 Section 6. Part 2 of Section 2 of the Introduction to the Commentaries on the Laws of England, Book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit librivox.org. Recording by J. C. Guan. The only true and natural foundations of society are the ones and the fears of individuals. Not that we can believe, but some theoretical writers, that there ever was a time when there was no such thing as society, and that from the impulse of reason and through a sense of their wants and weaknesses, individuals met together in a large plane, entered into an original contract, and chose the tallest man present to be their governor. This notion of a naturally existing unconnected state of nature is too wild to be seriously admitted. And besides, it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and the preservation two thousand years afterwards, both which were affected by the means of single families. These formed the first society among themselves, which every day extended its limits, and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent, and various tribes, which had formerly separated, reunited again. Sometimes, by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears, yet it is the sense of their weakness and imperfection that keeps mankind together. That demonstrates the necessity of this union, and that therefore is the solid and natural foundation, as well as the cement of society. And this is what we mean by the original contract of society, which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason, must always be understood and implied in the very act of associating together, namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole, or in other words, that the community should guard the rights of each individual member, and that, in return for this protection, each individual should submit to the laws of the community, without which submission of all it was impossible that protection could be certainly extended to any. For when society is once formed, government results, of course, as necessary to preserve and to keep that society in order. Unless some superior were constituted, whose commands and decisions all members are bound to obey, they would still remain as in a state of nature, without any judge upon earth, to define their several rights, and redress their several wrongs. But, as all the members of society are naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? To this, the general answer is easy, but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which are among the attributes of him who is emphatically styled the supreme being. The three grand requisites, I mean, of wisdom, of goodness, and of power, wisdom to discern the real interest of the community, goodness to endeavor always to pursue that real interest, and strength or power to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government. How the several forms of government we now see in the world at first actually began is a matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However, they began, or by what right so ever they subsist, there is, and must be, in all of them, a supreme, irresistible, absolute, uncontrolled authority in which the Yuhasumi Imperi or the rights of sovereignty reside. And this authority is placed in those hands, wherein, according to the opinion of the founders of such respective states, either expressly given or collected from their tacit approbation, the qualities requisite for supremacy, wisdom, goodness, and power are the most likely to be found. The political writers of antiquity will not allow more than three regular forms of government. The first, when the sovereign power is lodged in an aggregate assembly consisting of all the members of a community, which is called a democracy. The second, when it is lodged in a council composed of select members, and then it is styled an aristocracy. The last, when it is entrusted in the hands of a single person, then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three. But the sovereign power, as was before observed, is meant the making of laws. For wherever that power resides, all others must conform to and be directed by it. Whatever appearance the outward form and administration of the government may put on. For it is, at any time, in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases. And all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end. In a democracy where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance and weak in their execution, but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found than in the other frames of government, being composed or intended to be composed of the most experienced citizens. But there is less honesty in a republic and less strength than in a monarchy. A monarchy is indeed the most powerful of any, all the sinews of government being knit together and united in the hand of the prince. But then there is an imminent danger of his employing that strength to in-provident or oppressive purposes. Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law. Aristocracies, to invent the means by which that end shall be obtained, and monarchies, to carry those means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government, but these three, for those like Cero, declare themselves of opinion, as the optime constitutatem republicam quae ex tribus generibus illis regali optimo e populare sit modite confusa. Yet Tacitus treats this notion of a mixed government formed out of them all and partaking of the advantages of each as a visionary whim, and one that, if affected, could never be lasting or secure. But happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truths of this observation. For, as with us, the executive power of the laws is lodged in a single person. They have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy. And, as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other. First, the king. Secondly, the Lord's spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valor, or their property. And thirdly, the House of Commons, freely chosen by the people from among themselves, which makes it a kind of democracy. As this aggregates body, actuated by different springs, and attentive to different interests, composes the British Parliament, and has the supreme disposal of everything. There can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two. Each branch being armed with a negative power, sufficient to repel any innovation, which is shall think inexpedient or dangerous. Here, then, is lodged the sovereignty of the British Constitution, and lodged as beneficially as possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well, and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy. And so want two of the three principal ingredients of