Avalon Project - Blackstone's Commentaries on the Laws of England - Introduction

Blackstone's Commentaries on the Laws of England
Introduction

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INTRODUCTION.

SECTION THE FIRST.

ON THE STUDY OF THE LAW.*

MR. VICE-CHANCELLOR, AND GENTLEMEN OF THE UNIVERSITY,

THE general expectation of fo numerous and refpectable an audience, the novelty, and ( I may add ) the importance of the duty required from this chair, muft unavoidably be productive of great diffidence and apprehenfions in him who has the honour to be placed in it. He muft be fenfible how much will depend upon his conduct in the infancy of a ftudy, which is now firft adopted by public academical authority; which has generally been reputed ( however unjuftly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto received a very moderate fhare of cultivation. He cannot but reflect that, if either his plan of inftruction be crude and injudicious, or the execution of it lame and fuperficial, it will caft a damp upon the farther progrefs of this moft ufeful and moft rational branch of learning; and may defeat for a time the public-

* Read in oxford at the opening of the Vincrian lectures; 25 Oct. 1758.

On the STUDY of the LAW.

fpirited defign of our wife and munificent benefactor. And this he muft more efpecially dread, when he feels by experience how unequal his abilities are ( unaffifted by preceding examples ) to complete, in the manner he could wifh, fo extenfive and arduous a tafk; fince he freely confeffes, that his former more private attempts have fallen very fhort of his own ideas of perfection. And yet the candour he has already experienced, and this laft tranfcendent mark of regard, his prefent nomination by the free and unanimous fuffrage of a great and learned univerfity, ( an honour to be ever remembered with the deepeft and moft affectionate gratitude ) thefe teftimonies of your public judgment must entirely fuperfede his own, and forbid him to believe himfelf totally infufficient for the labour at leaft of this employment. One thing he will venture to hope for, and it certainly fhall be his conftant aim, by diligence and attention to atone for his other defects; efteeming, that the beft return, which he can poffibly make for your favourable opinion of his capacity, will be his unwearied endeavours in fome little degree to deferve it.

THE fcience thus committed to his charge, to be cultivated, methodized, and explained in a courfe of academical lectures, is that of the laws and conftitution of our own country: a fpecies of knowlege, in which the gentlemen of England have been more remarkably deficient than thofe of all Europe befides. In moft of the nations on the continent, where the civil or imperial law under different modifications is clofely interwoven with the municipal laws of the land, no gentleman, or at leaft no fcholar, two of lectures, both upon the inftitutes of Juftinian and the local conftitutions of his native foil, under the very eminent profeffors that abound in their feveral univerfities. And in the northern parts of our own ifland, where alfo the municipal laws are frequently connected with the civil, it is difficult to meet with a perfon of liberal education, who is deftitute of a competent knowlege in that fcience, which is to be the guardian of his natural rights and the rule of his civil conduct.

On the STUDY of the LAW.

NOR have the imperial laws been totally neglected even in the Englifh nation. A general acquaintance with their decifions has ever been defervedly confidered as no fmall accomplifhment of a gentleman; and a fafhion has prevailed, efpecially of late, to tranfport the growing hopes of this ifland to foreign univerfities, in Switzerland, Germany, and Holland; which, though infinitely inferior to our own in every other confideration, have been looked upon as better nurferies of the civil, or ( which is nearly the fame) of their own municipal law. In the mean time it has been the peculiar lot of our admirable fyftem of laws, to be neglected, and even unknown, by all but one practical profeffion; though built upon the foundeft foundations, and approved by the experience of ages.

FAR be it from me to derogate from the ftudy of the civil law, confidered (apart from any binding authority) as collection of written reafon. No man is more thoroughly perfuaded of the general excellence of it's rules, and the ufual equity of it's decifions; nor is better convinced of it's ufe as well as ornament to the fcholar, the divine, the ftatefman, and even the common lawyer. But we muft not carry our veneration fo far as to facrifice our Alfred and Edward to the manes of Theodofius and Juftinian: we muft not prefer the edict of the praetor, or the refcript of the Roman emperor, tour own immemorial cuftoms, or the fanctions of an English parliament; unlefs we can alfo prefer the defpotic monarchy of Rome and Byzantium, for whofe meridians the former were calculated, to the free conftitution of Britain, which the latter are adapted to perpetuate.

WITHOUT detracting therefore from the real merit which abounds in the imperial law, I hope I may have leave to affert, that if an Englifhman muft be ignorant of either the one or the other, he had better be a ftranger to the Roman than the Englifh inftitutions. For I think it an undeniable pofition, that a competent knowlege of the laws of that fociety, in which we live,

On the STUDY of the LAW.

is the proper accomplifhment of every gentleman and fcholar; an highly ufeful, I had almoft faid effential, part of liberal and polite education. And in this I am warranted by the example of antient Rome; where, as Cicero informs us ^a, the very boys were obliged to learn the twelve tables by heart, as a carmen neceffarium or indifpenfable leffon, to imprint on their tender minds an early knowlege of the laws and conftitutions of their country.

BUT as the long and univerfal neglect of this ftudy, with us in England, feems in fome degree to call in queftion the truth of this evident pofition, it fhall therefore be the bufinefs of this introductory difcourfe, in the firft place to demonftrate the utility of fome general acquintance with the municipal law of the land, by pointing out its particular ufes in all confiderable fituations of life. Some conjectures will then be offered with regard to the caufes of neglecting this ufeful ftudy: to which will be fubjoined a few reflexions on the peculiar propriety of reviving it in our own univerfities.

AND, firft, to demonftrate the utility of fome acquaintance with the laws of the land, let us only reflect a moment on the fingular frame and polity of that land, which is governed by this fyftem of laws. A land, perhaps the only one in the univerfe, in which political or civil liberty is the very end and fcope of the conftitution^b. This liberty, rightly underftood, confifts in the power of doing whatever the laws permit^c; which is only to be effected by a general conformity of all orders and degrees to thofe equitable rules of action, by which the meaneft individual is protected from the infults and oppreffion of the greateft. As therefore every fubject is interefted in the prefervation of the laws, it is incumbent upon every man to be acquainted with thofe at leaft, with which he is immediately concerned; left he incur the cenfure, as well as inconvenience, of living in fociety without knowing the obligations which it lays him under. And thus much

^a De Legg. 2. 23.

^b Mentefq Efp. L. l. 11. c. 5.

^c Facultas ejus, quod cuiqur facere libet, mf quid vi, aut jure probibetur. Lnft. 1.3. 1.

On the STUDY of the LAW.

may fuffice for perfons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted fphere in which they are appointed to move. But thofe, on whom nature and fortune have beftowed more abilities and greater leifure, cannot be fo eafily excufed. Thefe advantages are given them, not for the benefit of themfelves only, but alfo of the public: and yet they cannot, in any fcene of life, difcharge properly their duty either to the public or themfelves, without fome degree of knowledge in the laws. To evince this the more clearly, may not be amifs to defcend to a few particulars.

LET us therefore begin with our gentlemen of independent eftates and fortune, the moft ufeful as well as confiderable body of men in the nation; whom even to fuppofe ignorant in this branch of learning is treated by Mr Locke^d as a ftrange abfurdity. It is their landed property, with it's long and voluminous train of defcents and conveyances, fettlements, entail, and inject of legal knowledge. The thorough comprehenfion of thefe, in all their minute diftinctions, is perhaps too laborious a tafk for any but a lawyer by profeffion: yet ftill the underftanding of a few fome check and guard upon a gentleman's inferior agents, and preferve him at leaft from very grofs and notorious impofition.

AGAIN, the policy of all laws has made fome forms neceffary in the wording of laft wills and teftaments, and more with regard to their atteftation. An ignorance in thefe muft always be of dangerous confequence, to fuch as by choice or neceffity compile their own teftaments without any technical affiftance. Thofe who have attended the courts of juftice are the beft witneffes of the confufion and diftreffes that are hereby occafioned in families; and of the difficulties that arife in difcerning the true meaning

^d Education. §. 187.

On the STUDY of the LAW.

of the teftator, or fometimes in difcovering any meaning at all: fo that in the end his eftate may often be vefted quite contrary to thefe his enigmatical intentions, becaufe perhaps he has omitted one or two formal words, which are neceffary to afcertain the fenfe with indifputable legal precifion, or has executed his will in the prefence of fewer witneffes than the law requires.

BUT to proceed from private concerns to thofe of a more public confideration. All gentlemen of fortune are, in confequence of their property, liable to be called upon to eftablifh the rights, to eftimate the injuries, to weigh the accufations, and fometimes to difpofe of the lives of their fellow-fubjects, by ferving upon juries. In this fituation they are frequently to decide, and that upon their oaths, queftions of nice importance, in the folution of which fome legal fkill is requifite; efpecially where the law and the fact, as it often happens, are intimately blended together. And the general incapacity, even of our beft juries, to do this with any tolerable propriety has greatly debafed their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverfe their verdicts, than perhaps the conftitution intended.

BUT it is not as a juror only that the English gentleman is called upon to determine queftions of right, and diftribute juftice to his fellow-fubjects: it is principally with this order of men that the commiffion of the peace is filled. And here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punifhing the diffolute and idle; by protecting the peaceable and induftrious; and, above all, by healing petty differences and preventing vexatious profecutions. But, in order to attain thefe defirable ends, it is neceffary that the magiftrate fhould underftand his bufinefs; and have not only the will, but the power alfo, ( under which muft be included the knowledge) of adminiftring legal and effectual juftice. Elfe, when he has miftaken his authority, through paffion, through ignorance, or abfurdity, he will be the object of

On the STUDY of the LAW.

contempt from his inferiors, and of cenfure from thofe to whom he is accountable for his conduct.

YET farther; moft gentlemen of confiderable property, at fome period or other in their lives, are ambitious of reprefenting their country in parliament: and thofe, who are ambitious of receiving fo high a truft, would alfo do well to remember it's nature and importance. They are not thus honourably diftinguifhed from the reft of their fellow-fubjects, merely that they may privilege their perfons, their eftates, or their domeftics; that they may lift under party banners; may grant or with-hold fupplies; may vote with or vote againft a popular or unpopular adminiftration; but upon confiderations far more interefting and important. They are the guardians of the Englifh conftitution; the makers, repealers, and interpreters of the Englifh laws; delegated to watch, to check, and to avert every dangerous innovation, to propofe, to adopt, and to cherifh any folid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to tranfmit that conftitution and thofe laws to their pofterity, amended if poffible, al leaft without any derogation. And how unbecoming muft it appear in a member of the legiflature to vote for a new law, who is utterly ignorant of the old ! what kind of interpretation can he be enabled to give, who is a ftranger to the text upon which he comments !

INDEED it is really amazing, that there fhould be no other ftate of life, no other occupation, art, or fcience, in which fome method of inftruction is not looked upon as requifite, except only the fcience of legiflation, the nobleft and moft difficult of any. Apprenticefhips are held neceffary to almoft every art, commercial or mechanical: a long courfe of reading and ftudy muft form the divine, the phyfician, and the practical profeffor of the laws: but every man of fuperior fortune thinks himfelf born a legiflator. Yet Tully was of a different opinion: “It is necef-

On the STUDY of the LAW.

“fary, fays he^e, for a fenator to be thoroughly acquainted with “the conftitution; and this, he declares, is a knowlege of the “moft extenfive nature; a matter of fcience, of diligence, of “reflexion; without which no fenator can poffibly be fit for his “office.”

THE mifchiefs that have arifen to the public from inconfiderate alterations in our laws, are too obvious to be called in queftion; and how far they have been owing to the defective education of our fenators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rafh and unexperienced workmen have ventured to new-drefs and refine, with all the rage of modern improvement. Hence frequently it's fymmetry has been deftroyed, it's proportions diftorted, and it's majeftic fimplicity exchanged for fpecious embellifhments and fantaftic novelties. For, to fay the truth, almoft all the perplexed queftions, almoft all the niceties, intricacies, and delays ( which have fometimes difgraced the Englifh, as well as other, courts of juftice) owe their original not to the common law itfelf, but to innovations that have been made in it by acts of parliament; “overladen ( as fir Edward “Coke expreffes it ^f) with provifoes and additions, and many “times on a fudden penned or corrected by men of none or very “little judgment in law.” This great and well-experienced judge declares, that in all his time he never knew two queftions made upon rights merely depending upon the common law; and warmly laments the confufion introduced by ill-judging and unlearned legiflators. “But if, he fubjoins, acts of parliament were “after the old fafhion penned, by fuch only as perfectly knew “what the common law was before the making of any act of “parliament concerning that matter, as alfo how far forth former ftatutes had provided remedy for former mifchiefs, and “defects difcovered by experience; then fhould very few quef-

^e De Legg. 3. 18. Eft. Fenatori neceffarium fine quo paratus effe fenator nullo pacto potey noffe rempublicum; icque late patet: - genus bor omne fcientiae, diligentiat, memoriae eft; fine quo paratus effe fonator nullo pacto pofef.

^f 2 Rep. Pref.

On the STUDY of the LAW.

“tions in law arife, and the learned fhould not fo often and fo “much perplex their heads to make atonement and peace, by “conftruction of law, between infenfible and difagreeing words, “fentences, and provifoes, as they now do.” And if this inconvenience was fo heavily felt in the reign of queen Elizabeth, you may judge how the evil is increafed in later times, when the ftatute book is fwelled to ten times a larger bulk; unlefs it fhould be found, that the penners of our modern ftatutes have proportionably better informed themfelves in the knowlege of the common law.

WHAT is faid of our gentlemen in general, and the propriety of their application to the ftudy of the laws of their country, will hold equally ftrong or ftill ftronger with regard to the nobility of this realm, except only in the article of ferving upon juries. But, inftead of this, they have feveral peculiar provinces of far greater confequence and concern; being not only by birth hereditary counfellors of the crown, and judges upon their honour of the lives of their brother-peers, but alfo arbiters of the property of all their fellow-fubjects, and that in the laft refort. In this their judicial capacity they are bound to decide the niceft and moft critical points of the law; to examine and correct fuch errors as have efcaped the moft experienced fages of the profeffion, the lord keeper and the judges of the courts at Weftminfter. Their fentence is final, decifive, irrevocable: no appeal, no correction, not even a review can be had: and to their determination, whatever it be, the inferior courts of juftice muft conform; otherwife the rule of property would no longer be uniform and fteady.

SHOULD a judge in the moft fubordinate jurifdiction be deficient in the knowlege of the law, it would reflect infinite contempt upon himfelf and difgrace upon thofe who employ him. And yet the confequence of his ignorance is comparatively very trifling and fmall: his judgment may be examined, and his errors rectified, by other courts. But how much more ferious and

On the STUDY of the LAW.

affecting is the cafe of a fuperior judge, if without any fkill in the laws he will boldly venture to decide a queftion, upon which the welfare and fubfiftence of whole families may depend ! where the chance of his judging right, or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury of the moft alarming nature, an injury without poffibility of redrefs.

YET, vaft as this truft is, it can no where be fo properly repofed as in the noble hands where our excellent conftitution has placed it: and therefore placed it, becaufe, from the independence of their fortune and the dignity of their ftation, they are perfumed to employ that leifure which is the confequence of both, in attaining a more extenfive knowlege of the laws than perfons of inferior rank: and becaufe the founders of our polity relied upon that delicacy of fentiment, fo peculiar to noble birth; which, as on the one hand it will prevent either intereft or affection from interfering in queftions of right, fo on the other it will bind a peer in honour, an obligation which the law efteems equal to another's oath, to be mafter of thofe points upon which it is his birthright to decide.

THE Roman pandects will furnifh us with a piece of hiftory not unapplicable to our prefent purpofe. Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occafion to take the opinion of Quintus Mutius Scaevola, the oracle of the Roman law; but for want of fome knowlege in that fcience, could not fo much as underftand even the technical terms, which his friend was obliged to make ufe of. Upon which Mutius Scaevola could not forbear to upbraid him with this memorable reproof^g, “that it was a fhame for a patrician, a nobleman, and an orator of caufes, to be ignorant of that law in “which he was fo peculiarly concerned.” This reproach made fo deep an impreffion on Sulpicius, that he immediately applied himfelf to the ftudy of the law; wherein he arrived to that pro-

^g Ff. 1. 2. 2. §. 43. Turpe effe patricio, & caufas oranti, jus in quo verfaretur ignorare.

On the STUDY of the LAW.

ficiency, that he left behind him about a hundred and fourfcore volumes of his own compiling upon the fubject; and became, in the opinion of Cicero^h, a much more complete lawyer than even Mutius Scaevola himfelf.

I WOULD not be thought to recommend to our Englifh nobility and gentry to become as great lawyers as Sulpicius; though he, together with this character, fuftained likewife that of an excellent orator, a firm patriot, and a wife indefatigable fenator; but the inference which arifes from the ftory is this, that ignorance of the laws of the land hath ever been efteemed difhonourable, in thofe who are entrufted by their country to maintain, to adminifter, and to amend them.

BUT furely there is little occafion to enforce this argument any farther to perfons of rank and diftinction, if we of this place may be allowed to form a general judgment from thofe who are under our infpection: happy, that while we lay down the rule, we can alfo produce the example. You will therefore permit your profeffor to indulge both a public and private fatisfaction, by bearing this open teftimony; that in the infancy of thefe ftudies among us, they were favoured with the moft diligent attendance; and purfued with the moft unwearied application, by thofe of the nobleft birth and moft ample patrimony: fome of whom are ftill the ornaments of this feat of learning; and others at a greater diftance continue doing honour to it' inftitutions, by comparing our polity and laws with thofe of other kingdoms abroad, or exerting their fenatorial abilities in the councils of the nation at home.

NOR will fome degree of legal knowlege be found in the leaft fuperfluous to perfons of inferior rank; efpecially thofe of the learned profeffions. The clergy in particular, befides the common obligations they are under in proportion to their rank and fortune, have alfo abundant reafon, confidered merely as clergy-

On the STUDY of the LAW.

men, to be acquainted with many branches of the law, which are almoft peculiar and appropriated to themfelves alone. Such are the laws relating to advowfons, inftitutions, and inductions; fo fimony, and fimoniacal contracts; to uniformity, refidence, and pluralities; to tithes and other ecclefiaftical dues; to marriages ( more efpecially of late) and to a variety of other fubjects, which are configned to the care of their order by the provifions of particular ftatutes. To underftand thefe aright, to difcern what a warranted or enjoined, and what is forbidden by law, demands a fort of legal apprehenfion; which is no otherwife to be acquired than by ufe and a familiar acquaintance with legal writers.

FOR the gentlemen of the faculty of phyfic, I muft frankly own that I fee no fpecial reafon, why they in particular fhould apply themfelves to the ftudy of the law; unlefs in common with other gentlemen, and to complete the character of general and extenfive knowlege; a character which their profeffion, beyond others, has remarkably deferved. They will give me leave however to fuggeft, and that not ludicroufly, that it might frequently be of ufe to families upon fudden emergencies, if the phyfician were acquainted with the doctrine of laft wills and teftaments, at leaft fo far as relates to the formal part of their execution.

BUT thofe gentlemen who intend to profefs the civil and ecclefiaftical laws in the fpiritual and maritime courts of this kingdom, are of all men ( next to common lawyers) the moft indifpenfably obliged to apply themfelves ferioufly to the ftudy of our municipal laws. For the civil and canon laws, confidered with refpect to any intrinfic obligation, have no force or authority in this kingdom; they are no more binding in England than our laws are binding at Rome. But as far as thefe foreign laws, on account of fome peculiar propriety, have in fome particular cafes, and in fome particular courts, been introduced and allowed by our laws, fo far they oblige, and no farther; their authority being wholly founded upon that permiffion and adoption. In which we are not fingular in our notions; for even in Holland, where the

On the STUDY of the LAW.

Imperial law is much cultivated and it's decifions pretty generally followed, we are informed by Van Leeuwenⁱ, that, “it receives “it's force from cuftom and the confent of the people, either tacitly or expreffly given: for otherwife, he adds, we fhould no “more be bound by this law, than by that of the Almains, the “Franks, the Saxons, the Goths, the Vandals, and other of the “antient nations.” Wherefore, in all points in which the different fyftems depart from each other, the law of the land takes place of the law of Rome, whether antient or modern, imperial or pontificial. And in thofe of our Englifh courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themfelves to other matters, than are permitted to them; or if fuch courts proceed according to the decifions of thofe laws, in cafes wherein it is controlled by the law of the land, the common law in either inftance both may, and frequently does, prohibit and annul their proceedings^k: and it will not be a fufficient excufe for them to tell the king's courts at Weftminfter, that their practice is warranted by the laws of Juftinian or Gregory, or is conformable to the decrees of the Rota or imperial chamber. For which reafon it becomes highly neceffary, for every civilian and canonift that would act with fafety as a judge, or with prudence and reputation as an advocate, to know in what cafes and how far the Englifh laws have given fanction to the Roman; in what points the latter are rejected; and where they are both fo intermixed and blended together, as to form certain fupplemental parts of the common law of England, diftinguifhed by the titles of the king's maritime, the king's military, and the king's ecclefiaftical law. The property of which enquiry the univerfity of Oxford has for more than a century fo thoroughly feen, that in her ftatutes^l fhe appoints, that one of the three queftions to be annually difcuffed at the act by the jurift-inceptors fhall relate to the common law; fubjoining this reafon, “quia juris civilis ftudiofos decet baud imperitos effe juris municipalis, & difforentias ex-

^I Dedicatto ceorpris juris civilis. Edn. 1663.

^k Hale. Hift. C. L. c. 2. Selded in Fftlari. 5 Rep. Caudrey's Cafe. 2 Inft. 599.

^l Tu VII. Sect. 2. §. 2.

On the STUDY of the LAW.

“teri patriique juris notas habere.” And the ftatutes^m of the univerfity of Cambridge fpeak expreffly to the fame effect.

FROM the general ufe and neceffity of fome acquaintance with the common law, the inference were extremely eafy, with regard to the property of the prefent inftitution, in a place to which gentlemen of all ranks and degrees refort, as the fountain of all ufeful knowlege. But how it has come to pafs that a defign of this fort has never before taken place in the univerfity, and the reafon why the ftudy of our laws has in general fallen into difufe, I fhall previoufly proceed to enquire.

SIR John Fortefcue, in his panegyric on the laws of England, ( which was written in the reign of Henry the fixth) putsⁿ a very obvious queftion in the mouth of the young prince, whom he is exhorting to apply himfelf to that branch of learning; “why the “laws of England, being fo good, fo fruitful, and fo commondious, are not taught in the univerfities, as the civil and canon “laws are ?” In anfwer to which he gives^o what feems, with due deference be it fpoken, a very jejune and unfatisfactory reafon; being in fhort, that “as the proceedings at common law “were in his time carried on in three different tongues, the “Englifh, the Latin, and the French, that fcience muft be neceffarily taught in thofe three feveral languages; but that in “the univerfities all fciences were taught in the Latin tongue “only; and therefore he concludes, that they could not be conveniently taught or ftudied in our univerfities.” But without attempting to examine ferioufly the validity of this reafon, ( the very fhadow of which by the wifdom of your late conftitutions is entirely taken away) we perhaps may find out a better, or at leaft a more plaufible account, why the ftudy of the municipal laws has been banifhed from thefe feats of fcience, than what the learned chancellor thought it prudent to give to his royal pupil.

^m Doctor legum mox a doctoratu dobit operam legibus Angliae, ut non fit imperitus carum legum quas habet fna patria, et differentias exteri patriique juris nofcat. Stat. Eliz. R. c. 14. Cowel. Inftittut. In proemio.

On the STUDY of the LAW.

