Introduction
Section 1. On the Study of Law
Section 2. Of the Nature of Laws in General
Section 3. Of the Laws of England
Section 4. Of the Countries Subject to the Laws of England
Book One: The Rights of Persons
Chapter 1: Of the Absolute Rights of Individuals
Chapter 2: Of the Parliament
Chapter 3: Of the King and his Title
Chapter 4: Of the King's Royal Family
Chapter 5: Of the Councils Belonging to the King
Chapter 6: Of the King's Duties
Chapter 7: Of the King's Prerogative
Chapter 8: Of the King's Revenue
Chapter 9: Of Subordinate Magistrates
Chapter 10: Of People, Whether Aliens, Denizens or Natives
Chapter 11: Of the Clergy
Chapter 12: Of the Civil State
Chapter 13: Of the Military and Maritime States
Chapter 14: Of Master and Servant
Chapter 15: Of Husband and Wife
Chapter 16: Of Parent and Child
Chapter 17: Of Guardian and Ward
Chapter 18: Of Corporations
Book Two: The Rights of Things
Chapter 1: Of Property in General
Chapter 2: Of Real Propety and, First, of Corporeal Hereditaments
Chapter 3: Incorporeal Hereditaments
Chapter 4: Of the Feodal System
Chapter 5: Of the Antient English Tenures
Chapter 6: Of the Modern English Tenures
Chapter 7: Of Freehold States, Of Inheritance
Chapter 8: Of Freeholds, not Of Inheritance
Chapter 9: Of Estates Less Than Freehold
Chapter 10: Of Estates Upon Condition
Chapter 11: Of Estates in Possession, Remainder, and Reversion
Chapter 12: Of Estates in Severalty, Joint-Tenancy, Coparcenary, and Common
Chapter 13: Of the Title to Things Real, in General
Chapter 14: Of Title
Chapter 15: Of Title by Purchase, and First by Escheat
Chapter 16: Of Title by Occupancy
Chapter 17: Of Title by Prescription
Chapter 18: Of Title by Forfeiture
Chapter 19: Of Title by Alienation
Chapter 20: Of Alienation by Deed
Chapter 21: Of Alienation by Matter of Record
Chapter 22: Of Alienation by Special Custom
Chapter 23: Of Alienation by Device
Chapter 24 Of Things Personal
Chapter 25: Of Property in Things Personal
Chapter 26: Of Title to Things Personal by Occupancy
Chapter 27: Of Title by Perogative, and Forfeiture
Chapter 28: Of Title by Custom
Chapter 29: Of Title by Succession, Marriage, and Judgment
Chapter 30: Of Title by Gift, Grant, and Contract
Chapter 31: Of Title by Bankruptcy
Chapter 32: Of Title by Testament, and Administration
Book Three: Of Private Wrongs
Chapter 1: Of the Redress of Private Wrongs by the Mere Act of Parties
Chapter 2: Of Redress by the Mere Operation of Law
Chapter 3: Of Courts in General
Chapter 4: Of the Public Courts of Common Law and Equity
Chapter 5: Of Courts Ecclesiastical, Military and Maritime
Chapter 6: Of Courts of a Special Jurisdiction
Chapter 7: Of the Cognizance of Private Wrongs
Chapter 8: Of Wrongs and Their Remedies, Respecting the Rights of Persons
Chapter 9: Of Injuries to Personal Property
Chapter 10: Of Injuries to Real Property, And First of Dispossession, Or Ouster of the Freehold
Chapter 11: Of Dispossession, Or Ouster, Of Chattels Real
Chapter 12: Of Trespass
Chapter 13: Of Nusance
Chapter 14: Of Waste
Chapter 15: Of Subtraction
Chapter 16: Of Disturbance
Chapter 17: Of Injuries Preeceding From, Or Affecting, The Crown
Chapter 18: Of the Pursuit of Remedies by Action; And, First, Of the Original Writ
Chapter 19: Of Process
Chapter 20: Of Pleading
Chapter 21: Of Issue and Demurrer
Chapter 22: Of the Several Species of Trial
Chapter 23: Of the Trial by Jury
Chapter 24: Of Judgments, And it's Incidents
Chapter 25: Of Proceedings, In the Nature of Appeals
Chapter 26: Of Execution
Chapter 27: Of Proceedings in the Courts of Equity
Book Four: Of Public Wrongs
Chapter 1: Of the Nature of Crimes, And Their Punishment
Chapter 2: Of the Persons Capable of Committing Crimes
Chapter 3: Of Principals and Accessories
Chapter 4: Of Offences Against God and Religion
Chapter 5: Of Offences Against the Law of Nations
Chapter 6: Of High Treason
Chapter 7: Of Felonies, Injurious to the King's Perogative
Chapter 8: Of Praemunire
Chapter 9: Of Misprisions and Contempts, Affecting the King and Government
Chapter 10 Of Offences Against Public Justice
Chapter 11: Of Offenses Against the Public Peace
Chapter 12: Of Offenses Against Public Trade
Chapter 13: Of Offenses Against the Public Health, and the Public Police or Economy
Chapter 14: Of Homicide
Chapter 15: Of Offences Against the Persons of Individuals
Chapter 16: Of Offenses Against the Habitations of Individuals
Chapter 17: Of Offenses Against Private Property
Chapter 18: Of the Means of Preventing Offences
Chapter 19: Of the Courts of Criminal Jurisdiction
Chapter 20: Of Summary Convictions
Chapter 21: Of Arrests
Chapter 22: Of Commitment and Bail
Chapter 23: Of the Several Modes of Prosecution
Chapter 24: Of Process Upon an Indictment
Chapter 25: Of Arraignment, And Its Incidents
Chapter 26: Of Plea, And Issue
Chapter 27: Of Trial, And Conviction
Chapter 28: Of the Benefit of Clergy
Chapter 29: Of Judgment, And its Consequences
Chapter 30: Of Reversal of Judgment
Chapter 31: Of Reprieve, And Pardon
Chapter 32: Of Execution
Chapter 33: Of the Rise, Progress, And Gradual Improvements, of the Laws of England
Friday, September 12, 2008
Thursday, September 11, 2008
Blackstone: Book One: Chapter One: Of the Absolute Rights of Individuals
BOOK THE FIRST.
