. 412. So a statute conferring authority to impose taxes. Moseley vs. Tift, 4 Florida, 402. So laws exempting property from taxation. Cincinnati College vs. Ohio, 19 Ohio, 110. So when the liberty of the citizen is involved. Pierce’s Case, 4 Shipley, 255. The power invested in public bodies to take the lands of private persons for public uses is in derogation of the common law, and ought therefore to receive a rigid interpretation. Sharp vs. Speir, 4 Hill, 76. Sharp vs. Johnson, ibid. 92. Enough has been specified to illustrate the general bearing and application of the principle of strict construction.
By far the most important question, which has ever been agitated, has been in regard to the constitution of the United States. Two schools of constitutional law—the National and State-Rights school—maintain different doctrines upon this subject. The former have always contended that the delegations of power to the federal government ought to receive a large and liberal interpretation; and that at all events, wherever a general object was within the scope of the powers specified, Congress ought to be considered as invested with a large discretion as to the means to be employed for the purpose of giving effect to the power, and especially that there existed no limitation upon their right to appropriate the public money but their own judgment of what would conduce to the “general welfare.” On the other hand, the State-Rights school zealously contend that, the government being conceded to be one of special limited powers, such a principle of construction as that assumed on the other side in effect destroys all limitation; that any thing and every thing can be reached under the power of appropriating money for the “general welfare;” that Congress can employ no means except such as are necessary as well as proper to the end, and have no right to assume a substantive power, not granted, as incidental. Non nobis tantas componcre lites.—Sharswood.
[30 ] These are generally called remedial statutes; and it is a fundamental rule of construction that penal statutes shall be construed strictly, and remedial statutes shall be construed liberally. It was one of the laws of the twelve tables of Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle our law has adopted in the construction of penal statutes; for whenever any ambiguity arises in a statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or in favour of natural right and liberty; or, in other words, the decision shall be according to the strict letter in favour of the subject. And though the judges in such cases may frequently raise and solve difficulties contrary to the intention of the legislature, yet no further inconvenience can result than that the law remains as it was before the statute. And it is more consonant to principles of liberty that the judge should acquit whom the legislator intended to punish, than that he should punish whom the legislator intended to discharge with impunity. But remedial statutes must be construed according to the spirit; for, in giving relief against fraud, or in the furtherance and extension of natural right and justice, the judge may safely go beyond even that which existed in the minds of those who framed the law.—Christian.
[31 ] And, therefore, it has been held that the same words in a statute will bear different interpretations, according to the nature of the suit or prosecution instituted upon them. As by the 9 Ann. c. 14, the statute against gaming, if any person shall lose at any time or sitting 10l. and shall pay it to the winner, he may recover it back within three months; and if the loser does not within that time, any other person may sue for it and treble the value besides. So where an action was brought to recover back fourteen guineas, which had been won and paid after a continuance at play, except an interruption during dinner, the court held the statute was remedial, as far as it prevented the effects of gaming, without inflicting a penalty, and, therefore, in this action, they considered it one time or sitting; but they said if an action had been brought by a common informer for the penalty, they would have construed it strictly in favour of the defendant, and would have held that the money had been lost at two sittings. 2 Bl. Rep. 1226.—Christian.
[(i) ] 3 Rep. 82.
[32 ] Some kinds of statutes are held entitled to receive a liberal or favourable interpretation. Thus, remedial laws are to be so construed as to suppress the mischief and advance the remedy. Smith vs. Maffott, 1 Barb. 65. Franklin vs. Franklin, 1 Maryl. Ch. 342. Carey vs. Giles, 9 Geo. 253. So laws which have reference to the public welfare or the policy of the State, which are intended to encourage her staple productions, to maintain public peace and security, or to extend the blessings of education, Wolcott vs. Pond, 19 Conn. 597. Bryan vs. Dennis, 4 Florida, 445. In like manner, acts of the legislature relative to the general administration of justice. Mitchell vs. Mitchell, 1 Gill, 66.—Sharswood.
[(k) ] 1 Rep. 47.
[33 ] But a proviso, (that is, a clause ingrafted upon a preceding and complete enactment, 9 B. & C. 835,) though totally repugnant to the body or provision of the act, shall not be void, but shall stand, being held to be a repeal of the preceding enactment, by analogy to the well-known rule of construction applicable to testamentary instruments, that a later clause, if inconsistent with a former one, expresses the last intention and revokes the preceding expressions. Fitz. 195, Bac. Abr. Statute.—Hargrave.
[(l) ] Jenk. Cent. 2, 73.
[(m) ] 11 Rep. 63.
[34 ] Later statutes abrogate prior ones. In affirmative statutes, however, such parts of the prior as may be incorporated into the subsequent one, and are consistent with it, must be considered in force. Daviess vs. Fairbairn, 3 Howard U. S. 636. Where two statutes can be construed together so as to allow both to stand, the latter will not be construed a repeal of the former. Morris vs. Canal Co., 4 Watts & Serg. 461. Canal Co. vs. Railroad Co., 4 Gill & John. 1. Statutes which apparently conflict with each other are to be reconciled as far as may be, on any fair hypothesis, and effect given to each if it can be, and especially if it is necessary to preserve the titles to property undisturbed. Beals vs. Hale, 4 Howard U. S. 37. The law does not favour repeals by implication. Bowen vs. Lean, 5 Hill, 221. Wyman vs. Campbell, 6 Porter, 219. Strut vs. Commonwealth, 4 W. & S., 209. A subsequent statute, attaching milder and different punishments to offences than are attached to the same offence by a prior statute, is a repeal of such prior statute. The State vs. Whitworth, 8 Porter. 434. A general law however, does not operate a repeal of a special law upon the same subject passed previous to the general law. McFarland vs. The State Bank, 4 Pike, 410.—Sharswood.
[(n) ] 4 Inst. 325.