good policy, either virtue, wisdom, or power. If it were lodged in any two of the branches, for instance, in the king and house 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 should want that circumspection and mediatory caution which the wisdom of the peers is to afford. If the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken, if not totally destroy, the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded that nothing can endanger or hurt it by destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end to our constitution. The legislature would be changed from that, which was originally set up by the general consent and fundamental act of the society. And such a change, however effected, is according to Mr. Locke, who perhaps carries his theory too far, at once an entire dissolution of the bands of government, and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power. Having thus cursory considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proceed to observe that as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any states resides, it is the right of that authority to make laws, that is, in the words of our definition, to prescribe the role of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body composed of a multitude of individuals, united for their safety 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 in as much as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot, by any natural union, be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union, by the consent of all persons to submit to their own private wills to the will of one man, or of one or more assemblies of man, to whom the supreme authority is entrusted. And this will of that one man, or assemblage of man, is in different states according to their different constitutions understood to be law. Thus far, as to the right of the supreme power to make laws, but further, it is its duty likewise. For since the respective members are both bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will. But since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules for the perpetual information and direction of all persons in all points, whether of positive or negative duty. And this in order that every man may know what to look upon at his own, what as an others, what absolute and what relative duties are required at his hands, what is to be esteemed honest, dishonest or indifferent, what degree every man retains of his natural liberty, what he has given up as the price of the benefits of society, and after what manner each person is to moderate the use and exercise of those rights which the state assigns him in order to promote and secure the public tranquility. From what has been advanced, the truths of the former branch of our definition is, I trust, sufficiently evident, that municipal law is a role of civil conduct prescribed by the supreme power in a state. I proceed now to the latter branch of it, that it is a role so prescribed, commanding what is right and prohibiting what is wrong. Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and assertion by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a role of civil conduct, to enforce these rights and to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is set to assertion the boundaries of right and wrong, and the methods which it takes to command the one and prohibit the other. For this purpose every law may be set to consist of several parts. One, the claretory, whereby the rights to be observed and the wrongs to be astute are clearly defined and laid down. Another, directory, whereby the subject is instructed and enjoined to observe those rights and to abstain from the commission of those wrongs. A third, remedial, whereby a method is pointed out to recover a man's private rights or redress his private wrongs, to which may be added a fourth, usually termed the sanction or vindicatory branch of the law. Whereby it is signified that evil or penalty shall be incurred by such as commit any public wrongs and transgress or neglect their duty. With regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislature. This doctrine, which before was slightly touched deserves a more particular explication. Those rights than which God and nature have established and are therefore called natural rights, such as our life and liberty, need not the aid of human laws to be more effectually inverted in every man than they are. Neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, new human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a fourth feature. Neither do divine or natural duties, such as, for instance, the worship of God, the maintenance of children, and the like, receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors that are forbidden by the superior laws, and therefore, styled vala in sin, such as murder, theft, and perjury, which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature, in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precept, 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 intrinsically right or wrong. But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislature sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus, our own common law has declared that the goods of the wife do instantly upon marriage become the property and right of the husband, and our statute law has declared all monopolies a public offense. Yet, that right and this offense have no foundation in nature, but are merely created by the law for the purposes of civil society, and sometimes where the thing itself has its rise from the law of nature, the particular circumstance and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties, obedience to superiors is the doctrine of revealed as well as natural religion. But who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide in what cases the seizing of another's cattle shall amount to the crime of robbery, and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent. Thus much for the declaratory part of the municipal law, and the directory stands much upon the same footing. For this virtually includes the former, the declaration being usually collected from the direction. The law that says thou shalt not steal implies a declaration that stealing is a crime. And we have seen that, in things naturally indifferent, the very essence of right and wrong depend upon the direction of the laws to do or to admit it. The remedial part of a law is so necessary a consequence of the former to, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said that the field or inheritance which belonged to Tithius's father is vested by his death in Tithius, and the directory part has forbidden anyone to enter on another's property without the leave of the owner. If guy use after