OF THE RIGHTS OF PERSONS.
CHAPTER THE FIRST.
OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
THE objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.
NOW, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as Cicero, and after him our Bracton, has expressed it, sanctio justa, jubens honesta et prohibens contraria; it follows, that the primary and principal objects of the law are RIGHTS, and WRONGS. In the prosecution therefore of these commentaries, I shall follow this very simple and obvious division; and shall in the first place consider the rights that are commanded, and secondly the wrongs that are forbidden by the laws of England.
RIGHTS are however liable to another subdivision; being either, first, those which concern, and are annexed to the persons of men, and are then called jura personarum or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries, and secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors.
THE objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts:
1. The rights of persons; with the means whereby such rights may be either acquired or lost.
2. The rights of things; with the means also of acquiring and losing them.
3. Private wrongs, or civil injuries; with the means of redressing them by law.
4. Public wrongs, or crimes and misdemeanors; with the means of prevention and punishment.
WE are now, first, to consider the rights of persons; with the means of acquiring and losing them.
NOW the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.
PERSONS also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.
THE rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the stand of the present chapter.
BY the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behavior of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws: private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.
FOR the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connections, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.
THE absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up on one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the person, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. Thus the statute of king Edward IV, which forbade the fine gentlemen of those times (under the degree of a Lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savored of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II, which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr Locke has well observed) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the person entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.
THE idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of its owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest person. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the person in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very foil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti a freeman.
THE absolute rights of every Englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though stand at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigor of our free constitution has always delivered the nation from these embarassments, and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.
FIRST, by the great charter of liberties, which was obtained, sword in hand, from king John; and afterwards, with some alterations, confirmed in parliament by king Henry the third, his son. Which charter contained very few new grants ; but, as Sir Edward Coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum, whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it. Next by a multitude of subsequent corroborating statutes, (Sir Edward Coke, I think, reckons thirty two,) from the first Edward to Henry the Fourth. Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by King Charles the first in the beginning of his reign. Which was closely followed by the still more ample concessions made by that unhappy prince to his Parliament, before the fatal rupture between them; and by the many salutary laws, particularly the Habeas Corpus act, passed under Charles the Second. To these succeeded the Bill of Rights, or declaration delivered by the lords and commons to the prince and princess of Orange 13 February 1688; and afterwards enacted in Parliament, when they became king and queen: which declaration concludes in these remarkable words; “and they do claim, “demand, and insist upon all and singular the premises, as their “undoubted rights and liberties.” And the act of parliament itself recognizes “all and singular the rights and liberties asserted “and claimed in the said declaration to be the true, ancient, and “indubitable rights of the people of this kingdom.” Lastly, these liberties we again asserted at the commencement of the present century, in the Act of Settlement, whereby the crown is limited to his present majesty's illustrious house, and some new provisions were added at the same fortunate era for better securing our religion, laws, and liberties; which the statute declares to be “the birthright of the people of England,” according to the antient doctrine of the common law.
THUS much for the declaration of our rights and liberties. The rights themselves thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.
I. THE right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.
1. LIFE is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
AN infant in ventre statute mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born r. And in this point the civil law agrees with ours.
2. A MAN'S limbs, (by which for the present we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.
BOTH the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed defendendo, or in order to preserve them. For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, are totally void in law, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance. And the same is also a sufficient excuse for the commission of many misdemeanors, as will appear in the fourth book.
The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, so which we shall presently speak ; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; “non,” as Bracton expresses it, 'suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit “cadere in cirum constantem ; talis enim debet esse metus, qui in se “contineat vitae periculum, aut corporis cruciatum.” A fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burnt, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages: but no suitable atonement can be made for the loss of life, or limb. And the indulgence shown to a man under this, the principal, for of duress, he fear of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter redemptum voluit.