THAT antient collection of unwritten maxims and cuftoms, which is called the common law, however compounded or from whatever fountains derived, had fubfifted immemorially in this kingdom; and, though fomewhat altered and impaired by the violence of the times, had in great meafure weathered the rude fhock of the Norman conqueft. This had endeared it to the people in general, as well becaufe it's decifions were univerfally known, as becaufe it was found to be excellently adapted to the genius of the Englifh nation. In the knowlege of this law confifted great part of the learning of thofe dark ages; it was then taught, fays Mr. Selden^p, in the monafteries, in the univerfities, and in the families of the principal nobility. The clergy in particular, as they then engroffed almoft every other branch of learning, fo ( like their predeceffors the Britifh druids^q) they were peculiarly remarkable for their proficiency in the ftudy of the law. Nullus clericus nifi caufidicus, is the character given of them foon after the conqueft by William of Malmfbury^r. The judges therefore were ufually created out of the facred order^s, as was likewife the cafe among the Normans^t; and all the inferior offices were fupplied by the lower clergy, which has occafioned their fucceffors to be denominated clerks to this day.

BUT the common law of England, being not committed to writing, but only handed down by tradition, ufe, and experience, was not fo heartily relifhed by the foreign clergy; who came over hither in fhoals during the reign of the conqueror and his two fons, and were utter ftrangers to our conftitution as well as our language. And an accident, which foon after happened, had nearly completed it's ruin. A copy of Juftinian's pandects, being newly^u difcovered at Amalfi, foon brought the civil law into

^p in Fletam. 7. 7.

^q Caefar de bello Gal. 6. 12.

^r de geft. reg. l. 4.

^t Les juges font fages perfonnes & autentiques, -ficome les archevefques, evefques, les chanoines les eglifes catbedraulx, & les autres perfonnes qui ont dignitez in faincte eglife; les abbex, les prieurs conventauls, & les gouverneurs des eglifes, &c. Grand Couftumier, ch. 9.

^u circ. A. D. 1130.

On the STUDY of the LAW.

vogue all over the weft of Europe, where before it was quite laid afide^w and in a manner forgotten; though fome traces of it's authority remained in Italy^x and the eaftern provinces of the empire^y. This now became in a particular manner the favourite of the popifh clergy, who borrowed the method and many of the maxims of their canon law from this original. The ftudy of it was introduced into feveral univerfities abroad, particularly that of Bologna; where exercifes were performed, lectures read, and degrees conferred in this faculty, as in other branches of fcience: and many nations on the continent, juft then beginning to recover from the convulfions confequent upon the overthrow of the Roman empire, and fettling by degrees into peaceable forms of government, adopted the civil law, ( being the beft written fyftem then extant) as the bafis of their own feodal cuftoms, in fome places with a more extenfive, in others a more confined authority^z.

NOR was it long before the prevailing mode of the times reached England. For Theobald, a Norman abbot, being elected to the fee of Canterbury^a, and extremely addicted to this new ftudy, brought over with him in his retinue many learned proficients therein; and among the reft Roger firnamed Vacarius, whom he placed in the univerfity of Oxford^b, to teach it to the people of this country. But it did not meet with the fame eafy reception in England, where a mild and rational fyftem of laws had been long eftablifhed, as it did upon the continent; and, though the monkifh clergy ( devoted to the will of a foreign primate) received it with eagernefs and zeal, yet the laity who were more interefted to preferve the old conftitution, and had already feverely felt the effect of many Norman innovations, continued wedded to the ufe of the common law. King Stephen imme-

^w LL. Wifigofh. 2. 1. 9.

^x Capitular. Hludov. Pii. 4. 102.

^y Selden in Fletam. 5. 5.

^z Domat's treatife of laws. c. 13. §. 9. Epifiol. Innocent. IV. in M. Paris. ad A. D. 1254.

^b Gervaf. Dorobern. Act. Pontif. Cantuar. col. 1665.

On the STUDY of the LAW.

diately publifhed a proclamation ^c, forbidding the ftudy of the laws, then newly imported from Italy; which was treated by the monks ^d as a piece of impiety, and, though it might prevent the introduction of the civil law procefs into our courts of juftice, yet did not hinder the clergy from reading and teaching it in their own fchools and monafteries.

FROM this time the nation feems to have been divided into two parties; the bifhops and clergy, many of them foreigners, who applied themfelves wholly to the ftudy of the civil and canon laws, which now came to be infeparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the oppofite fyftem that real merit which is abundantly to be found in each. This appears on the one hand from the fpleen with which the monaftic writers ^e fpeak of our municipal laws upon all occafions; and, on the other, from the firm temper which the nobility fhewed at the famous parliament of Merton; when the prelates endeavoured to procure an act, to declare all baftards legitimate in cafe the parents intermarried at any time afterwards; alleging this only reafon, becaufe holy church (that is, the canon law) declared fuch children legitimate: but “all the earls and barons (fays the parliament roll^f) “of England, which had hitherto been ufed and approved.” And we find the fame jealoufy prevailing above a century afterwards ^g, when the nobility declared with a kind of prophetic fpirit, “that the realm of England hath never been unto this “hour, neither by the confent of our lord the king and the lords “of parliament fhall it ever be, ruled or governed by the civil

^e Rog. Bacon. citat per Selden. in Fletam.7. 6. in Fortefe. c. 33. & 8 Rep. Pref.

^e Joan. Sarifburiens. Polycrat. 8. 22.

^e Idem, ibid. 5. 16. Polydor. Vergil. Hift. l. 9.

^f Stat. Merton. 20. Hen. III. c. 9. Et omnes comites & barones una voce refponaerunt, quoe nolunt leges Angliae mutare, quae bucufqut ufuatat funt & approbatat.

On the STUDY of the LAW.

“law^h.” And of this temper between the clergy and laity many more inftances might be given.

WHILE things were in this fituation, the clergy, finding it impoffible to root out the municipal law, began to withdraw themfelves by degrees from the temporal courts; and to that end, very early in the reign of king Henry the third, epifcopal conftitutions were publifhedⁱ, forbidding all ecclefiaftics to appear as advocates in foro faeculari; nor did they long continue to act as judges there, nor caring to take the oath of office which was then found neceffary to be adminiftred, that they fhould in all things determine according to the law and cuftom of this realm ^k; though they ftill kept poffeffion of the high office of chancellor, an office then of little juridical power; and afterwards, as it's bufinefs increafed by degrees, they modelled the procefs of the court at their own difcretion.

BUT wherever they retired, and wherever their authority extended, they carried with them the fame zeal to introduce the rules of the civil, in exclufion of the municipal law. This appears in a particular manner from the fpiritual courts of all denominations, from the chancellor's courts in both our univerfities, and from the high court of chancery before-mentioned; in all of which the proceedings are to this day in a courfe much conformed to the civil law: for which no tolerable reafon can be affigned, unlefs that thefe courts were all under the immediate direction of the popifh ecclefiaftical, among whom it was a point of religion to exclude the municipal law; pope Innocent the fourth having ^l forbidden the very reading of it by the clergy, becaufe it's decifions were not founded on the imperial conftitutions, but merely on the cuftoms of the laity. And if it be confidered, that our univerfities began about that period to receive their prefent form of fcholaftic difcipline; that they were then, and continued to

^h Selden. Tan. Anglor. l. 2. §. 43. in Fortele. c. 33.

^I Spelman. Concil. A. D. 1217. Wilkins. vol. 1. p. 574, 599.

^k Selden. in Fletam. 9. 3.

^l M. Paris ad A. D. 1254.

On the STUDY of the LAW.

be till the time of the reformation, entirely under the influence of the popifh clergy; (fir John Mafon the firft proteftant, being alfo the firft lay, chancellor of Oxford) this will lead us to perceive the reafon, why the ftudy of the Roman laws was in thofe days of bigotry^m purfued with fuch alacrity in thefe feats of learning; and why the common law was entirely defpifed, and efteemed little better than heretical.

AND, fince the reformation, many caufes have confpired to prevent it's becoming a part of academical education. As, firft, long ufage and eftablifhed cuftom; which, as in every thing elfe, fo efpecially in the forms of fcholaftic exercife, have juftly great weight and authority. Secondly, the real intrinfic merit of the civil law, confidered upon the footing of reafon and not of obligation, which was well known to the inftructors of our youth; and their total ignorance of the merit of the common law, though it's equal at leaft, and perhaps an improvement on the other. But the principal reafon of all, that has hindered the introduction of this branch of learning, is, that the ftudy of the common law, being banifhed from hence in the times of popery, has fallen into a quite different chanel, and has hitherto been wholly cultivated in another place. But as this long ufage and eftablifhed cuftom, of ignorance in the laws of the land, begin now to be thought unreafonable; and as by this means the merit of thofe

^m There cannot be a ftronger inftance of the abfurd and fuperftitious veneration that was paid to thefe laws, then that the moft learned writers of the times thought they could not form a perfect character, even of the bluffed virgin, without making her a civilian and a canonift. Which Albertus Magnus, the renowned Dominican doctor of the thirteenth century, thus proves in his Summa de laudibus chriftiferae virginis (divinum magis quam bumanum opus) qu. 23. §. 5. “Item quod jura civilia, & leges, & decreta “fcivil in fummo, probutur boc modo: fapientia advocati manifeftatur in tribus; unum, “quod obtineat omnia contra judicem juftum & “fapientem; fecundo, quod contra adverfarium “aftutum & fagacem: tertio, quod in caufa “defperata: fed beatiffima virgo, contra judicem fapientiffimum, Dominum; contra adverfarium callidiffimum, dyabolum; in caufa “noftra defperata; fententiam optatam obtinuit.” To which an eminent francifcan, two centuries afterwards, Bernardinus de Bufti (Mariale, part. 4. ferm. 9.) very gravely fubjoins this note. “Nee videtur incongruum “mulicres habere peritiam juris. Legitur enim “de uxore Toannis Andreae gloffatoris, quod “tantam peritiam in utroquqe jure habuit, ut “publice in fcholis legere aufa fit.

On the STUDY of the LAW.

laws will probably be more generally known; we may hope that the method of ftudying them will foon revert to it's antient courfe, and the foundations at leaft of that will be laid in the two univerfities; without being exclufively confined to the chanel which it fell into at the times I have been juft defcribing.

FOR, being then entirely abandoned by the clergy, a few ftragglers excepted, the ftudy and practice of it devolved of courfe into the hands of laymen; who entertained upon their parts a moft hearty averfion to the civil law ⁿ, and made no fcruple to profefs their contempt, nay even their ignorance ^o of it, in the moft public manner. But ftill, as the balance of learning was greatly on the fide of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it muft have been fubjected to many inconveniences, and perhaps would have been gradually loft and overrun by the civil, (a fufpicion well juftified from the frequent tranfcripts of Juftinian to be met with in Bracton and Fleta) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to it's fupport.

THE incident I mean was the fixing the court of common pleas, the grand tribunal for difputes of property, to be held in one certain fpot; that the feat of ordinary juftice might by permanent and notorious to all the nation. Formerly that, in conjunction with all the other fuperior courts, was held before the

ⁿ Fortefc. de laud. LL. c. 25.

^o This remarkably appeared in the cafe of the abbot of Torun, M. 22 E. 3. 24. who had caufed a certain prior to be fummoned to anfwer at Avignon for erecting an oratory contra inhibitionem novi operas; by which words Mr. Selden, (in Flet. 8. 5.) very juftly underftands to be meant the title de novi operas nuntiatione both in the civil and canon laws, (Ff. 39. 1. C. 8. 11. and Decretal. not Extrav. 5. 32.) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. But Skipwith the king's ferjeant, and afterwards chief baron of the exchequer, declares them to he flat nonfenfe; “in ceux parolx, contra inhibitionem novi operas, ny ad pas entendment:” and juftice Schardelow mends the matter but little by informing him, that they fignify a reftitution in their law; for which reafon he very fagely refolves to pay no fort of regard to them. “Ceo n'eft que un reftitution en lour ley, pur que a ceo n'avomuregard, &c.”

On the STUDY of the LAW.

king's capital jufticiary of England, in the aula regis, or fuch of his palaces wherein his royal perfon refided; and removed with his houfhold from one end of the kingdom to the other. This was found to occafion great inconvenience to the fuitors; to remedy which it was made an article of the great charter of liberties, both that of king John and king Henry the third^p, that “common pleas fhould no longer follow the king's court, but be “held in fome certain place:” in confequence of which they have ever fince been held (a few neceffary removals in times of the plague excepted) in the palace of Weftminfter only. This brought together the profeffors of the municipal, law, who before were difperfed about the kingdom, and formed them into an aggregate body; whereby a fociety was eftablifhed of perfons, who (as Spelman^q obferves) addicting themfelves wholly to the ftudy of the laws of the land, and no longer confidering it as a mere fubordinate fcience for the amufement of leifure hours, foon raifed thofe laws to that pitch of perfection, which they fuddenly attained under the aufpices of our Englifh Juftinian, king Edward the firft.

IN confequence of this lucky affemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it neceffary to eftablifh a new univerfity of their own. This they did by purchafing at various times certain houfes (now called the inns of court and of chancery) between the city of Weftminfter, the place of holding the king's courts, and the city of London; for advantage of ready accefs to the one, and plenty of provifions in the other^r. Here exercifes were performed, lectures read, and degrees were at length conferred in the common law, as at other univerfities in the canon and civil. The degrees were thofe of barrifters (firft ftiled apprentices ^s from apprendre, to learn) who anfwered to our ba-

^q Gloffar. 334.

^r Fortefc. c. 48.

^s Apprentices or Barrifters feem to have been firft appointed by an ordinance of king Edward the firft in parliament, in the 20^th year of his reign. (Spelm. Gloff. 37. Dugdale. Orig. jurid 55.)

On the STUDY of the LAW.

chelors; as the ftate and degree of a ferjeant^t, fervientis ad legem, did to that of doctor.

THE crown feems to have foon taken under it's protection this infant feminary of common law; and, the more effectually to fofter and cherifh it, king Henry the third in the nineteenth year of his reign iffued out an order directed to the mayor and fheriffs of London, commanding that no regent of any law fchools within that city fhould for the future teach law therein^u. The word, law, or leges, being a general term, may create fome doubt at this diftance of time whether the teaching of the civil law, or the common, or both, is hereby reftrained. But in either cafe it tends to the fame end. If the civil law only is prohibited, (which is Mr Selden's ^w opinion) it is then a retaliation upon the clergy, who had excluded the common law from their feats of learning. If the municipal law be alfo included in the reftriction, (as fir Edward Coke ^x underftands it, and which the words feem to import) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public univerfity, which was newly inftituted in the fuburbs.

^t The firft mention I have met with in our lawbooks of ferjeants or counters, is in the ftatute of Weftm. 1. 3. Edw. I. c. 29. and in Horn's Mirror, c. 1. §. 10. c. 2. §. 5. c. 3. §. 1. in the fame reign. But M. Paris in his life of John II, abbot of St. Alban's, which he wrote in 1255, 39 Hen. III. fpeaks of advocates at the common law, or counters (quos banci narrators vulgariter appellamus) as of an order of men well known. And we have an example of the antiquity of the coif in the fame author's hiftory of England, A. D. 1259. in the cafe of one William de Buffy; who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire fecret; and to that end voluit ligamenta coifae fuae folvere, ut palam monftraret fe tonfuram habere clericalem; fed non eft permiffus. –Satelles vero cum arripiens, non per coifae ligamina fed per gutur cum apprehendens, traxit ad carcerem. And hence fir H. Spelman conjectures, (Gloffar. 335.) that coifs were introduced to hide the tonfure of fuch renegade clerks, as were ftill tempted to remain in the fecular courts in the quality of advocates or judges, notwithftanding their prohibition by canon.

^u Ne aliquis fcholas regens de legibus in eadem civitate de caetero ibidem leges doceat.

^w in Flet. 8. 2.

^x 2 Inft. proem.

On the STUDY of the LAW.

IN this juridical univerfity (for fuch it is infifted to have been by Fortefcue^y and fir Edward Coke ^z) there are two forts of collegiate houfes; one called inns of chancery, in which the younger ftudents of the law were ufually placed, “learning and ftudying “fays Fortefcue^a, the originals and as it were the elements of “the law; who, profiting therein, as they grow to ripenefs fo “are they admitted into the greater inns of the fame ftudy, called the inns of court.” And in thefe inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did ufe to place their children, though they did not defire to have them thoroughly learned in the law, or to get their living by it's practice: and that in his time there were about two thoufand ftudents at thefe feveral inns, all of whom he informs us were filii nobelium, or gentlemen born.

HENCE it is evident, that (though under the influence of the monks our univerfities neglected this ftudy, yet) in the time of Henry the fixth it was thought highly neceffary and was the univerfal practice, for the young nobility and gentry to be inftructed in the originals and elements of the laws. but by degres this cuftom has fallen into difufe; fo that in the reign of queen Elizabeth fir Edward Coke ^b does not reckon above a thoufand ftudents, and the number at prefent is very confiderably lefs. Which feems principally owing to thefe reafons: firft, becaufe the inns of chancery being now almoft totally filled by the inferior branch of the poffeffion, they are neither commodious nor proper for the refort of gentlemen of any rank or figure; fo that there are now very rarely any young ftudents entered at the inns of chancery: fecondly, becaufe in the inns of court all forts of regimen and academical fuperintendance, either with regard to morals or ftudies, are found impracticable and therefore entirely neglected: laftly, becaufe perfons of birth and fortune, after having finifhed their ufual courfes at the univerfities, have feldom

^z 3 Rep. prof.

On the STUDY of the LAW.

leifure or refolution fufficient to enter upon a new fcheme of ftudy at a new place of inftruction. Wherefore few gentlemen now refort to the inns of court, but fuch for whom the knowlege of practice is abfolutely neceffary; fuch, I mean, as are intended for the profeffion: the reft of our gentry, (not to fay our nobility alfo) having ufually retired to their eftates, or vifited foreign kingdoms, or entered upon public life, without any inftruction in the laws of the land; and indeed with hardly any opportunity of gaining inftruction, unlefs it can be afforded them in thefe feats of learning.

AND that thefe are the proper places, for affording affiftances of this kind to gentlemen of all ftations and degrees, cannot (I think) with any colour of reafon be denied. For not one of the objections, which are made to the inns of court and chancery, and which I have juft enumerated, will hold with regard to the univerfities. Gentlemen may here affociate with gentlemen of their own rank and degree. Nor are their conduct and ftudies left entirely to their own difcretion; but regulated by a difcipline fo wife and exact, yet fo liberal, fo fenfible and manly, that their conformity to it's rules (which does at prefent fo much honour to our youth) is not more the effect of conftraint, than of their own inclinations and choice. Neither need they apprehend too long an avocation hereby from their private concerns and amufements, or (what is a more noble object) the fervice of their friends and their country. This ftudy will go hand in hand with their other purfuits: it will obftruct none of them; it will ornament and affift them all.

BUT if, upon the whole, there are any ftill wedded to monaftic prejudice, that can entertain a doubt how far this ftudy is properly and regularly academical, fuch perfons I am afraid either have not confidered the conftitution and defign of an univerfity or elfe think very meanly of it. It muft be a deplorable narrownefs of mind, that would confine thefe feats of inftruction to the limited views of one or two learned profeffions. To the praife

On the STUDY of the LAW.

of this age be it fpoken, a more open and generous way of thinking begins now univerfally to prevail. The attainment of illiberal and general accomplifhments, though not of the intellectual fort, has been thought by our wifeft and moft affectionate patrons ^c, and very lately by the whole univerfity^d,no fmall improvement of our antient plan of education; and therefore I may fafely affirm that nothing (how unufual foever) is, under due regulations, improper to be taught in this place, which is proper for a gentleman to learn. But that a fcience, which diftinguifhes the criterions of right and wrong; which teaches to eftablifh the one, and prevent, punifh, or redrefs the other; which employs in it's theory the nobleft faculties of the foul, and exerts in it's practice the cardinal virtues of the heart; a fcience, which is univerfal in it's ufe and extent, accommodated to each individual, yet comprehending the whole community; that a fcience like this fhould have ever been deemed unneceffary to be ftudied in an univerfity, is matter of aftonifhment and concern. Surely, if it were not before an object of academical knowlege, it was high time to make it one; and to thofe who can doubt the property of it's reception among us (if any fuch there be) we may return an anfwer in their own way; that ethics are confeffedly a branch of academical learning, and Ariftotle himfelf has faid, fpeaking of the laws of his own country, that jurifprudence or the knowlege of thofe laws is the principal and moft ^e perfect branch of ethics.

FROM a thorough conviction of this truth, our munificent benefactor Mr. VINER, having employed above half a century in amaffing materials for new modeling and rendering more commodious the rude ftudy of the laws of the land, configned both

^c Lord chancellor Clarendon, in his dialogue of education, among his tracts, P. 325. appears to have been very folicitous, that it might be made “a part of the ornament “of our learned academies to teach the “qualities of riding, dancing, and fencing, “at thofe hours when more ferious exercife fhould be intermitted.”

^d By accepting in full convocation the remainder of lord Clarendon's hiftory from his noble defcendants, on condition to apply the profits arifing from it's publication to the eftablifhment of a managi in the univerfity.

^e T Ethic. ad Nicomach. l. 5. c. 3.

On the STUDY of the LAW.

the plan and execution of thefe his public-fpirited defigns to the wifdom of his parent univerfity. Refolving to dedicate his learned labours “to the benefit of pofterity and the perpetual fervice “of his country ^f,” he was fenfible he could not perform his refolutions in a better and more effectual manner, than by extending to the youth of this place thofe affiftances, of which he fo well remembered and fo heartily regretted the want. And the fenfe, which the univerfity has entertained of this ample and moft ufeful benefaction, muft appear beyond a doubt from their gratitude in receiving it with all poffible marks of efteem ^g; from their alacrity and unexampled difpatch in carrying it into execution ^h; and, above all from the laws and conftitutions by which they have effectually guarded it from the neglect and abufe to which fuch inftitutions are liable ^i.We have feen an univerfal emulation, who beft fhould underftand, or moft faithfully pur-

^f See the preface to the eighteenth volume of his abridgment.

^g Mr. Viner is enrolled among the public benefactors of the univerfity by decree of convocation.

^h Mr. Viner died June 5, 1756. His effects were collected and fettled, near a volume of his work printed, almoft the whole difpofed of, and the accounts made up, in a year and a half from his deceafe, by the very diligent and worthy adminiftrators with the will annexed, (Dr. Whalley of Oriel, Mr. Buckler of All Souls, and Mr. Betts of Univerfity college) to whom that care was configned by the univerfity. Another half year was employed in confidering and fettling a plan of the propofed inftitution, and in framing the ftatutes thereupon, which were finally confirmed by convocation on the 3^d of July, 1758. The profeffor was elected on the 20^th of October following, and two fcholars on the fucceeding day. And, laftly, it was agreed at the annual audit in 1761, to eftablifh a fellowfhip; and a fellow was accordingly elected in January following. – The refidue of this fund, arifing from the fale of Mr. Viner's abridgment, will probably be fufficient hereafter to found another fellowfhip and fcholarfhip, or three more fcholarfhips, as fhall be thought moft expedient.

ⁱ The ftatutes are in fubftance as follows:

1. THAT the accounts of this benefaction be feparately kept, and annually audited by the delegates of accounts and profeffor, and afterwards reported to convocation.

2. THAT a profefforfhip of the laws of England be eftablifhed, with a falary of two hundred pounds per annum; the profeffor to be elected by convocation, and to be at the time of his election at leaft a mafter of arts or bachelor of civil law in the univerfity of Oxford, of ten years ftanding from his matriculation; and alfo a barrifter at law of four years ftanding at the bar.