this will presume to take possession of the land, the remedial part of the law will then interpose its office, will make guy use, restore the possession to Tithius, and also pay him damages for the invasion. With regard to the sanction of laws or the evil that may attend the breach of public duties, it is observed that human legislators have for the most part chosen to make the sanction of their laws rather vindictory than renumeratory, or to consist rather in punishments than in actual particular rewards. Because in the first part, the quiet enjoyment and protection for all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it was impossible for any state to furnish stock enough for superfuse a bounty. And further, because the dread of evil is a much more forcible principle of human actions than the prospect of good. For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws which enforce and enjoin our duty do seldom, if ever, propose any privilege or gift to such as obey the law. But, do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the law in execution. Of all the parts of a law, the most effectual is the vindictory. For it is but lost labor to say, do this or avoid that, unless we also declare, this shall be the consequence of your non-compliance. We must therefore observe that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws. And of section 6. Section 7. Part 3 of section 2 of the introduction of the commentaries on the laws of England, Book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit librivox.org. Recording by J. C. Guan. Commentaries on the laws of England by William Blackston, Book 1. Introduction. Section 2. Part 3. Legislators and their laws are said to compel and oblige. Not that by any natural violence, they so constrain a man as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation. But because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law. Since, by reason of impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty. For rewards, in their nature, can only persuade and allure. Nothing is compulsory but punishment. It is held it is true, and very justly, by the principle of our ethical writers, that human laws are binding upon man's consciences. But if that were the only or most forcible obligation, the good only would regard the law, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, I apprehend, as to rights, and that, when the law has determined the field to belong to chitchous, it is matter of conscience no longer to withhold or to invade it. So also, in regard to natural duties, and such offenses, as our malines say, here we are bound in conscience because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in revelation to those laws which enjoin only positive duties and forbid only such things, as are not malines say, but malaprohibita, merely annexing a penalty to non-compliance, here I apprehend conscience is no further concerned. Then by directing a submission to the penalty, in case of our breach of those laws, for otherwise, the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing, if every such law were a snare for the conscience of the subject. But in these cases, the alternative is offered to every man, either abstain from this, or submit to such a penalty, and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hair. Now this prohibitory law does not make the transgression a moral offense, the only obligation in conscience is to submit to the penalty if levied. I have now gone through the definition laid down of a municipal law, and have shown it that it is a rule of conduct prescribed by the Supreme Power in a state commanding what is right and prohibiting what is wrong, in the explication of which I have endeavored to interweave a few useful principles concerning the nature of civil government and the obligation of human laws. Before I conclude this section, it may not be amiss to add a few observations concerning the interpretation of laws. When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes is not only endless, but a force great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws, though they ought to be carefully distinguished by every rational civilian from those general constitutions which had only the nature of things for their guide. The emperor Macrinius and his historian Capitolinus informs us had once resolved to abolish these rescripts and retain only the general edicts. He could not bear that the hasty and crude answers of such princes as Commodus and Caracala should be reverenced as laws. But Justinian thought otherwise, and he has preserved them all. In like manner the canon laws, or the Cretolus pistols of the popes, are all of them rescripts in their strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals. The fairest and most rational method to interpret the will of the legislature is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all. One, words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use. Thus, the law mentioned by Pufendorf, which forbade a layman to lay hands on a priest, was a judge to extend to him who had hurt a priest with a weapon. Again, terms of art or technical terms must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement where the crown of England is limited to the prince of Sophia and the heirs of her body, being protestants, it becomes necessary to call in the assistance of lawyers to ascertain the precise idea of the words heirs of her body, which in a legal sense comprise only certain of her linear descendants. Lastly, where words are clearly repugnant in two laws, the latter shall take place of the elder. Legues posteriores contrarias abrogant is a maxim of universal law, as well as our own constitutions. And accordingly, it was laid down by a law of the twelve tables at Rome. Quod populus postremum usit id usratum esto. Two, if words happen to be still dubious, we may establish their meaning from the context, with which it may be of singular use to compare a word or a sentence whenever they are ambiguous, equivocal, or intricate. Thus, the pruim, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws that are made by the same legislator and have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is. And when the common law censures the monocle contracts, it affords great light to the subject to consider what the canon law has a judge to be so many. Three, as to the subject matter, words are always to be understood as having a regard there too, for that it's always supposed to be in the eye of the legislator, and all has expressions directed to that end. Thus, when the law of our Edward III forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual. But when we consider that the statute was made to repress the usurpations of the Papal Sea, and