[35 ] Where a repealing statute is itself repealed, the first or original statute is thereby ipso facto revived. Commonwealth vs. Churchill, 2 Metc. 118. Directors vs. Railroad Co., 7 W. & S. 236. Harrison vs. Walker, 1 Kelly, 32. The repeal of a statute, however, will not be construed to divest rights which have vested under it. Davis vs. Minor, 1 Howard, (Miss.,) 183. James vs. Dubois, 1 Harr. 285. Mitchell vs. Doggett, 1 Branch, 356. The repeal of a prohibitory act does not make valid contracts prohibited by it which were made while it was in force. Milne vs. Huber, 3 McLean, 212. Where a statute, reviving a statute which had been repealed, is itself repealed, the statute which was revived stands as it did before the revival. Calvert vs. Makepeace, 1 Smith, 86. This rule has been altered in England by St. 12 & 13 Vict. c. 21, s. 5, which enacts that repealed statutes shall not be revived by the repeal of the act repealing them, unless express words be added reviving such repealed acts. The same enactment was made in Virginia in the year 1789.—Sharswood.
[(o) ] 4 Inst. 43.
[(p) ]Cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat. l. 3, ep. 23.
[36 ] If an act of parliament is clearly and unequivocally expressed, with all deference to the learned commentator, I conceive it is neither void in its direct nor collateral consequences, however absurd and unreasonable they may appear. If the expression will admit of doubt, it will not then be presumed that that construction can be agreeable to the intention of the legislature, the consequences of which are unreasonable; but where the signification of a statute is manifest, no authority less than that of parliament can restrain its operation.Christian.
[(q) ] 8 Rep. 118.
[37 ] The following canons of interpretation may be added to those stated in the text:-
11. A statute shall always be so construed as to operate prospectively, and not retrospectively, unless, indeed, the language is so clear as to preclude all question as to the intention of the legislature. Sayre vs. Wisner, 8 Wend. 661. Hastings vs. Lane, 3 Shep. 134. Brown vs. Wilcox, 14 S. & M. 127. Quackenbush vs. Danks, 1 Denio, 128. This is a very important rule and frequently called into exercise. The provision in the Federal and most of the State constitutions prohibiting the passage of ex post facto laws has been confined by construction to criminal or penal laws; and the power of the legislature to affect injuriously vested rights, when the obligation of contracts is not violated, is generally conceded. Hence the value and necessity of the rule in question.
12. Contemporaneous usage may be resorted to as evidence of the construction put upon a statute by those best acquainted with the mind and intention of the lawmakers. When a particular construction has thus been assumed and acted on at an early day, and especially if many titles depend upon it, the courts will not at a subsequent period disturb it, even if it should appear to be indefensible on principle. McKeer vs. Delancy, 5 Cranch, 22. Chesnut vs. Shane, 16 Ohio, 519. Kernion vs. Hills, 1 Louis. Ann. R. 419.
13. The judicial interpretation of the statute of a State as settled by its own courts is to be received and followed by the courts of other States and by the Federal Judiciary. Johnston vs. The Bank, 3 Strobh. Eq. 263. Hoyt vs. Thompson, 3 Sandf. Supreme Court, 416. So even the Supreme Court of the United States is held bound by the determination of the State courts upon the construction of their State constitutions, and the validity of State laws as dependent thereon. Elmendorf vs. Taylor, 10 Wheat. 152. Harpending vs. Dutch Church, 16 Peters, 439.
14. Where there has been a general revision of the statute code of a State, under the authority of the legislature, and the revision has been approved and adopted, a mere change of phraseology introduced by the revisers will not be held to have effected a change, unless such appear clearly to have been the intention. Chambers vs. Carson, 2 Whart. 9. Commonwealth vs. Rainey, 4 W. & S. 186. In re Brown, 21 Wendell, 316. It has been held in some States, however, that where a statute is revised and a provision contained in it is omitted in the new statute, the inference is that a change in the law is intended. If the omission is accidental, it belongs to the legislature to supply it. Back vs. Spofford, 31 Maine, 34. Ellis vs. Paige, 1 Pick. 43.
15. A statute cannot be repealed by usage or become obsolete by non-user. Wright vs. Crane, 13 Serg. & R. 447. Snowden vs. Snowden, 1 Bland. 550. When the circumstances or business of a community so materially change that the facts no longer can arise to which a statute was meant to apply, in that sense it may become obsolete. It may, however, so happen that the current of legislation shows that an old statute, never actually repealed, was regarded by the legislature as no longer in force; and in that case it may be regarded as repealed by implication. Hill vs. Smith, 1 Morris, 70.—Sharswood.
[1 ] It cannot be said that the king’s eldest son became Prince of Wales by any necessary or natural consequence; but, for the origin and creation of his title, see page 224.—Christian.
[(a) ] Vaugh, 400.
[2 ] The learned judge has made a mistake in referring to the statute, which is called the statute of Rutland, in the 10 Ed. I., which does not at all relate to Wales. But the statute of Rutland, as it is called in Vaughan, (p. 400,) is the same as the Statutum Walliæ. Mr. Barrington, in his Observations on the Ancient Statutes, (p. 74,) tells us, that the Statutum Walliæ bears date apud Rothelanum, what is now called Rhuydland in Flintshire. Though Edward says, that terra Walliæ prius regi jure feodali subjecta, yet Mr. Barrington assures us, that the feudal law was then unknown in Wales, and that “there are at present in North Wales, and it is believed in South Wales, no copyhold tenures, and scarcely an instance of what we call manerial rights; but the property is entirely free and allodial. Edward, however, was a conqueror, and he had a right to make use of his own words in the preamble to his law.” Ib. 75.—Christian.
[(b) ] 10 Edw. I.—“The territory of Wales, before subjected with its inhabitants to the king by the feudal law, is erected into a principality; and as an integral part of England, annexed to and united with the crown.”
[(c) ] 12 Edw. I.