3. THAT fuch profeffor (by himfelf, or by deputy to be previoufly approved by

On the STUDY of the LAW.

fue, the defigns of our generous patron: and with pleafure we recollect, that thofe who are moft diftinguifhed by their quality,

convocation) do read one folemn public lecture on the laws of England, and in the Englifh language, in every academical term, at certain ftated times previous to the commencement of the common law term; or forfeit twenty pounds for every omiffion to Mr. Viner's general fund: and alfo (by himfelf, or by deputy to be approved, if occafional, by the vice-chancellor and proctors or, if permanent, both the caufe and the deputy to be annually approved by convocation) do yearly read one complete courfe of lectures on the laws of England, and in the Englifh language, confifting of fixty lectures at the leaft; to be read during the univerfity term time, with fuch proper intervals that not more than four lectures may fall within any fingle week: that the profeffor do give a month's notice of the time when the courfe is to begin, and do read gratis to the fcholars of Mr. Viner's foundation; but may demand of other auditors fuch gratuity as fhall be fettled from time to time by decree of convocation: and that, for every of the faid fixty lectures omitted, the profeffor, on complaint made to the vice-chancellor within the year, do forfeit forty fhillings to Mr. Viner's general fund; the proof of having performed his duty to lie upon the faid profeffor.

4. THAT every profeffor do continue in his office during life, unlefs in cafe of fuch mifbehaviour as fhall amount to bannition by the univerfity ftatutes; or unlefs he deferts the profeffion of the law by betaking himfelf to another profeffion or unlefs, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omiffion: in any of which cafes he be deprived by the vice-chancellor, with confent of the houfe of convocation.

5. THAT fuch a number of fellowfhips with a ftipend of fifty pounds per annum, and fcholarfhips with a ftipend of thirty pounds be eftablifhed, as the convocation fhall from time to time ordain, according to the ftate of Mr. Viner's revenues.

6. THAT every fellow be elected by convocation, and at the time of election be unmarried, and at leaft a mafter of arts or bachelor of civil law, and a member of fome college or hall in the univerfity of Oxford; the fcholars of this foundation or fuch as have been fcholars (if qualified and approved of by convocation) to have the preference: that, if not a barrifter when chofen, he be called to the bar within one year after his election; but do refide in the univerfity two months in every year, or in cafe of non-refidence do forfeit the ftipend of that year to Mr. Viner's general fund.

7. THAT every fcholar be elected by convocation, and at the time of election be unmarried, and a member of fome college or hall in the univerfity of Oxford, who fhall have been matriculated twenty four calendar months at the leaft: that he do take the degree of bachelor of civil law with all convenient fpeed; (either proceeding in arts or otherwife) and previous to his taking the fame, between the fecond and eighth year from his matriculation, be bound to attend two courfes of the profeffor's lectures, to be certified under the profeffor's hand; and within one year after taking the fame be called to the bar: that he do annually refide fix months till he is of four years ftanding, and four months from that time till he is mafter of arts or bachelor of civil law; after which he be bound to refide two months in every years; or, in cafe of non-refidence, do forfeit the ftipend of that year to Mr. Viner's general fund.

8. THAT the fcholarfhips do become void in cafe of non-attendance on the profeffor, or not taking the degree of bachelor

On the STUDY of the LAW.

their fortune, their ftation, their learning, or their experience, have appeared the moft zealous to promote the fuccefs of Mr. Viner's eftablifhment.

THE advantages that might refult to the fcience of the law itfelf, when a little more attended to in thefe feats of knowlege, perhaps would be very confiderable. The leifure and abilities of the learned in thefe retirements might either fuggeft expedients, or execute thofe dictated by wifer heads ^k, for improving it's method, retrenching it's fuperfluities, and reconciling the little contrarieties, which the practice of many centuries will neceffarily create in any human fyftem: a tafk, which thofe who are deeply employed in bufinefs, and the more active fcenes of the profeffion, can hardly condefcend to engage in. And as to the intereft, or (which is the fame) the reputation of the univerfities themfelves, I may venture to pronounce, that if ever this ftudy fhould arrive to any tolerable perfection either here or at Cambridge, the nobility and gentry of this kingdom would not fhorten their refidence upon this account, nor perhaps entertain a worfe opinion of the benefits of academical education. Neither fhould it be confidered as a matter of light importance, that while we thus extend the pomoeria of univerfity learning, and adopt a new tribe of citizens within thefe philofophical walls, we intereft a

of civil law, being duly admonifhed fo to do by the vice-chancellor and proctors: and that both fellowfhips and fcholarfhips do expire at the end of ten years after each refpective election; and become void in cafe of grofs mifbehaviour, non-refidence for two years together, marriage, not being called to the bar within the time before limited, (being duly admonifhed fo to be by the vice-chancellor and proctors) or deferting the profeffion of the law by following any other profeffion: and that in any of thefe cafes the vice-chancellor, with confent of convocation, do declare the place actually void.

9. THAT in cafe of any vacancy of the profefforfhip, fellowfhips, or fcholarfhips, the profits of the current year be ratably divided between the predeceffor or his reprefentatives, and the fucceffor; and that a new election be had within one month afterwards, unlefs by that means the time of election fhall fall within any vacation, in which cafe it be deferred to the firft week in the next full term. And that before any convocation fhall be held for fuch election, or for any other matter relating to Mr. Viner's benefaction, ten days public notice be given to each college and hall of the convocation, and the caufe of convoking it.

^k See lord Bacon's propofals and offer of a digeft.

On the STUDY of the LAW.

very numerous and very powerful profeffion in the prefervation of our rights and revenues.

FOR I think it is paft difpute that thofe gentlemen, who refort to the inns of court with a view to purfue the profeffion, will find it expedient (whenever it is practicable) to lay the previous foundations of this, as well as every other fcience, in one of our learned univerfities. We may appeal to the experience of every fenfible lawyer, whether any thing can be more hazardous or difcouraging than the ufual entrance on the ftudy of the law. A raw and unexperienced youth, in the moft dangerous feafon of life, is tranfpanted on a fudden into the midft of allurements to pleafure, without any reftraint or check but what his own prudence can fuggeft; with no public direction in what courfe to purfue his enquiries; no private affiftance to remove the diftreffes and difficulties, which will always embarafs a beginner. In this fituation he is expected to fequefter himfelf from the world, and by a tedious lonely procefs to extract the theory of law from a mafs of undigefted learning; or elfe by an affiduous attendance on the courts to pick up theory and practice together, fufficient to qualify him for the ordinary run of bufinefs. How little therefore is it to be wondered at, that we hear of fo frequent mifcarriages; that fo many gentlemen of bright imaginations grow weary of fo unpromifing a fearch ^l, and addict themfelves wholly to amufements, or other left innocent purfuits; and that fo many perfons of moderate capacity confufe themfelves at firft fetting out, and continue ever dark and puzzled during the remainder of their lives !

THE evident want of fome affiftance in the rudiments of legal knowlege, has given birth to a practice, which, if ever it had grown to be general, muft have proved of extremely perni-

^l Sir Henry Spelman, in the preface to his glofiary, gives us a very lively picture of him own diftrefs upon this occafion. “Enifit me mater Londinum, juris neftri cafeffendi gretia; chjus cum veftibulum falntaffem, reperiffemque linguan pevegrinan, dialectum barbaram, methodum inconcinnam, molem non ingentem folum fed perpetuis humer, fuftinendam, excidit mihi (fateor) animus.

On the STUDY of the LAW.

cious confequence: I mean the cuftom, by fome fo very warmly recommended, to drop all liberal education, as of no ufe to lawyers; and to place them, in it's ftead, at the defk of fome fkilful attorney; in order to initiate them early in all the depths of practice, and render them more dextrous in the mechanical part of bufinefs. A few inftances of particular perfons, (men of excellent learning, and unblemifhed integrity) who, in fpight of this method of education, have fhone in the foremoft ranks of the bar, have afforded fome kind of fanction to this illiberal path to the profeffion, and biaffed many parents, of fhortfighted judgment, in it's favour: not confidering, that there are fome geniufes, formed to overcome all difadvantages, and that from fuch particular inftances no general rules can be formed; nor obferving, that thofe very perfons have frequently recommended by the moft forcible of all examples, the difpofal of their own off-fpring, a very different foundation of legal ftudies, a regular academical education. Perhaps too, in return, I could now direct their eyes to our principal feats of juftice, and fuggeft a few hints, in favour of univerfity learning^m: ---- but in thefe all who hear me, I know, have already prevented me.

MAKING therefore due allowance for one or two fhining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in fubfervience to attorneys and folicitors ⁿ, will find he has begun at the wrong end. If practice be the whole he is taught, practice muft alfo be the whole he will ever know: if he be uninftructed in the elements and firft principles upon which the rule of practice is founded, the leaft variation from eftablifhed precedents will totally diftract and bewilder him: ita lex fcripta eff ^o is the utmoft his knowlege will arrive at; he muft never afpire to form, and feldom expect to comprehend, any arguments drawn a priori, from the fpirit of the laws and the natural foundations of juftice.

^m The four higheft offices in the law were at that time filled by gentlemen, two of whom had been fellows of All Souls college: another, ftudent of Chrift-Church; and the fourth a fellow of Trinity college, Cambridge.

ⁿ See Kennet's life of Somner. p. 67.

^o Ff. 40. 9. 12.

On the STUDY of the LAW.

NOR is this all; for (as few perfons of birth, or fortune, or even of fcholaftic education, will fubmit to the drudgery of fervitude and the manual labour of copying the trafh of an office) fhould this infatuation prevail to any confiderable degree, we muft rarely expect to fee a gentleman of diftinction or learning at the bar. And what the confequence may be, to have the interpretation and enforcement of the laws (which include the entire difpofal of our properties, liberties, and lives) fall wholly into the hands of obfcure or illiterate men, is matter of very public concern.

THE inconveniences here pointed out can never be effectually prevented, but by making academical education a previous ftep to the profeffion of the common law, and at the fame time making the rudiments of the law a part of academical education. For fciences are of a fociable difpofition, and flourifh beft in the neighbourhood of each other: nor is there any branch of learning, but may be helped and improved by affiftances drawn from other arts. If therefore the ftudent in our laws hath formed both his fentiments and ftyle, by perufal and imitation of the pureft claffical writers, among whom the hiftorians and orators will beft deferve his regard; if he can reafon with precifion, and feparate argument from fallacy, by the clear fimple rules of pure unfo-phifticated logic; if he can fix his attention, and fteadily purfue truth through any the moft intricate deduction, by the ufe of mathematical demonftrations; if he has enlarged his conceptions of nature and art, by a view of the feveral branches of genuine; experimental, philofophy; if he has contemplated thofe maxims reduced to a practical fyftem in the laws of imperial Rome; if he has done this or any part of it, (thought all may be eafily done under as able inftructors as ever graced any feats of learning) a ftudent thus qualified may enter upon the ftudy of the law with incredible advantage and reputation. And if,

On the STUDY of the LAW.

at the conclufion, or during the acquifition of thefe accomplifhments, he will afford himfelf here a year or two's farther leifure, to lay the foundation of his future labours in a folid fcientifical method, without thirfting too early to attend that practice which it is impoffible he fhould rightly comprehend, he will afterwards proceed with the greateft eafe, and will unfold the moft intricate points with an intuitive rapidity and clearnefs.

I SHALL not infift upon fuch motives as might be drawn from principles of oeconomy, and are applicable to particulars only: I reafon upon more general topics. And therefore to the qualities of the head, which I have juft enumerated, I cannot but add thofe of the heart; affectionate loyalty to the king, a zeal for liberty and the conftitution, a fenfe of real honour, and well grounded principles of religion; as neceffary to form a truly valuable Englifh lawyer, a Hyde, a Hale, or a Talbot. And, whatever the ignorance of fome, or unkindnefs of others, may have heretofore untruly fuggefted, experience will warrant us to affirm, that thefe endowments of loyalty and public fpirit, of honour and religion, are no where to be found in more high perfection than in the two univerfities of this kingdom.

BEFORE I conclude, it may perhaps be expected, that I lay before you a fhort and general account of the method I propofe to follow, in endeavouring to execute the truft you have been pleafed to repofe in my hands. And in thefe folemn lectures, which are ordained to be read at the entrance of every term (more perhaps to do public honour to this laudable inftitution, than for the private inftruction of individuals ^p) I perfume it will beft anfwer the intent of our benefactor and the expectation of this learned body, if I attempt to illuftrate at times fuch detached titles of the law, as are the moft eafy to be underftood, and moft capable of hiftorical or critical ornament. But in reading the complete courfe, which is annually configned to my care, a more regular method will be neceffary; and, till a better is propofed,

^p See Lowth's Oratio Crewiana, p. 365.

On the STUDY of the LAW.

I fhall take the liberty to follow the fame that I have already fubmitted to the public^q. To fill up and finifh that outline with propriety and correctnefs, and to render the whole intelligible to the uninformed minds of beginners, (whom e are too apt to fuppofe acquainted with terms and ideas, which they never had opportunity to learn) this muft be my ardent endeavour, though by no means my promife to accomplifh. You will permit me however very briefly to defcribe, rather what I conceive an academical expounder of the laws fhould do, than what I have ever known to be done.

HE fhould confider his courfe as a general map of the law, marking out the fhape of the country, it's connexions and boundaries, it's greater divifions and principal cities: it is not his bufinefs to defcribe minutely the fubordinate limits, or to fix the longitude and latitude of every inconfiderable hamlet. His attention fhould be engaged, like that of the readers in Fortefcue's inns of chancery, “in tracing out the originals and as it were the element of the law.” For if, as Juftinian ^r has obferved, the tender underftanding of the ftudent be loaded at the firft with a multitude and variety of matter, it will either occafion him to defert his ftudies, or will carry him heavily through them, with much labour, delay, and defpondence. Thefe originals fhould be traced to their fountains, as well as our diftance will permit; to the cuftoms of the Britons and Germans, as recorded by Caefar and Tacitus; to the codes of the northern nations on the continent, and more efpecially to thofe of our own Saxon princes; to the rules of the Roman law, either left here in the days of Papinian, or imported by Vacarius and his followers; but, above

^q The Analyfis of the laws of England, firft publifhed, A. D. 1756, and exhibiting the order and principal divifions of the enfuing COMMENTARIES; which were originally fubmitted to the univerfity in a private courfe of lectures, A. D. 1753.

r Incipientibus nobis exponere jura populi Roman, ita videntur tradi poffe commodiffime, fi primo levi ae fimplici via fingula traaantur: Alioqui, fi ftatim ab initio rudem adhus & infirmum animum ftudiofi multitudint at varictan rerum oncravimus, duorum altcrum, aut defectorem ftudiorum efficiemus, aut cum magno labere, faepe etiam cum diffidentia (quae plerumque juvenes avertit) ferius ad id perducemia, ad quod leviore via ductue, fine magno labore & fine ulla diffidentia maturius perduci potuiffet. Inft. 1. 1. 2.

On the STUDY of the LAW.

all, to that inexhauftible refervoir of legal antiquities and learning, the feodal law, or, as Spelman^s has entitled it, the law of nations in our weftern orb. Thefe primary rules and fundamental principles fhould be weighed and compared with the precepts of the law of nature, and the practice of other countries; fhould be explained by reafons, illuftrated by examples, and confirmed by undoubted authorities; their hiftory fhould be deduced, their changes and revolutions obferved, and it fhould be fhewn how far they are connected with, or have at any time been affected by the civil tranfactions of the kingdom.

A PLAN of this nature, if executed with care and ability, cannot fail of adminiftring a moft ufeful and rational entertainment to ftudents of all ranks and profeffions; and yet it muft be confeffed that the ftudy of the laws is not merely a matter of amufement: for as a very judicious writer ^t has obferved upon a fimilar occafion, the learner “will be confiderably difappointed “if he looks for entertainment without the expence of attention.” An attention, however, not greater than is ufually beftowed in maftering the rudiments of other fciences, or fometimes in purfuing a favorite recreation or exercife. And this attention is not equally neceffary to be exerted by every ftudent upon every occafion. Some branches of the law, as the formal procefs of civil fuits, and the fubtile diftinctions incident to landed property, which are the moft difficult to be thoroughly underftood, are the leaft worth the pains of underftanding, except to fuch gentlemen as intend to purfue the profeffion. To others I may venture to apply, with a flight alteration, the words of fir John Fortefcue ^u,”

^s Of Parliaments. 57.

^t Dr. Taylor's preface to Elem. of civil law.

^u Tibi. princeps, neceffe non erit myfteria legis Angliae longo difciplinatu rimare. Sufficient tibi, -et fatis denominari legifla mereberis, fi legum principia & caufas, ufque ad elementa, difcipuli more indagaveris. – Quare tu, princeps fereniffime, parvo tempore, parva induftria, fufficienter eris in legibus regm Angliae eruditus, dummado ad ejtes apprehenfionem tu conferas animum tuum. –Nofco namqque ingenii tui perfpicacitatem, quo audacter prnuntio quod in legibus illis (licet carum peritia, quails judicibas neceffaria eft, vix viginti annorum lucubrationibus acquqiratur) tu, doctrinam principi congruam in anno uno fufficienter nancifceris; nec interim militarem difciplinam, ad quam tam ardenter anhelas, negliges; fed ea, recreationis loco, etiam anno illo tu ad libitum perfruerit c. 8.

On the STUDY of the LAW.

when firft his royal pupil determines to engage in this ftudy. “It will not be neceffary for a gentleman, as fuch, to examine “with a clofe application the critical niceties of the law. It will “fully be fufficient, and he may well enough be denominated a “lawyer, if under the inftruction of a mafter he traces up the “principles and grounds of the law, even to their original elements. Therefore in a very fhort period, and with very little “labour, he may be fufficiently informed in the laws of his “country, if he will but apply his mind in good earneft to receive and apprehend them. For, though fuch knowlege as is “neceffary for a judge is hardly to be acquired by the lucubrations of twenty years, yet with a genius of tolerable perfpicacity, that knowlege which is fit for a perfon of birth or condition may be learned in a fingle year, without neglecting his “other improvements.”

To the few therefore (the very few, I am perfuaded,) that entertain fuch unworthy notions of an univerfity, as to fuppofe it intended for mere diffipation of thought; to fuch as mean only to while away the aukward interval from childhood to twenty one, between the reftraints of the fchool and the licentioufnefs of politer life, in a calm middle ftate of mental and of moral inactivity; to thefe Mr. Viner gives on invitation to an entertainment which they never can relifh. But to the long and illuftrious train of noble and ingenuous youth, who are not more diftinguifhed among us by their birth and poffeffions, than by the regularity of their conduct and their thrift after ufeful knowlege, to thefe our benefactor has confecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if fuch reflexions can be now the employment of his thoughts) that he could not more effectually have benefited pofterity, or contributed to the fervice of the public, than by founding an inftitution which may inftruct the rifing generation in the wifdom of our civil polity, and inform them with a defire to be ftill better acquainted with the laws and conftitution of their country.

On the STUDY of the LAW.

SECTION THE SECOND.

OF THE NATURE OF LAWS IN GENERAL.

LAW, in it's moft general and comprehenfive fenfe, fignifies a rule of action; and is applied indifcriminately to all kinds of action, whether animate, or inanimate, rational or irrational. Thus we fay, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prefcribed by fome fuperior, and which the inferior is bound to obey.

THUS when the fupreme being formed the univerfe, and created matter out of nothing, he impreffed certain principles upon that matter, from which it can never depart, and without which it would ceafe to be. When he put that matter into motion, he eftablifhed certain laws of motion, to which all moveable bodies muft conform. And, to defcend from the greateft operations to the fmalleft, when a workman forms a clock, or other piece of mechanifm, he eftablifhes at his own pleafure certain arbitrary laws for it's direction; as that the hand fhall defcribe a given fpace in a given time; to which law as long a the work conforms, fo long it continues in perfection, and anfwer the end of it's formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we fhall find them ftill governed by laws; more numerous indeed, but equally fixed and invariable. The whole progrefs of plants, from the feed to the root, and from thence to the feed again; --- the method of animal nutrition, digeftion,

Of the NATURE of LAWS in general.

fecretion, and all other branches of vital oeconomy; --- are not left to chance, or the will of the creature itfelf, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.

THIS then is the general fignification of law, a rule of action dictated by fome fuperior being; and in thofe creatures that have neither the power to think, nor to will, fuch laws muft be invariably obeyed, fo long as the creature itfelf fubfifts, for it's exiftence depends on that obedience. But laws, in their more confined fenfe, and in which it is our prefent bufinefs to confider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the nobleft of all fublunary beings, a creature endowed with both reafon and freewill, is commanded to make ufe of thofe faculties in the general regulation of his behaviour.

MAN, confidered as a creature, muft neceffarily be fubject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to purfue, but fuch as he prefcribes to himfelf; but a ftate of dependance will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all thofe points wherein his dependance confifts. This principle therefore has more or lefs extent and effect, in proportion as the fuperiority of the one and the dependance of the other is greater or lefs, abfolute or limited. And confequently as man depends abfolutely upon his maker for every thing, it is neceffary that he fhould in all points conform to his maker's will.

THIS will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, eftablifhed certain rules for the perpetual direction of that motion; fo, when he created man, and endued him with freewill to conduct himfelf in all parts of life, he laid down cer-

Of the NATURE of LAWS in general.

tain immutable laws of human nature, whereby that freewill is in fome degree regulated and reftrained, and gave him alfo the faculty of reafon to difcover the purport of thofe laws.

CONSIDERING the creator only as a being of infinite power, he was able unqueftionably to have prefcribed whatever laws he pleafed to his creature, man, however unjuft or fevere. But as he is alfo a being of infinite wifdom, he has laid down only fuch laws as were founded in thofe relations of juftice, that exifted in the nature of things antecedent to any pofitive precept. Thefe are the eternal, immutable laws of good and evil, to which the creator himfelf in all his difpenfations conforms; and which he has enabled human reafon to difcover, fo far as they are neceffary for the conduct of human actions. Such among others are thefe principles: that we fhould live honeftly, fhould hurt nobody, and fhould render to every one it's due; to which three general precepts Juftinian ^a has reduced the whole doctrine of law.

BUT if the difcovery of thefe firft principles of the law of nature depended only upon the due exertion of right reafon, and could not otherwife be attained than by a chain of metaphyfical difquifitions, mankind would have wanted fome inducement to have quickened their inquiries, and the greater part of the world would have refted content in mental indolence, and ignorance it's infeparable companion. As therefore the creator is a being, not only of infinite power, and wifdom, but alfo of infinite goodnefs, he has been pleafed fo to contrive the conftitution and frame of humanity, that we fhould want no other prompter to enquire after and purfue the rule of right, but only our own felf-love, that univerfal principle of action. For he has fo intimately connected, fo infeparably interwoven the laws of eternal juftice with the happinefs of each individual, that the latter cannot be attained but by obferving the former; and, if the former be punctually obeyed, it cannot but induce the latter. In confequence of which mutual connection of juftice and human felicity, he has not per-

^a Turis praecepta funt haec, honefte vivere, alterum non laedere, fuum cuique tribuere. Inft. 1. 1. 5.

Of the NATURE of LAWS in general.

plexed the law of nature with a multitude of abftracted rules and precepts, referring merely to the fitnefs or unfitnefs of things, is fome have vainly furmifed; but has gracioufly reduced the rule of obedience to this one paternal precept, “that man fhould “purfue his own happinefs.” This is the foundation of what we call ethics, or natural law. For the feveral articles into which it is branched in our fyftems, amount to no more than demonftrating, that this or that action tends to man's real happinefs, and therefore very juftly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is deftructive of man's real happinefs, and therefore that the law of nature forbids it.