that denominations to vacant benefits by the Pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only. Four, as to the effects and consequences, the rule is, where words bear either none or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore, the Bolognian law mentioned by Perfendorf, which enacted that whosoever drew blood in the streets should be punished with the utmost severity, was held long after debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit. Five, but lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the rhetorical treaties inscribed to Heranias. There was a law that those who had in a storm forsook the ship should forfeit all property therein, and the ship and lending should belong entirely to those who stayed in it. In a dangerous tempest, all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance, the ship came safe to port. The sick man kept possession and claimed the benefit of the law. Now here, all the learned agree that the sick man is not within the reason of the law. For the reason of making it was to give encouragement to such a short venture their lives to save the vessel. But this is a merit which he could never pretend to, who neither stayed in the ship upon that account nor contributed anything to its preservation. From this method of interpreting laws by reason of them arises what we call equity, which is thus defined by grosses. The correction of that were in the law by reason of its universality is deficient. For since in laws all cases cannot be foreseen or expressed, it is necessary that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of accepting those circumstances which, had they been foreseen, the legislature himself would have accepted. And these are the cases which, as grosses expresses it, lacks non-exact to define it, said Arbitrio Boni viri permittit. Equity, thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law, which would make every judge a legislator, and introduce most indefinite confusion, as there would then be almost as many different rules of action laid down in our courts as there are differences of capacity and sentiment in the human mind. And of Section 7. Section 8. Part 1 of Section 3 of the introduction of the commentaries on the laws of England, Book 1. This is a LibriVox recording. Oh, LibriVox recordings are in the public domain. For more information or to volunteer, please visit librivox.org. Recording by J.C. Guan. Commentaries on the laws of England by William Blackston. Book 1. Introduction. Section 3. Part 1. Section III of the laws of England. The municipal law of England, or the rule of civil conduct, prescribed to the inhabitants of this kingdom, may, with sufficient propriety, be divided into two kinds. The likes non-scripta, the unwritten, or common law, and the likes scripta, the written, or statute law. The likes non-scripta, or unwritten law, includes not only general customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom. And likewise, those particular laws that are by custom observed only in certain courts and jurisdictions. When I call these parts of our law legis non-scripte, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason that the nations among which they prevailed had but little idea of writing. Thus the British, as well as the Gallic Druids, committed all their laws as well as learning to memory. And it is said of the primitive Saxons here, as well as their brethren on the continent, that legis sola memoria e osu retinevant. But with us at present, the monuments and evidences of our illegal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession preserved and handed down to us from the time of highest antiquity. However, I therefore style these parts of our law legis non-scripte, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power and the force of laws by long and immemorial usage, and by the universal reception throughout the kingdom. In like manner, as Aulus Galeus defines the use non-scriptum to be that which is tacito et illiterato ominom consenzu imoribu expresum. Our ancient lawyers, and particularly Fortescue, insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down through the several mutations of government and inhabitants to the present time, unchanged and unadulterated. This may be the case as to some, but in general, as Mr. Seldon in his notes observes, this assertion must be understood with many grains of allowance, and asked only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another, though doubtless by the intermexture of advantageous nations, the Romans, the Picts, the Saxons, the Danes, and the Normans. They must have insensibly introduced and incorporated many of their own customs with those that were before established, thereby, in all probability, improving the texture and wisdom of the whole by the accumulated wisdom of diverse particular countries. Our laws, says Lord Bacon, are mixed as our language, and as our language is so much the richer, our laws are the more complete. And indeed our antiquarian and first historians do all positively assure us that our body of laws is of this compounded nature, for they tell us that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various that it founded expedient to compile his Domebook, or Liver Eudicealis, for the general use of the whole kingdom. This book is said to have been extant so late as the reign of King Edward IV, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. That much may at least be collected from that injunction to observe it, which we find in the laws of King Edward the Elder, the son of Alfred. Omnibus, cui Repubblicai, resunt, etiam atche, etiam mando, ut omnibus aikos, se praeban eudices, perinde, ac in euditiali libro, in parenthesis saxonise, som bec. Scriptum habitur, nec cui cam formident, cunius comune, in parenthesis saxonise, folcrirte, audacter libereke nicante. But the interruption and establishment of the Danes in England, which followed soon after, introduced new customs and caused this code of Alfred in many provinces to fall into disuse, or at least to be mixed and debased with other laws of a coarser alloy. So that, about in the beginning of the eleventh century, there were three principal systems of laws prevailing in different districts. One, the Mercent Lager, or Mercent Laws, which were observed in many of the Midland countries, and those bordering on the Principality of Wales, the retreat of ancient Britons, and therefore very probably intermixed with the British or dridical customs. Two, the West Saxon Lager, or Laws of the West Saxons, which obtained in the countries to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above mentioned, being the municipal law of the far most considerable part of his dominions, and particularly, including