THE law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. A humane provision; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the emperor Constantine, commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our founding hospitals, though comprised in the Theodosian code, were rejected in Justinian's collection.
THESE rights, of life and member, can only be determined by the death of the person; which is either a civil or natural death. The civil death commences if any man be banished the realm by the process of the common law, or enters into religion ; that is, goes into a monastery, and becomes there a monk professed: in which cases he is absolutely dead in law, and his next heir shall have his estate. For, such banished man is entirely cut off from society; and such a monk, upon his profession, renounces solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life, and the commands of the temporal magistrate, the genius of the English law would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regulations. A monk is therefore accounted civiliter mortuus, and when he enters into religion may, like other dying men, make his testament and executors; or, if he makes none, the ordinary may grant administration to his next of kin, as if he were actually dead intestate. And such executors and administrators shall have the same power, and may bring the same actions for debts due to the religious, and are liable to the same actions for those due from him, as if he were naturally deceased. Nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due. In short, a monk or religious is so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards becomes a monk, determines by such his entry into religion : for which reason leases, and other conveyances, for life, are usually made to have and to hold for the term of one's natural life.
THIS natural life being, as was before observed, the immediate donation of the great creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently enquire in the concluding book of these commentaries. At present, I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the person, such constitution is in the highest degree tyrannical: and that whenever any laws direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the person is aware of the danger he is exposed to, and may by prudent caution provide against it. The statute law of England does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity: and the constitution is an utter stranger to any arbitrary power of killing or maiming the person without the express warrant of law. “Nullus liber homo, says the great charter, ali- “ quo modo destruatur, nisi per legale judicium parium suorum aut “per legem terrae.” Which words, “aliquo modo destruatur,” according to Sir Edward Coke, include a prohibition not only of killing, and maiming, but also of torturing (to which our laws are strangers) and of every oppression by color of an illegal authority. And it is enacted by the statute 5 Edw. III. c. 9. that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land : and again, by statute that no man shall be put to death, without being brought to answer by due process of law.
3. BESIDES those limbs and members that may be necessary to man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled by the same natural right to security from the corporal insults of menaces, assaults, beating, and wounding ; though such insults amount not to destruction of life or member.
4.THE preservation of a man's health from such practices as may prejudice or annoy it, and
5. THE security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come) it will suffice to have barely mentioned among the rights of persons; referring the more minute discussion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.
II. NEXT to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct ; without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article ; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great charter is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned or detained without cause shown, to which he may make answer according to law. By 16 Car. I. c. 10. if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by 31 Car. II. c. 2. commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no person of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. And, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner's appearance, it is declared by 1 W. & M. ft. 2. c. 2. that excessive bail ought not to be required.
OF great importance to the public is the preservation of this personal liberty: for if once it were lest in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown) there would soon be an end of all other rights and immunities. Some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the person. To bereave a man of life, of by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not lest to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing. As the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, “dent operam confu- “les, nequid respublica detrimenti capiat,” was called the senatus consultum ultimate necessitatis. In like manner this experiment ought only to be tried in case of extreme emergency; and in these the nation parts with its liberty for a while, in order to preserve it for ever.
THE confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment. And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, and either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison ; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, says Sir Edward Coke, like Festus the Roman governor ; that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.
A NATURAL and regular consequence of this personal liberty, is that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king indeed, by his royal prerogative, may issue out his writ ne exeat regnum, and prohibit any of his persons from going into foreign parts without licence. This may be necessary for the public service, and safeguard of the commonwealth. But no power on earth, except the authority of Parliament, can send any person of England out of the land against his will; no not even a criminal. For exile, or transportation, is a punishment unknown to the common law; and, wherever it is now inflicted, it is either by the choice of the criminal himself, to escape a capital punishment, or else by the express direction of some modern act of parliament. To this purpose the great charterdeclares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. II. c. 2. (that second magna carta, and stable bulwark of our liberties) it is enacted, that no person of this realm, who is an inhabitant of England, Wales, or Berwick , shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas; (where they cannot have the benefit and protection of the common law) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a praemunire, and be incapable of receiving the king's pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs ; besides his damages, which no jury shall assess at less than five hundred pounds.
THE law in is this respect so benignly and liberally construed for the benefit of the person, that, though within the realm the king may command the attendance and service, of all his liegemen, yet he cannot send any man out of the realm, even upon the public service: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador. For this might in reality be no more than an honorable exile.
III. THE third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes it is enacted, that no man's lands or goods shall be feifed into the king's hands, against the great charter, and the law of the land ; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and held for none.
SO great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. In this, and similar cases the legislature alone, can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the person of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.
