fense. 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 legiflator, is by exploring his intentions 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 subject-matter, the effects and confequence, or the fpirit and reason of the law. Let us take a fhort view of them all.

1. WORDS are generally to be understood in their usual and most known fignification; not so much regarding the propriety of grammar, as their general and popular use. [60] Thus the law mentioned by Puffendorf, 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. So in the act of settlement, 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 "heirs of her body," which in a legal fenfe comprize only certain of her lineal defcendants.

2. IF words happen to be ftill dubious, we may establish 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 proeme, or preamble, is often called in to help the conitruction of an act of parliament. Of the fame nature and ufe is the comparison 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 (8). Thus,

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

(8) It is an established rule of construction that statutes in pari materia, or upon the fame subject, must be conftrued with a reference to each other; that is, that what is clear in one ftatute, fhall

when the 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 fubject to confider what the canon law has adjudged to be fimony.

3. As to the fubje&t-matter, words are always to be understood as having a regard thereto; for that is always fupposed 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 provisions at Rome, it might feem to prohibit the buying of grain and other victual; but when we confider that the ftatute was made to reprefs the ufurpations of the papal fee, and that the nomina

be called in aid to explain what is obfcure and ambiguous in another. Thus the laft qualification act to kill game (22 and 23 Car. 2. c. 25.) enacts, "that every person not having lands and tene"ments, or fome other estate of inheritance, of the clear yearly ❝value of 100/. or for life, or having lease or leases of ninety-nine years of the clear yearly value of 150l." (except certain perfons) fhall not be allowed to kill game. Upon this ftatute a doubt arofe, whether the words or for life should be referred to the icol. 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 fhould have 40s, a year, and a prieft 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 eftate 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 eftate of inheritance, though the fame proportions were not preserved; and thereupon decided, that clergymen, and all others poffeffed of a life eftate only, muft 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 fhall be taken under confideration, in order to decypher the meaning of an obscure paffage in it.

tions to benefices by the pope were called provifions, we fhall fee that the restraint is intended to be laid upon fuch [61] 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 must a little deviate from the received. fenfe of them. Therefore the Bolognian law, mentioned by Puffendorf', which enacted, "that whoever drew blood in "the ftreets fhould be punished with the utmoft severity," was held after a long debate not to extend to the furgeon, who opened the vein of a person 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 caufe which moved the legiflator to enact it. For when this reason ceases, 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 treatife infcribed to Herennius . There was a law, that those who in a ftorm forfook the ship, should forfeit all property therein; and that the bip 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 reafon of his difcafe was unable to get out and efcape. By chance the ship 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 reason of the law; for the reafon of making it was, to give encouragement to fuch 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 Institutes of Natural Law, b. 2. c. 7. and Domas. on the interpretation of laws.

From

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, wherein the law (by [62" reafon of its univerfality) is deficient." For fince in laws all cafes cannot be forefeen or expreffed, it is necessary, 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 expressed And these 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 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 most infinite confufion; as there would then be almost as many dif ferent rules of action laid down in our courts, as there are differences of capacity and fentiment in the human mind. * de aequitate, § 3.

(10) The only equity, according to this defcription, which exists in our government, either resides in the king, who can prevent the fummum juş from becoming summa injuria, by an absolute 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 elfewhere truly faid, that "the fyftem of our courts of equity is a laboured connected fyftem, governed "by eftablished 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.

SECTION THE THIRD.

OF THE LAWS OF ENGLAND.

THE

HE municipal law of England, or the rule of civil conduct prescribed 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 customs, or the common law properly fo called; but alfo the particular cuftoms of certain parts of the kingdom; and likewife thofe particular laws, that are by custom ob. served only in certain courts and jurifdictions.

WHEN I call thefe parts of our law leges non fcriptae, I would not be understood as if all thofe laws were at present merely oral, or communicated from the former ages to the prafent 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 memory; and it is faid of the primitive Saxons here, as well as their brethren on the continent, that leges. fola memoris 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