THIS law of nature, being co-eval with mankind and dictated by God himfelf, is of courfe fuperior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and fuch of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

BUT in order to apply this to the particular exigencies of each individual, it is ftill neceffary to have recourfe to reafon; whofe office it is to difcover, as was before obferved, what the law of nature directs in every circumftance of life; by confidering, what method will tend the moft effectually to our own fubftantial happinefs. And if our reafon were always, as in our firft anceftor before his tranfgreffion, clear and perfect, unruffled by paffions, unclouded by prejudice, unimpaired by difeafe or intemperance, the tafk would be pleafant and eafy; we fhould need no other guide but this. But every man now finds the contrary in his own experience; that his reafon is corrupt, and his underftanding full of ignorance and error.

THIS has given manifold occafion for the benign interpofition of divine providence; which, in compaffion to the frailty, the imperfection, and the blindnefs of human reafon, hath been

Of the NATURE of LAWS in general.

pleafed, at fundry times and in divers manners, to difcover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy fcriptures. Thefe precepts, when revealed, are found upon comparifon to be really a part of the original law of nature, as they tend in all their confequences to man's felicity. But we are not from thence to conclude that the knowlege of thefe truths was attainable by reafon, in it's prefent corrupted ftate; fince we find that, until they were revealed, they were hid from the wifdom of ages. As then the moral precepts of this law are indeed of the fame original with thofe of the law of nature, fo their intrinfic obligation is of equal ftrength and perpetuity. Yet undoubtedly the revealed law is (humanly fpeaking) of infinitely more authority than what we generally call the natural law. Becaufe one is the law of nature, expreffly declared fo to be by God himfelf; the other is only what, by the affiftance of human reafon, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

UPON thefe two foundations, the law of nature and the law of revelation, depend all human laws; that is to fay, no human laws fhould be fuffered to contradict thefe. There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found neceffary for the benefit of fociety to be reftrained within certain limits. And herein it is that human laws have their greateft force and efficacy; for, with regard to fuch points as are not indifferent, human laws are only declaratory of, and act in fubordination to, the former. To inftance in the cafe of murder: this is expreffly forbidden by the divine, and demonftrably by the natural law; and from thefe prohibitions arifes the true unlawfulnefs of this crime. Thofe human laws, that annex a punifhment to it, do not at all increafe it's moral guilt, or fuperadd any frefh obligation in foro confcientiae to abftain from

Of the NATURE of LAWS in general.

it's perpetration. Nay, if any human law fhould allow or injoin us to commit it, we are bound to tranfgrefs that human law, or elfe we muft offend both the natural and the divine. But with regard to matters that are in themfelves indifferent, and are not commanded or forbidden by thofe fuperior laws; fuch, for inftance, as exporting of wool into foreign countries; here the inferior legiflature has fcope and opportunity to interpofe, and to make that action unlawful which before was not fo.

IF man were to live in a ftate of nature, unconnected with other individuals, there would be no occafion for any other laws, than the law of nature, and the law of God. Neither could any other law poffibly exift; for a law always fuppofes fome fuperior who is to make it; and in a ftate of nature we are all equal, without any other fuperior but him who is the author of our being. But man was formed for fociety; and, as is demonftrated by the writers on this fubject^b, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impoffible for the whole race of mankind to be united in one great fociety, they muft neceffarily divide into many; and form feparate ftates, commonwealths, and nations; entirely independent of each other, and yet liable to a mutual intercourfe. Hence arifes a third kind of law to regulate this mutual intercourfe, called “the law of “nations;” which, as none of thefe ftates will acknowlege a fuperiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between thefe feveral communities: in the conftruction alfo of which compacts we have no other rule to refort to, but the law of nature; being the only one to which both communities are equally fubject: and therefore the civil law ^c very juftly obferves, that quod naturalis ratio inter omnes hominess conftituit, vocatur jus gentium.

THUS much I thought it neceffary to premife concerning the law of nature, the revealed law, and the law of nations, before

^b Puftendorf, l. 7. c. 1. compared with Barbeyrac's commentary.

^c Ff. 1. 1. 9.

Of the NATURE of LAWS in general.

I proceeded to treat more fully of the principal fubject of this fection, municipal or civil law; that is, the rule by which particular diftricts, communities, or nations are governed; being thus defined by Juftinian ^d, “jus civile eft quod quifque fibi populus conftituit.” I call it municipal law, in compliance with common fpeech; for, tho ftrictly that expreffion denotes the particular cuftoms of one fingle municipium or free town, yet it may with fufficient propriety be applied to any one ftate or nation, which is governed by the fame laws and cuftoms.

MUNICIPAL law, thus underftood, is properly defined to be “a rule of civil conduct prefcribed by the fupreme power in “a ftate, commanding what is right and prohibiting what is “wrong.” Let us endeavour to explain it's feveral properties, as they arife out of this definition.

AND, firft, it is a rule; not a tranfient fudden order from a fuperior to or concerning a particular perfon; but fomething permanent, uniform, and univerfal. Therefore a particular act of the legiflature to confifcate the goods of Titius, or to attaint him of high treafon, does not enter into the idea of a municipal law: for the operation of this act is fpent upon Titius only, and has no relation to the community in general; it is rather a fentence than a law. But an act to declare that the crime of which Titius is accufed fhall be deemed high treafon; this has permanency, uniformity, and univerfality, and therefore is properly a rule. It is alfo called a rule, to diftinguifh it from advice or counfel, which we are at liberty to follow or not, as we fee proper; and to judge upon the reafonablenefs or unreafonablenefs of the thing advifed. Whereas our obedience to the law depends not upon our approbation, but upon the maker's will. Counfel is only matter of perfuafion, law is matter of injunction; counfel acts only upon the willing, law upon the unwilling alfo.

^d Inft. 1. 2. 1.

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IT is alfo called a rule, to diftinguifh it from a compact or greement; for a compact is a promife proceeding from us, law a command directed to us. The language of a compact is, “I “will, or will not, do this;” that of a law is, “thou fhalt, or “fhalt not, do it.” It is true there is an obligation which a compact carries with it, equal in point of confcience to that of a law; but then the original of the obligation is different. In compacts, we ourfelves determine and promife what fhall be done, before we are obliged to do it; in laws, we are obliged to act. Without ourfelves determining or promifing any thing at all. Upon thefe accounts law is defined to be “a rule.”

MUNICIPAL law is alfo “a rule of civil conduct.” This diftinguifhes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but alfo the rule of faith. Thefe regard man as a creature, and point out his duty to God, to himfelf, and to his neighbour, confidered in the light of an individual. But municipal or civil law regards him alfo as a citizen, and bound to other duties towards him neighbour, than thofe of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the fubfiftence and peace of the fociety.

IT is likewife “a rule prefcribed.” Becaufe a bare refolution, confined in the breaft of the legiflator, without manifefting itfelf by fome external fign, can never be properly a law. It is requifite that this refolution be notified to the people who are to obey it. But the manner in which this notification is to be made, in matter of very great indifference. It may be notified by univerfal tradition and long practice, which fuppofes a previous publication, and is the cafe of the common law of England. It may be notified, viva voce, by officers appointed for that purpofe, as is done with regard to proclamations, and fuch acts of parliament

Of the NATURE of LAWS in general.

as are appointed to be publicly read in churches and other affemblies. It may laftly be notified by writing, printing, or the like; which is the general courfe taken with all our acts of parliament. Yet, whatever way is made ufe of, it is incumbent on the promulgators to do it in the moft public and perfpicuous manner; not like Caligula, who (according to Dio Caffius) wrote his laws in a very fmall character, and hung them up upon high pillars, the more effectually to enfnare the people. There is ftill a more unreafonable method than this, which is called making of laws ex poft facto; when after an action is committed, the legiflator then for the firft time declares it to have been a crime, and inflicts a punifhment upon the perfon who has committed it; here it is impoffible that the party could forefee that an action, innocent when it was done, fhould be afterwards converted to guilt by a fubfequent law; he had therefore no caufe to abftain from it; and all punifhment for not abftaining muft of confequence be cruel and unjuft ^e. All laws fhould be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term “prefcribed.” But when this rule is in the ufual manner notified, or prefcribed, it is then the fubject's bufinefs to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excufe, the laws would be of no effect, but might always be eluded with impunity.

BUT farther: municipal law is “a rule of civil conduct prefcribed by the fupreme power in a ftate.” For legiflature, as was before obferved, is the greateft act of fuperiority that can be exercifed by one being over another. Wherefore it is requifite to the very effence of a law, that it be made by the fupreme power. Sovereignty and legiflature are indeed convertible terms; one cannot fubfift without the other.

^e Such laws among the Romans were denominated privilegia, or private laws, of which Cicero de leg-3. 19. and in his oration pro domo, 17. thus fpeaks; “Vaant leges “facratae vetant duodecim tabulae, leges privates hominibus irrogari; id enim eft privelegium. Nemo unquam tulit, nihil eft crudelius, “nihil perniciofius, nihil quod minus haec civitas ferre poffit.”

Of the NATURE of LAWS in general.

THIS will naturally lead us into a fhort enquiry concerning the nature of fociety and civil government; and the natural, inherent right that belongs to the fovereignty of a ftate, wherever that fovereignty be lodged, of making and enforcing laws.

THE only true and natural foundations of fociety are the wants and the fears individuals. Not that we can believe, with fome theoretical writers, that there ever was a time when there was no fuch thing as fociety; and that, from the impulfe of reafon, and through a fenfe of their wants and weakneffes, individuals met together in a large plain, entered into an original contract, and chofe the talleft man prefent to be their governor. This notion, of an actually exifting unconnected ftate of nature, is too wild to be ferioufly admitted; and befides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their prefervation two thoufand years afterwards; both which were effected by the means of fingle families. Thefe formed the firft fociety, among themfelves; which every day extended it's limits, and when it grew too large to fubfift with convenience in that paftoral ftate, wherein the patriarchs appear to have lived, it neceffarily fubdivided itfelf by various migrations into more. Afterwards, as agriculture increafed, which employs and can maintain a much greater number of hands, migrations became lefs frequent; and various tribes, which had formerly feparated, reunited again; fometimes by compulfion and conqueft, fometimes by accident and fometimes perhaps by compact. But though fociety had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the fenfe of their weaknefs and imperfection that keeps mankind together; that demonftrates the neceffity of this union; and that therefore is the folid and natural foundation, as well as the cement, of fociety. And this is what we mean by the original contract of fociety; which, though perhaps in no inftance it has ever been formally expreffed at the firft inftitution of a ftate, yet in nature and reafon muft always be underftood and implied,

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in the very act of affociating together: namely, that the whole fhould protect all it's parts, and that every part fhould pay obedience to the will of the whole; or, in other words, that the community fhould guards the rights of each individual member, and that (in return for this protection) each individual fhould fubmit to the laws of the community; without which fubmiffion of all it was impoffible that protection could be certainly extended to any.

FOR when fociety is once formed, government refults of courfe, as neceffary to preferve and to keep that fociety in order. Unlefs fome fuperior were conftituted, whofe commands and decifions all the members are bound to obey, they would ftill remain as in a ftate of nature, without any judge upon earth to define their feveral rights, and redrefs their feveral wrongs. But, as all the members of fociety are naturally equal, it may be afked, in whofe hands are the reins of government to be entrufted ? To this the general anfwer is eafy; but the application of it to particular cafes has occafioned one half of thofe mifchiefs which are apt to proceed from mifguided political zeal. In general, all mankind will agree that government fhould be repofed in fuch perfons, in whom thofe qualities are moft likely to be found, the perfection of which are among the attributes of him who is emphatically ftiled the fupreme being; the three grand requifites, I mean, of wifdom, of goodnefs, and of power: wifdom, to difcern the real intereft of the community; goodnefs, to endeavour always to purfue that real intereft; and ftrength, or power, to carry this knowlege and intention into action. Thefe are the natural foundations of fovereignty, and thefe are the requifites that ought to be found in every well conftituted frame of government.

How the feveral forms of government we now fee in the world at firft actually began, is matter of great uncertainty, and has occafioned infinite difputes. It is not my bufinefs or intention to enter into any of them. However they began, or by

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what right foever they fubfift, there is and muft be in all of them a fupreme, irrefiftible, abfolute, uncontrolled authority, in which the jura fummi imperii, or the rights of fovereignty, refide. And this authority is placed in thofe hands, wherein (according to the opinion of the founders of fuch refpective ftates, either expreffly given, or collected from their tacit approbation) the qualities requifite for fupremacy, wifdom, goodnefs, and power, are the moft likely to be found.

THE political writers of antiquity will not allow more than three regular forms of government; the firft, when the fovereign power is lodged in an aggregate affembly confifting of all the members of a community, which is called a democracy; the fecond, when it is lodged in a council, compofed of felect members, and then it is ftiled an ariftocracy; the laft, when it is entrufted in the hands of a fingle perfon, and then it takes the name of a monarchy. All other fpecies of government, they fay, are either corruptions of, or reducible to, thefe three.

BY the fovereign power, as was before obferved, is meant the making of laws; for wherever that power refides, all others muft conform to, and be directed by it, whatever appearance the outward form and adminiftration of the government may put on. For it is at any time in the option of the legiflature to alter that form and adminiftration by a new edict or rule, and to put the execution of the laws into whatever hands it pleafes: and all the other powers of the ftate muft obey the legiflature power in the execution of their feveral functions, or elfe the conftitution is at an end.

IN a democracy, where the right of making laws refides in the people at large, public virtue, or goodnefs of intention, is more likely to be found, than either of the other qualities of government. Popular affemblies are frequently foolifh in their contrivance, and weak in their execution; but generally mean to do the thing that is right and juft, and have always a degree of pa-

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triotifm or public fpirit. In ariftocracies there is more wifdom to be found, than in the other frames of government; being compofed, or intended to be compofed, of the moft experienced citizens; but there is lefs honefty than in a republic, and lefs ftrength than in a monarchy. A monarchy is indeed the moft powerful of any, all the finews of government being knit together, and united in the hand of the prince; but then there is imminent danger of his employing that ftrength to improvident or oppreffive purpofes.

THUS thefe three fpecies of government have, all of them their feveral perfections and imperfections. Democracies are ufually the beft calculated to direct the end of a law; ariftocracies to invent the means by which that end fhall be obtained; and monarchies to carry thofe means into execution. And the antients, as was obferved, had in general no idea of any other permanent form of government but thefe three; for though Cicero ^f declares himfelf of opinion, “effe optime conftitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, “fit modice confufa;” yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a vifionary whim; and one that, if effected, could never be lafting or fecure ^g.

BUT happily for us of this ifland, the Britifh conftitution has long remained, and I truft will long continue, a ftanding exception to the truth of this obfervation. For, as with us the executive power of the laws is lodged in a fingle perfon, they have all the advantages of ftrength and difpatch, that are to be found in the moft abfolute monarchy; and, as the legiflature of the kingdom is entrufted to three diftinct powers, entirely independent of each other; firft, the king; fecondly, the lords fpiritual and temporal, which is an ariftocratical affembly of perfon

^f In his fragments de rep. l. 2.

^g “Cunctas nations et urbes populus, aut “primore, aut finguli regunt delecta ex his, “et conftituta reipublicae forma laudari facilius “quam evenire, vel, fi evcnit, haud diuturna “effe poteft.” Ann. l. 4.

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felected for their piety, their birth, their wifdom, their valour, or their property; and, thirdly, the houfe of commons, freely chofen by the people from among themfelves, which makes it a kind of democracy; as this aggregate body, actuated by different fprings, and attentive to different interefts, compofes the Britifh parliament, and has the fupreme difpofal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withftood by one of the other two; each branch being armed with a negative power, fufficient to repel any innovation which it fhall think inexpedient or dangerous.

HERE then is lodged the fovereignty of the Britifh conftitution; and lodged as beneficially as is poffible for fociety. For in no other fhape could we be fo certain of finding the three great qualities of government fo well and fo happily united. If the fupreme power were lodged in any one of the three branches feparately, we muft be expofed to the inconveniences of either abfolute monarchy, ariftocracy, or democracy; and fo want two of the three principal ingredients of good polity, either virtue, wifdom, or power. If it were lodged in any two of the branches; for inftance, in the king and houfe of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we fhould want that circumfpection and mediatory caution, which the wifdom of the peers is to afford: if the fupreme rights of legiflature were lodged in the two houfes only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolifh the kingly office, and thereby weaken (if not totally deftroy ) the ftrength of the executive power. But the conftitutional government of this ifland is fo admirably tempered and compounded, that nothing can endanger or hurt it, but deftroying the equilibrium of power between one branch of the legiflature and the reft. For if ever it fhould happen that the independence of any one of the three fhould be loft, or that it fhould become fubfervient to the views of either of the other two, there would

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foon be an end of our conftitution. The legiflature would be changed from that, which was originally fet up by the general confent and fundamental act of the fociety; and fuch a change, however effected, is according to Mr. Locke ^h (who perhaps carries his theory too far) at once an entire diffolution of the bands of government; and the people would be reduced to a ftate of anarchy, with liberty to conftitute to themfelves a new legiflative power.

HAVING thus curforily confidered the three ufual fpecies of government, and our own fingular conftitution, felected and compounded from them all, I proceed to obferve, that, as the power of making laws conftitutes the fupreme authority, fo wherever the fupreme authority in any ftate refides, it is the right of that authority to make laws; that is, in the words of our definition, to prefcribe the rule of civil action. And this may be difcovered from the very end and inftitution of civil ftates. For a ftate is a collective body, compofed of a multitude of individuals, united for their fafety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inafmuch as political communities are made up of many natural perfons, each of whom has his particular will and inclination, thefe feveral wills cannot by any natural union be joined together, or tempered and difpofed into a lafting harmony, fo as to conftitute and produce that one uniform will of the whole. It can therefore be no thoerwife profuced than by a political union; by the confent of all perfons to fubmit their own private wills to the will of one man, or of one or more affemblies of men, to whom the fupreme authority is entrufted: and this will of that one man, or affemblage of men, is in different ftates, according to their different conftitutions, underftood to be law.

THUS far as to the right of the fupreme power to make laws; but farther, it is it's duty likewife. For fince the refpec-

^h On government, part 2. §. 212.

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tive members are bound to conform themfelves to the will of the ftate, it is expedient that they receive directions from the ftate declaratory of that it's will. But fince it is impoffible, in fo great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the ftate eftablifhes general rules, for the perpetual information and direction of all perfons in all points, whether of pofitive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what abfolute and what relative duties are required at his hands; what is to be efteemed honeft, difhoneft, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of fociety; and after what manner each perfon is to moderate the ufe and exercife of thofe rights which the ftate affigns him, in order to promote and fecure the public tranquillity.

FROM what has been advanced, the truth of the former branch of our definition, is (I truft) fufficiently evident; that “municipal law is a rule of civil conduct prefcribed by the fupreme “power in a ftate.” I proceed now to the latter branch of it; that it is a rule fo prefcribed, “commanding what is right, and “prohibiting what is wrong.”

Now in order to do this completely, it is firft of all neceffary that the boundaries of right and wrong be eftablifhed and afcertained by law. And when this is once done, it will follow of courfe that it is likewife the bufinefs of the law, confidered as a rule of civil conduct, to enforce thefe rights and to reftrain or redrefs thefe wrongs. It remains therefore only to confider in what manner the law is faid to afcertain the boundaries of rights and wrong; and the methods which it takes to command the one and prohibit the other.

FOR this purpofe every law may be faid to confift of feveral parts: one, declaratory; whereby the rights to be obferved, and the wrongs to be efchewed, are clearly defined and laid down:

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another, directory; whereby the fubject is inftructed and enjoined to obferve thofe rights, and to abftain from the commiffion of thofe wrongs: a third, remedial; whereby a method is pointed out to recover a man's private rights, or redrefs his private wrongs: to which may by added a fourth, ufually termed the fanction, or uindicatory branch of the law; whereby it is fignified what evil or penalty fhall be incurred by fuch as commit any public wrongs, and tranfgrefs or neglect their duty.

WITH regard to the firft of thefe, the declaratory part of the municipal law, this depends not fo much upon the law of revelation or of nature, as upon the wifdom and will of the legiflator. This doctrine, which before was flightly touched, deferves a more particular explication. Thofe rights then which God and nature have eftablifhed, and are therefore called natural rights, fuch as are life and liberty, need not the aid of human laws to be more effectually invefted in every man than they are; neither do they receive any additional ftrength when declared by the municipal laws to be inviolable. On the contrary, no human legiflature has power to abridge or deftroy them, unlefs the owner fhall himfelf commit fome act that amounts to a forfeiture. Neither do divine or natural duties (fuch as, for inftance, the worfhip of God, the maintenance of children, and the like) receive any ftronger fanction from being alfo declared to be duties by the law of the land. The cafe is the fame as to crimes and mifdemefnors, that are forbidden by the fuperior laws, and therefore ftiled mala in fe, fuch as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legiflature. For that legiflature in all thefe cafes acts only, as was before obferved, in fubordination to the great lawgiver, tranfcribing and publifhing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinfically right or wrong.

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BUT with regard to things in themfelves indifferent, the cafe is entirely altered. Thefe become either right or wrong, juft or unjuft, duties or mifdemefnors, according as the municipal legiflator fees proper, for promoting the welfare of the fociety, and more effectually carrying on the purpofes of civil life. Thus our own common law has declared, that the goods of the wife do inftantly upon marriage become the property and right of the hufband; and our ftatute law declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purpofes of civil fociety. And fometimes, where the thing itfelf has it's rife from thelaw of nature, the particular circumftances and mode of doing it become right or wrong, as the laws of the land fhall direct. Thus, for inftance, in civil duties; obedience to fuperiors is the doctrine of revealed as well as natural religion: but who thofe fuperiors fhall be, and in what circumftances, or to what degrees they fhall be obeyed, is the province of human laws to determine. And fo, as to injuries or crimes, it muft be left to out own legiflature to decide, in what cafes the feifing another's cattle fhall amount to the crime of robbery; and where it fhall be a juftifiable action, as when a landlord takes them by way of diftrefs for rent.

THUS much for the declaratory part of the municipal law: and the directory ftands much upon the fame footing; for this virtually includes the former, the declaratiioin being ufually collected from the direction. The law that fays, “thou fhalt not “fteal,” implies a declaration that ftealing is a crime. And we have feen that, in things naturally indifferent, the very effence of right and wrong depends upon the direction of the laws to do or to omit it.

THE remedial part of a law is fo neceffary a confequence of the former two, that laws muft be very vague and imperfect without it. For in vain would rights be declared, in vain directed

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to be obferved, if there were no method of recovering and afferting thofe rights, when wrongfully withheld or invaded. This is what we mean properly, when we fpeak of the protection of the law. When, for inftance, the declaratory part of the law has faid “that the field or inheritance, which belonged to Titius's “father, is vefted by his death in Titius” and the directory part has “forbidden any one to enter on another's property without “the leave of the owner;” if Gaius after this will perfume to take poffeffion of the land, the remedial part of the law will then interpofe it's office; will make Gaius reftore the poffeffion to Titius, and alfo pay him damages for the invafion.

WITH regard to the fanction of laws, or the evil that may attend the breach of public duties; it is obferved, that human legiflators have for the moft part chofen to make the fanction of their laws rather vindicatory than remuneratory, or to confift rather in punifhments, than I actual particular rewards. Becaufe, in the firft place, the quiet enjoyment and protection of all our civil rights and liberties, which are the fure and general confequence of obedience to the municipal law, are in themfelves the beft and moft valuable of all rewards. Becaufe alfo, were the exercife of every virtue to be enforced by the propofal of particular rewards, it were impoffible for any ftate to furnifh ftock enough for fo profufe a bounty. And farther, becaufe the dread of evil is a much more forcible principle of human actions than the profpect of good ⁱ. For which reafons, though a prudent beftowing of rewards is fometimes of exquifite ufe, yet we find that thofe civil laws, which enforce and enjoin our duty, do feldom, if ever, propofe any privilege or gift to fuch as obey the law; but do conftantly come armed with a penalty denounced againft tranfgreffors, either expreffly defining the nature and quantity of the punifhment, or elfe leaving it to the difcretion of the judges, and thofe who are entrufted with the care of putting the laws in execution.