NOR is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. For no person of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his represenatives in parliament. By the statute 25 Edw. I. c. 5 and 6, it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I. ft. 4. cap. 1. which enacts, that no talliage or aid shall be taken without assent of the arch-bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land: and again by 14 Edw. III. ft. 2. c. 1. the prelates, earls, barons, and commons, citizens, burgesses, and merchants shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. And as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right 3 Car. I, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 W. & M. ft. 2. c. 2. it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament; or for longer time, or in other manner, than the same is or shall be granted, is illegal.
IN the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the person, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,
1. THE constitution, powers, and privileges of parliament, of which I shall treat at large in the ensuing chapter.
2. THE limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. Of this also I shall treat in its proper place. The former of these keeps the legislative power in due health and vigor, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other.
3. A THIRD subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the person, and the law be duly administred therein. The emphatic words of magna carta, spoken in the person of the king, who in judgment of law (says Sir Edward Coke) is ever present and repeating them in all his courts, are these; “nulli “vendemus, nulli negabimus, aut differemus rectum vel justitiam: “and therefore every person,” continues the same learned author, “for injury done to him in bonis, in terries, vel persona, by “any other person, be he ecclesiastical or temporal without any “exception, may take his remedy by the course of the law, and “have justice and right for the injury done to him, freely with- “out fail, fully without any denial, and speedily without delay.” It were endless to enumerate all the affirmative acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every person knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall however just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by Magna Carta, that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By 2 Edw. III. c. 8. and 11 Ric. II. c. 10. it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right : and, though such commandments should come, the judges shall not cease to do right. And by 1 W. & M. ft. 2 : c. 2. it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority without consent of parliament, is illegal.
NOT only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament; for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself. The king, it is true, may erect new courts of justice; but then they must proceed according to the old established forms of the common law. For which reason it is declared in the statute 16 Car. I. c. 10. upon the dissolution of the court of Star Chamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by English bill, petition, articles, libel (which were the course of proceeding in the Star Chamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into question, determine or dispose of the lands or goods of any persons of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by course of law.
4. IF there should happen any uncommon injury, or infringement of the rights beforementioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. In Russia we are told that the czar Peter established a law, that no person might petition the throne, till he had first petitioned two different ministers of state. In case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death, if found to be in the wrong. The consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in England, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. Care only must be taken, lest, under the pretence of petitioning, the person be guilty of any riot or tumult; as happened in the opening of the memorable parliament in 1640: and, to prevent this, it is provided by the statute 13 Car. II. ft. 1. c. 5. that no petition to the king, or either house of parliament, for any alterations in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace or the major part of the grand jury, in the country; and in London by the lord mayor, aldermen, and common council ; nor shall any petition be presented by more than two persons at a time. But under these regulations, it is declared by the statute 1 W. & M. ft. 2. c. 2. that the person hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal.
5. THE fifth and last auxiliary right of the person, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
IN these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the person is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliaments be supported in its full vigor; and limits certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the persons of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defense. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens. So that this review of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom x; and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world, where political or civil liberty is the direct end of its constitution. Recommending therefore to the student in our laws a farther and more accurate speech into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country,
“ESTO PERPETUA !”
OF THE RIGHTS OF PERSONS.
CHAPTER THE FIRST.
OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
THE objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.
NOW, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as Cicero, and after him our Bracton, has expressed it, sanctio justa, jubens honesta et prohibens contraria; it follows, that the primary and principal objects of the law are RIGHTS, and WRONGS. In the prosecution therefore of these commentaries, I shall follow this very simple and obvious division; and shall in the first place consider the rights that are commanded, and secondly the wrongs that are forbidden by the laws of England.
RIGHTS are however liable to another subdivision; being either, first, those which concern, and are annexed to the persons of men, and are then called jura personarum or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries, and secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors.
THE objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts:
1. The rights of persons; with the means whereby such rights may be either acquired or lost.
2. The rights of things; with the means also of acquiring and losing them.
3. Private wrongs, or civil injuries; with the means of redressing them by law.
4. Public wrongs, or crimes and misdemeanors; with the means of prevention and punishment.
WE are now, first, to consider the rights of persons; with the means of acquiring and losing them.
NOW the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.
PERSONS also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.
THE rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the stand of the present chapter.
BY the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behavior of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws: private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.
FOR the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connections, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.
THE absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up on one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the person, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. Thus the statute of king Edward IV, which forbade the fine gentlemen of those times (under the degree of a Lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savored of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II, which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr Locke has well observed) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the person entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.
THE idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of its owner: the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest person. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the person in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very foil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo instanti a freeman.
THE absolute rights of every Englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though stand at times to fluctuate and change: their establishment (excellent as it is) being still human. At some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. But the vigor of our free constitution has always delivered the nation from these embarassments, and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.