[(d) ] 4 Inst. 345.
[3 ] The laws in Scotland concerning the tenures of land, and of consequence the constitution of parliaments and the royal prerogatives, were founded upon the same feudal principles as the laws respecting these subjects in England. It is said, that the feudal polity was established first in England; and was afterwards introduced into Scotland, in imitation of the English government. But it continued in its original form much longer in Scotland than it did in England, and the changes in the Scotch government, probably owing to the circumstance that they are more recent, are far more distinctly marked and defined than they are in the history of the English constitution. And perhaps the progress of the Scotch parliaments affords a clearer elucidation of the obscure and ambiguous points in the history of the representation and constitution of our country, than any arguments or authorities that have yet been adduced. But a particular discussior of this subject would far exceed the limits of a note, and will be reserved for a future occasion. But for an account of the parliament of Scotland before the union, and the laws relative to the election of the representative peers and commoners of Scotland, I shall refer the studious reader to Mr. Wight’s valuable Inquiry into the Rise and Progress of Parliaments chiefly in Scotland. (Quarto ed.) It is supposed, that we owe the lower house of parliament in England to the accidental circumstance that the barons and the representatives of the counties and boroughs had not a room large enough to contain them all; but in Scotland, the three estates assembled always in one house, had one common president, and deliberated jointly upon all matters that came before them, whether of a judicial or of a legislative nature. (Wight, 82.) In England the lords spiritual were always styled one of the three estates of the realm; but there is no authority that they ever voted in a body distinct from the lords temporal. In the Scotch parliament the three estates were, 1. The bishops, abbots, and other prelates who had a seat in parliament, as in England, on account of their benefices, or rather lands, which they held in capite, i.e. immediately of the crown: 2. The barons, and the commissioners of shires, who were the representatives of the smaller barons, or the free tenants of the king: 3. The burgesses, or the representatives of the royal boroughs. Craig assures us, nihil ratum esse, nihil legis vim habere, nisi quod omnium, trium ordinum consensu conjuncto constitutum est; ita tamen ut unius cujusque ordinis per se major pars consentiens pro toto ordine sufficiat. Scio hodie controverti, an duo ordines dissentiente tertio, quasi major pars, leges condere possint; cujus partem negantem boni omnes, et quicunque de hac re scripserunt, pertinacissimè tuentur, alioqui quo ordines in eversionem tertii possint consentire. (De Feudis, lib. i. Dieg. 7, s. 11.) But some writers have since presumed to controvert this doctrine. (Wight, 83.) It is strange that a great fundamental point, which was likely to occur frequently, should remain a subject of doubt and controversy. But we should now be inclined to think, that a majority of one of the estates could not have resisted a majority of each of the other two, as it cannot easily be supposed that a majority of the spiritual lords would have consented to those statutes, which, from the year 1587 to the year 1690, were enacted for their impoverishment, and finally for their annihilation. At the time of the union, the Scotch parliament consisted only of the other two estates. With regard to laws concerning contracts and commerce, and perhaps also crimes, the law of Scotland is in a great degree conformable to the civil law; and this, probably, was owing to their frequent alliances and connections with France and the continent, where the civil law chiefly prevailed.—Christian.
[4 ] By the 25th article it is agreed, that all laws and statutes in either kingdom, so far as they are contrary to these articles, shall cease and become void. From the time of Edw. IV. till the reign of Ch. II. both inclusive, our kings used frequently to grant, by their charter only, a right to unrepresented towns of sending members to Parliament. The last time this prerogative was exercised, was in the 20 Ch. II. who gave this privilege to Newark; and it is remarkable, that it was also the first time that the legality of this power was questioned in the House of Commons, but it was then acknowledged by a majority of 125 to 73. (Comm. Jour. 21 March 1676-7.) But notwithstanding it is a general rule in our law, that the king can never be deprived of his prerogatives, but by the clear and express words of an act of parliament; yet it has been thought, from this last article in the act of union, that this prerogative of the crown is virtually abrogated, as the exercise of it would necessarily destroy the proportion of the representatives for the two kingdoms. (See 1 Doug. El. Cases, 70. The Preface to Glanv. Rep. and Simeon’s Law of Elect. 91.) It was also agreed, that the mode of the election of the peers and the commons should be settled by an act passed in the parliament of Scotland, which was afterwards recited, ratified, and made part of the act of union. And by that statute it was enacted, that of the 45 commoners, 30 should be elected by the shires, and 15 by the boroughs; that the city of Edinburgh should elect one, and that the other royal boroughs should be divided into fourteen districts, and that each district should return one. It was also provided, that no person should elect or be elected one of the 45, but who would have been capable of electing, or of being elected, a representative of a shire or a borough to the parliament of Scotland. Hence, the eldest son of any Scotch peer cannot be elected one of the 45 representatives; for by the law of Scotland, prior to the union, the eldest son of a Scotch peer was incapable of sitting in the Scotch parliament. (Wight, 269.) There seems to be no satisfactory reason for this restriction, which would not equally extend to the exclusion of all the other sons of a peer. Neither can such eldest son be entitled to be enrolled and vote as a freeholder for any commissioner of a shire, though otherwise qualified, as was lately determined by the house of lords in the case of lord Daer, March 26, 1793. But the eldest sons of Scotch peers may represent any place in England, as many do. (2 Hats. Prec. 12.) The two statutes, 9 Ann. c. 5, and 33 Geo. II. c. 20, requiring knights of shires and members for boroughs to have respectively 600l. and 300l. a year, are expressly confined to England. But a commissioner of a shire must be a freeholder, and it is a general rule that none can be elected, but those who can elect. (Wight, 289.) And till the contrary was determined by a committee of the house of commons in the case of Wigtown in 1775, (2 Doug. 181,) it was supposed that it was necessary that every representative of a borough should be admitted a burgess of one of the boroughs which he represented. (Wight, 404.) It still holds generally true in shires in Scotland, that the qualifications of the electors and elected are the same; or that eligibility and a right to elect are convertible terms. Upon some future occasion I shall endeavour to prove, that, in the origin of representation, they were universally the same in England.—Christian.