^I Locke, Hum. Und. b. 2. c. 21.

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OF all the parts of a law the moft effectual is the vindicatory. For it is but loft labour to fay, “do this, or avoid that,” unlefs we alfo declare, “this fhall be the confequence of your noncompliance.” We muft therefore obferve, that the main ftrength and force of a law confifts in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

LEGISLATORS and their laws are faid to compel and oblige; not that by any natural violence they fo conftrain a man, as to render it impoffible for him to act otherwife than as they direct, which is the ftrict fenfe of obligation: but becaufe, by declaring and exhibiting a penalty againft offenders, they bring it to pafs that no man can eafily choofe to tranfgrefs the law; fince, by reafon of the impending correction, compliance is in a high degree preferable to difobedience. And, even where rewards are propofed as well as punifhments threatened, the obligation of the law feems chiefly to confift in the penalty: for rewards, in their nature, can only perfuade and allure; nothing is compulfory but punifhment.

IT is held, it is true, and very juftly, by the principal of our ethical writers, that human laws are binding upon mens confequences. But if that were the only, or moft forcible obligation, the good only would regard the laws, and the bad would fet them at defiance. And, true as this principle is, it muft ftill be underftood with fome reftriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of confcience no longer to withhold or to invade it. So alfo in regard to natural duties, and fuch offences as are mala in fe: here we are bound in confcience, becaufe we are bound by fuperior laws, before thofe human laws were in being, to perform the one and abftain from the other. But in relation to thofe laws which enjoin only pofitive duties, and forbid only fuch things as are not mala in fe but mala prohibita merely, an-

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nexing a penalty to noncompliance, here I apprehend confcience is no farther concerned, than by directing a fubmiffion to the penalty, in cafe of our breach of thofe laws: for otherwife the multitude of penal laws in a ftate would not only be looked upon as an impolitic, but would alfo be a very wicked thing; if every fuch law were a fnare for the confcience of the fubject. But in thefe cafes the alternative is offered to every man; “either abftain from this, or fubmit to fuch a penalty;” and his confcience will be clear, whichever fide of the alternative he thinks proper to embrace. Thus, by the ftatutes for preferving the game, a penalty is denounced againft every unqualified perfon that kills a hare. Now this prohibitory law does not make the tranfgreffion a moral offence: the only obligation in confcience is to fubmit to the penalty if levied.

I HAVE now gone through the definition laid down of a municipal law; and have fhewn that it is “a rule --- of civil conduct --- prefcribed --- by the fupreme power in ftate --- commanding what is right, and prohibiting what is wrong:” in the explication of which I have endeavoured to interweave a few ufeful 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 particular difputes, is not only endlefs, but affords great room for partiality and oppreffion. The anfwers of the emperor were called his refcripts, and thefe 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

Of the NATURE of LAWS in general.

to abolifh thefe refcripts, and retain only the general edicts; he could not bear that the hafty and crude anfwers of fuch princes as Commodus and Caracalla fhould be reverenced as laws. but Juftinian thought otherwife ^k, 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.

THE faireft and moft 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 moft 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 underftood in their ufual and moft known fignification; not fo much regarding the propriety of grammar, as their general and popular ufe. Thus the law mentioned by Puffendorf^l, 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 acceptation of the learned in each art, trade, and fcience. So in the act of fettlement, where the crown of England is limited “to the princefs 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 comprise only certain of her lineal defcendants. Laftly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges pofteriores priores contraries abrogant is a maxim of univerfal law, as ell as of our own conftitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto.

^k Inft. 1. 2. 6.

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

Of the NATURE of LAWS in general.

2. IF words happen to be ftill dubious, we may eftablifh 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 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 expreffly 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 underftood 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 purchafe 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 reprefs the ufurpations of the papal fee, and that the nominations to vacant benefices by the pope were called provifions, we fhall fee that the reftraint is intended to be laid upon fuch provifions only.

4. AS to the effects and confequence, the rule is, where words bear either none, or a very abfurd fignification, if literally underftood, we muft a little deviate from the received fenfe of them. Therefore the Bolognian law, mentioned by Puffendorf ^m, which enacted “that whoever drew blood in the ftreets fhould be punifhed with the utmoft feverity,” 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.

^m l. 5. c. 12. §. 8.

Of the NATURE of LAWS in general.

5. BUT, laftly, the moft univerfal and effectual way of difcovering the true meaning of a law, when the words are dubious, is by confidering the reafon and fpirit of it; or the caufe which moved the legiflator to enact it. For when this reafon ceafes, the laws 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 rhetorical treatife infcribed to Herennius ⁿ. There was a law, that thofe who in a ftorm forfook the fhip fhould forfeit all property therein; and the fhip 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 difeafe was unable to get out and efcape. By chance the fhip came fafe to port. 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 it's prefervation.

FROM this method of interpreting laws, by the reafon of them, arifes what we call equity; which is thus defined by Grotius ^o, “the correction of that, wherein the law (by 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 vefted of excepting thofe circumftances, which (had they been forefeen) the legiflator himfelf would have excepted. And thefe are the cafes, which, as Grotius expreffes it, “lex non exacte definit, fed arbitrio boni viri permittit.”

Equity thus depending, effentially, upon the particular circumftances of each individual cafe, there can be no eftablifhed

ⁿ l. 1. c. 11.

^o de aequitate.

Of the NATURE of LAWS in general.

rules and fixed precepts of equity laid down, without deftroying it's 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 laws, and leave the decifion of every queftion entirely in the breaft of the judge. And law, without equity, tho' 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 almoft as many different rules of action laid down in our courts, as there are differences of capacity and fentiment in the human mind.

SECTION THE THIRD.

OF THE LAWS OF ENGLAND.

THE municipal law of England, or the rule of civil 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 parts of the kingdom; and likewife thofe particular laws, that are by cuftom obferved only in certain courts and jurifdictions.

WHEN I call thefe parts of our law leges non fcriptae, I would not be underftood 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 weftern world, all laws were intirely traditional, for this plain reafon, that the nations among which they prevailed had but little idea of writing. Thus the Britifh as well as the Gallic druids committed all their laws as well as learning to memory ^a; and it is faid of the primitive Saxons here, as well as their brethren on the continent, that leges fola memoria et ufu retinebant ^b. 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

^a Caef. de b. G. lib. 6. c. 13.

^b Spelm. Gl. 362.

Of the LAWS of ENGLAND.

of reports and judicial decifions, and in the treatifes of learned fages of the profeffion, preferved and handed down to us from the times of higheft antiquity. However I therefore ftile thefe parts of our law leges non fcripta ^c, becaufe 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 expreffum.”

OUR antient lawyers, and particularly Fortefcue ^c, infift with abundance of warmth, that thefe cuftoms 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 muft be underftood with many grains of allowance; and ought only to fignify, as the truth feems to be, that there never was any formal exchange of one fyftem of laws for another: though doubtlefs by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they muft have infenfibly introduced and incorporated many of their own cuftoms with thofe that were before eftablifhed: thereby in all probability improving the texture and wifdom of the whole, by the accumulated wifdom of divers particular countries. Our laws, faith lord Bacon ^d, are mixed as our language: and as our language is fo much the richer, the laws are the more complete.

AND indeed our antiquarians and firft hiftorians 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 cuftoms 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 ufe of the whole kingdom. This

^d See his propofals for a digeft.

Of the LAWS of ENGLAND.

book is faid to have been extant fo late as the reign of king Edward the fourth, but is now unfortunately loft. It contained, we may probably fuppofe, the principal maxims of the common law, the penalties for mifdemefnors, and the forms of judicial proceedings. Thus much may at leaft be collected from that injunction to obferve it, which we find in the laws of king Edward the elder, the fon of Alfred ^e. “Omnibus qui reipublicae praefunt, “etiam atque etiam mando, ut omnibus aeqquos fe praebeant judices, “perinde ac in judiciali libro (Saxonice, dom-bec) fcriptum habetur; “nec quicquam formident qquin jus commune (Saxonice, folepihre) “audacter libereque dicant.”

BUT the irruption and eftablifhment of the Danes in England which followed foon after, introduced new cuftoms and caufed this code of Alfred in many provinces to fall into difufe; or at leaft to be mixed and debafed with other laws of a coarfer alloy. So that about the beginning of the eleventh century there were three principal fyftems of laws prevailing in different diftricts. 1. The Mercen-Lage, or Mercian laws, which were obferved in may of the midland counties, and thofe bordering on the principality of Wales; the retreat of the antient Britons; and therefore very probably intermixed with the Britifh or Druidical cuftoms. 2. The Weft-Saxon-Lage, or laws of the weft Saxons, which obtained in the counties to the fouth and weft of the ifland, from Kent to Devonfhire. Thefe were probably much the fame with the laws of Alfred abovementioned, being the municipal law of the far moft confiderable part of his dominions, and particularly including Berkfhire, the feat of his peculiar refidence. 3. The Dane-Lage, or Danifh law, the very name of which fpeaks it's original and compofition. This was principally maintained in the reft of the midland counties, and alfo on the eaftern coaft, the feat of that piratical people. As for the very northern provinces, they were at that time under a diftinct government ^f.

^f Hal. Hift. 55.

Of the LAWS of ENGLAND.

OUT of thefe thee laws, Roger Hoveden ^g and Ranulphus Ceftrenfis ^h inform us, king Edward the confeffor extracted one uniform law or digeft of laws, to be obferved throughout the whole kingdom; though Hoveden and the author of an old manufcript chronicle ^I affure us likewife, that this work was projected and begun by his grandfather king Edgar. And indeed a general digeft of the fame nature has been conftantly found expedient, and therefore put in practice by other great nations, formed from an affemblage of little provinces, governed by peculiar cuftoms. As in Portugal, under king Edward, about the beginning of the fifteenth century ^k. In Spain under Alonzo X, who about the year 1250 executed the plan of his father St. Ferdinand, and collected all the provincial cuftoms into one uniform law, in the celebrated code entitled las partidas ^l. And in Sweden about the fame aera, a univerfal body of common law was compiled out of the particular cuftoms eftablifhed by the laghman of every province, and intitled the land's lagh, being analogous to the common law of England ^m.

BOTH thefe undertakings, of king Edgar and Edward the confeffor, feem to have been no more than a new edition, or frefh promulgation, of Alfreds's code or dome-book, with fuch additions and improvements as the experience of a century and an half had fuggefted. For Alfred is generally ftiled by the fame hiftorians the legum Anglicanarum conditor, as Edward the confeffor is the reftitutor. Thefe however are the laws which our hiftories fo often mention under the name of the laws which our hiftories fo often mention under the name of the laws of Edward the confeffor; which our anceftors ftruggled fo hardly to maintain, under the firft princes of the Norman line; and which fubfequent princes fo frequently promifed to keep and to reftore, as the moft popular act they could do, when preffed by foreign emergencies or domeftic difcontents. Thefe are the laws, that

^h in Edw. Confeffor.

^I in Seld. ad Eadmer. 6.

^k Mod. Un. Hift. xxii. 135.

^l Ibid. xx. 211.

^m Ibid. xxxiii. 21, 58.

Of the LAWS of ENGLAND.

fo vigoroufly withftood the repeated attacks of the civil law; which eftablifhed in the twelfth century a new Roman empire over moft of the ftates on the continent: ftates that have loft, and perhaps upon that account, their political liberties; which the free conftitution of England, perhaps upon the fame account has been rather improved than debafed. Thefe, in fhort, are the laws which gave rife and original to that collection of maxims and cuftoms, which is now known by the name of the common law. A name either given to it, in contradiftinction to other laws, as the ftatute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jus commune or folcright mentioned by king Edward the elder, after the abolition of the feveral provincial cuftoms and particular laws beforementioned.

BUT though this is the moft likely foundation of this collection of maxims and cuftoms, yet the maxims and cuftoms, fo collected, are of higher antiquity than memory or hiftory can reach: nothing being more difficult than to afcertain the precife beginning and firft fpring of an antient and long eftablifhed cuftom. Whence it is that in our law the goodnefs of a cuftom depends upon it's having been ufed time out of mind; or, in the folemnity of our legal phrafe, time whereof the memory of man runneth not to the contrary. This it is that gives it it's weight and authority; and of this nature are the maxims and cuftom which compofe the common law, or lex non fcripta, of the kingdom.

THIS unwritten, or common, law is properly diftinguifhable into three kinds: 1. General cuftoms; which are the univerfal rule of the whole kingdom, and form the common law, in it's ftricter and more ufual fignification. 2. Particular cuftoms, which for the moft part affect only the inhabitants of particular diftricts. 3. Certain particular laws; which by cuftom are adopted and ufed by fome particular courts, of pretty general and extenfive jurifdiction.

Of the LAWS of ENGLAND.

I. AS to general cuftoms, or the common law, properly fo called; this is that law, by which proceedings and determinations in the king's ordinary courts of juftice are guided and directed. This, for the moft part, fettles the courfe in which lands defcend by inheritance; the manner and form of acquiring and transferring property; the folemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the refpective remedies of civil injuries; the feveral fpecies of temporal offences, with the manner and degree of punifhment; and an infinite number of minuter particulars, which diffufe themfelves as extenfively as the ordinary diftribution of common juftice requires. Thus, for example, that there fhall be four fuperior courts of record, the chancery, the king's bench, the common pleas, and the exchequer; --- that the eldeft fon alone is heir to his anceftor; --- that property may be acquired and transferred by writing; --- that a deed is of no validity unlefs fealed; --- that wills fhall be conftrued more favorably, and deeds more ftrictly; --- that money lent upon bond is recoverable by action of debt; --- that breaking the public peace is an offence, and punifhable by fine and imprifonment; --- all thefe are doctrines that are not fet down in any written ftatute or ordinance, but depend merely upon immemorial ufage, that is, upon common law, for their fupport.

SOME have divided the common law into two principal grounds or foundations: 1. eftablifhed cuftoms; fuch as that where there are three brothers, the eldeft brother fhall be heir to the fecond, in exclufion of the youngeft: and 2. eftablifhed rules and maxims; as, “that the king can do no wrong, that no “man fhall be bound to accufe himfelf,” and the like. But I take thefe to be one and the fame thing. For the authority of thefe maxims refts entirely upon general reception and ufage; and the only method of proving, that this or that maxim is a rule of the common law, is by fhewing that it hath been always the cuftom to obferve it.

Of the LAWS of ENGLAND.

BUT here a very natural, and very material, queftion arifes: how are thefe cuftoms or maxims too be known, and by whom is their validity to be determined ? The anfwer is, by the judges in the feveral courts of juftice. They are the depofitary of the laws; the living oracles, who muft decide in all cafes of doubt, and who are bound by an oath to decide according to the law of the land. Their knowlege of that law is derived from experience and ftudy; from the “viginti annorum lucubrationes,” which Fortefcue ⁿ mentions; and from being long perfonally accuftomed to the judicial decifions of their predeceffors. And indeed thefe judicial decifions are the principal and moft authoritative evidence, that can be given, of the exiftence of fuch a cuftom as fhall form a part of the common law. The judgment itfelf, and all the proceedings previous thereto, are carefully regiftered and preferved, under the name of records, in publick repofitories fet apart for that particular purpofe; and to them frequent recourfe is had, when any critical queftion arifes, in the determination of which former precedents may give light or affiftance. And therefore, even fo early as the conqueft, we find the “praeteritorum “memoria eventorum” reckoned up as one of the chief qualifications of thofe who were held to be “legibus patriae optime inftituti ^o.” For it is an eftablifhed rule to abide by former precedents, where the fame points come again in litigation; as well to keep the fcale of juftice even and fteady, and not liable to waver with every new judge's opinion; as alfo becaufe the law in that cafe being folemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breaft of any fubfequent judge to alter or vary from, according to his private fentiments: he being fworn to determine, not according to his own private judgment, but according to the known laws and cuftoms of the land; not delegated to pronounce a new law, but to maintain and expound the old one. yet this rule admits of exception, where the former determination is moft evidently contrary to reafon;

^o Seld. review of Tith. c. 8.

Of the LAWS of ENGLAND.

much more if it be contrary to the divine law. But even in fuch cafes the fubfequent judges do not pretend to make a new law, but to vindicate the old one from mifreprefentation. For if it be found that the former decifion is manifeftly abfurd or unjuft, it is declared, not that fuch a fentence was bad law, but that it was not law; that is, that it is not the eftablifhed cuftom of the realm, as has been erroneoufly determined. And hence it is that our lawyers are with juftice fo copious in their encomiums on the reafon of the common law; that they tell us, that the law is the perfection of reafon, that it always intends to conform thereto, and that what is not reafon is not law. Not that the particular reafon of every rule in the laws can at this diftance of time be always precifely affigned; but it is fufficient that there be nothing in the rule flatly contradictory to reafon, and then the law will perfume it to be well founded ^p. And it hath been an antient obfervation in the laws of England, that whenever a ftanding rule of law, of which the reafon perhaps could not be remembered or difcerned, hath been wantonly broke in upon by ftatutes or new refolutions, the wifdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.

THE doctrine of the law then is this: that precedents and rules muft be followed, unlefs flatly abfurd or unjuft: for though their reafon be not obvious at firft view, yet we owe fuch a deference to former times as not to fuppofe they acted wholly without confideration. To illuftrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood (i. e. where they have only one parent the fame, and the other different) fhall never fucceed as heir to the eftate of his half brother, but it fhall rather efcheat to the king, or other fuperior lord. Now this is a pofitive law, fixed and eftablifhed by cuftom, which cuftom is evidenced by judicial decifions; and therefore can never be departed from by any modern judge without a

^p Herein agreeing with the civil law, Ff. 1. 3. 20, 21. “Non omnium, quat a majoribus noftris conftituta fum, ratio redid poteft. “Et ideo rationes eorum qquae conftituuntur, inquiri non oportet: alioquin mulia ex his quatcerta funt, fubvertuntur.”

Of the LAWS of ENGLAND.

breach of his oath and the law. For herein there is nothing repugnant to natural juftice; though the reafon of it, drawn from the feodal law, may not be quite obvious to every body. And therefore, on account of a fuppofed hardfhip upon the half brother, a modern judge might wifh it had been otherwife fettled; yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and feife any lands that were purchafed by his younger brother, no fubfequent judges would fcruple to declare that fuch prior determination was unjuft, was unreafonable, and therefore was not law. So that the law, and the opinion of the judge are not always convertible terms, or one and the fame thing; fince it fometimes may happen that the judge may miftake the law. Upon the whole however, we may take it as a general rule, “that the “decifions of courts of juftice are the evidence of what is common law:” in the fame manner as, in the civil law, what the emperor had once determined was to ferve for a guide for the future^q.

THE decifions therefore of courts are held in the higheft regard, and are not only preferved as authentic records in the treafuries of the feveral courts, but are handed out to public view in the numerous volumes of reports which furnifh the lawyer's library. Thefe reports are hiftories of the feveral cafes, with a fhort fummary of the proceedings, which are preferved at large in the record; the arguments on both fides; and the reafons the court gave for their judgment; taken down in fhort notes by perfons prefent at the determinations. And thefe ferve as indexes to, and alfo to, and alfo to explain, the records; which always, in matters of confequence and nicety, the judges direct to be fearched. The reports are extant in a regular feries from the reign of king Edward the fecond inclufive; and from his time to that of Henry

^q “Si imperialis majeftas caufam cognitronaliter examinaverit, et partibus cominus conftitutis jententiam dixerit, omnes omnino judices, qui fub noftro imperto funt, fetant hane “effe legem, non folum itti caufae pro qua producta efle, fed et in omnibus fimilibus.” C. 1. 14. 12.

Of the LAWS of ENGLAND.

the eighth were taken by the prothonotaries, or chief feribes of the court, at the expence of the crown, and publifhed annually, whence they are known under the denomination of the year books. and it is much to be wifhed that this beneficial cuftom, had, under proper regulations, been continued to this day: for, though king James the firft at the inftance of lord Bacon appointed two reporters with a handfome ftipend for this purpofe, yet that wife inftitution was foon neglected, and from the reign of Henry the eighth to the prefent time this tafk has been executed by many private and cotemporary hands; who fometimes through hafte and inaccuracy, fometimes through miftake and want of fkill, have publifhed very crude and imperfect (perhaps contradictory) accounts of one and the fame determination. Some of the moft valuable of the antient reports are thofe publifhed by lord chief juftice Coke; a man of infinite learning in his profeffion, though not a little infected with the pedantry and quaintnefs of the times he lived in, which appear ftrongly in all his works. However his writings are fo highly efteemed, that they are generally cited without the author's name ^r.

BESIDES thefe reporters, there are alfo other authors, to whom great veneration and refpect is paid by the ftudents of the common law. Such are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert, with fome others of antient date, whofe treatifes are cited as authority; and are evidence that cafes have formerly happened in which fuch and fuch points were determined, which are now become fettled and firft principles. One of the laft of thefe methodical writers in point of time, whofe works are of any intrinfic authority in the courts of juftice, and do not entirely depend on the ftrength of their quotations from older

^r His reports, for inftance, are ftiled, xx^y 8^ysoxny, the reports; and in quoting them we ufually fay, 1 or 2 Rep. not 1 or 2 Coke's Rep. a. in citing other authors. The reports of judge Croke are alfo cited in a peculiar manner, by the name of thofe princes, in whofe reigns the cafes reported in his three volumes were determined; viz. Qu. Elizabeth, K. James, and K. Charles the firft; as well as by the number of each volume. For fometimes we call them, 1, 2, and 3 Cro. but more commonly Cro. Eliz. Cro. Jac. And Cro. Car.

Of the LAWS of ENGLAND.

authors, is the fame learned judge we have juft mentioned, fir Edward Coke; who hath written four volumes of inftitutes, as he is pleafed to call them, though they have little of the inftitutional method to warrant fuch a title. The firft volume is a very extenfive comment upon a little excellent treatife of tenures, compiled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in method ^s. The fecond volume is a comment upon many old acts of parliament, without any fyftematical order; the third a more methodical treatife of the pleas of the crown; and the fourth an account of the feveral fpecies of courts ^t.

AND thus much for the firft ground and chief corner ftone of the laws of England, which is, general immemorial cuftom, or common law, from time to time declared in the decifions of the courts of juftice; which decifions are preferved among our public records, explained in our reports, and digefted for general ufe in the authoritative writings of the venerable fages of the law.

THE Roman law, as practifed in the times of it's liberty, paid alfo a great regard to cuftom; but not fo much as our law: it only then adopting it, when the written law is deficient. Though the reafons alleged in the digeft ^u will fully juftify our practice, in making it of equal authority with, when it is not contradicted by, the written law. “For fince, fays Julianus, the “written law binds us for no other reafon but becaufe it is approved by the judgment of the people, therefore thofe laws “which the people hath approved without writing ought alfo to “bind every body. For where is the difference, whether the

^s It is ufually cited either by the name of Co. Litt. or as 1 Inft.

^t Thefe are cited as 2, 3, or 4 Inft. without any author's name. An honorary diftinction, which, we obferved, was paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as 2 Ventris, 4 Leonard, 1 Siderfin, and the like.

^u Ff. 1. 3. 32.

Of the LAWS of ENGLAND.

“people declare their affent to a law by fuffrage, or by a uniform “courfe of acting accordingly ?” Thus did they reafon while Rome had fome remains of her freedom; but when the imperial tyranny came to be fully eftablifhed, the civil laws fpeak a very different language. “Quod principi placuit legis habet vigorem, “cum populus ei et in eum omne fuum imperium et poteftatem conferat,” fays Ulpian ^w. “Imperator folus et conditor et ixterpres legis exiftimatur,” fays the code ^x. And again, “facrilegii inftar “eft refcripto principis obviare ^y.” And indeed it is one of the characteriftic marks of Englifh liberty, that our common law depends upon cuftom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary confent of the people.