FIRST, by the great charter of liberties, which was obtained, sword in hand, from king John; and afterwards, with some alterations, confirmed in parliament by king Henry the third, his son. Which charter contained very few new grants ; but, as Sir Edward Coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum, whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it. Next by a multitude of subsequent corroborating statutes, (Sir Edward Coke, I think, reckons thirty two,) from the first Edward to Henry the Fourth. Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by King Charles the first in the beginning of his reign. Which was closely followed by the still more ample concessions made by that unhappy prince to his Parliament, before the fatal rupture between them; and by the many salutary laws, particularly the Habeas Corpus act, passed under Charles the Second. To these succeeded the Bill of Rights, or declaration delivered by the lords and commons to the prince and princess of Orange 13 February 1688; and afterwards enacted in Parliament, when they became king and queen: which declaration concludes in these remarkable words; “and they do claim, “demand, and insist upon all and singular the premises, as their “undoubted rights and liberties.” And the act of parliament itself recognizes “all and singular the rights and liberties asserted “and claimed in the said declaration to be the true, ancient, and “indubitable rights of the people of this kingdom.” Lastly, these liberties we again asserted at the commencement of the present century, in the Act of Settlement, whereby the crown is limited to his present majesty's illustrious house, and some new provisions were added at the same fortunate era for better securing our religion, laws, and liberties; which the statute declares to be “the birthright of the people of England,” according to the antient doctrine of the common law.
THUS much for the declaration of our rights and liberties. The rights themselves thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.
I. THE right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.
1. LIFE is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, kills it in her womb; or if any one beat her, whereby the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
AN infant in ventre statute mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born r. And in this point the civil law agrees with ours.
2. A MAN'S limbs, (by which for the present we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.
BOTH the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed defendendo, or in order to preserve them. For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, are totally void in law, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance. And the same is also a sufficient excuse for the commission of many misdemeanors, as will appear in the fourth book.
The constraint a man is under in these circumstances is called in law duress, from the Latin durities, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, so which we shall presently speak ; and duress per minas, where the hardship is only threatened and impending, which is that we are now discoursing of. Duress per minas is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient reason; “non,” as Bracton expresses it, 'suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit “cadere in cirum constantem ; talis enim debet esse metus, qui in se “contineat vitae periculum, aut corporis cruciatum.” A fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burnt, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages: but no suitable atonement can be made for the loss of life, or limb. And the indulgence shown to a man under this, the principal, for of duress, he fear of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem suum qualiter redemptum voluit.
THE law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. A humane provision; yet, though dictated by the principles of society, discountenanced by the Roman laws. For the edicts of the emperor Constantine, commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our founding hospitals, though comprised in the Theodosian code, were rejected in Justinian's collection.
THESE rights, of life and member, can only be determined by the death of the person; which is either a civil or natural death. The civil death commences if any man be banished the realm by the process of the common law, or enters into religion ; that is, goes into a monastery, and becomes there a monk professed: in which cases he is absolutely dead in law, and his next heir shall have his estate. For, such banished man is entirely cut off from society; and such a monk, upon his profession, renounces solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life, and the commands of the temporal magistrate, the genius of the English law would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regulations. A monk is therefore accounted civiliter mortuus, and when he enters into religion may, like other dying men, make his testament and executors; or, if he makes none, the ordinary may grant administration to his next of kin, as if he were actually dead intestate. And such executors and administrators shall have the same power, and may bring the same actions for debts due to the religious, and are liable to the same actions for those due from him, as if he were naturally deceased. Nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due. In short, a monk or religious is so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards becomes a monk, determines by such his entry into religion : for which reason leases, and other conveyances, for life, are usually made to have and to hold for the term of one's natural life.
THIS natural life being, as was before observed, the immediate donation of the great creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently enquire in the concluding book of these commentaries. At present, I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the person, such constitution is in the highest degree tyrannical: and that whenever any laws direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the person is aware of the danger he is exposed to, and may by prudent caution provide against it. The statute law of England does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity: and the constitution is an utter stranger to any arbitrary power of killing or maiming the person without the express warrant of law. “Nullus liber homo, says the great charter, ali- “ quo modo destruatur, nisi per legale judicium parium suorum aut “per legem terrae.” Which words, “aliquo modo destruatur,” according to Sir Edward Coke, include a prohibition not only of killing, and maiming, but also of torturing (to which our laws are strangers) and of every oppression by color of an illegal authority. And it is enacted by the statute 5 Edw. III. c. 9. that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land : and again, by statute that no man shall be put to death, without being brought to answer by due process of law.
3. BESIDES those limbs and members that may be necessary to man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled by the same natural right to security from the corporal insults of menaces, assaults, beating, and wounding ; though such insults amount not to destruction of life or member.
4.THE preservation of a man's health from such practices as may prejudice or annoy it, and
5. THE security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come) it will suffice to have barely mentioned among the rights of persons; referring the more minute discussion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.
II. NEXT to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct ; without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article ; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great charter is, that no freeman shall be taken or imprisoned but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned or detained without cause shown, to which he may make answer according to law. By 16 Car. I. c. 10. if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by 31 Car. II. c. 2. commonly called the habeas corpus act, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no person of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. And, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner's appearance, it is declared by 1 W. & M. ft. 2. c. 2. that excessive bail ought not to be required.