[5 ] Since the union, the following orders have been made in the house of Lords respecting the peerage of Scotland. Queen Anne, in the seventh year of her reign, had created James duke of Queensbury, duke of Dover, with remainder in tail to his second son, then earl of Solway in Scotland; and upon the 21st of January, 1708-9, it was resolved by the lords, that a peer of Scotland claiming to sit in the house of peers by virtue of a patent passed under the great seal of Great Britain, and who now sits in the parliament of Great Britain, had no right to vote in the election of the sixteen peers who are to represent the peers of Scotland in parliament.
The duke of Hamilton having been created duke of Brandon, it was resolved by the lords on the 20th of December, 1711, that no patent of honour granted to any peer of Great Britain, who was a peer of Scotland at the time of the union, should entitle him to sit in parliament. Notwithstanding this resolution gave great offence to the Scotch peerage, and to the queen and her ministry, yet a few years afterwards, when the duke of Dover died, leaving the earl of Solway, the next in remainder, an infant, who, upon his coming of age, petitioned the king for a writ of summons as duke of Dover; the question was again argued on the 18th December, 1719, and the claim as before disallowed. (See the argument, 1 P. Wms. 582.) But in 1782 the duke of Hamilton claimed to sit as duke of Brandon, and the question being referred to the judges, they were unanimously of opinion, that the peers of Scotland are not disabled from receiving, subsequently to the union, a patent of peerage of Great Britain, with all the privileges incident thereto. Upon which the lords certified to the king, that the writ of summons ought to be allowed to the duke of Brandon, who now enjoys a seat as a British peer. (6th June, 1782.) But there never was any objection to an English peer’s taking a Scotch peerage by descent; and, therefore, before the last decision, when it was wished to confer an English title upon a noble family of Scotland, the eldest son of the Scotch peer was created in his father’s lifetime an English peer, and the creation was not affected by the annexation by inheritance of the Scotch peerage. On the 13th of February, 1787, it was resolved, that the earl of Abercorn and the duke of Queensbury, who had been chosen of the number of the sixteen peers of Scotland, having been created peers of Great Britain, thereby ceased to sit in that house as representatives of the peerage. (See the argument in Ann. Reg. for 1787, p. 95.) At the election occasioned by the last resolution, the dukes of Queensbury and Gordon had given their votes as peers of Scotland, contrary to the resolution of 1709, in consequence of which it was resolved, 18th May, 1787, that a copy of that resolution should be transmitted to the lord register of Scotland as a rule for his future proceeding in cases of election.
The duke of Queensbury and marquis of Abercorn had tendered their votes at the last general election, and their votes were rejected; but notwithstanding the former resolutions, on 23d May, 1793, it was resolved, that if duly tendered they ought to have been counted.—Christian.
[(e) ] It may justly be doubted whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union: for the bare idea of a state, without a power somewhere vested to alter every part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a fœderate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of a revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See Warburton’s Alliance, 195.) But the wanton or imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy) the union.
To illustrate this matter a little farther, an act of parliament to repeal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and, notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honourably pursued, if respectively agreeable to the sentiments of the English church, or the kirk in Scotland. But it should seem neither prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers of parliament, or at the instance of mere individuals.
So sacred indeed are the laws above mentioned (for protecting each church and the English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the regents are expressly disabled from assenting to the repeal or alteration of either these or the act of settlement.
[(f) ] Hale, Hist. C. L. 183. 1 Sid. 382, 462. 2 Show. 365.
[(g) ] Cro. Jac. 543. 2 Roll. Abr. 292. Stat. 11 Geo. I. c. 4. 4 Burr. 834.
[6 ] See the case of the King vs. Cowle, in 2 Burr. 834, where the constitution of the town of Berwick upon Tweed, and, indeed, the prerogative as to dominion extra Great Britain, is very elaborately discussed.—Christian.
[(h) ]Stat. Hiberniæ, 14 Hen. III.
[(i) ] Pryn. on 4 Inst. 249.
[(k) ] 4 Inst. 358. Edm. Spenser’s State of Ireland, p. 1513, edit. Hughes.
[(l) ] Vaugh. 294. 2 Pryn. Rec. 85. 7 Rep. 23.
[(m) ] 1 Inst. 141.
[(n) ]A. R. 30. 1 Rym. Feod. 442.
[(o) ]A. R. 5.—pro eo quod leges quibus utuntur Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant;—nobis et consilio nostro satis videtur expediens, eisdem utendas concedere leges Anglicanas. 3 Pryn. Rec. 1218.
[(p) ] Edm. Spenser, ibid.
[(q) ] 20 Hen. VI. 8. 2 Ric. III. 12.
[(r) ] Yearbook 1 Hen. VII. 3, 7. Rep. 22. Calvin’s case.
[(s) ] Irish stat. 11 Eliz. st. 3, c. 8.
[(t) ] Ibid. 10 Hen. VII. c. 23.
[(u) ] Cap. 4, expounded by 3 and 4 Ph. and M. c. 4.
[(w) ] 4 Inst. 353.
[(x) ] Irish stat. 11 Eliz. st. 3, c. 38.
[(y) ] Cap. 2.
[(z) ] 4 Inst. 351.
[(a) ] 12 Rep. 112.
[(b) ] Puff. L. of N. viii. 6, 24. “Grot. de Jus. B. and P. 3, 8.”
[7 ] Prynne, in his learned argument, has enumerated several statutes made in England from the time of king John, by which Ireland was bound. (3 St. Tr. 343.) That was an argument to prove that Lord Connor Maguire, Baron of Inneskillin in Ireland, who had committed treason in that country, by being the principal contriver and instigator of the Irish rebellion and massacre in the time of Car. I., and who had been brought to England against his will, could be lawfully tried for it in the King’s Bench at Westminster by a Middlesex jury, and be ousted of his trial by his peers in Ireland, by force of the statute of 35 Hen. VIII. c. 2.