Berkshire, the seat of his peculiar residence. Three, the Dane Lage, or Danish Law, the very name of which speak its original composition. This was principally maintained in the rest of the Midland countries, and also on the eastern coast, the seat of that prioritical people. As for the very northern provinces, they were at that time under a distinct government. Out of these three laws, Roger Hoveden and Renolfus Cestrances inform us, King Edward the Confessor, extracted one uniform law, or digest of laws, to be observed throughout the whole kingdom. Though Hoveden and the author of an old manuscript chronicle assure us likewise that this work was projected and begun by his grandfather King Edgar, and indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, formed from an assemblage of little provinces governed by peculiar customs. As in Portugal, under King Edward, about the beginning of the fifteenth century. In Spain, under Alonso Tent, who about the year 1250 executed the plan of his fathers and Ferdinand, and collected all the provincial customs into one uniform law in the celebrated code entitled Las Partidas. And in Sweden, about the same area, a uniform law was compiled out of the particular customs established by the Lachman of every province, and entitled the lands Lach being analogous to the common law of England. Both these undertakings of King Edgar and Edward the Confessor seem to have been more more than a new addition, or fresh promulgation, of Alfred's Code of Donbuck, with his such additions and improvements as the experience of a century and a half had suggested. For Alfred is generally styled by the same historians the Legum Anglicanarum Conditor, as Edward the Confessor is the restitutor. These, however, are the laws which our histories so often mention under the name of the laws of Edward the Confessor, which our ancestors struggled so hardly to maintain under the first princes of the Norman line, and which subsequent princes so frequently promised to keep and to restore, as the most popular act they could do when pressed by foreign emergencies or domestic discontents. These are the laws that so vigorously withstood the repeated attacks of the civil law, which established in the twelfth century a new Roman Empire over most of the states on the continent, states that have lost, and perhaps upon that account, their political liberties, while the free constitution of England, perhaps upon the same account, has been rather improved than debased. These in short are the laws which gave rise and original to that collection of maxims and customs, which is now known by the name of the common law. A name either given to it in contradiction to other laws as the statute law, the civil law, the law merchant, and the like, or more probably, as a law common to all the realm, the use commune, or volkrecht, mentioned by King Edward the Elder, after the abolition of the several provincial customs and particular laws before mentioned. But though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs so collected are of higher antiquity than memory or history can reach, nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Once it is that in our law the goodness of a custom depends upon it having been used time out of mind, or in the solvency of our legal phrase, the time whereof the memory of man raneth nor to the country. This it is that gives it its weight and authority, and of this nature are the maxims and customs which compose the common law, or like nonscripta, of this kingdom. This unwritten, or common law, is properly distinguishable into three kinds. One, general customs, which are the universal rule of the whole kingdom and form the common law in its stricter and more usual signification. Two, particular customs, which for the most part affects only the inhabitants of particular districts. Three, certain particular laws which by custom are adopted and used by some particular courts, or pretty general and extensive jurisdiction. One, as to general customs, or the common law properly so called, this is that law by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance, the manner and form of acquiring and transferring property, the solenties and obligation of contracts, the roles of expounding wills, deeds, and arcs of parliament, the respective remedies of civil injuries, the several species of temporal offenses, with the manner and degree of punishment, and an infinite number of minute particulars, which diffuse themselves as extensively as the original distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common place, and the ex-checker, that the eldest son alone is heir to his ancestor, that property may be acquired and transferred by writing, that a deed is of no validity unless sealed, that wills shall be construed more favorably and deeds more strictly, that money lent upon bond is recoverable by action of debt, that breaking the public peace is an offense, and punishable by fine and imprisonment. All these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law for their support. Some have divided the common law into two principal grounds or foundations. One, established customs, such as that where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest, and two, established rules and maxims, as that the king can do no wrong, that no man shall be bound to accuse himself and the like. But I take these to be one and the same thing. For the authority of these maxims rest entirely upon general reception and usage, and the only method of proving that this or that maxim is a role of the common law is by showing that it has been always the custom to observe it. But here a very natural and very material question arises. How are these customs or maxims to be known, and by whom is there validity to be determined? The answer is, by the judges in the several courts of justice. They are the depository of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study, from the Vigintianorum lucubrationis, which Fortescu mentions and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law. The judgment itself and all the proceedings previous thereto are carefully registered and preserved under the name of records in public repositories set apart for that particular purpose. And to them frequent recourse is had when any critical question arises in the determination of which former precedents may give light or assistance. And therefore, even so early as the conquest, we find the praiteritorum memoria eventorum reckoned up as one of the chief qualifications of those who were held to be Legibus Patriae Optime Instituti. For it is an established world to abide by former precedents, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waiver with every new judge's opinion, as also because the law