OF great importance to the public is the preservation of this personal liberty: for if once it were lest in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown) there would soon be an end of all other rights and immunities. Some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the person. To bereave a man of life, of by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even this may be a necessary measure. But the happiness of our constitution is, that it is not lest to the executive power to determine when the danger of the state is so great, as to render this measure expedient. For the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing. As the senate of Rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, “dent operam confu- “les, nequid respublica detrimenti capiat,” was called the senatus consultum ultimate necessitatis. In like manner this experiment ought only to be tried in case of extreme emergency; and in these the nation parts with its liberty for a while, in order to preserve it for ever.
THE confinement of the person, in any wise, is an imprisonment. So that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment. And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But if a man be lawfully imprisoned, and either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it. To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison ; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, says Sir Edward Coke, like Festus the Roman governor ; that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.
A NATURAL and regular consequence of this personal liberty, is that every Englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. The king indeed, by his royal prerogative, may issue out his writ ne exeat regnum, and prohibit any of his persons from going into foreign parts without licence. This may be necessary for the public service, and safeguard of the commonwealth. But no power on earth, except the authority of Parliament, can send any person of England out of the land against his will; no not even a criminal. For exile, or transportation, is a punishment unknown to the common law; and, wherever it is now inflicted, it is either by the choice of the criminal himself, to escape a capital punishment, or else by the express direction of some modern act of parliament. To this purpose the great charterdeclares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. II. c. 2. (that second magna carta, and stable bulwark of our liberties) it is enacted, that no person of this realm, who is an inhabitant of England, Wales, or Berwick , shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas; (where they cannot have the benefit and protection of the common law) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a praemunire, and be incapable of receiving the king's pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs ; besides his damages, which no jury shall assess at less than five hundred pounds.
THE law in is this respect so benignly and liberally construed for the benefit of the person, that, though within the realm the king may command the attendance and service, of all his liegemen, yet he cannot send any man out of the realm, even upon the public service: he cannot even constitute a man lord deputy or lieutenant of Ireland against his will, nor make him a foreign ambassador. For this might in reality be no more than an honorable exile.
III. THE third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right. Upon this principle the great charter has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes it is enacted, that no man's lands or goods shall be feifed into the king's hands, against the great charter, and the law of the land ; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and held for none.
SO great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. In this, and similar cases the legislature alone, can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the person of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.
NOR is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. For no person of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his represenatives in parliament. By the statute 25 Edw. I. c. 5 and 6, it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. And what that common assent is, is more fully explained by 34 Edw. I. ft. 4. cap. 1. which enacts, that no talliage or aid shall be taken without assent of the arch-bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land: and again by 14 Edw. III. ft. 2. c. 1. the prelates, earls, barons, and commons, citizens, burgesses, and merchants shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. And as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right 3 Car. I, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 W. & M. ft. 2. c. 2. it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament; or for longer time, or in other manner, than the same is or shall be granted, is illegal.
IN the three preceding articles we have taken a short view of the principal absolute rights which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the person, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. These are,
1. THE constitution, powers, and privileges of parliament, of which I shall treat at large in the ensuing chapter.
2. THE limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. Of this also I shall treat in its proper place. The former of these keeps the legislative power in due health and vigor, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other.
3. A THIRD subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the person, and the law be duly administred therein. The emphatic words of magna carta, spoken in the person of the king, who in judgment of law (says Sir Edward Coke) is ever present and repeating them in all his courts, are these; “nulli “vendemus, nulli negabimus, aut differemus rectum vel justitiam: “and therefore every person,” continues the same learned author, “for injury done to him in bonis, in terries, vel persona, by “any other person, be he ecclesiastical or temporal without any “exception, may take his remedy by the course of the law, and “have justice and right for the injury done to him, freely with- “out fail, fully without any denial, and speedily without delay.” It were endless to enumerate all the affirmative acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every person knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall however just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by Magna Carta, that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. By 2 Edw. III. c. 8. and 11 Ric. II. c. 10. it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right : and, though such commandments should come, the judges shall not cease to do right. And by 1 W. & M. ft. 2 : c. 2. it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority without consent of parliament, is illegal.
NOT only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament; for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself. The king, it is true, may erect new courts of justice; but then they must proceed according to the old established forms of the common law. For which reason it is declared in the statute 16 Car. I. c. 10. upon the dissolution of the court of Star Chamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by English bill, petition, articles, libel (which were the course of proceeding in the Star Chamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into question, determine or dispose of the lands or goods of any persons of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by course of law.