II. THE fecond branch of the unwritten laws of England are particular cuftoms, or laws which affect only the inhabitants of particular diftricts.

THESE particular cuftoms, or fome of them, are without doubt the remains of that multitude of local cuftoms before mentioned, out of which the common law, as it now ftands, was collected at firft by king Alfred, and afterwards by king Edgar and Edward the confeffor: each diftrict mutually facrificing fome of it's own fpecial ufages, in order that the whole kingdom might enjoy the benefit of one uniform and univerfal fyftem of laws. But, for reafons that have been now long forgotten, particular counties, cities, towns, manors, and lordfhips, were very early indulged with the privilege of abiding by their own cuftoms, in contradiftinction to the reft of the nation at large: which privilege is confirmed to them by feveral acts of parliament ^z.

SUCH is the cuftom of gavelkind in Kent and fome other parts of the kingdom (though perhaps it was alfo general till the

^w Ff. 1. 4. 1.

^x C. 1. 14. 12.

^y C. 1. 23. 5.

^z Mag. Cart. c. 9. – 1 Edw. III. ft. 2. c. 9. – 14 Edw. III. ft. 1. c. 1. – and 2 Hen. IV. c. 1.

Of the LAWS of ENGLAND.

Norman conqueft) which ordains, among other things, that not the eldeft fon only of the father fhall fucceed to his inheritance, but all the fons alike: and that, fucceed to his eftate, without any efcheat to the lord. --- Such is the cuftom that prevails in divers antient boroughs, and therefore called borough-englifh, that the youngeft fon fhall inherit the eftate, in prefcrence to all his elder brothers. --- Such is the cuftom in other boroughs that a widow fhall be intitled, for her dower, to all her hufband's lands; whereas at the common law fhe fhall be endowed of one third part only. --- Such alfo are the fpecial and particular cuftoms of manors, of which every one has more or lefs, and which bind all the copyhold-tenants that hold of the faid manors. --- Such likewife is the cuftom of holding divers inferior courts, with power of trying caufes, in cities and trading towns; the right of holding which, when no royal grant can be fhewn, depends entirely upon immemorial and eftablifhed ufage. --- Such, laftly, are many particular cuftoms within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters, which are all contrary to the general law of the land, and are good only by fpecial cuftom, though thofe of London are alfo confirmed by act of parliament ^a.

TO this head may moft properly be referred a particular fyftem of cuftoms ufed only among one fet of the king's fubjects, called the cuftom of merchants or lex mercatoria; which, however different from the common law, is allowed for the benefit of trade, to be of the utmoft validity in all commercial tranfactions; the maxim of law being, that “cuilibet in fua arte credendum eft.”

THE rules relating to particular cuftoms regard either the proof of their exiftence; their legality when proved; or their ufual method of allowance. And firft we will confider the rules of proof.

^a 8 Rep. 126. Cro. Car. 347.

Of the LAWS of ENGLAND.

AS to gavelkind, and borough-englifh, the law takes particular notice of them ^b, and there is no occafion to prove that fuch cuftoms actually exift, but only that the lands in queftion are fubject thereto. All other private cuftoms muft be particularly pleaded ^c, and as well the exiftence of fuch cuftoms muft be fhewn, as that the thing in difpute is within the cuftom alleged. The trial in both cafes (both to fhew the exiftence of the cuftom as, “that in the manor of Dale lands fhall defcend only to the “heirs male, and never to the heirs female;” and alfo to fhew that the lands in queftion are within that manor) is by a jury of twelve men, and not by the judges, except the fame particular cuftom has been before tried, determined, and recorded in the fame court ^d.

THE cuftoms of London differ from all others in point of trial: for, if the exiftence of the cuftom be brought in queftion, it fhall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder ^e; unlefs it be fuch a cuftom as the corporation is itfelf interefted in, as a right of taking toll, &c, for then the law permits them not to certify on their own behalf ^f.

WHEN a cuftom is actually proved to exift, the next enquiry is into the legality of it; for if it is not a good cuftom it ought to be no longer ufed. “Malus ufus abolendus eft” is an eftablifhed maxim of the law ^g. To make a particular cuftom good, the following are neceffary requifites.

1. THAT it have been ufed fo long, that the memory of man runneth not to the contrary. So that if any one can fhew the beginning of it, it is no good cuftom. For which reafon no cuftom can prevail againft an exprefs act of parliament; fince

^b Co. Litt. 175 b.

^c Litt. §. 265.

^d Dr. and St. 1. 10.

^e Cro. Car. 516.

^g Litt. §. 242. 4 Inft. 274.

Of the LAWS of ENGLAND.

the ftatute itfelf is a proof of a time when fuch a cuftom did not exift ^h.

2. IT muft have been continued. Any interruption would caufe a temporary ceafing: the revival gives it a new beginning, which will be within time of memory, and thereupon the cuftom will be void. But this muft be underftood with regard to an interruption of the right; for an interruption of the poffeffion only, for ten or twenty years, will not deftroy the cuftom ⁱ. As if I have a right of way by cuftom over another's field, the cuftom is not deftroyed, though I do not pafs over it for ten years; it only becomes more difficult to prove: but if the right be any how difcontinued for a day, the cuftom is quite at an end.

3. IT muft have been peaceable, and acquiefced in; not fubject to contention and difpute ^k. For as cuftoms owe their original to common confent, their being immemorially difputed either at law or otherwife is a proof that fuch confent way wanting.

4. CUSTOMS muft be reafonable ^l; or rather, taken negatively, they muft not be unreafonable. Which is not always, as fir Edward Coke fays ^m, to be underftood of every unlearned man's reafon, but of artificial and legal reafon, warranted by authority of law. Upon which account a cuftom may be good, though the particular reafon of it cannot be affigned; for it fufficeth, if no good legal reafon can be affigned againft it. Thus a cuftom in a parifh, that no man fhall put his beafts into the common till the third of october, would be good; and yet it would be hard to fhew the reafon why that day in particular is fixed upon, rather than the day before or after. But a cuftom that no cattle fhall be put in till the lord of the manor has firft put in his, is unreafonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lofe all their profits ⁿ.

^h Co. Litt. 113 b.

i Co. Litt. 114 b.

^k Co. Litt. 114.

^l Litt. §. 212.

ⁿ Co. Copyh. §. 33.

Of the LAWS of ENGLAND.

5. CUSTOMS ought to be certain. A cuftom, that lands fhall defcend to the moft worthy of the owner's blood, is void; for how fhall this worth be determined ? But a cuftom to defcend to the next male of the blood, exclufive of females, is certain, and therefore good ^o. A cuftom, to pay two pence an acre in lieu of tythes, is good; but to pay fometimes two pence and fometimes three pence, as the occupier of the land pleafes, is bad for it's uncertainty. Yet a cuftom, to pay a year's improved value for a fine on a copyhold eftate, is good: though the value is a thing uncertain. For the value may at any time be afcertained; and the maxim of law is, id certum eft, quod certum redid poteft.

6. CUSTOMS, though eftablifhed by confent, muft be (when eftablifhed) compulfory; and not left to the option of very man, whether he will ufe them or no. Therefore a cuftom, that all the inhabitants fhall be rated toward the maintenance of a bridge, will be good; but a cuftom, that every man is to contribute thereto at his own pleafure, is idle and abfurd, and, indeed, no cuftom at all.

7. LASTLY, cuftoms muft be confiftent with each other: one cuftom cannot be fet up in oppofition to another. For if both are really cuftoms, then both are of equal antiquity, and both eftablifhed by mutual confent: which to fay of contradictory cuftoms is abfurd. Therefore, if one man prefcribes that by cuftom he has a right to have windows looking into another's garden; the other cannot claim a right by cuftom to ftop up or obftruct thofe windows: for thefe two contradictory cuftoms cannot both be good, nor both ftand together. He ought rather to deny the exiftence of the former cuftom^p.

NEXT, as to the allowance of fpecial cuftoms. Cuftoms, in derogation of the common law, muft be conftrued ftrictly. Thus by the cuftom of gavelkind, an infant of fifteen years may by one

^o 1 Roll. Abr. 565.

Of the LAWS of ENGLAND.

fpecies of conveyance (called a deed of feoffment) convey away his lands in fee fimple, or for ever. Yet this cuftom does not impower him to ufe any other conveyance, or even to leafe them for feven years: for the cuftom muft be ftrictly purfued ^q. And, moreover, all fpecial cuftoms muft fubmit to the king's prerogative. Therefore, if the king purchafes lands of the nature of gavelkind, where all the fons inherit equally; yet, upon the king's demife, his eldeft fon fhall fucceed to thofe lands alone ^r. And thus much for the fecond part of the leges non fcriptae, or thofe particular cuftoms which affect particular perfons or diftricts only.

III. THE third branch of them are thofe peculiar laws, which by cuftom are adopted and ufed only in certain peculiar courts and jurifdictions. And by thefe I underftand the civil and canon laws.

IT may feem a little improper at firft view to rank thefe laws under the head of leges non fcriptae, or unwritten laws, feeing they are fet forth by authority in their pandects, their codes, and their inftitutions; their councils, decrees, and decretals; and enforced by an immenfe number of expofitions, decifions, and treatifes of the learned in both branches of the law. But I do this, after the example of fir Matthew Hale ^s, becaufe it is moft plain, that it is not on account of their being written laws, that either the canon law, or the civil law, have any obligation within this kingdom; neither do their force and efficacy depend upon their own intrinfic authority; which is the cafe of our written laws, or acts of parliament. They bind not the fubjects of England, becaufe their materials were collected from popes or emperors; were digefted by Juftinian, or declared to be authentic by Gregory. Thefe confiderations give them no authority here: for the legiflature of England doth not, nor ever did, recognize any foreign power, as fuperior or equal to it in this kingdom; or as having the right to give law to any, the meaneft, of it's

^q Co. Cop. §. 33.

^r Co. Litt. 15 b.

^s Hift. C. L. c. 2.

Of the LAWS of ENGLAND.

fubjects. But all the ftrength that either the papal or imperial laws have obtained in this realm, or indeed in any other kingdom in Europe, is only becaufe they have been admitted and received by immemorial ufage and cuftom in fome particular cafes, and fome particular courts; and then they form a branch of the leges non fcriptae, or cuftomary law: or elfe, becaufe they are in fome other cafes introduced by confent of parliament, and then they owe their validity to the leges fcriptae, or ftatute law. This is expreffly declared in thofe remarkable words of the ftatute 25 Hen. VIII. c. 21. addreffed to the king's royal majefty. --- “This your grace's “realm, recognizing no fuperior under God but only your grace, “hath been and is free from fubjection to any man's laws, but “only to fuch as have been devifed, made, and ordained within “this realm for the wealth of the fame; or to fuch other, as by “fufferance of your grace and your progenitors, the people of “this your realm, have taken at their free liberty, by their own “confent, to be ufed among them; and have bound themfelves “by long ufe and cuftom to the obfervance of the fame: not as “to the obfervance of the laws of any foreign prince, potentate, “or prelate; but as to the cuftomed and antient laws of this realm, “originally eftablifhed as laws of the fame, by the faid fufferance, confents, and cuftom; and none otherwife.”

BY the civil law, abfolutely taken, is generally underftood the civil or municipal law of the Roman empire, as comprized in the inftitutes, the code, and the digeft of the emperor Juftinian, and the novel conftitutions of himfelf and fome of his fucceffors. Of which, as there will frequently be occafion to cite them, by way of illuftrating our own laws, it may not be amifs to give a fhort and general account.

THE Roman law (founded firft upon the regal conftitutions of their antient kings, next upon the twelve tables of the decemviri, then upon the laws or ftatutes enacted by the fenate or people, the edicts of the praetor, and the refponfa prudentum or opinions of learned lawyers, and laftly upon the imperial decrees, or con-

Of the LAWS of ENGLAND.

ftitutions of fucceffive emperors) had grown to fo great a bulk, or as Livy expreffes it ^t, “tam immenfus aliarum fuper alias acervatarum legum cumulus,” that they were computed to be many camels' load by an author who preceded Juftinian ^u. This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodofius the younger, by whofe orders a code was compiled, A. D. 438, being a methodical collection of all the imperial conftitutions then in force: which Theodofian code was the only book of civil law received as authentic in the weftern part of Europe till many centuries after; and to this it is probable that the Franks and Goths might frequently pay fome regard, in framing legal conftitutions for their newly erected kingdoms. For Juftinian commanded only in the eaftern remains of the empire; and it was under his aufpices, that the prefent body of civil law was compiled and finifhed by Tribonian and other lawyers, about the year 533.

THIS confifts of, 1. The inftitutes, which contain the elements or firft principles of the Roman law, in four books. 2. The digefts, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digefted in a fyftematical method. 3. A new code, or collection of imperial conftitutions, the lapfe of a whole century having rendered the former code, of Theodofius, imperfect. 4. The novels, or new conftitutions, pofterior in time to the other books, and amounting to a fupplement to the code; containing new decrees of fucceffive emperors, as new queftions happened to arife. Thefe form the body of Roman law, or corpus juris civilis, as publifhed about the time of Juftinian: which however fell foon into neglect and oblivion, till about the year 1130, when a copy of the digefts was found at Amalfi in Italy; which accident, concurring with the policy of the Romifh ecclefiaftical ^w, fuddenly gave new vogue and authority to the civil law, introduced it into feveral nations, and occafioned that

^t l. 3. c. 34.

^u Taylor's elements of civil law. 17.

^w See §. 1. pag. 18.

Of the LAWS of ENGLAND.

mighty inundation of voluminous comments, with which this fyftem of law, more than any other, is now loaded.

THE canon law is a body of Roman ecclefiaftical law, relative to fuch matters as that church either has, or pretends to have, the proper jurifdiction over. This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, the decretal epiftles and bulles of the holy fee. All which lay in the fame diforder and confufion as the Roman civil law, till about the year 1151, one Gratian an Italian monk, animated by the difcovery of Juftinian's pandects at Amalfi, reduced them into fome method in three books, which he entitled concordia difcordantium canonum, but which are generally known by the name of decretum Gratiani. Thefe reached as low as the time of pope Alexander III. The fubfequent papal decrees, to the pontificate of Gregory IX, were publifhed in much the fame method under the aufpices of that pope, about the year 1230, in five books entitled decretalia Gregorii noni. A fixth book was added by Boniface VIII, about the year 1298, which is called fextus decretalium. The Clementine conftitutions, or decrees of Clement V, were in like manner authenticated in 1317 by his fucceffor John XXII; who alfo publifhed twenty conftitutions of his own, called the extravagantes Toannis: all which in fome meafure anfwer to the novels of the civil law. To thefe have been fince added fome decrees of later popes in five books, called extrovagantes communes. And all thefe together, Gratain's decree, Gregory's decretals, the fixth decretal, the Clementine conftitutions, and the extravagants of John and his fucceffors, form the corpus juris canonici, or body of the Roman canon law.

BESIDES thefe pontificial collections, which during the time of popery were received as authentic in this ifland, as well as in other parts of chriftendom, there is alfo a kind of national canon law, compofed of legatine and provincial conftitutions, and adapted only to the exigencies of this church and kingdom. The legatine conftitutions were ecclefiaftical laws, enacted in national fynods,

Of the LAWS of ENGLAND.

held under the cardinals Otho and Othobon, legates from pope Gregory IX and pope Adrian IV, in the reign of king Henry III about the years 1220 and 1268. The provincial conftitutions are principally the decrees of provincial fynods, held under divers arch-bifhops of Canterbury, from Stephen Langton in the reign of Henry III to Henry Chichele in the reign of Henry V; and adopted alfo by the province of York^x in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliament ^y that a review fhould be had of the canon law; and, till fuch review fhould be made, all canons, conftitutions, ordinances, and fynodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, fhould ftill be ufed and executed. And, as no fuch review has yet been perfected, upon this ftatute now depends the authority of the canon law in England.

AS for the canons enacted by the clergy under James I, in the year 1603, and never confirmed in parliament, it has been folemnly adjudged upon the principles of law and the conftitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity ^z; whatever regard the clergy may think proper to pay them.

THERE are four fpecies of courts in which the civil and canon laws are permitted under different reftrictions to be ufed. 1. The courts of the arch-bifhops and bifhops and their derivative officers, ufually called in our law courts chriftian, curiae chriftianitatis, or the ecclefiaftical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two univerfities. In all, their reception in general, and the different degrees of that reception, are grounded intirely upon cuftom; corroborated in the latter inftance by act of parliament, ratifying thofe charters which confirm the cuftomary law of the univerfities.

^x Burn's eccl. law, pref. viii.

^y Statute 25 Hen. VIII. c. 19; revived and confirmed by 1 Eliz. c. 1.

Of the LAWS of ENGLAND.

The more minute confideration of thefe will fall properly under that part of thefe commentaries which treats of the jurifdiction of courts. It will fuffice at prefent to remark a few particulars relative to them all, which may ferve to inculcate more ftrongly the doctrine laid down concerning them ^a.

1. AND, firft, the courts of common law have the fuperintendency over thefe courts ; to keep them within their jurifdictions, to determine wherein they exceed them, to reftrain and prohibit fuch excefs, and (in café of contumacy) to punifh the officer who execures, and in fome cafes the judge who enforces, the fentence fo declared to be illegal.

2. THE common law has referved to itfelf the expofition of all fuch acts of parliament, as concern either the extent of thefe courts or the matters depending before them. And therefore if thefe courts either refufe to allow thefe acts of parliament, or will expound them in any other fenfe than what the common law puts upon them, the king's courts at Weftminfter will grant prohibitions to refrain and control them.

3. AN appeal lies from all thefe courts to the king, in the laft refort; which proves that the jurifdiction exercifed in them is derived from the crown of England, and not from any foreign potentate, or intrinfic authority of their own. --- And, from thefe three ftrong marks and enfigns of fuperiority, it appears beyond a doubt that the civil and canon laws, though admitted in fome cafes by cuftom in fome courts, are only fubordinate and leges fub graviori lege ; and that, thus admitted, reftrained, altered, new-modelled, and amended, they are by no means with us a diftinct independent fpecies of laws, but are inferior branches of the cuftomary or unwritten laws of England, properly called, the king's ecclefiaftical, the king's military, the king's maritime, or the king's academical, laws.

^a Hale Hift. C. 2.

Of the LAWS of ENGLAND.

LET us next proceed to the leges fcriptae, the written laws of the kingdom, which are ftatutes, acts, or edicts, made by the king's majefty by and with the advice and confent of the lords fpiritual and temporal and commons in parliament affembled ^b. The oldeft of thefe now extant, and printed in our ftatute books, is the famous magna carta, as confirmed in parliament 9 Hen. III: though doubtlefs there were many acts before that time, the records of which are now loft, and the determinations of them perhaps at prefent currently received for the maxims of the old common law.

THE manner of making thefe ftatutes will be better confidered hereafter, when we examine the conftitution of parliaments. At prefent we will only take notice of the different kinds of ftatutes; and of fome general rules with regard to their conftruction ^c.

FIRST, as to their feveral kinds. Statutes are either general or fpecial, public or private. A general or public act is an uni-

^c The method of citing thefe acts of parliament is various. Many of our antient ftatutes are called after the name of the place, where the parliament was held that made them : as the ftatutes of Merton and Marlbridge, of Weftminfter, Glocefter, and Winchefter. Others are denominated entirely from their fubject ; as the ftatutes of Wales and Ireland, the articuli cleri, and the praerogative regis. Some are diftinguifhed by their initial words, a method of citing very antient ; being ufed by the Jews in denominating the books of the Pentateuch ; by the chriftian church in diftinguifhing their hymns and divine offices ; by the Romanifts in defcribing their papal bulles ; and in fhort by the whole body of antient civilians and canonifts, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior fections alfo : in imitation of all which we ftill call fome of our old ftatutes by their initial words, as the ftatute of quia emptores, and that of circumfpecte agates. But the moft ufual method of citing them, efpecially fince the time of Edward the fecund, is by naming the year of the king's reign in which the ftatute was made, together with the chapter, or particular act, according to it's numeral order ; as, 9 Geo. II. C. 4. For all the acts of one feffion of parliament taken together make properiy but one ftatute; and therefore when two effions have been held in one year, we ufually mention ftat. 1. or. 2. Thus the bill of rights is cited, as 1. W. & M. ftatutes. 2. c. 2. fignifying that it is the fecund chapter or act, of the fecund ftatute or the laws made in the fecund effions of parliament, held in the firft year of king William and queen Mary.

Of the LAWS of ENGLAND.

verfal rule, that regards the whole community ; and of thefe the courts of law are bound to take notice judicially and ex officio ; without the ftatute being particularly pleaded, or formally fet forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being thofe which only operate upon particular perfons, and private concerns ; fuch as the Romans intitled fenatus-decreta, in contradiftinction to the fenatus-confulta, which regarded the whole community ^d : and of thefe the judges are not bound to take notice, unlefs they be formally fhewn and pleaded. Thus, to fhew the diftinction, the ftatute 13 Eliz, c. 10. to prevent fpiritual perfons from making leafes for longer terms than twenty one years, or three lives, is a public act ; it being a rule prefcribed to the whole body of fpiritual perfons in the nation : but an act to enable the bifhop of Chefter to make a leafe to A. B. for fixty years, is an exception to this rule ; it concerns only the parties and the bifhop's fucceffors; and is therefore a private act.

STATUTES alfo are either declaratory of the common law, or remedial of fome defects therein. Declaratory where the old cuftom of the kingdom is almoft fallen into difufe, or become difputable ; in which café the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the ftatute of treafons, 25 Edw. III. cap. 2. doth not make any new fpecies of treafons ; but only, for the benefit of the fubject, declares and enumerates thofe feveral kinds of offence, which before were treafon at the common law. Remedial ftatutes are thofe which are made to fupply fuch defects, and abridge fuch fuperfluities, in the common law, as arife either from the general imperfection of all human laws, from change of time and circumftances, from the miftakes and unadvifed determinations of unlearned judges, or from any other caufe whatfovever. And, this being done either by enlarging the common law where it was too narrow and circumfcribed, or by re-

^d Gravin. Orig. 1. §. 24.

Of the LAWS of ENGLAND.

ftraining it where it was too lax and luxuriant, this has occafioned another fubordinate divifion of remedial acts of parliament into enlarging and reftraining ftatutes. To inftance again in the café of treafon. Clipping the current coin of the kingdom was an offence not fufficiently guarded againft by the common law : therefore it was thought expedient by ftatute 5 Eliz. c. 11. to make it high treafon, which it was not at the common law : fo that this was an enlarging ftatute . At common law alfo fpiritual corporations might leafe out their eftates for any term of years, till prevented by the ftatute 13 Eliz. beforementioned : this was therefore a reftraining ftatute.

SECONDLY, the rules to be obferved with regard to the conftruction of ftatutes are principally thefe which follow.

1. THERE are three points to be confidered in the confruction of all remedial ftatutes ; the old law, the mifchief, and the remedy : that I, how the common law ftood at the making of the act ; what the mifchief was, for which the common law did not provide ; and what remedy the parliament hath provided to cure this mifchief. And it is the bufinefs of the judges fo to conftrue the act, as to fupprefs the mifchief and advance the remedy ^e. Let us inftance again in the fame reftraining ftatute of the 13 Eliz. By the common law ecclefiaftical corporations might let as long leafes as they thought proper : the mifchief was, that they let long and unreafonable leafes, to the impoverifhment of their fucceffors : the remedy applied by the ftatute was by making void all leafes by ecclefiaftical bodies for longer terms than three lives or twenty one years. Now in the conftruction of this ftatute it is held, that leafes, though for a longer term, if made by a bifhop, are not void during the bifhop's life ; or, if made by a dean with concurrence of his chapter, they are not void during the life of the dean: for the act was made for the benefit and protection of the fucceffor ^f. The mifchief is therefore fufficiently fuppreffed by vacating them after the death of the grantor ; but

^e 3 Rep. 7 b. Co. Litt. 11 b. 42.

