Sivut kuvina

"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 fection, it may not be amifs to add a few obfervations concerning the interpretation of laws.

When any doubt arofe upon the conftruction of the Roman laws, the ufage was to ftate the cafe to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legiflature to decide parti cular difputes, is not only endless, but affords great room for partiality and oppreffion. The anfwers of the emperor were called his refcripts, and these had in fucceeding cafes the force of perpetual laws; though they ought to be carefully diftinguifhed, by every rational civilian, from thofe general conftitutions, which had only the nature of things for their guide. The emperor Macrinus, as his hiftorian Capitolinus informs us, had once refolved to abolish thefe refcripts, and retain only the general edicts; he could not bear that the hafty and crude answers of fuch princes as Commodus and Caracalla fhould be reverenced as laws. But Juftinian thought otherwife, and he has preferved them all. In like manner the canon laws, or decretal epiftles of the popes, are all of them refcripts in the ftricteft fenfe. Contrary to all true forms of reafoning, they argue from particulars to generals.

[ocr errors]

The fairest and most rational method to interpret the will of the legiflator, is by exploring his intenti ons at the time when the law was made, by figns the most natural and probable. And thefe figns are either the words, the context, the fubject matter, the effects and confequence, or the fpirit and reafon of the law. Let us take a fhort view of them all.

1. Words are generally to be understood in their fual and most known fignification; not fo much regarding the propriety of grammar, as their general Inf. 1; 2, 6.

and popular use. Thus the law mentioned by Puffendorf, which forbad a layman to lay hands on a prieft, was adjudged to extend to him, who had hurt a prieft with a weapon. Again; terms of art, or technical terms, muft be taken according to the ac ceptation of the learned in each art, trade, and fcience. So in the act of fettlement, where the crown of England is limited to the princess Sophia, and "the heirs of her body, being proteftants," it becomes neceffary to call in the affiftance of lawyers, to afcertain the precife idea of the words "beirs of her body;" which in a legal fenfe comprize only certain of her lineal defcendants.

[ocr errors]

2. If words happen to be ftill dubious, we may eftablish their meaning from the context; with which it may be of fingular ufe to compare a word, or a fentence, whenever they are ambiguous, equivocal, or intricate. Thus the prpeme, or preamble, is often called in to help the conftruction of an act of parliament. Of the fame nature and ufe is the comparifon of a law with other laws, that are made by the fame legiflator, that have fome affinity with the fubject, or that exprefsly relate to the fame point. Thus, when the law of England declares murder to be felony, without benefit of clergy, we muft refort to the fame law of England, to learn what the benefit of clergy is: and when the common law cenfures fimoniacal contracts, it affords great light to the fubject to confider what the canon law has adjudged to be fimony.

3. As to the fubject-matter, words are always to be understood as having a regard thereto; for that is always fuppofed to be in the eye of the legiflator, and all his expreffions directed to that end. Thus, when a law of our Edward III. forbids all ecclefiaftical perfons to purchase provifions at Rome, it might feem to prohibit the buying of grain and other victual; but when we confider that the ftatute was made to exprefs the ufurpations of the papal fee, and that the nominations to benefices by the pope were called

9 L. of N. and M. 5. 12. 3.

provifions, we shall fee that the reftraint 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 fignification, if literally understood, we muit a little deviate from the received fenfe of them. There fore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the "ftreets fhould be punished with the utmoft feveri

ty," was held after long debate not to extend to the furgeon, who opened the vein of a perfon that fell down in the ftreet with a fit.

[ocr errors]

5. But, laftly, the most universal and effectual way of difcovering 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 itfelf ought likewife to ceafe with it. An inftance of this is given in a cafe put by Cicero, or whoever was the author of the treatise infcribed to Herennius There was a law, that those who in a storm forfook the fhip fhould forfeit all property therein; and that the hip and lading fhould belong entirely to thofe who ftaid in it. In a dangerous tempeft all the mariners forfook the fhip, except only one fick paffenger, who by reafon 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 not within the reafon of the law; for the reafon of making it was, to give encouragement to fuch as fhould venture their lives to fave the veffel but this is a merit, which he could never pretend to, who neither ftaid in the fhip upon that account, nor contributed any thing to its prefervation.

From this method of interpreting laws, by the reafon of them, arifes what we call equity; which is thus defined by Grotius", "the correction of that,

• 1. 5. c. 12.
§. 8.


11. 1. c. II. » de æquate. §. 3


"wherein the law (by reafon of its univerfality) is "deficient." For fince in laws all cafes cannot be foreseen 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 vefted of defining thofe circumftances, which (had they been forefeen) the legislator himself would have expreffed. And these are the cafes, which according to Grotius, "lex non exacte definit, fed arbitrio bonî` "viri permittit."

Equity thus depending, effentially, upon the particular circumftances of each individual case, there can be no established rules and fixed precepts of equity laid down, without deftroying its very effence, and reducing it to a pofitive law. And, on the other hand, the liberty of confidering all cafes in an equitable light muft not be indulged too far; left thereby we deftroy all law, and leave the decifion of every queftion entirely in the breaft of the judge. And law, without equity, though hard and difagreeable, is much more defirable for the public good, than equity without law: which would make every judge a legiflator, and introduce moft infinite confufion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and fentiment in the human mind,





THE municipal law of England, or the rule of

ivil conduct prefcribed to the inhabitants of this kingdom, may with fufficient propriety be divided into two kinds; the lex non fcripta, the unwritten, or common law; and the lex fcripta, the written, or

ftatute law.

The lex non fcripta, or unwritten law, includes not only general cuftoms, or the common law properly fo called; but alfo the particular cuftoms of certain of the kingdom; and likewife those particular laws, that are by cuftom obferved only in certain courts and jurifdictions.


When I call thefe parts of our law leges non fcripta, I would not be understood as if all thofe laws were at prefent 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 overfpread the whole western world, all laws were entirely traditional; for this plain reafon, 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 1; 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 cuftoms are contained in the records of the feveral courts of juftice, in books of 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 ftile these parts of our law leges non fcripta, because their origi2 Spelm. Gl. 362.

Cæf. de b. G. lib. 6. c. 13.

« EdellinenJatka »