4. IF there should happen any uncommon injury, or infringement of the rights beforementioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. In Russia we are told that the czar Peter established a law, that no person might petition the throne, till he had first petitioned two different ministers of state. In case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death, if found to be in the wrong. The consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in England, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. Care only must be taken, lest, under the pretence of petitioning, the person be guilty of any riot or tumult; as happened in the opening of the memorable parliament in 1640: and, to prevent this, it is provided by the statute 13 Car. II. ft. 1. c. 5. that no petition to the king, or either house of parliament, for any alterations in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace or the major part of the grand jury, in the country; and in London by the lord mayor, aldermen, and common council ; nor shall any petition be presented by more than two persons at a time. But under these regulations, it is declared by the statute 1 W. & M. ft. 2. c. 2. that the person hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal.
5. THE fifth and last auxiliary right of the person, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
IN these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the person is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliaments be supported in its full vigor; and limits certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the persons of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defense. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens. So that this review of our situation may fully justify the observation of a learned French author, who indeed generally both thought and wrote in the spirit of genuine freedom x; and who hath not scrupled to profess, even in the very bosom of his native country, that the English is the only nation in the world, where political or civil liberty is the direct end of its constitution. Recommending therefore to the student in our laws a farther and more accurate speech into this extensive and important title, I shall close my remarks upon it with the expiring wish of the famous father Paul to his country,
“ESTO PERPETUA !”
Tuesday, September 9, 2008
Blackstone: Introduction: Section Four: Of the Countries Subject to the Laws Of England
SECTION THE FOURTH.
OF THE COUNTRIES SUBJECT TO THE
LAWS OF ENGLAND.
THE kingdom of England, over which our municipal laws have jurisdiction, 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 customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries ; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.
WALES had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Caesar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostyle invasions of the Saxons, when the ancient and Christian inhabitants of the island retired to those natural entrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to Christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England ; till at length in the reign of Edward the first, who may justly be styled the conqueror of Wales, the line of their ancient princes was abolished, and the king of England's eldest son became, as a matter of course, their titular prince: the territory of Wales being then entirely annexed to the dominion of the crown of England, or, as the statute of Rutland expresses it, “terra Walliae cum incolis suis, prius regi jure feodali “subjecta, (of which homage was the sign) iam in proprietatis “dominium totaliter et cum integritate conversa est, et coronae regni “Angliae tanquam pars corporis eiusdem annexa et unita.” By the statute also of Wales very material alterations were made in diverse parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity, particularly their rule of inheritance, viz, that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independence, was given by the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practifed with great success; till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.
IT is enacted by this statute 27 Hen. VIII. 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welchmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall be used in Wales: besides many other regulations of the police of this principality. And the statute 34 & 35 Hen. VIII. c. 26. confirms the same, adds further regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day ; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of Westminster Hall) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.
THE kingdom of Scotland notwithstanding the union of the crowns of the accession of their King James IV to that of England, continued an entirely separate and distinct kingdom for above a century, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were anciently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an Act of Parliament 1. Jac. I. c. 1. it is declared, that these two, mighty, famous, and ancient kingdoms were formerly one. And Sir Edward Coke observes, how marvelous a conformity there was, not only in the religion and language of the two nations, but also in their ancient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same, especially as their most ancient and authentic book, called regiam majestatem and containing the rules of their ancient common law, is extremely similar that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities. Subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.
HOWEVER Sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union: but these 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 most considerable being as follows:
1. THAT on the first of May 1707, and for ever after, the kingdoms of England and Scotland, shall be united into one kingdom, by the name of Great Britain.
2. THE succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.
3. THE United Kingdom shall be represented by one Parliament.
4. THERE shall be a communication of all rights and privileges between the subjects of both Kingdoms, except where it is otherwise agreed.
9. WHEN England raises 2,000,000 l. by a land tax, Scotland shall raise 48,000 l.
16, 17. THE standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the United Kingdoms.
18. THE laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall 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 discretion of the parliament; laws relating to private rights are not to be altered but for the evident utility of the people of Scotland.
22. SIXTEEN peers are to be chosen to represent the peerage of Scotland in parliament, and forty five members to sit in the House of Commons.
23. THE sixteen peers of Scotland shall have all privileges of Parliament: and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the House 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 statute 5 Ann. c. 8. in which statute there are also two acts of Parliament recited ; the one of Scotland, whereby the church of Scotland, and also the four universities of that Kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6. whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the same had been altered by Parliament at that time) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall taken an oath inviolably to maintain the fame within England, Ireland, Wales, and the own of Berwick upon Tweed. And it is enacted, that these two acts “shall for ever be observed “as fundamental and essential conditions of the union.”
UPON these articles, and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringment of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and “essential conditions of the union.” 2. That whatever else may be deemed “fundamental and essential conditions,” the preservation of the two churches, of England and Scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitutions of either of those churches, or in the liturgy of the Church of England, would be an infringement of these “fundamental and essential conditions,” and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by Parliament; and, as the Parliament has not yet thought proper, except in a few instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. Wherefore the municipal or common laws of England are, generally speaking, of no force or validity in Scotland; and, of consequence , in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of that part of the United Kingdoms.