The prisoner having pleaded to the jurisdiction, the court, after hearing this argument, overruled the plea, and the decision was approved of by a resolution of the two houses of parliament, and Lord Maguire was found guilty, and was afterwards executed at Tyburn as a traitor.—Christian.
[(c) ] This was law in the time of Hen. VIII.; as appears by the ancient book, entituled Diversity of Courts, c. bank le roy.
[(d) ] Vaugh. 402.
[8 ] The following statement of that great and most important event, the union of Great Britain and Ireland, is extracted from the 39 and 40 Geo. III. c. 77.
In pursuance of his Majesty’s most gracious recommendation to the two houses of parliament in Great Britain and Ireland respectively to consider of such measures as might best tend to strengthen and consolidate the connection between the two kingdoms, the two houses of parliament in each country resolved, that, in order to promote and secure the essential interests of Great Britain and Ireland, and to consolidate the strength, power, and resources of the British empire, it was advisable to concur in such measures as should best tend to unite the two kingdoms into one kingdom, on such terms and conditions as should be established by the acts of the respective parliaments in the two countries. And, in furtherance of that resolution, the two houses of each parliament agreed upon eight articles, which, by an address of the respective houses of parliament, were laid before his Majesty for his consideration; and his Majesty having approved of the same, and having recommended it to his parliaments in Great Britain and Ireland to give full effect to them, they were ratified by an act passed in the parliament of Great Britain on the 2d of July, 1800.
Art. I. That the kingdom of Great Britain and Ireland shall, on the first day of January, 1801, and forever after, be united into one kingdom, by the name of the United Kingdom of Great Britain and Ireland; and that the royal style and titles of the imperial crown, and the ensigns, armorial flags, and banners, shall be such as should be appointed by his Majesty’s royal proclamation.
Art. II. That the succession to the imperial crown shall continue settled in the same manner as the succession to the crown of Great Britain and Ireland stood before limited.
Art. III. That there shall be one parliament, styled The Parliament of the United Kingdom of Great Britain and Ireland.
Art. IV. That four lords spiritual of Ireland, by rotation of sessions, and twenty-eight lords temporal of Ireland, elected for life by the peers of Ireland, shall sit in the House of Lords; and one hundred commoners—two for each county, two for the city of Dublin, and two for the city of Cork, one for Trinity College, and one for each of the thirty-one most considerable cities and boroughs—shall be the number to sit in the House of Commons on the part of Ireland.
That questions respecting the rotation or election of the spiritual or temporal peers shall be decided by the House of Lords, and in the case of an equality of votes in the election of a temporal peer, the clerk of the parliament shall determine the election by drawing one of the names from a glass.
That a peer of Ireland, not elected one of the twenty-eight, may sit in the House of Commons; but whilst he continues a member of the House of Commons, he shall not be entitled to the privilege of peerage, nor capable of being elected one of the twenty-eight, nor of voting at such election, and he shall be sued and indicted for any offence as a commoner.
That as often as three of the peerages of Ireland, existing at the time of the union, shall become extinct, the king may create one peer of Ireland; and when the peers of Ireland are reduced to one hundred by extinction or otherwise, exclusive of those who shall hold any peerage of Great Britain subsisting at the time of the union, or created of the united kingdom since the union, the king may then create one peer of Ireland for every peerage that becomes extinct, or as often as any one of them is created a peer of the united kingdom, so that the king may always keep up the number of one hundred Irish peers, over and above those who have an hereditary seat in the House of Lords.
That questions respecting the election of the members of the House of Commons returned for Ireland shall be tried in the same manner as questions respecting the elections for places in Great Britain, subject to such particular regulations as the parliament afterwards shall deem expedient.
That the qualifications by property of the representatives in Ireland shall be the same respectively as those for counties, cities, and boroughs in England, unless some other provision be afterwards made.
Until an act shall be passed in the parliament of the united kingdom providing in what cases persons holding offices and places of profit under the crown of Ireland shall be incapable of sitting in the House of Commons, not more than twenty such persons shall be capable of sitting; and if more than twenty such persons shall be returned from Ireland, then the seats of those above twenty shall be vacated who have last accepted their offices or places.
That all the lords of parliament on the part of Ireland, spiritual and temporal, sitting in the House of Lords, shall have the same rights and privileges respectively as the peers of Great Britain; and that all the lords spiritual and temporal of Ireland shall have rank and precedency next and immediately after all the persons holding peerages of the like order and degree in Great Britain subsisting at the time of the union; and that all peerages hereafter created of Ireland, or of the united kingdom, of the same degree, shall have precedency according to the dates of their creations; and that all the peers of Ireland, except those who are members of the House of Commons, shall have all the privileges of peers as fully as the peers of Great Britain, the right and privileges of sitting in the House of Lords, and upon the trial of peers, only excepted.
Art. V. That the churches of England and Ireland be united into one protestant-episcopal church, to be called The United Church of England and Ireland; that the doctrine and worship shall be the same; and that the continuance and preservation of the united church as the established church of England and Ireland shall be deemed an essential and fundamental part of the union; and that, in like manner, the church of Scotland shall remain the same as is now established by law and by the acts of union of England and Scotland.
Art. VI. The subjects of Great Britain and Ireland shall be entitled to the same privileges with regard to trade and navigation, and also in respect of all treaties with foreign powers.
That all prohibitions and bounties upon the importation of merchandise from one country to the other shall cease.
But that the importation of certain articles therein enumerated shall be subject to such countervailing duties as are specified in the act.
