law of England declares murder to be felony without benefit of clergy, we must refort to the fame law of England to learn what the benefit of clergy is: and when the common law cenfures fimoniacal contracts, it affords great light to the subject to confider what the canon law has adjudged to be fimony.

3. As to the fubject-matter, words are always to be understood as having a regard thereto; for that is always suppofed to be in the eye of the legislator, and all his expreffions directed to that end. Thus, when a law of our Edward III. forbids all ecclefiaftical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we confider that the ftatute was made to repress the ufurpations of the papal fee, and that the nomi

23

be called in aid to explain what is obfcure and ambiguous in another. Thus the laft qualification act to kill game (22 and Car. 2. c. 25) enacts, "that every perfon not having lands and tene"ments, or some other estate of inheritance, of the clear yearly "value of 100l. or for life, or having leafe or leafes of ninety-nine

years of the clear yearly value of 150l." (except certain perfons), fhall not be allowed to kill game. Upon this statute a doubt arofe, 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. 1. ft. 1. c. 13.) that a layman should have 40s. a year, and a priest 10l. a year, and that by the I 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 prefumed 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 fame proportions were not preferved; and thereupon decided, that clergymen, and all others poffeffed of a life estate only, must have 150l. a year to be qualified to kill game. Lowndes v. Lewis, E. T. 22 Geo. 3..

The fame rule to discover the intention of a teftator is applied to wills, viz. the whole of a will shall be taken under confideration, in order to decipher the meaning of an obfcure paffage in it.

nations to benefices by the pope were called provisions, we fhall fee that the restraint is intended to be laid upon fuch provifions only.

4. As to the effects and confequence, the rule is, that where words bear either none, or a very abfurd signification, if literally understood, we must a little deviate from the received fense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted, "that whoever drew blood in "the streets should be punished with the utmost severity," was held after a long debate not to extend to the furgeon who opened the vein of a perfon that fell down in the street with a fit.

5. BUT, laftly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by confidering the reafon and spirit of it; or the cause which moved the legislator to enact it. For when this reafon ceafes, the law itself ought likewife to cease with it. An inftance of this is given in a cafe put by Cicero, or whoever was the author of the treatise infcribed to Herennius 9. There was a law, that those who in a storm forfook the fhip, fhould forfeit all property therein; and that the fhip and lading should belong entirely to those who staid in it. In a dangerous tempeft all the mariners forfook the ship, except only one fick paffenger, who by reason of his disease was unable to get out and escape. By chance the fhip came fafe to port. The fick man kept poffeffion, and claimed the benefit of the law. Now here all the learned agree, that the fick man is flot within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to fave the veffel: 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 prefervation. (9)

(9) See a very fenfible chapter upon the interpretation of laws in general, in Rutherforth's Inftitutes of Natural Law, b. 2. c. 7, and Domat. on the Interpretation of Laws.

FROM

[ 61 ]

FROM this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by

Grotius," the correction of that, wherein the law (by [62]" reafon of its univerfality) is deficient." For, fince in laws all cafes cannot be forefeen or expreffed, it is neceffary that when the general decrees of the law come to be applied to particular cafes, there fhould be fomewhere a power vested of defining those circumstances which (had they been forefeen) the legiflator himself would have expreffed. And thefe are the cafes which, according to Grotius," lex non "exacte definit, fed arbitrio boni viri permittit." (10.)

EQUITY thus depending, effentially, upon the particular circumstances of each individual cafe, there can be no eftablished rules and 'fixed precepts of equity laid down, without destroying its very effence, and reducing it to a positive law. And, on the other hand, the liberty of confidering all cafes in an equitable light must not be indulged too far, left thereby we destroy all law, and leave the decifion of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more defirable for the public good, than equity without law : which would make every judge a legiilator, and introduce most infinite confufion; 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. r de aequitate, § 3.

(10) The only equity, according to this description, which exifts in our government, either refides in the king, who can prevent the fummum jus from becoming fumma injuria, by an abfolute or a conditional pardon, or in juries, who determine whether any, or to what extent, damages fhall 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 fyftem, governed by "established rules, and bound down by precedents, from which "they do not depart, although the reafon of fome of them may "perhaps be liable to objection." 3 Vol. 432.

[63]

THE

SECTION THE THIRD.

OF THE LAWS OF ENGLAND.

HE 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 fcripta, the unwritten or common law; and the lex fcripta, the written or ftatute law.

THE lex non fcripta, or unwritten law, includes not only general customs, or the common law properly fo called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom obferved only in certain courts and jurisdictions.

WHEN I call these parts of our law leges non fcriptae, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the prefent folely 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 memorya; and it is faid of the primitive Saxons here, as well as their brethren on the continent, that leges fola memoria et ufu retinebant. But with us, at prefent, the monuments and evidences of our legal customs are contained in the records of the feveral courts of justice, in books of b Spelm. Gl. 3620

a Caef, de B. G. lib. 6. c. 13.

reports

reports and judicial decifions, and in the treatises of learned fages of the profeffion, preferved and handed down to us from the times of highest antiquity. However, I therefore ftyle these parts of our law leges non fcriptae, because their original inftitution and authority are not fet down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial ufage, and by their univerfal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non fcriptum to be that which is "tacito et illiterato hominum confenfu et moribus expressum.”

C

OUR ancient lawyers, and particularly Fortescue, infist with abundance of warmth that these customs are as old as the primitive Britons, and continued down, through the feveral mutations of government and inhabitants, to the prefent time, unchanged and unadulterated. This may be the cafe as to fome: but in general, as Mr. Selden in his notes obferves, this affertion 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 doubtlefs, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have infenfibly 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, faith Lord Bacond, are mixed as our language: and as our language is fo much the richer, the laws are the more complete.

:

AND indeed our antiquaries and early historians do all pofitively affure 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 feveral provinces of the kingdom' were grown fo various, that he found it expedient to compile his dome-book, or liber judicialis, for the general use of the f See his propofals for a digest.

e c. 17.

whole