^f Co. Litt. 45. 3 Rep. 60.

Of the LAWS of ENGLAND.

the leafes, during their lives, being not within the mifchief, are not within the remedy.

2. A STATUTE, which treats of things or perfons of an inferior rank, cannot by any general words be extended to thofe of a fuperior. So. a ftatute , treating of “deans, prebendaries, “parfons, vicars, and others having fpiritual promotion,” is held not to extend to biffhops, though they have fpiritual promotion ; deans being the higheft perfons named, and bifhops being of a ftill higher order ^g.

3. PENAL ftatutes muft be conftrued ftrictly. Thus a ftatute 1. Edw. VI. having enacted that thofe who are convicted of ftealing horfes fhould not have the benefit of clergy, the judges conceived that this did not extend to him that fhould fteal but one horfe, and therefore procured a new act for that purpofe in the following year ^h. And, to come nearer our own times, by the ftatute 14 Geo. II. c. 6. ftealing fheep, or other cattle, was made felony without benefit of clergy. But thefe general words, “or “other cattle,” being looked upon as much too loofe to create a capital offence, the act was held to extend to nothing but mere fheep. And therefore, in the next feffions, it was found neceffary to make another ftatute , 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, fteers, bullocks, heifers, calves, and lambs, by name.

4. STATUTES againft frauds are to be liberally and beneficially expounded. This may feem a contradiction to the laft rule ; moft ftatutes againft frauds being in their confequences penal. But this difference is here to be taken : where the ftatute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken ftrictly : but when the ftatute acts upon the offence, by fetting afide the fraudulent tranfaction, here it is to be conftrued liberally. Upon this footing the ftatute of 13 Eliz. c. 5. which avoids all gifts of goods, & c, made to defraud cre-

^h Bac. Elem. c. 12.

Of the LAWS of ENGLAND.

ditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture ⁱ.

5. ONE part of a ftatute muft be fo conftrued by another, that the whole may if poffible ftand : ut res magis valeat, quam pereat. As if land be vefted in the king and his heirs by act of parliament, faving the right of A ; and A has at that time a leafe of it for three years : here A fhall hold it for his term of three years, and afterwards it fhall go to the king. For this interpreation furnifhes matter for every claufe of the ftatute to work and operate upon. But

6. A SAVING, totally repugnant to the body of the act, i void. If therefore an act of parliament vefts land in the king and his heirs, faving the right of all perfons whatfoever ; or vefts the land of A in the king, faving the right of A : in either of thefe cafes the faving is totally repugnant to the body of the ftatute , and (if good) would render the ftatute of no effect or operation ; and therefore the faving is void, and the land vefts abfolutely in the king ^k.

7. WHERE the common law and a ftatute differ, the common law gives place to the ftatute ; and an old ftatute gives place to a new one. And this upon the general principal laid down in the laft fection, that “leges pofteriores priores contraries abrogant.” But this is to be underftood, only when the latter ftatute is couched in negative terms, or by it's matter neceffarily implies a negative. As if a former act fays, that a juror upon fuch a trial fhall have twenty pounds a year; and a new ftatute comes and fays, he fhall have twenty marks : here the latter ftatute , though it does not exprefs, yet neceffarily implies a negative, and virtually repeals the former. for if twenty marks be made qualification fufficient, the former ftatute which requires twenty pounds is at an end ^l. But if both acts be merely affirmative, and the

^l Jenk. Cent. 2. 73.

Of the LAWS of ENGLAND.

fubftance fuch that both may ftand together, here the latter does not repeal the former, but they fhall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter feffions, and a latter law makes the fame offence indictable at the affifes ; here the jurifdiction of the feffions is not taken away, but both have a concurrent jurifdiction, and the offender may be profecuted at either ; unlefs the new ftatute fubjoins exprefs negative words, as that the offence fhall be indictable at the affifes, and not elfewhere ^m.

8. IF a ftatute, that repeals another, is itfelf repealed afterwards, the firft ftatute is hereby revived, without any formal words for that purpofe. So when the ftatutes of 26 and 35 Hen. VIII, declaring the king to be the fupreme head of the church, were repealed by a ftatute 1 & 2 Ph. and Mary, and this latter ftatute was afterwards repealed by an act of 1 Eliz. there needed not any exprefs words of revival in queen Elizabeth's ftatute, but thefe acts of king Henry were impliedly and virtually revived ⁿ.

9. ACTS of parliament derogatory from the power of fubfequent parliaments bind not. So the ftatute 11 Hen. VII. c. 1. which directs, that no perfon for affifting a king de facto fhall be attainted of treafon by act of parliament or otherwife, is held to be good only as to common profecutions for high treafon ; but will not reftrain or clog any parliamentary attainder ^o. Becaufe the legiflature, being in truth the fovereign power, is always of equal, always of abfolute authority : it acknowledges no fuperior upon earth, which the prior legiflature muft have been, if it's ordinances could bind the prefent parliament. And upon the fame principle Cicero, in his letters to Atticus, treats with a proper contempt thefe reftraining claufes which endeavour to tie up the hands of fucceeding legiflatures. “When you repeal the law it-

ⁿ 4 Inft. 325.

Of the LAWS of ENGLAND.

“felf, fays he, you at the fame time repeal the prohibitory “claufe, which guards againft fuch repeal ^p.”

10. LASTLY, acts of parliament that are impoffible to be performed are of no validity ; and if there arife out of them collaterally any abfurd confequences, manifeftly contradictory to common reafon, they are, with regard to thofe collateral confequences, void. I lay down the rule with thefe reftrictions ; though I know it is generally laid down more largely, that acts of parliament contrary to reafon are void. But if the parliament will pofitively enact a thing to be done which is unreafonable, I know of no power that can control it : and the examples ufually alleged in fupport of this fenfe of the rule do none of them prove, that where the main object of a ftatute is unreafonable the judges are at liberty to reject it ; for that were to fet the judicial power above that of the legiflature, which would be fubverfive of all government. But where fome collateral matter arifes out of the general words, and happens to be unreafonable ; there the judges are in decency to conclude that this confequcnce was not forefeen by the parliament, and therefore they are at liberty to expound the ftatute by equity, and only quoad hoc difregard it. Thus if an act of parliament gives a man power to try all caufes, that arife within his manor of Dale ; yet, if a caufe fhould arife in which he himfelf is party, the act is conftruced not to extend to that ; becaufe it is unreafonable that any man fhould determine his own quarrel ^q. But, if we could conceive it poffible for the parliament to enact, that he fhould try as well his own caufes as thofe of other perfons, there is no court that has power to defeat the intent of the legiflature, when couched in fuch evident and exprefs words, as leave no doubt whether it was the intent of the legiflature or no.

THESE are the feveral grounds of the laws of England : over and above which, equity is alfo frequently called in to affift, to

^p Cum lex abrogatur, illud ipfum abrogatur, quo non eam abrogari oporteat. l. 3. ep. 23.

Of the LAWS, & c. ENGLAND.

moderate, and to explain it. What equity is, and how impoffible in it's very effence to be reduced to ftated rules, hath been fhewn in the preceding fection. I fhall therefore only add, that there are courts of this kind eftablifhed for the benefit of the fubject, to correct and foften the rigor of the law, when through it's generality it bears too hard in particular cafes ; to detect and punifh latent frauds, which the law is not minute enough to reach ; to enforce the execution of fuch matters of truft and confidence, as are binding in confcience, though perhaps not ftrictly legal ; to deliver from fuch dangers as are owing to misfortune or overfight ; and, in fhort, to relieve in all fuch cafes as are, bona fide, objects of relief. This is the bufinefs of our courts of equity, which however are only converfant in matters of property. For the freedom of our conftitution will not permit, that in criminal cafes a power fhould be lodged in any judge, to conftrue the law otherwife than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot fuffer more punifhment than the law affigns, but he may fuffer lefs. the laws cannot be ftrained by partiality to inflict a penalty beyond what the letter will warrant ; but in cafes where the letter induces any apparent hardfhip, the crown has the power to pardon.

SECTION THE FOURTH.

OF THE COUNTRIES SUBJECT TO THE

LAWS OF ENGLAND.

THE kingdom of England, over which our municipal laws have jurifdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local cuftoms of this territory do now obtain, in part or in all, with more or lefs reftrictions, in thefe and many other adjacent countries ; of which it will be proper firft to take a review, before we confider the kingdom of England itfelf, the original and proper fubject of thefe laws.

WALES had continued independent of England, unconquered and uncultivated, in the primitive paftoral ftate which Caefar and Tacitus afcribe to Britain in general, for many centuries ; even from the time of the hoftile invafions of the Saxons, when the antient and chriftian inhabitants of the ifland retired to thofe natural intrenchments, for protection from their pagan vifitants. But when thefe invaders themfelves were converted to chriftianity, and fettled into regular and potent governments, this retreat of the antient Britons grew every day narrower ; they were overrun by little and little, gradually driven from one faftnefs to another, and by repeated loffes abridged of their wild independence. Very early in our hiftory we find their princes doing homage to the crown of England ; till at length in the reign of Edward the firft, who may juftly be ftiled the conqueror of Wales, the line

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

of their antient princes was abolifhed, and the king of England's eldeft fon became, as a matter of courfe, their titular prince : the territory of Wales being then entirely annexed to the dominion of the crown of England ^a, or, as the ftatute of Rutland ^b expreffes it, “terra Walliae cum incolis fuis, prius regi jure feodali “fubjecta, (of which homage was the fign) jam in proprietatis “dominium totaliter et cum integritate converfa cft, et coronae regni “Angliae tanquam pars corporis ejufdem annexa et unita.” By the ftatute alfo of Wales ^c very material alterations were made in divers parts of their laws, fo as to reduce them nearer to the Englifh ftandard, efpecially in the forms of their judicial proceedings : but they ftill retained very much of their original polity, particularly their rule of inheritance, viz, that their lands were divided equally among all the iffue male, and did not defcend to the eldeft fon alone. By other fubfequent ftatutes their provincial immunities were ftill farther abridged : but the finifhing ftroke to their independency, was given by the ftatute 27 Hen. VIII. c. 26. which at the fame time gave the utmoft advancement to their civil profperity, by admitting them to a thorough communication of laws with the fubjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty ; being infenfibly put upon the fame footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practifed with great fuccefs ; till fhe reduced all Italy to her obedience, by admitting the vanquifhed ftates to partake of the Roman privileges.

IT is enacted by this ftatute 27 Hen. VIII. 1. That the dominion of Wales fhall be for ever united to the kingdom of England. 2. That all Welchmen born fhall have the fame liberties as other the king's fubjects. 3. That lands in Wales fhall be inheritable according to the Englifh tenures and rules of defcent. 4. That the laws of England, and no other, fhall be ufed in Wales : befides many other regulations of the police of this

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

principality. And the ftatute 34 & 35 Hen. VIII. c. 26. confirms the fame, adds farther regulations, divides it into twelve fhires, and, in fhort, reduces it into the fame order in which it ftands at this day ; differing from the kingdom of England in only a few particulars, and thofe too of the nature of privileges, (fuch as having courts within itfelf, independent of the procefs of Weftminfter hall) and fome other immaterial peculiarities, hardly more than are to be found in many counties of England itfelf.

THE kingdom of Scotland notwithftanding the union of the crowns of the acceffion of their king James IV to that of England, continued an entirely feparate and diftinct kingdom for above a century, though an union had been long projected ; which was judged to be the more eafy to be done, as both kingdoms were antiently under the fame government, and ftill retained a very great refemblance, though far from an identity, in their laws. By an act of parliament 1. Jac. I. c. 1. it is declared, that thefe two, mighty, famous, and antient kingdoms were formerly one. And fir Edward Coke obferves ^d, how marvelous a conformity there was, not only in the religion and language of the two nations, but alfo in their antient laws, the defcent of the crown, their parliaments, their titles of nobility, their officers of ftate and of juftice, their writs, their cuftoms, and even the language of their laws. Upon which account he fuppofes the common law of each to have been originally the fame, efpecially as their moft antient and authentic book, called regiam majeftatem and containing the rules of their antient common law, is extremely fimilar that of Glanvil, which contains the principles of ours, as it ftood in the reign of Henry II. And the many diverfities. Fubfifting between the two laws at prefent, may be well enough accounted for, from a diverfity of practice in two large and uncommunicating jurifdictions, and from the acts of two diftinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.

^d 4 Inft. 345.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

HOWEVER fir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union : but thefe were at length overcome, and the great work was happily effected in 1707, 5 Anne ; when twenty five articles of union were agreed to by the parliaments of both nations : the purport of the moft confiderable being as follows :

1. THAT on the firft of May 1707, and for ever after, the kingdoms of England and Scotland, fhall be united into one kingdom, by the name of Great Britain.

2. THE fucceffion to the monarchy of Great Britain fhall be the fame as was before fettled with regard to that of England.

3. THE united kingdom fhall be reprefented by one parliament.

4. THERE fhall be a communication of all rights and privileges between the fubjects of both kingdoms, except where it is otherwife agreed.

9. WHEN England raifes 2,000,000 l. by a land tax, Scotland fhall raife 48,000 l.

16, 17. THE ftandards of the coin, of weights, and of meafures, fhall be reduced to thofe of England, throughout the united kingdoms.

18. THE laws relating to trade, cuftoms, and the excife, fhall be the fame in Scotland as in England. But all the other laws of Scotland fhall remain in force; but alterable by the parliament of Great Britain. Yet with this caution ; that laws relating to public policy are alterable at the difcretion of the parliament ; laws relating to private rights are not to be altered bout for the evident utility of the people of Scotland.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

22. SIXTEEN peers are to be chofen to reprefent the peerage of Scotland in parliament, and forty five members to fit in the houfe of commons.

23. THE fixteen peers of Scotland fhall have all privileges of parliament : and all peers of Scotland fhall be peers of Great Britain, and rank next after thofe of the fame degree at the time of the union, and fhall have all privileges of peers, except fitting in the houfe of lords and voting on the trial of a peer.

THESE are the principal of the twenty five articles of union, which are ratified and confirmed by ftatute 5 Ann. c. 8. in which ftatute there are alfo two acts of parliament recited ; the one of Scotland, whereby the church of Scotland, and alfo the four univerfities of that kingdom, are eftablifhed for ever, and all fucceeding fovereigns are to take an oath inviolably to maintain the fame; the other of England, 5 Ann. c. 6. whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the fame had been altered by parliament at that time) and all other acts then in force for the prefervation of the church of England, are declared perpetual ; and it is ftipulated, that every fubfequent king and queen fhall taken an oath inviolably to maintain the fame within England, Ireland, Wales, and the own of Berwick upon Tweed. And it is enacted, that thefe two acts “fhall for ever be obferved “as fundamental and effential conditions of the union.”

UPON thefe articles, and act of union, it is to be obferved, 1. That the two kingdoms are now fo infeparably united, that nothing can ever difunite them again, but an infringment of thofe points which, when they were feparate and independent nations, it was mutually ftipulated fhould be “fundamental and “effential conditions of the union.” 2. That whatever elfe may be deemed “fundamental and effential conditions,” the prefervation of the two churches, of England and Scotland, in the fame ftate that they were in at the time of the union, and the main-

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

tenance of the acts of uniformity which eftablifh our common prayer, are expreffly declared fo to be. 3. That therefore any alteration in the conftitutions of either of thofe churches, or in the liturgy of the church of England, would be an infringement of thefe “fundamental and effential conditions,” and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be ftill obferved in that part of the ifland, unlefs altered by parliament ; and, as the parliament has not yet thought proper, except in a few inftances, to alter them, they ftill (with regard to the particulars unaltered) continue in full force. Wherefore the municipal or common laws of England are, generally fpeaking, of no force or validity in Scotland ; and, of confequence, in the enfuing commentaries, we fhall have very little occafion to mention, any farther than fometimes by way of illuftration, the municipal laws of that part of the united kingdoms.

THE town of Berwick upon Tweed, though fubject to the crown of England ever fince the conqueft of it in the reign of Edward IV, is not part of the kingdom of England, nor fubject to the common law; though it is fubject to all acts of parliament, being reprefented by burgeffes therein. And therefore it was declared by ftatute 20 Geo. II. c. 42. that where England only is mentioned in any act of parliament, the fame notwithftanding fhall be deemed to comprehend the dominion of Wales, and town of Berwick upon Tweed. But the general law there ufed is the Scots law, and the ordinary procefs of the courts of Weftminfter-fhall is there of no authority ^e.

AS to Ireland, that is ftill a diftinct kingdom ; though a dependent, fubordinate kingdom. It was only entitled the dominion or lordfhip of Ireland ^f, and the king's ftile was no other than dominus Hiberniae, lord of Ireland, till the thirty third year of king Henry the eighth ; when he affumed the title of king, which is recognized by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are now one and the fame kingdom,

^e Sid. 382. 2 Show. 365.

^f Stat. Hiberniae. 14 Hen. III.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

and yet differ in their municipal laws ; fo England and Ireland are, on the other hand, diftinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the moft part, defcended from the Englifh, who planted it as a kind of colony, after the conqueft of it by king Henry the fecund, at which time they carried over the Englifh laws along with them. And as Ireland, thus conquered, planted, and governed, ftill continues in a ftate of dependence, it muft neceffarily conform to, and be obliged by fuch laws as the fuperior ftate thinks proper to prefcribe.

AT the time of this conqueft the Irifh where governed by what they called the Brehon law, fo ftiled from the Irifh name of judges, who were denominated Brehons ^g. But king John in the twelfth year of his reign went into Ireland, and carried over with him many able fages of the law ; and there by his letters patent, in right of the dominion of conqueft, is faid to have ordained and eftablifhed that Ireland fhould be governed by the laws of England ^h : which letters patent fir Edward Coke ^I apprehends to have been there confirmed in parliament. But to this ordinance many of the Irifh were averfe to conform, and ftill ftuck to their Brehon law : fo that both henry the third ^k and Edward the firft ^l were obliged to renew the injunction ; and at length in a parliament holden at Kilkenny, 40 Edw. III, under Lionel duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolifhed, it being unanimoufly declared to be indeed no law, but a lewd cuftom crept in of later times. And yet, even in the reign of queen Elizabeth, the wild natives ftill kept and preferved their Brehon law ; which is defcribed ^m to have been “a rule of right unwritten, but delivered by tradition “from one to another, in which oftentimes there appeared great “fhew of equity in determining the right between party and

^g 4 Inft. 358. Edm. Spenfer's ftate of Ireland. p. 1513. edit. Hughes.

^h Vaugh. 294. 2 Pryn. Rec. 85.

^I 1 Inft. 341.

^k A. R. 30. 1 Rym. Foed. 442.

^l A. R. 5. – pro eo quod leges quibus utuntur Hybernici Deo deteftabiles exiftunt, et omni juri diffonant, adeo quod leges cenferi non debeant – nobis et conftlio noftro fatis videtur expediens eifdem utendas concedere leges Anglicanas. 3 Pryn. Rec. 1218.

^m Edm. Spenfer. ibid.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

“party, but in many things repugnant quit both to God's law “and man's.” The latter part of which character is alone allowed it under Edward the firft and his grandfon.

BUT as Ireland was a diftinct dominion, and had parliaments of it's own, it is to be obferved, that though the immemorial cuftoms, or common law, of England were made the rule of juftice in Ireland alfo, yet no acts of the Englifh parliament, fince the twelfth of king John, extended into that kingdom ; unlefs it were fpecially named, or included under general words, fuch as, “within any of the king's dominions.” And this is particularly expreffed, and the reafon given in the year book ⁿ : “Ireland hath “a parliament of it's own, and maketh and altereth laws ; and “our ftatutes do not bind them, becaufe they do not fend repre- “fentatives to our parliament : but their perfons are the king's “fubjects, like as the inhabitants of Calais, Gafcoigny, and Guienne, “while they continued under the king's fubjection.” The method made ufe of in Ireland, as ftated by fir Edward Coke ^o, of making ftatutes in their parliaments, according to Poynings' law, of which hereafter, is this : 1. The lord lieutenant and council of Ireland muft certify to the king under the great feal of Ireland the acts propofed to be paffed. 2. The king and council of England are to confider, approve, alter, or reject the faid acts ; and certify them back again under the great feal of England. And then, 3. They are to be propofed, received, or rejected in the parliament of Ireland. By this means nothing was left to the parliament in Ireland, but a bare negative or power of rejecting, not of propofing, any law. But the ufage now is, that bills are often framed in either houfe of parliament under the denomination of heads for a bill or bills ; and in that fhape they are offered to the confideration of the lord lieutenant and privy council, who then reject them at pleafure, without tranfmitting them to England.

BUT the Irifh nation, being excluded from the benefit of the Englifh ftatutes, were deprived of many good and profitable laws,

ⁿ 2 Ric. III. pl. 12.

^o 4 Inft. 353.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

made for the improvement of the common law : and, the meafure of juftice in both kingdoms becoming thereby no longer uniform, therefore in the 10 Hen. VII. a fet of ftatutes paffed in Ireland, (fir Edward Poynings being then lord deputy, whence it is called Poynings' law) by which it was, among other things, enacted, that all acts of parliament before made in England, fhould be of force within the realm of Ireland ^p. But. by the fame rule that no laws made in England, between king John's time and Poynings law, were then binding in Ireland, it follows that no acts of the Englifh parliament made fince the fo Hen. VII. do now bind the people of Ireland, unlefs fpecially named or included under general words ^q. And on the other hand it is equally clear, that where Ireland is particularly named, or is included under general words, they are bound by fuch acts of parliament. For this follows from the very nature and conftitution of a dependent ftate : dependence being very little elfe, but an obligation to conform to the will or law of that fuperior perfon or ftate, upon which the inferior depends. The original and true ground of this fuperiority is the right of conqueft : a right allowed by the law of nations, if not by that of nature ; and founded upon a compact either expreffly or tacitly made between the conqueror and the conquered, that if they will at knowledge the victor for their mafter, he will treat them for the future as fubjects, and not as enemies ^r.

BUT this ftate of dependence being almoft forgotten, and ready to be difputed by he Irfh nation, it become neceffary fome years ago to declare how that matter really ftood : and therefore by ftatute 6 Geo. I. C. 5. it is declared, that the kingdom of Ireland ought to be fubordinate to, and dependent upon, the imperial crown of Great Britain, as being infeparably united thereto ; and that the king's majefty, with the confent of the lords and commons of Great Britain in parliament, hath power to make laws to bind the people of Ireland.

^f 4 Inft. 351.

^q 12 Pep. 112.

^r Puff. L. of N. 8. 6. 24.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

THUS we fee how exenfively the laws of Ireland communicate with thofe of England : and indeed fuch communication is highly neceffary, as the ultimate refort from the courts of juftice in Ireland is, as in Wales, to thofe in England ; a writ of error (in the nature of an appeal) lying from the king's bench in Ireland to the king's bench in England ^s, as the appeal from all other courts in Ireland lies immediately to the houfe of lords here : it being expreffly declared, by the fame ftatute 6 Geo. I. C. 5. that the peers of Ireland have no jurifdiction to affirm or reverfe any judgments or decrees whatfoever. The propriety, and even neceffity, in all inferior dominions, of this conftitution, “that, though juftice be in general adminiftred by courts of “their own, yet that the appeal in the laft refort ought to be to “the courts of the fuperior ftate,” is founded upon thefe two reafons. 1. Becaufe otherwife the law, appointed or permited to fuch inferior dominion, might be infenfibly changed within itfelf, without the affent of the fuperior. 2. Becaufe otherwife judgments might be given to the difadvantage or diminution of the fuperiority ; or to make the dependence to be only of the perfon of the king, and not of the crown of England ^t.