Art. VII. The sinking-funds and the interest of the national debt of each country shall be defrayed by each separately. And, for the space of twenty years after the union, the contribution of Great Britain and Ireland towards the public expenditure in each year shall be in the proportion of fifteen to two, subject to future regulations.
Art. VIII. All the laws and courts of each kingdom shall remain the same as they are now established, subject to such alterations by the united parliament as circumstances may require; but that all writs of error and appeals shall be decided by the House of Lords of the united kingdom, except appeals from the court of admiralty in Ireland, which shall be decided by a court of delegates appointed by the court of chancery in Ireland.
The statute then recites an act passed in the parliament of Ireland, by which the rotation of the four spiritual lords for each sessions is fixed; and it also directs the time and mode of electing the twenty-eight temporal peers for life; and it provides that sixty-four county members shall be elected, two for each county, two for the city of Dublin, two for the city of Cork, one for Trinity College, Dublin, and one for each of thirty-one cities and towns which are there specified, which are the only places in Ireland to be represented in future. One of the two members of each of those places was chosen by lot, unless the other withdrew his name, to sit in the first parliament; but at the next elections one member only will be returned.
An Irish peer is now entitled to every privilege except that of sitting in the House of Lords, unless he chooses to waive it, in order to sit in the House of Commons; and therefore Irish peers, who are not members of the House of Commons, are entitled to the letter missive from the court of chancery, when a bill is filed against them. 8 Ves. Jun. 601.—Christian.
[(e) ] 4 Inst. 284. 2 And. 116.
[(f) ] Selden, tit. hon. 1, 3.
[(g) ] Camden, Eliz. ad 1594.
[(h) ] 1 P. Wms. 329.
[(i) ] The bishopric of Man, or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that of York, by statute 33 Hen. VIII. c. 31.
[(k) ] 4 Inst. 286.
[(l) ] Salk. 411, 666.
[(m) ] 2 P. Wms. 75.
[9 ] A statute passed in England after the establishment of a colony, will not affect it unless it be particularly named; and therefore the requisites of the statute against frauds, in executing wills, &c., have no influence in Barbadoes: (see cases collected 1 Chitty’s Com. Law, 638:) so the 5 & 6 Ed. VI. c. 16, as to sale of offices, do not extend to Jamaica. 4 Mod. 222.—Chitty.
[10 ] See an elaborate and learned argument by lord Mansfield, to prove the king’s legislative authority by his prerogative alone over a ceded conquered country. Cowp. 204.—Christian.
What the king may or may not do, by virtue of his prerogative, with reference to a conquered or ceded country, is very elaborately discussed, (Chalm. Opin. 169.)—Chitty.
[(n) ] 7 Rep. 17, Calvin’s case. Show. Parl. c. 31.
[11 ] Sir William Blackstone considered the British colonies in North America as ceded or conquered countries, and thence concluded that the common law in general had no allowance or authority there. But this was an error. The claim of England to the soil was made by her in virtue of discovery, not conquest or cession. The aborigines were considered but as mere occupants, not sovereign proprietors; and the argument for the justice of taking possession and driving out the natives was rested upon the ground that a few wandering hordes of savages had no right to the exclusive possession and enjoyment of the vast and fertile regions which were opened for the improvement and progress of civilized man by the discovery of the New World. “On the discovery of this immense continent,” said C. J. Marshall, in Johnson vs. McIntosh, 8 Wheaton, 582, “the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the Old World found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the New by bestowing on them civilization and Christianity in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession.
“The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others, all assented.
“Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.
“In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.”
It follows, then, that the true principle as regards the British colonies in this country, which subsequently became the United States, is that which the learned commentator has recognised to be the rule of new settlements:—“That if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue, (such especially as are enforced by penalties,) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force.”
This expresses accurately and fully the well-settled and repeatedly recognised doctrine of the American courts upon the subject of the extension of the English common law and statutes to this country. Our ancestors brought with them only such parts of the laws of England as were adapted to their new condition, and, we may add as quite important, such only as were conformable to their principles. The original settlers of this country belonged to a stock of men whose history exhibited in a remarkable manner the ascendency of moral and religious principles, and who were deeply imbued with notions of the right of men to live under governments of their own choice. All the great safeguards of political liberty which were consecrated in England about that period or subsequently, by the Bill of Rights and Act of Settlement, were received and held by them as fundamental to all free government. Not only so, but their ideas on religious freedom, on the administration of criminal law, and on the process and pleading in courts, were simple, just, and humane. There never was an order of provincial nobility, nor, with one or two unimportant exceptions, an established clergy, in any of the colonies. Thus, not only in regard to the common law, but as to the statutes in force at the time of their settlement, some parts were adopted, some entirely rejected, and some adopted with important modifications. Some British statutes passed subsequent to that date were in some cases silently adopted, without express legislation: the lawyers of the old colonies, having either been educated in England, or deriving their ideas from English books, adopted and introduced into general practice and understanding such improvements as they found to be convenient.
Equally false is the doctrine asserted that these colonies were subject to the control of the parliament. The colonies were never represented in that body; and although the charters were derived from the crown, and all admitted a common allegiance to the same sovereign, it did not therefore follow that they were subject to the legislative authority of the English people. The great principle successfully maintained by the American Revolution was that taxation and representation are inseparable. And although in the early part of the struggle the Americans were ready to concede the power, provided it was used merely for the purpose of regulation, and not for revenue, before the struggle closed all such distinctions were repudiated. It was clearly seen and argued that no such power over the fortunes and industry of the people of the colonies could with safety be trusted to a legislature at so great a distance, in which they had no voice, which could feel no sympathy for them, and was without that accurate and intimate acquaintance with their character, pursuits, and resources, which is necessary to the wise and impartial exercise of such a power.—Sharswood.
[12 ] Of the American colonies which subsequently became the United States, New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia, were provincial establishments at the period of the Revolution; Maryland, Pennsylvania, and Delaware were proprietary governments; and Massachusetts, Rhode Island, and Connecticut were charter governments.
