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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 posi

tive duties, and forbid only such things as are not mala in se, but ma[*58] la prohibita merely, without any intermixture of moral guilt, *an

nexing a penalty to non-compliance (/), here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty:" and his conscience will be clear, which ever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto (7), for not burying the dead in woollen, for not performing the statute-work on the public roads, and for innumerable other positive misdemesnors. Now these prohibitory laws do not make the transgression a moral offence, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must however be observed, that we are here. speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offence (8). But where disobedience to the law

(1) See Book II. page 420

(7) By stat. 54 G. III. c. 96, this law, and, by stat. 54 G. III. c. 108, that for not burying in woollen, are repealed.

(8) 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

involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience (m).

I have now gone through the definition laid down of a municipal law; and have shewn that it is "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong;" in the explication of which I have endeavoured to interweave a few useful principles concerning the nature of civil government, and the

(m) Lex pure poenalis obligat tantum ad poe nam, non item ad culpam: lex poenalis mixta et

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 sea-faring 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. (4 book, 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 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 practice who should join with his friends in ordering a dinner at a tavern; and, after the festivity and gratifications of the day, should

ad culpam obligat, et ad poenam. (Sanderson de conscient. obligat. prael. viii. ◊ 17. 24.)

steal away, and leave his companions to pay his share of the reckoning.

Punishment 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 are 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 recompence 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 gaol. 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 farther, 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 ve ry hard." I Dial. c. 4.-CH.

In 2 Bos. & Pull. 375. Mr. Justice Rooke says, "I perfectly agree with my brother Heath in reprobating any distinction between malum prohibitum and malum in se, and consider it as pregnant with mischief. Every moral man is as much bound to obey the civil law of the land as the law of nature." See 5 Bar. & Ald. 341.

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 [*59] historian Capitolinus informs us, had once resolved to *abolish these

rescripts, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise (n), and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

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 (0) which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again, terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. (9) 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. (10)


*2. If words happen to be still dubious, we may establish their meaning from the context, with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. (11) Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. (12) Thus, when the law of England declares mur

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der to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is; and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. As to the subject matter, words are always to be understood as having a regard thereto, for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but, when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to 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.

*5. But, lastly, the most universal and effectual way of disco- [*61] vering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. (13) For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius (9). There was a law, that those who in a storm forsook the ship should forfeit all property therein; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who, by reason of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel; but this is a merit which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to its preservation (14)

(p) 1. 5. c. 12. ◊ 8.

is obscure and ambiguous in another. Thus the last qualification act to kill game (22 and 23 Car. I. c. 25,) enacts, "that every person not having lands and tenements, or some other estate of inheritance, of the clear yearly value of 1001. or for life, or having lease or lenses of ninety-nine years of the clear yearly value of 1501." (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 1001. or to the 1501. 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 10. a year, and that, by the I Ja. c. 27, the qualifications were clearly an estate of inheritance of 10. a year, and an estate for life of 30%. a year, they presumed that it still was

(g) 1. 1. c. 11.

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 1501. a year to be qualified to kill game. Lowndes v. 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.-CH. See 5 Cowen 421.

(13) The ends contemplated are to be considered, and general words may be thereby restrained. 3 Maule and Selwyn, 510.

(14) See a very sensible chapter upon the interpretation of laws in general, in Ruther forth's Institutes of Natural Law, b. ii. c. 7. -CH.

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 (15).

Equity thus depending, essentially, upon the particular circum[*62] stances of each individual case, there can be no established *rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.



THE municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divid ed into two kinds: the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.

The lex non scriptu, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions (1).

(r) De Equitate, ◊ 3.

(15) 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.-C. See I Wm. Bl. rep. 152. Mitf. Pl. 4.

(1) In the State of New-York, such parts of the common law as were in force in the co

lony on the 19th April, 1775, were retained by the new Const. Art 7. Sect 13; so generally in the other States, the common law was adopted as it existed at the revolution. In the U. S. the written law consists, 1st. of the Constitution of the U. S., the Acts of Congress made in pursuance of it, and all treaties made under the authority of the U. S. these are the supreme law of the land. Const. Art. 6. § 2. 2nd. The Constitution and Acts of each State. In the State of New-York its statutes have been revised, and went into operation on 1st January, 1830.

The colonists have been considered as bringing with them only such parts of the law of the mother country as were suited to their situation, see p. 107: the particular laws and customs of special districts of England were therefore never adopted by them.

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