in that case being solely declared and determined, what before was uncertain and perhaps indifferent, is now become a permanent role, which is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments. He being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land, not delegated to pronounce a new law, but to maintain and expound the old one. Yet, this role emits of exception, where the former determination is most evidently contrary to reason, much more if it be contrary to the divine law. But even in such cases, the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared not that such a sentence was a bad law, but it was not law, that is, that it is not de-established custom of the realm as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law, that they tell us that the law is the perfection of reason, that it always intends to conform there too, and that what is not reason is not law, not that the particular reason of every role in the law can at this distance of time be always precisely assigned, but it is sufficient that there be nothing in the role flatly contradictory to reason, and then the law will presume it to be well founded. And it has been an ancient observation in the laws of England that whenever extending role of law, of which the reason perhaps could not be remembered or discerned, has been wantonly broke in upon by statutes or new resolutions. The wisdom of the new role has in the end appeared from the inconveniences that have followed the innovation. The doctrine of the law then is this, that presidents and roles must be followed unless flatly observed or unjust. For though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration. To illustrate this doctrine by examples, it has been determined, time out of mind, that the brother of the half blood, i.e., where they have only one parent in the same and the other different, shall never succeed as heir to the estate of his half brother, but it shall rather as cheat to the king or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions and therefore can never be departed from by any modern judge without a breach of his oath and the law, for herein is nothing repugnant to natural justice. Though the reason of it, drawn from the feudal law, may not be quite obvious to everybody and therefore on account of a supposed hardship upon the half brother, a modern judge might wish it had been otherwise settled. 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 cease any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was not law, so that the law and the opinion of the judge are not always convertible terms or one and the same thing, since sometimes may happen that the judge may mistake the law. Upon the whole, however, we may take it as a general rule that the decisions of courts of justice are the evidence of what is common law in the same manner as in the civil law what the emperor had once determined was to serve for a guide for the future. The decisions therefore of courts are held in the highest regard and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnished the lawyer's library. These reports are histories of the several cases with a short summary of the proceedings which are preserved at large in the record, their arguments on both sides, and the reasons the courts gave for their judgment, taken down in short notes by persons present at the determination. And these serve as indexes too, and also to explain the records, which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of King Edward II inclusive, and from this time to that of Henry VIII were taken by the personitaries or chief scribes of the court at the expense of the crown and published annually once they are known under the denomination of the yearbooks. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day. For, though King James I, at the instance of Lord Bacon, appointed two reporters with a handsome stipend for this purpose, yet that wise institution was soon neglected, and from the reign of Henry VIII to the present time this task has been executed by many private and contemporary hands, who sometimes, through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect, perhaps contradictory, accounts of one and the same determination. Some of the most valuable of the ancient reports are those published by Lord Chief Justice Cook, a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However, his writings are so highly esteemed that they are generally cited without the author's name. Beside these reporters, there are also other authors to whom great veneration and respect is paid by the students of the common law. Such are Glanville and Bracton, Britain, and Fletta, Littleton, and Fitzherbert, with some others of ancient date, whose treatises are cited as authority, and are evidence that cases have formally happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the same learned judge we have just mentioned, Sir Edward Cook, who had written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by Judge Littleton in the reign of Edward IV. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and yearbooks, but greatly defective in methods. The second volume is a comment upon many old acts of Parliament without any systematical order. The third, a more methodical treatise of the pleas of the Crown, and the fourth, an account of the several spaces of courts, and thus much for the first Crown and Chief Cornerstone of the Laws of England, which is, generally memorial custom, or common law, from time to time declared in the decisions of the courts of justice, which decisions are preserved among our public records, explained in our reports and digested for general use in the authoritative writing of the veritable sages of the law. And of Section 8, Section 9, Part 2 of Section 3 of the introduction of the Commentaries on the Laws of England, Book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit livrivox.org. Recording by J. C. Guan. Commentaries on the Laws of England by William B. Plexton, Book 1. Introduction, Section 3, Part 2. The Roman Law, as practiced in the times of its liberty, it also a great regard to custom, but not so much as our law, it only then adopting it when the written law is deficient, though the reasons alleged in the digest will fully justify our practice in making it of equal authority with when it is not contradicted by the written law. For since, says Julianus, the written laws binds us for no other reason but because it is approved by the judgment of the people. Therefore, those laws which the people has approved without writing ought also to bind everybody. For where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly? Thus they reason, while Rome had some remains of her freedom. But when the imperial tyranny came