WITH regard to the other adjacent iflands which are fubject to the crown of Great Britain, fome of them (as the ifle of Wight, of Portland, Thanet, & c.) are comprised within fome neighbouring county, and are therefore to be looked upon as annexed to the mother ifland, and part of the kingdom of England. But there are others, which require a more particular confideration.

AND firft, the ifle of Man is a diftinct territory from England and is not governed by our laws ; neither doth any act of parliament exend to it, unlefs it be particularly named therein ; and then an act of parliament is binding there ^u. It was formerly

^s This was law in the time of Hen. VIII. As appears by the antient book, entituled, diverfity of courts, c. bank le rov.

^u4 Inft. 284. 2 And. 116.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

a fubordinate feudatory kingdom, .fubject to the kings of Norway ; then to king John and Henry III of England ; afterwards to the kings of Scotland ; and then again to the crown of England : and at length we find king Henry IV claiming the ifland by right of conqueft, and difpofing of it to the earl of Northumberland ; upon whofe attainder it was granted (by the name of the lordfhip of Man ) to fir John de Stanley by letters patent 7 Hen. IV ^w. In his lineal defcendants it continued for eight generations, till the death of Ferdinando earl of Derby, A. D. 1594 ; when a controverfy arofe concerning the inheritance thereof, between his daughters and William his furviving brother : upon which, and a doubt that was ftarted concerning the validity of the original patent ^x, the ifland was feifed into the queen's hands, and afterwards various grants were made of it by king James the firft ; all which being expired or furrendered, it was granted afrefh in 7 Jac. I. To William earl of Derby, and the heirs male of his body, with remainder to his heirs general ; which grant was the next year confirmed by act of parliament, with a reftraint of the power of alienation by the faid earl and his iffue male. On the death of James earl of Derby. A. D. 1735, the male line of earl William failing, the duke of Atholl fucceeded to the ifland as heir general by a female branch. In the mean time, though the title of king had long been difufed, the earls of Derby, as lords of Man, had maintained a fort of royal authority therein ; by affenting or diffenting to laws, and exercifing an appellate jurifdiction. Yet, though no Englifh writ, or procefs from the courts of Weftminfter, was of any authority in Man, an appeal lay from a decree of the lord of the ifland to the king of Great Britain in council ^y. But, the diftinct jurifdiction of this little fubordinate royalty being found inconvenient for the purpofes of public juftice, and for the revenue, (it affording a convenient afylum for debtors, outlaws, and fmugglers) authority was given to the teafury by ftatute 12 Geo. I. c. 28. to purchafe the intereft of the then proprietors for the ufe of the crown : which purchafe hath

^w Selden, tit. hon. 1. 3.

^I Camden, Eliz. A. D. 1594.

^y 1 P. w. 329.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

at length been completed in this prefent year 1765, and confirmed by ftatutes 5 Geo. III. c. 26, & 39. whereby the whole ifland and all it's dependencies, fo granted as aforefaid, (except the landed property of the Atholl family, their manerial rights and emoluments, and the patronage of the bifhoprick ^z and other ecclefiaftical benefices) are unalienably vefted in the crown, and fubjected to the regulations of the Britifh excife and cuftoms.

THE iflands of Jerfey, Guernfey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the firft princes of the Norman line. They are governed by their own laws, which are for the moft part the ducal cuftoms of Normandy, being collected in an antient book of very great authority, entituled, le grand couftumier. The king's writ, or procefs from the courts of Weftminfter, is there of no force ; but his commiffion is. They are not bound by common acts of our parliaments, unlefs particularly named ^a. All caufes are originally determined by their own officers, the bailiffs and jurats of the iflands ; but an appeal lies from the to the king in council, in the laft refort.

BESIDES thefe adjacent iflands, our more diftant plantations in America, and elfewhere, are alfo in fome refpects fubject to the Englifh laws. Plantations, or colonies in diftant countries, are either fuch where the lands are claimed by right of occupancy only, by finding them defart and uncultivated, and peopling them from the mother country ; or where, when already cultivated, they have been either gained by conqueft, or ceded to us by treaties. And both thefe rights are founded upon the law of nature, or at leaft upon that of nations. But there is a difference between thefe two fpecies of colonies, with refpect to the laws by which they are bound. For it is held ^b, that if an uninhabited country be difcovered and planted by Englifh fubjects, all the Englifh

^z The bifhoprick of Man, or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that of York by ftatute 33 Hen. VIII. c. 31. ^a 4 Inft. 286.

^b Salk. 411. 666.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

laws are immediately there in force. For as the law is the birthright of every .fubject, fo wherever they go they carry their laws with them ^c. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change thofe laws ; but, till he does actually change them, the antient laws of the country remain, unlefs fuch as are againft the law of God, as in the café of an infidel country ^d.

OUR American plantations are principally of this latter fort, being obtained in the laft century either by right of conqueft and driving out the natives (with what natural juftice I fhall not at prefent enquire) or by treaties. And therefore the common law of England, as fuch, has no allowance or authority there ; they being no part of the mother country, but diftinct (though dependent) dominions. They are fubject however to the control of the parliament ; though (like Ireland, Man, and the reft ) not bound by any acts of parliament, unlefs particularly named. The form of government in moft of them is borrowed from that of England. They have a governor named by the king, (or in fome proprietary colonies by the proprietor) who is his reprefentative or deputy. They have courts of juftice of their own, from whofe decifions an appeal lies to the king in council here in England. Their general affemblies which are their houfe of commons, together with their council of ftate being their upper houfe, with the concurrence of the king or his reprefentative the governor, make laws fuited to their own emergencies. But it is particularly declared by ftatute 7 & 8 W. III. c. 22. That all laws, by-laws, ufages, and cuftoms, which fhall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the faid plantations fhall be utterly void and of none effect.

THESE are the feveral parts of the dominions of the crown of Great Britain, in which the municipal laws of England are not of force or authority, merely as the municipal laws of Eng-

^c 2 P. W^m. 75.

^d 7 Rep. 17 b. Calvin's café. Show. Parl C. 31.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

land. Moft of them have probably copied the fpirit of their own law from this original ; but then it receives it's obligation, and authoritative force, from being the law of the country.

AS to any foreign dominions which may belong to the perfon of the king by hereditary defcent, by purchafe, or other acquifition, as the territory of Hanover, and his majefty's other property in Germany ; as thefe do not in any wife appertain to the crown of thefe kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any refpect whatfoever. The Englifh legiflature had wifely remarked the inconveniences that had formerly refulted from dominions on the continent of Europe ; from the Norman territory which William the conqueror brought with him, and held in conjunction with the Englifh throne ; and from Anjou, and it's appendages, which fell to Henry the fecund by hereditary defcent. They had feen the nation engaged for near four hundred years together in ruinous wars for defence of thefe foreign dominions ; till, happily for this country, they were loft under the reign of Henry the fixth. They obferved that from that time the maritime interefts of England were better underftood and more clofely purfued : that, in confequence of this attention, the nation, as foon as fhe had refted from her civil wars, began, at this period to flourifh all at once ; and became much more confiderable in Europe than when her princes where poffeffed of a larger territory, and her counfels diftracted by foreign interefts. This experience and thefe confiderations gave birth to a conditional claufe in the act ^e of fetlement, which vefted the crown in his prefent majefty's illuftrious houfe, “That in café the crown and “imperial dignity of this realm fhall hereafter come to any per- “fon not being a native of this kingdom of England, this nation “fhall not be obliged to engage in any war for the defence of any “dominions or territories which do not belong to the crown of “England, without confent of parliament.”

^e Stat. 12 & W. III. c. 3.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

WE come now to confider the kingdom of England in particular, the direct and immediate fubject of thofe laws, concerning which we are to treat in the enfuing commentaries. And this comprehends not only Wales, of which enough has been already faid, but alfo part of the fea. The main or high feas are part of the realm of England, for thereon our courts of admiralty have jurifdiction, as will be fhewn hereafter ; but they are not fubject to the common law ^f. This main fea beings at the low-watermark. But between the high-water-mark, and the low-water-mark, where the fea ebbs and flows, the common law and the admiralty have divifum imperium, an alternate jurifdiction ; one upon the water, when it is full fea; the other upon the land, when it is an ebb ^g.

THE territory of England is liable to two divifions ; the one ecclefiaftical, the other civil.

1. THE ecclefiaftical divifion is, primarily, into two provinces, thofe of Canterbury and York. A province is the circuit of an arch-bifhop's jurifdiction. Each province contains divers diocefes, or fees of fuffragan bifhops ; whereof Canterbury includes twenty one, and York three ; befides the bifhoprick of the ifle of Man, which was annexed to the province of York by king Henry VIII. Every diocefe is divided into archdeaconries, whereof there are fixty in all ; each archdeaconry into rural deanries, which are the circuit of the archdeacon's and rural dean's jurifdiction, of whom hereafter ; and every deanry is divided into parifhes ^h.

A PARISH is that circuit of ground in which the fouls under the care of one parfon or vicar do inhabit. Thefe are computed to be near ten thoufand in number. How antient the divifion of parifhes is, may at prefent be difficult to afcertain ; for

^f Co. Litt. 260.

^g Finch. L. 78.

^h Co. Litt. 94.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

it feems to be agreed on all hands, that in the early ages of chriftianity in this ifland, parifhes were unknown, or at leaft fignified the fame that a diocefe does now. There was then no appropriation of ecclefiaftical dues to any particular church ; but every man was at liberty to contribute his tithes to whatever prieft or church he pleafed, provided only that he did it to fome : or, if he made no fpecial appointment or appropriation thereof, they were paid into the hands of the bifhop, whofe duty it was to diftribute them among the clergy and for other pious purpofes according to his own difcretion ⁱ.

MR Camden ^k fays England was divided into parifhes by archbifhop Honorius about the year 630. Sir Henry Hobart ¹ lays it down that parifhes wee firft erected by the council of Lateran, which was held A. D. 1179. Each widely differing from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes. For Mr Selden has clearly fhewn ^m, that the clergy lived in common without any divifion of parifhes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parifhes were in being long before the date of that council of Lateran, to which they are afcribed by Hobart.

WE find the diftinction of parifhes, nay even of mother-churches, fo early as in the laws of king Edgar, about the year 970. Before that time the confecration of tithes was in general arbitrary; that is, every man paid his own (as was before obferved) to what church or parifh he pleafed. But this being liable to be attended with either fraud, or at leaft caprice, in the perfons paying ; and with either jealoufies or mean compliances in fuch as were competitors for receiving them ; it was now ordered by the law of king Edgar ⁿ, that “dentur omnes decimae primariae “ecclefiae ad quam parochial pertinet.” However, if any thane, or

^I Seld. of tith. 9. 4. 2. Inft. 646. Hob. 296.

^k in his Britannia.

^m of tithes. c. 9.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

great lord, had a church within his own demefnes, diftinct from the mother-church, in the nature of a private chapel ; then, provided fuch church had a coemitery or confecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minifter : but, if it had no coemitery, the thane muft himfelf have maintained his chaplain by fome other means ; for in fuch café all his tithes were ordained to be paid to the primariae ecclefiae or mother-church ^o

THIS proves that the kingdom was then univerfally divided into parifhes ; which divifion happened probably not all at once, but by degrees. For it feems pretty clear and certain that the boundaries of parifhes were originally afcertained by thofe of a manor or manors : fince it very feldom happens that a manor extends itfelf over more parifhes than one, though there are often many manors in one parifh. The lords, as chriftianity fpread itfelf, began to build churches upon their own demefnes or waftes, to accommodate their tenants in one or two adjoining lordfhips ; and, in order to have divine fervice regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minifter, inftead of leaving them at liberty to diftribute them among the clergy of the diocefe in general : and this tract of land, the tithes whereof were fo appropriated, formed a diftinct parifh. Which will well enough account for the frequent intermixture of parifhes one with another. For if a lord had a parcel of land detached from the main of his eftate, but not fufficient to form a parifh of itfelf, it was natural for him to endow his newly erected church with the tithes of thofe difjointed lands ; efpecially if no church was then built in any lordfhip adjoining to thofe out-lying parcels.

THUS parifhes were gradually formed, and parifh churches endowed with the tithes that arofe within the circuit affigned. But fome lands, either becaufe they were in the hands of irreligious and carelefs owners, or were fituate in forefts and defart

^o Ibid. c. 2. See alfo the laws of king Canue, c. 11. about the year 1030.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

places, or for other now unfearchable reafons, were never unied to any parifh, and therefore continue to this day extraparochial ; and their tithes are now by immemorial cuftom payable to the king inftead of the bifhop, in truft and confidence that he will diftribute them, for the general good of the church ^p. And thus much for the ecclefiaftical divifion of this kingdom.

2. THE civil divifion of the territory of England is into counties, of thofe counties into hundreds, of thofe hundreds into tithings or towns. Which divifion, as it now ftands, feems to owe it's original to king Alfred ; who, to prevent the rapines and diforders which formerly prevailed in the realm, inftituted tithings ; fo called, from the Saxon, becaufe ten freeholders with their families compofed one. Thefe all dwelt together, and were fureties or free pledges to the king for the good behaviour of each other ; and, if any offence were committed in their diftrict, they were bound to have the offender forthcoming ^q. And therefore antientlyno man was fuffered to abide in England above forty days, unlefs he were enrolled in fome tithing or decennary ^r. One of the principal inhabitants of the tithing is annually appointed to prefide over the reft, being called the tithing-man, the the head-borough, (words which fpeak their own etymology) and in fome countries the borfholder, or borough's-ealder, being fuppofed the difcreeteft man in the borough, town, or tithing ^s.

TITHINGS, town, or vills, are of the fame fignification in law ; and had, each of them, originally a church and celebration of divine fervice, facraments, and burials ; which to have, or have had, feparate to itfelf, is the effential diftinction of a town, accoding to fir Edward Coke ^t. The word town or vill is indeed, by the alteration of times and language, now become a generical term, comprehending under it eh feveral fpecies of

^p 2 Inft. 647. 2 Rep. 44. Cro. Eliz. 512.

^q Flet. 1. 47. This the laws of king Edward the confeffor, c. 20. very juftly intitle “ufmura et maxivta fecuritas, per quam omnes “ftatu firmiffimo fuftinentur ; - quae boc modo “fiebat, quod fub decennali fidejuffione debe- “bant effe univerfi, & c.”

^r Mirr. C. 1. § 3.

^s Finch. L. 8.

^t Inft. 115 b.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

Cities, boroughs, and common towns. A city is a town incorporated, which is or hath been the fee of a bifhop ; and though the bifhoprick be diffolved, as at Weftminfter, yet ftill it remaineth a city ^u. A borough is now underftood to be a town, either corporate or not, that fendeth burgeffes to parliament ^w. Other towns there are, to the number fir Edward Coke fays ^x of 8803, which are neither cities nor boroughs ; fome of which have the privileges of markets, and others not ; but both are equally towns in law. To feveral of thefe towns there are finall appendages belonging, called hamlets ; which are taken notice of in the ftatute of Exeter ^y, which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills fir Henry Spelman ^z conjectures to have confifted of ten freemen, or frank-pledges, demivills of five, and hamlets of lefs than five. Thefe little collections of houfes are fometimes under the fame adminiftration as the town itfelf, fometimes governed by feparate officers ; in which laft café it is, to fome purpofes in law, looked upon as a diftinct townfhip. Thefe towns, as was before hinted, contained each originally but the encreafe of inhabitants, are divided into feveral parifhes and tithings : and fometimes, where there is but one parifh there are two or more vills or tithings.

AS ten families of freeholders made up a town or tithing, fo en tithings compofes a fuperior divifion, called a hundred, as confifting of ten times ten families. The hundred is governed by an high conftable or bailiff, and formerly there was regularly held in it the hundred court for the trial of caufes, though now fallen into difufe. In fome of the more northern counties thefe hundreds are called wapentakes ^a.

THE fubdivifion of hundreds into tithings feems to be moft peculiarly the invention of Alfred : the inftitution of hundreds.

^u Co. Litt. 109 b.

^w Litt. §. 164.

^x 1 Inft. 116.

^a Seld. In Fortefc. C. 24.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

Themfelves the rather introduced than invented. For they feem to have obtained in Denmark ^b: and we find that in France a regulation of this fort was made above two hundred years before, fet on foot by Clotharius and Childebert, with a view of obliging each diftrict to anfwer for the robberies committed in it's own divifion. Thefe divifions were, in that country, as well military as civil ; and each contained a hundred freemen ; who were fubject to an officer called the centenaries ; a number of which centenarii were themfelves fubject to a fuperior officer called the count or comes ^c. And indeed this inftitution of hundreds may be traced back as far as the antient Germans, from whom were derived both the Franks who became mafters of Gaul, and the Saxons who fettled in England. For we read in Tacitus ^d, that both the thing and the name wee well known to that warlike people. “Genteni ex fingulis pages funt, idque ipfum inter fuos vo- “cantur; et quod primo numerus fuit, jam nomen et honor eft.”

AN indefinite number of thefe hundreds make up a county or fhire. Shire is a Saxon word fignifying a divifion ; but a county, comitatus, is plainly derived from comes, the count of the Franks ; that is , the earl, or alderman (as the Saxons called him) of the fhire, to whom the government of it was intrufted. This he ufually exercifed by his deputy, ftill called in Latin vice-comes, and in Englifh the fheriff, fhrieve, or fhire-reeve, fignifying the officer of the fhire; upon whom by procefs of time the civil adminiftration of it is now totally devolved. In fome counties there is an intermediate divifion, between the fhire and the hundreds, as lathes in Kent, and rapes in Suffex, each of them containing about three or four hundreds apiece. Thefe had formerly their lathe-reeves and rape-reeves, acting in fuborination to the fhire-reeve. Where a county is divided into three of thefe intermediate jurifdictions, they are called trithings ^e, which wee antiently governed by a trithing-reeve. Thefe Thefe trithings ftill fubfift in the large county of York, where by an eafy corruption they are de-

^b Seld. Tit. Of hon. 2. 5. 3.

^c Montefq. Sp. L. 30. 17.

^d De Morib. German. 6.

^eLL. Edw. C. 34.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

Nominated ridings ; the north, the eaft, and the weft-riding. The number of counties in England and Wales have been different at different times : at prefent there are forty in England, and twelve in Wales.

THREE of thefe counties counties, Chefter, Durham, and Lancafter, are called counties palatine. The two former are fuch by prefcription, or immemorial cuftom ; or at leaft s old as the Norman conqueft ^f : the latter was created by king Edward III, in favour of Henry Plantagenet, firft earl and then duke of Lancafter, whofe heirefs John of Gant the king's fon had married ; and afterwards confirmed in parliament, to honour John of Gant himfelf ; whom, on the death of his father-in-law, he had alfo created duke of Lancafter ^g. Connties palatine are fo called a palatio ; becaufe the owners thereof, the earl of Chefter, the bifhop of Durham, and the duke of Lancafter, had in thofe counties jura regalia, as fully as the king hath in his palace ; regalem poteftatem in omnibus, as Bracton expreffes it ^h. They might pardon treafons, murders, and felonies ; they appointed all judges and juftices of the peace ; all writs and indictments ran in their names, as in other counties in the king's ; and all offences were faid to be done againft their peace, and not, as in other places, contra pacem domini Regis ⁱ. And indeed by the antient law, in all peculiar jurifdictions, offences were faid to be done againft his peace in whofe court they were tried ; in a court leet, contra pacem domini ; in the court of a corporation, contra pacem ballivorum ; in the fheriff's court or tourn, contra pacem vice-comitis ^k. Thefe palatine privileges were in all probability originally granted to the counties of Chefter and Durham, becaufe they bordered upon enemies countries, Wales and Scotland, in order that the owners, being encouraged by fo large an authority, might be the more watchful in it's defence ; and that the inhabitants, having juftice adminiftered at home, might not be obliged to go out of the

^f Seld. tit. Hon. 2. 5. 8.

^h l. 3. c. 8. §. 4.

ⁱ4 Inft. 204.

k Seld, in Hengham magn. c. 2.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

county, and leave it open to the enemies incurfions. And upon this account alfo there were formerly two other counties palatine, Pembrokefhire and Hexamfhire, the latter now united with Northumberland : but thefe were abolifhed by parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in 27 Hen. VIII likewife, the powers beforementioned of owners of counties palatine were abridged ; the reafon for their continuance in a manner ceafing : though ftill all writs are witneffed in their names, and all forfeitures for treafon by the common law accrue to them ^l.

OF thefe three, the county of Durham is now the only one remaining in the hands of a fubject. For the earldom of Chefter, as Camden teftifies, was united to the crown by Henry III, and has ever fince given title to the king's eldeft fon. And the county palatine, or duchy, of Lancafter was the property of Henry of Bolinbroke, the fon of John of Gant, at the time when he wrefted the crown from king Richard II, and affumed the title of Henry IV. But he was too prudent to fuffer this to be united to the crown, left, if he loft one, he fhould lofe the other alfo. For, as Plowden ^m and fir Edward Coke ⁿ obferve, “he knew he had the “duchy of Lancafter by fure and indefeafible title, but that his “title to the crown was not fo affured : for that after the deceafe “of Richard II the right of the crown was in the heir of Lionel “duke of Clarenc , fecund fon of Edward III; John of Gant, “father to this Henry IV, being but the fourth fon.” And therefore he procured an act of parliament, in the firft year of his reign, to keep it diftinct and feparate from the crown, and fo it defcended to his fon, and grandfon, Henry V, and Henry VI. Henry VI being attainted in 1 Edw. IV, this duchy was declared in parliament to have become forfeited to the crown ^o, and at the fame time an act was made to keep it ftill diftinct and feparate from other inheritances of the crown. And in 1 Hen. VII another act was made to veft the inheritance thereof in Henry VII and

^l 4 Inft. 205.

ⁿ 4 Inft. 205.

^g 1 Ventr. 155.

Of the COUNTRIES fubject to THE LAWS of ENGLAND.

his heirs, and in this ftate, fay fir Edward Coke ^p and Lambard ^q, viz. in the natural heirs or pofterity of Henry VII, did the right of the duchy remain to their days ; a feparae and diftinct inheritance from that of the crown of England ^r.

THE ifle of Ely is not a county palatine, though fometimes erroneoufly called fo ; but only a royal franchife; the bifhop having, by grant of king Henry the firft, jura regalia within the ifle of Ely, and thereby he exercifes a jurifdiction over all caufes, as well criminal, as civil ^s.

THERE are alfo counties corporate ; which are certain cities and towns, fome with more, fome with lefs territory annexed to them ; to which out of fpecial grace and favour the kings of England have granted to be counties of themfelves, and not to be comprized in any other county ; but to be governed by their own fheriffs and other magiftrates, fo that no officers of the county at large have any power to intermeddle therein. Such are London, York, Briftol, Norwich, Coventry, and many others. And thus much of the countries fubject to the laws of England.

^p 4 Inft. 206.

^q Archeion. 233.

^r If this notion of Lambard and Coke be well founded, it might have become a very corious queftion at the time of the revolution in 1688, in whom the right of the duchy remained after king James's abdication. The attainder indeed of the pretended prince of Wales (by ftatute 13 W. III. c. 3.) has now put the matter out of doubt. And yet, to give that attainder it's full force in this refpect, the object of it muft have been fuppofed legitimate, elfe he had no intereft to forfeit.

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