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or penalty shall be incurred by such as commit any public wrongs and transgress or neglect their duty.
41. What is the most effectual part of a law ?—55.
The vindicatory part : The main strength and force of a law consist in the penalty annexed to it.
42. Wherein consists the difference between those things which are mala in se, and those which are mala prohibita ?—54–58.
Crimes and misdemeanors, as murder, theft and perjury, forbidden by the superior laws, are styled mala in se. But with regard to things in themselves indifferent, they become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of society, and more effectually carrying on the purposes of civil life.
43. What municipal laws bind the conscience ?—57, 58.
Human laws, as to rights, are binding upon men’s consciences. So, also, in regard to natural duties and such offences as are mala in se : 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 relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance, here conscience is no further concerned than by directing a submission to the penalty, in case of avowed breach of those laws.
44. Horo is the intention of the legislator to be gathered ?—59.
The fairest and most natural method to interpret his will, is by exploring his intentions from the words, the context, the subject matter, the effects and consequences of the law, or the spirit and reason of them all.
45. In relation to the interpretation of laws, how are words generally to be understood, and how are terms of art or technical terms to be taken ?-59.
Words are, generally, to be understood in their nsual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf; which forbade a layman to lay hands on a priest, was adjudged to extend to him who hurt a priest with a weapon. Again, terms of art, or technical terms, must be taken according to the acceptation of the learned in art, trade, and science. So in the act of settlement, where the crown of England is limited “ to the princess Sophia, and the heirs of her body, being 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 lineal descendants.
46. As to the subject matter, how are words always to be under. stood ?–60.
As to the subject-matter, words are always to be understood as having regard thereto, for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end.
47. What is the rule, as to the effects and consequences ?–60.
As to effects and consequences, the rule is, that when 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 Puffendorf, which enacted," that whoever drew blood in the street should be punished with the utmost severity," was held, after a long debate, not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit.
48. What is the most universal and effectual way of discovering the true meaning of law, when words are dubious ?–61.
By considering the reason and spirit of it, or the causes which moved the legislature to enact it. For when the reason ceases, the law itself ought to cease. An instance of this is given by Cicero, or whoever wrote the treatise inscribed to Herennius. There was a law, that those who in a storm forsook the ship, should forfeit all property therein ; and that the ship and lading should belong entirely to those who staid 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 agreed, that the sick man is not within the reason of the law, for the reason of making it was to give en couragement to such as should venture their lives to save the vessel ; but this is a merit which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to its preservation.
From this method of interpreting the laws, by the reason of them, arises what is called equity.
49. How is equity defined by Grotius ?–61.
He says it is “ the correction of that wherein the law (by reason of its universality) is deficient.”
50. Why is a court of equity necessary ?--61.
Because it is necessary that when the general decrees of the law come to be applied to particular cases, there should be vested somewhere a power of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed.
51. Upon what does equity essentially depend ?–62.
Upon the particular circumstances of each case. Hence 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.
52. Should or should not all cases be considered in an equitable light?–62.
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.
OF THE LAWS OF ENGLAND.
1. Hou may the municipal law of England be divided ?–63.
Into two kinds; the lex non seripta, the unwritten or com mon law—and the lex scripta, the written or statute law.
2. What does the first kind include ?–63.
The lex 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. 3. Where is it to be found ?–63, 64.
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 tho times of highest antiquity. 4. From whence is its binding power 1-64.
The leges non scriptce receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.
5. Of what degree of antiquity must customs be to entitle them to weight and authority 2-67.
They must have been used time out of mind; or in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary.
6. Into what three kinds is the unwritten or common law distinguishable ?–67.
1st. General customs, or the common law properly so called; which are the universal rule of the whole kingdom, and form the comnion law, in its stricter and more usual signification.
2d. Particular customs ; which for the most part affect only the inhabitants of particular districts.
3d. Certain particular laws; which by custom are adopted and used by some particular courts of pretty general and extensive jurisdiction.
7. How are maxims and customs of the common law to be known, and horo is their validity to be determined ?–69.
By the judges in the several courts of justice. They are the depositaries 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.
8. What is the doctrine of the law as to following precedents ?—70.
They must be followed, unless flatly absurd or unjust; for though the reason be not obvious at first view, yet we owe such a deference to former times, as not to suppose that they acted wholly without consideration.
9. Does this rule admit of exception ?–69, 70
Yes ; where the former determination is most evidently contrary to reason ; much more, if it be clearly contrary to the divine law.
10. What do the rules relating to particular customs regard ?—75.
Either the proof of their existence, their legality, when proved, or their usual method of allowance.
11. Wherein do the customs of London differ from all others, as to the mode of trial ?–76.
If the existence of a custom be brought in question, it shall not be tried by a jury, but by a certificate from the lord mayor and aldermen by the mouth of their recorder; unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c., for the law permits them not to certify on their own behalf.
12. What are the seven necessary requisites to make a particular custom good ?–77, 78.
1st. That it hath been used so long that the memory of man runneth not to the contrary.
2d. It must have been continued. Any interruption would cause a temporary ceasing ; the revival would give it a new be