Mr. Justice Story remarks (1 Com. on the Const., 145) that Blackstone’s description of charter governments is by no means just or accurate. They could not be justly considered as mere civil corporations of the realm, empowered to pass by-laws; but rather as great political establishments or colonies, possessing the general powers of government and rights of sovereignty, dependent indeed and subject to the realm of England, but still possessing within their own territorial limits the general powers of legislation and taxation.—Sharswood.
[13 ] By 22 Geo. III. c. 46, his majesty was empowered to conclude a truce or peace with the colonies or plantations in America; and, by his letters patent, to suspend or repeal any acts of parliament which related to those colonies. And by the first article of the definitive treaty of peace and friendship between his Britannic majesty and the United States of America, signed at Paris, the 3d day of September, 1783, his Britannic majesty acknowledges the United States of America to be free, sovereign, and independent States. (Ann. Regist. 1783: State Papers.) And 23 Geo. III. c. 39 gives his majesty certain powers for the better carrying on trade and commerce between England and the United States.—Christian.
[(o) ] Stat. 12 and 13 Will. III. c. 3.
[(p) ] Co. Litt. 260.
[14 ] The reason given in the text for the dominion of England over the high seas is clearly insufficient; for the courts of admiralty of all nations have jurisdiction thereon. It is now a well-established and recognised principle of international law that no nation has any exclusive dominion over the high seas, which are the highway of all nations, and are subject not to the jurisdiction of any particular country, but to the public law of the whole civilized world. However, the rightfulness of exclusive dominion over the high seas was maintained by Selden in his Mare clausum, and controverted by Grotius in his Mare liberum; and England has long claimed such a right over the four seas surrounding the British Isles. Every nation has nevertheless exclusive dominion over the sea within a certain distance of her shores,—usually agreed to be as far as a cannon-shot will reach from the land, or a marine league. It has been thought that the United States, owing to her extensive Atlantic coast, has a right to claim all within a line drawn from one headland to another: at least, that she may well claim that the neighbouring ocean within that distance from her shores shall enjoy immunity from the hostilities of other nations. In 1806, the government of the United States thought it would not be unreasonable, considering the extent and shoalness of the coast and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare for the space between that limit and the American shore. 1 Kent’s Com. 30. Bowyer’s Const. Law, 30.—Sharswood.
[(q) ] Finch, L. 78.
[(r) ] Co. Litt. 94.
[(s) ] Gibson’s Britain.
[(t) ] Seld of Tith. 9, 4. 2 Inst. 646. Hob. 296.
[(u) ] In his Britannia.
[(w) ] Hob. 296.
[(x) ] Of tithes, c. 9.
[(y) ]C. 1.
[(z) ] Ibid. c. 2. See also the laws of King Canute, c. 11, about the year 1030.
[(a) ] 2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.
[15 ] Modern researches into the more remote periods of antiquity have led to the discovery, that the learned commentator was incorrect in ascribing the institution of these civil divisions of the kingdom to Alfred. In the reign of Ina, king of the West Saxons, towards the end of the seventh century, the tithing and shire are both mentioned. And no doubt they were brought from the continent by some of the first Saxon settlers in this island; for the tithing, hundred, and shire, are noticed in the capitularies of the Franks, before the year 630, whence it is reasonably inferred, they were known in France at least two centuries before the reign of Alfred. It may therefore be concluded, that, among the people of this country, they were part of those general customs which Alfred collected, arranged, and improved into an uniform system of jurisprudence. See Whitaker’s History of Manchester; Montesquieu, Esprit des Lois, tom. 2, p. 376; Stuart’s Diss. on the English Constitution, 254; and Henry’s History of Great Britain.—Chitty.
[(b) ]Flet. 1, 47. This the laws of king Edward the Confessor, c. 20, very justly entitled, “summa et maxima securitas, per quam omnes statu firmissimo sustinentur;—quse hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c.”
[(c) ] Mirr. c. 1, 3.
[(d) ] Finch, L. 8.
[(e) ] 1 Inst. 115.
[16 ] Westminster was one of the new bishoprics created by Henry VIII. out of the revenues of the dissolved monasteries. (2 Burn, E. L. 78.) Thomas Thirlby was the only bishop that ever filled that see, (Godw. Com. de Præs. 570:) he surrendered the bishopric to Ed. VI., 30th March, 1550, and on the same day it was dissolved and added again to the bishopric of London. (Rym. Fœd. 15 tom. p. 222.) Queen Mary afterwards filled the church with Benedictine monks, and Eliz., by authority of parliament, turned it into a collegiate church subject to a dean; but it retained the name of city, not perhaps because it had been a bishop’s see, but because, in the letters patent erecting it into a bishopric, king Henry declared, volumus itaque et per præsentes ordinamus quod ecclesia cathedralis et sedes episcopalis, ac quod tota villa nostra Westmonasterii sit civitas, ipsamque civitatem Westmonasterii vocari et nominari volumus et decernimus. There was a similar clause in favour of the other five new-created cities, viz. Chester, Peterborough, Oxford, Gloucester, and Bristol. The charter for Chester is in Gibs. Cod. 1449, and that for Oxford in Rym. Fœd. 14 tom. 754. Lord Coke seems anxious to rank Cambridge among the cities, because he finds it called civitas in an ancient record, which he “thought it good to mention in remembrance of his love and duty, almæ matri academiæ Cantabrigiæ.” (Co. Litt. 109.) The present learned Vinerian professor of Oxford has produced a decisive authority that cities and bishops’ sees had not originally any necessary connection with each other. It is that of Ingulphus, who relates that, at the great council assembled in 1072, to settle the claim of precedence between two archbishops, it was decreed that bishops’ sees should be transferred from towns to cities. (1 Woodd. 302.) In Will. Malm. Scrip. Ang. p. 214, it is concessum est episcopis de villis transire in civitates.