to be fully established, the civil laws speak a very different language. Quod principi placuit legis havet vigorem, qu'un populei et inoim omnesum imperium e potestatem conferat, ses upien. Imperator solus econditor et interpres legis existimatur, ses decode. And again, sacri legi in star es rescripto principis obviare. And indeed, it is one of the characteristic marks of English liberty that our common law depends upon custom, which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people. Two. The second branch of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts. These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by King Alfred, and afterwards by King Edgar and Edward the Confessor, each district mutually sacrificing some of its own special urges in order that the whole kingdom might enjoy the benefits of one uniform and universal system of laws. But for reasons that have been now long forgotten, particular countries, cities, towns, manners, and lordships were very early indulged with the privilege of abiding by their own customs, in contradiction to the rest of the nation at large, which privilege is confirmed to them by several acts of parliament. Such is the custom of gavel kind in Kent and some other parts of the kingdom, though perhaps it was also general till the Norman conquest, which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike, and that, though the ancestor be attained and hanged, yet the heir shall succeed to his estate, without any astute to the lord. Such is the custom that prevails in the verse ancient boroughs, and therefore, called borough English, that the youngest son shall inherit the estate, in preference to all his elder brothers. Such is the custom in other boroughs that a widow shall be entitled for her dowry to all her husband's lands, whereas at the common law she shall be endowed for one third part only. Such also are the special and particular customs of manners of which everyone has more or less, and which binds all the copy, hold tenants that hold of the said manners. Such likewise is the custom of holding the verse inferior courts with power of trying causes in cities and trading towns, the right of holding which, when no royal grant can be shown, depends entirely upon immemorial and established usage. Such lastly are many particular customs 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 special custom, though those of London are also confirmed by act of parliament. To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants or lexmercatoria, which however different from the common law, is allowed for the benefit of trade to be of the utmost validity in all commercial transactions, the maximum of law being that quillibetch in sua arte credendum est. The rules relating to that particular custom regard either the proof of their existence, their legality when proved, or their usual method of allowance, and first we will consider the rules of proof. As to gavel kind and borough English, the law takes particular notice of them, and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject to their too. All other private customs must be particularly pleaded, and as well the existence of such customs must be shown, as that the thing in dispute is within the custom alleged. The trial in both cases, both to show the existence of the custom as, quote, that in the manner of dill, lands shall descend only to the heirs male and never to the heirs female, end quote, and also to show that the lands in question are within that manner, is by a jury of twelve men, and not by judges, except the same particular custom has been before tried, determined, and recorded in the same court. The customs of London differ from all others in point of trial, for if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the Lord Mayor and alderman by the mouths of their recorder, unless it be such a custom, as the corporation is itself interested in, as a right of taking a toll, etcetera, for then the law permits them not to certify on their own behalf. When a custom is actually proved to exist, the next inquiry is into the legality of it, for if it is not a good custom, it ought to be no longer used. Malus usus abolendus est is an established maxim of the law. To make a particular custom good, the following are necessary requisites. One, that it have been used so long, and that the memory of man runneth not to the contrary, so that if any one can show the beginning of it, it is no good custom, for which reason no custom can prevail against an express act of parliament, since the statute itself is a proof of a time when such a custom did not exist. Two, it must have been continued. Any interruption would cause a temporary seizing. The revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to any interruption of the right. For an interruption of the possession only, for ten or twenty years, will not destroy the custom. As if I have a right of way by custom over another's field, the custom is not destroyed, though I do not pass over it for ten years. It only becomes more difficult to prove. But if the right be anyhow discontinued for a day, the custom is quite at an end. Three, it must have been peaceable and acquiescent, no subject to contention and dispute. For as customs owe their original to common consent, their being immemororally disputed, either at law or otherwise, is a proof that such consent was wanting. Four, customs must be reasonable, or rather, taken negatively, they must not be unreasonable, which is not always as Sir Edward Cook's says to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law, upon which account a custom may be good, though the particular reason of it cannot be assigned. For it suffices if no good legal reason can be assigned against it. Thus a custom in a parish that no man shall put his beast into the common till the third of October would be good, and yet it would be hard to show the reason why that day in particular is fixed upon, rather than the day before or after. But a custom that no cattle shall be put in till the Lord of the manor has first put in his is unreasonable, and therefore bad. For pre-adventure the Lord will never put in his, and then the tenants will lose all their profits. Five, customs ought to be certain. A custom that lands shall descend to the most worthy of the owner's blood is void, for how shall this worth be determined? But a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good. A custom to pay two pence an acre in lieu of tides is good, but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for its uncertainty. Yet a custom to pay a year's improved value for a fine on a copy-hold estate is good, though the value is a thing uncertain. For the value may at any time be a certain, and the maximum of law