ANALYSIS.

INTRODUCTION.

OF THE STUDY, NATURE, AND EXTENT OF THE LAWS OF ENGLAND.

SECTION I.

OF THE STUDY OF THE LAW.

1. THE general utility of the study of the English common law will principally appear from considering the peculiar situations of, I. Gentlemen of fortune. II. The nobility. III. Persons in liberal professions

Page 6-16

2. The causes of its neglect were, chiefly, the revival of the study of the Roman laws in the twelfth century, their adoption by the clergy and Universities, and the illiberal jealousy that subsisted between the patrons and students of each 16-22 3. The establishment of the Court of Common Pleas at Westminster preserved the common law, and promoted its study in that neighborhood, exclusive of the two Universities 22-26

4. But the Universities are now the most eligible places for laying the foundations of this, as of every other liberal accomplishment, by tracing out the principles and grounds of the law, even to their original elements. 26-37

SECTION II.

OF THE NATURE OF LAWS IN GENERAL.

1. Law is a rule of action prescribed by a superior power.

38

2. Natural law is the rule of human action prescribed by the Creator, and discoverable by the light of reason

41-43

39-41

3. The divine or revealed law (considered as a rule of action) is also the law of nature, imparted by God himself

.

4. The law of nations is that which regulates the conduct and mutual intercourse of independent states with each other, by reason and natural justice

43

5. Municipal or civil law is the rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong 44-47 6. Society is formed for the protection of individuals, and states or government for the preservation of society

47

7. In all states there is an absolute supreme power, to which the right of legislation belongs, and which, by the singular constitution of these kingdoms, is vested in the king, lords, and commons

48-53

8. The parts of a law are, I. The declaratory; which defines what is right and wrong. II. The directory; which consists in commanding the observation of right, or prohibiting the commission of wrong. III. The remedial; or method of recovering private rights and redressing private wrongs. IV. The vindicatory sanction of punishments for public wrongs; wherein consists the most forcible obligation of human laws

53-59

9. To interpret a law, we must inquire after the will of the maker: which may be collected either from the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law 59-61

10. From the latter method of interpretation arises equity, or the correction of that wherein the law (by reason of its universality) is deficient 61-62

SECTION III.

OF THE LAWS OF ENGLAND.

1. The laws of England are of two kinds: the unwritten or common law, and the written or statute law

63

2. The unwritten law includes, 1. General customs. Particular laws

II. Particular customs.

III. Page 64-67

3. General customs, or the common law, properly so called, are founded upon immemorial universal usage, whereof judicial decisions are the evidence; which decisions are preserved in the public records, explained in the year-books and reports, and digested by writers of approved authority

68-74

4. Particular customs are those which are only of use within some peculiar districts; as gavel-kind, the customs of London, &c.

74-76

5. These, I., must be proved to exist; II., must appear to be legal; that is, immemorial, continued, peaceable, reasonable, certain, compulsory, and consistent; III., must, when allowed, receive a strict construction.

76-79

6. Particular laws are such as, by special custom, are adopted and used only in certain peculiar courts, under the superintendence and control of the common and statute law; namely, the Roman, civil, and canon laws 79-84 7. The written or statute laws are the acts which are made by the king, lords, and commons in Parliament; to supply the defects, or amend what is amiss, of the unwritten law. 85-91

8. In order to give a more specific relief than can sometimes be had, through the generality of both the unwritten and written law, in matters of private right, it is the office of equity to interpose. 91-92

SECTION IV.

OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

1. The laws of England are not received in their full extent in any other territories besides the kingdom of England and the dominion of Wales; which have, in most respects, an entire communion of laws. municipal laws, though

2. Scotland, notwithstanding the union, retains its own subject to regulation by the British Parliament

93-95

95-98

3. Berwick is governed by its own local usages, derived from the Scots Law, but bound by all acts of Parliament

99

4. Ireland is a distinct subordinate kingdom, governed by the common law of England; but not bound by modern acts of the British Parliament, unless particularly named. 99-104

5. The Isle of Man, the Norman Isles (as Guernsey, &c.), and our plantations abroad, are governed by their own laws; but are bound by acts of the British Parliament, if specially named therein

104-111

6. The territory of England is divided, ecclesiastically, into provinces, dioceses, archdeaconries, rural deaneries, and parishes

111-114

7. The civil division is, first, into counties, of which some are palatine; then, sometimes, into rapes, lathes, or trithings; next into hundreds, or wapentakes; and, lastly, into towns, vills, or tithings

114-120

BOOK I.