The accidental coincidence of the same number of bishops and cities would naturally produce the supposition that they were connected together as a necessary cause and effect. It is certainly (as Mr. Wooddeson observes) a strong confirmation of this authority, that the same distinction is not paid to bishops’ sees in Ireland. Mr. Hargrave, in his notes to Co. Litt. 110, proves, that, although Westminster is a city, and has sent citizens to parliament since the time of Ed. VI., it never was incorporated; and this is a striking instance in contradiction of the learned opinions there referred to, viz.: that the king could not grant within time of memory to any place the right of sending members to parliament without first creating that place a corporation.—Christian.
[(f) ] Co. Litt. 109.
[(g) ] Litt. 164.
[(h) ] 1 Inst. 116.
[(i) ] 14 Edw. I.
[(k) ] Gloss. 274.
[(l) ] Seld. in Fortesc. c. 24.
[17 ]Et quod Angli vocant hundredum, comitatus Yorkshire, Lincolnshire, Nottinghamshire, Leicestershire, et Northamptonshire, vocant wapeniachium. (Ll. Edw. c. 33.) And it proceeds to explain why they are called so,—viz., because the people at a public meeting confirmed their union with the governor by touching his weapon or lance.—Christian.
[(m) ] Seld. tit. of honour, 2, 5, 3.
[(n) ] Montesq. Sp. L. 30, 17.
[(o) ] Tacit. de Morib. German. 6.
[(p) ]Ll. Edw. c. 34.
[(q) ] Seld. tit. hon. 2, 5, 8.
[(r) ]Pat. 25 Edw. III. p. 1, m. 18. Seld. ibid. Sandford’s [Editor: Illegible word] Hist. 112. 4 Inst. 204.
[(s) ]Cart. 36 Edw. III. n. 9.
[(t) ]Pat. 51 Edw. III. m. 33. Plowd. 215. 7 Rym. 138.
[(u) ]l. 3, c. 8, 4.—“Regal power over all things.”
[(w) ] 4 Inst. 204.
[(x) ] Seld. in Heng. Magn. c. 2.
[(y) ] Robertson, Cha. V. i. 60.
[(z) ] 4 Inst. 205.
[(a) ] 215.
[(b) ] 4 Inst. 205.
[(c) ]Parl. 2 Hen. V. n. 30. 3 Hen. V. n. 15.
[(d) ] 1 Ventr. 155.
[(e) ] 1 Ventr. 157.
[(f) ] Some have entertained an opinion (Plowd. 220, 1, 2. Lamb. Archeion. 233. 4 Inst. 206) that by this act the right of the duchy vested only in the natural, and not in the political, person of king Henry VII., as formerly in that of Henry IV., and was descendible to his natural heirs, independent of the succession to the crown. And, if this notion were well founded, it might have become a very curious question, at the time of the revolution in 1688, in whom the right of the duchy remained after king James’s abdication, and previous to the attainder of the pretended prince of Wales. But it is observable, that in the same act the duchy of Cornwall is also vested in king Henry VII. and his heirs, which could never be intended in any event to be separated from the inheritance of the crown And indeed it seems to have been understood very early after the statute of Henry VII. that the duchy of Lancaster was by no means thereby made a separate inheritance from the rest of the royal patrmony, since it descended with the crown to the half-blood in the instances of queen Mary and queen Elizabeth, which it could not have done as the estate of a mere duke of Lancaster, in the common course of legal descent. The better opinion, therefore, seems to be that of those judges, who held, (Plowd. 221,) that notwithstanding the statute of Henry VII., (which was only an act of resumption,) the duchy still remained as established by the act of Edward IV., separate from the other possessions of the crown in order and government, but united in point of inheritance.
[(g) ] 4 Inst. 220.
[18 ] By art. i. sec. 8 of the constitution of the United States, “Congress shall have power to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” Accordingly, the District of Columbia was ceded by the States of Maryland and Virginia to the United States and accepted by Congress.
By art. iv. sec. 3 of the constitution of the United States, “The Congress shall have power to dispose of and make all needful regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States or of any particular State.”
It has been often doubted whether the United States have any constitutional power to acquire new territory. However, Louisiana was purchased from France, Florida from Spain, and a very extensive territory was acquired by treaty from Mexico. The Northwestern territory, acquired previous to the adoption of the federal constitution, by cession from Virginia, was regulated by “An ordinance for the government of the territory of the United States northwest of the river Ohio,” adopted by the Old Congress, July 13, 1787. Territorial governments have from time to time been organized out of the other territories of the United States.
The character and extent of the power of Congress over the Territories have been the subject of repeated and excited discussion both in and out of Congress. On this, as on most other questions connected with the authority of the federal government, the National and State-Rights schools have differed.
The former hold that, under the constitution, Congress have absolute and despotic power over the Territories; that whatever they have the power to do, they have the right to do, if in their judgment it will conduce to the “general welfare.” Hence they construe the power “to dispose of and make all needful regulations respecting the territory or other property belonging to the United States” as the same in effect as the “power to exercise legislation in all cases whatsoever.”
The State-Rights school, on the contrary, hold that the clause in the constitution about the Territories relates to them only as property, and gives no right to Congress to govern them; that their right to government springs from their acquisition of them by cession, and is not therefore absolute. Territory acquired under the right to declare war and make treaties belongs to the States as States, and Congress can only legislate in conformity to the principles of the constitution: their power is limited by the limitations of the constitution. They have the authority to maintain peace and order, and to establish tribunals for the administration of criminal and civil justice according to the law of the land as it existed at the time of the cession; but they can no more change the law of the land in a Territory than they can in a State. They cannot regulate private property or interfere with private rights. In short, the law of the ceded territory on all subjects not within the delegated powers of Congress in the States must continue until changed by the only legitimate authority, when the people of such Territory, with the authority of Congress, form a sovereign State.—Sharswood.
Last modified April 10, 2014