is. It's certain est, quote certain ready protest. Six, customs, though established by consent, must be, when established, compulsory, and not left to the option of every man, whether he will use them or not. Therefore a custom that all the inhabitants shall be rated toward the maintenance of a bridge will be good. But a custom that every man is to contribute thereto at his own pleasure is idle and absurd, and indeed no custom at all. Seven, lastly, customs must be consistent with each other. One custom cannot be set up in opposition to another, for if both are really customs, they both are of equal antiquity, and both established by mutual consent, which to say of contradictory customs is absurd. Therefore if one man prescribes that by custom he has a right to have windows looking into another's garden, the other cannot claim a right by custom to stop up or obstruct those windows. For these two contradictory customs cannot both be good nor both stand together. He ought rather to deny the existence of the former custom. Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly. Thus, by the custom of gavel kind, an infant of fifteen years may be one species of convenience, called a deed of filthment, convey away his land in fee-simple, or for ever. Yet this custom does not empower him to use any other convenience, or even to lease them for seven years. For the custom must be strictly pursued. And, moreover, all special customs must submit to the king's prerogative. Therefore, if the king purchases land of the nature of gavel kind, where all the sons inherit equally, yet, upon the king's demise, his eldest son shall succeed to those lands alone. And thus much for the second part of the legis non scripte, or those particular customs which affect particular persons or districts only. Three. The third branch of them are those particular laws which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these, I understand the civil and canon laws. It may seem a little improper at first view to rank these laws under the head of legis non scripte, or unwritten laws, seeing they are set forth by authority in their pandex, their codes, and their institutions, their councils, the queues, and the crittles, and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But I do this after the example of Sir Matthew Hale, because it is most plain that it is not on account of there 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 intrinsic authority, which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors, were digested by Justinian, or declared to be authentic by Gregory. These considerations gave them no authority here, for the legislature of England does not, nor ever did, recognize any foreign power as superior or equal to it in this kingdom, or as having the right to give law to any, the meanest of its subject. But all the strength that either the papal or imperial laws have obtained in this realm or indeed in any other kingdom in Europe is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts, and then they form a branch of the legis non scripte, or customary law, or else because they are in some other cases introduced by consent of parliament, and then they owe their validity to the legis scripte, or statute law. This is expressly declared in those remarkable words of the statute 25 Henry VIII, chapter 21, addressed to the king's royal majesty, quote, this your grace's realm recognizing no superior under God, but only your grace, has been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained within this realm for the wealth of the same, or to such other as by sufferance of your grace and your progenitors, the people of this your realm have taken at their free laboratory by their own consent to be used among them, and have bound themself by long use and custom to the observance of the same, not as to the observance of the laws of any foreign prince, patented, or prelate, but as to the customs and ancient laws of this realm, originally established as laws of the same by the said sufferance, consents, and customs, and non otherwise, end quote. By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman Empire, as comprised in the institutes, the codes, and the digest of the emperor Justinian, and the novel constitutions of himself, and some of his successors, of which, as there will frequently be occasions to cite them by way of illustrating our own laws, it may not be amiss to give a short and general account. The Roman law founded first upon the regal constitutions of their ancient kings, next upon the twelve tables of the disemvili, then upon the laws or statutes enacted by the senate or people, the edicts of the preter, and the responsa prudentum, or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors, has grown to sow great a bulk, or as Livia expresses it, quote, tam imenzus aliarum super alias asarvatarum legum cumulus, end quote, that they were computed to be many Campbell's load by an author who preceded Justinian. This was in part remedied by the collection of three private lawyers, Gregorius, Hermogenius, and Papyrus, and then by the emperor Teodosius the Younger, by whose orders a code was compiled, A.D. 438, being a methodical collection of all the imperial constitutions then enforced, which Teodosian code was the only book of civil law received as authentic in the western part of Europe till many centuries after, and to this it is probable that the Franks and Goths might frequently pay some regard in framing legal constitutions for the newly erected kingdoms. For Justinian commanded only in the eastern remains of the empire, and it was under his auspices that the present body of civil law was complied and finished by Trebonian and other lawyers about the year 533. This consists of, one, the institutes, which contain the elements or first principles of the Roman law in four books. Two, the digests, or pandex, in fifty books, containing the opinions and writings of eminent lawyers, digested in a systematical method. Three, a new code or collection of imperial constitutions, the lapse of a whole century having rendered the former code of Teodosius imperfect. Four, the novels, or constitutions, posterior in time to the other books, and amounting to a supplement to the other code, containing new decrees of successive emperors, as new questions happened to arise. These formed the body of Roman law, or Corpus Euris civilis, as published about the time of Justinian. Which, however, fell soon into neglect and oblivion till about the year 1130, when a copy of the digests was found at Amalfi in Italy. Which accident, concurring with the policy of Romish ecclesiastics, suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments with which this system of law, more than any other, is now loaded.