OF THE RIGHTS OF PERSONS.

CHAPTER I.

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

1. THE objects of the laws of England are, I. Rights. II. Wrongs 2. Rights are, the rights of persons, or the rights of things

121-122 122

3. The rights of persons are such as concern, and are annexed to, the persons of men; and, when the person to whom they are due is regarded, they are called (simply) rights; but when we consider the person from whom they are due, they are then denominated duties 123

4. Persons are either natural, that is, such as they are formed by nature; or artificial, that is, created by human policy, as bodies politic or corporations 123

5. The rights of natural persons are, I. Absolute, or such as belong to individuals. II. Relative, or such as regard members of society

123

6. The absolute rights of individuals, regarded by the municipal laws (which pay

no attention to duties of the absolute kind), compose what is called political or civil liberty

Page 123

7. Political or civil liberty is the natural liberty of mankind, so far restrained by human laws as is necessary for the good of society

125

8. The absolute rights, or civil liberties, of Englishmen, as frequently declared in Parliament, are principally three: the right of personal security, of personal liberty, and of private property

125-129

9. The right of personal security consists in the legal enjoyment of life, limb, body, health, and reputation.

129-134

10. The right of personal liberty consists in the free power of locomotion, without illegal restraint or banishment

134-138

11. The right of private property consists in every man's free use and disposal of his own lawful acquisitions, without injury or illegal diminution.

138-140

12. Besides these three primary rights, there are others which are secondary and subordinate; viz. (to preserve the former from unlawful attacks), I. The constitution and power of Parliaments; II. The limitation of the king's prerogative; and (to vindicate them when actually violated), III. The regular administration of public justice; IV. The right of petitioning for redress of grievances; V. The right of having and using arms for self-defense

140-145

CHAPTER II.

OF THE PARLIAMENT.

1. THE relations of persons are, I. Public. II. Private. The public relations are those of magistrates and people. Magistrates are supreme, or subordinate. And of supreme magistrates, in England, the Parliament is the supreme legislative, the king the supreme executive.

146

2. Parliaments, in some shape, are of as high antiquity as the Saxon government in this island, and have subsisted in their present form at least five hundred years. 147-150 3. The Parliament is assembled by the king's writs, and its sittings must not be intermitted above three years 150-153 4. Its constituent parts are the king's majesty, the lords spiritual and temporal, and the commons represented by their members: each of which parts has a negative, or necessary, voice in making laws

153-160

5. With regard to the general law of Parliament, its power is absolute; each house is the judge of its own privileges; and all the members of either house are entitled to the privilege of speech, of person, of their domestics, and of their lands and goods

160-167

6. The peculiar privileges of the lords (besides their judicial capacity) are to hunt in the king's forests; to be attended by the sages of the law; to make proxies; to enter protests; and to regulate the election of the sixteen peers of North Britain

167-169 7. The peculiar privileges of the commons are to frame taxes for the subject, and to determine the merits of their own elections, with regard to the qualifications of the electors and elected, and the proceedings at elections themselves 169-181 8. Bills are usually twice read in each house, committed, engrossed, and then read a third time; and when they have obtained the concurrence of both houses, and received the royal assent, they become acts of Parliament 181-186

9. The houses may adjourn themselves; but the king only can prorogue the Parliament

186-187

10. Parliaments are dissolved, -I. At the king's will. II. By the demise of the crown; that is, within six months after. III. By length of time, or having sat for the space of seven years

188-189

CHAPTER III.

OF THE KING, AND HIS TITLE.

1. THE supreme executive power of this kingdom is lodged in a single person: the king or queen 190

2. This royal person may be considered with regard to, I. His title. II. His royal family. III. His councils. IV. His duties. V. His prerogative. VI. His revenue

190