THE town of Berwick upon Tweed, though subject to the crown of England ever since the conquest of it in the reign of Edward IV, is not part of the kingdom of England, nor subject to the common law; though it is subject to all acts of parliament, being represented by burgesses therein. And therefore it was declared by statute 20 Geo. II. c. 42. that where England only is mentioned in any act of Parliament, the same notwithstanding shall be deemed to comprehend the dominion of Wales, and town of Berwick upon Tweed. But the general law there used is the Scots law, and the ordinary process of the courts of Westminster-shall is there of no authority.
AS to Ireland, that is still a distinct kingdom; though a dependent, subordinate kingdom. It was only entitled the dominion or lordship of Ireland, and the king's style was no other than dominus Hiberniae, lord of Ireland, till the thirty third year of king Henry the Eighth ; when he assumed 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 same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by King Henry the Second, at which time they carried over the English laws along with them. And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by such laws as the superior state thinks proper to prescribe.
AT the time of this conquest the Irish where governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons. But king John in the twelfth year of his reign went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England: which letters patent Sir Edward Coke apprehends to have been there confirmed in Parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry the Third and Edward the First were obliged to renew the injunction; and at length in a Parliament held at Kilkenny, 40 Edw. III, under Lionel Duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of Queen Elizabeth, the wild natives still kept and preserved their Brehon law; which is described to have been “a rule of right unwritten, but delivered by tradition “from one to another, in which oftentimes there appeared great “shew of equity in determining the right between party and party, but in many things repugnant quite both to God's law “and man's.” The latter part of which character is alone allowed it under Edward the First and his grandson.
BUT as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed, that though the immemorial customs, or common law, of England were made the rule of justice in Ireland also, yet no acts of the English parliament, since the twelfth of King John, extended into that kingdom; unless it were specially named, or included under general words, such as, “within any of the king's dominions.” And this is particularly expressed, and the reason given in the year book: “Ireland has “a parliament of it's own, and maketh and altereth laws ; and “our statutes do not bind them, because they do not send repre- “sentatives to our parliament : but their persons are the king's “subjects, like as the inhabitants of Calais, Gascoigny, and Guienne, “while they continued under the king's subjection.” The method made use of in Ireland, as stated by Sir Edward Coke, of making statutes in their parliaments, according to Poynings' law, of which hereafter, is this : 1. The lord lieutenant and council of Ireland must certify to the king under the great seal of Ireland the acts proposed to be passed. 2. The king and council of England are to consider, approve, alter, or reject the said acts; and certify them back again under the great seal of England. And then, 3. They are to be proposed, 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 proposing, any law. But the usage now is, that bills are often framed in either House of Parliament under the denomination of heads for a bill or bills; and in that shape they are offered to the consideration of the lord lieutenant and privy council, who then reject them at pleasure, without transmitting them to England.
BUT the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and, the measure of justice in both kingdoms becoming thereby no longer uniform, therefore in the 10 Hen. VII. a set of statutes passed in Ireland, (Sir 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, should be of force within the realm of Ireland. But. by the same 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 English parliament made since the so Hen. VII. do now bind the people of Ireland, unless specially named or included under general words. 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 such acts of Parliament. For this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of this superiority is the right of conquest: a right allowed by the law of nations, if not by that of nature; and founded upon a compact either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.
BUT this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it become necessary some years ago to declare how that matter really stood: and therefore by statute 6 Geo. I. C. 5. it is declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, has power to make laws to bind the people of Ireland.
THUS we see how exensively the laws of Ireland communicate with those of England: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those 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, as the appeal from all other courts in Ireland lies immediately to the House of Lords here: it being expressly declared, by the same statute 6 Geo. I. C. 5. that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, “that, though justice be in general administered by courts of “their own, yet that the appeal in the last resort ought to be to “the courts of the superior state,” is founded upon these two reasons. 1. Because otherwise the law, appointed or permited to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. Because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of England.
WITH regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the Isle of Wight, of Portland, Thanet, etc.) are comprised within some neighboring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of England. But there are others, which require a more particular consideration.
AND first, the Isle of Man is a distinct territory from England and is not governed by our laws; neither doth any act of Parliament extend to it, unless it be particularly named therein; and then an act of Parliament is binding there. It was formerly a subordinate feudatory kingdom, .subject 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 island by right of conquest, and disposing of it to the Earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to Sir John de Stanley by letters patent 7 Hen. IV. In his lineal descendants it continued for eight generations, till the death of Ferdinando Earl of Derby, A. D. 1594; when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent, the island was seized into the queen's hands, and afterwards various grants were made of it by king James the First; all which being expired or surrendered, it was granted afresh 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 restraint of the power of alienation by the said Earl and his issue male. On the death of James Earl of Derby. A. D. 1735, the male line of Earl William failing, the duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had long been disused, the Earls of Derby, as Lords of Man, had maintained a sort of royal authority therein; by assenting or dissenting to laws, and exercising an appellate jurisdiction. Yet, though no English writ, or process from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord of the island to the king of Great Britain in council. But, the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a convenient asylum for debtors, outlaws, and smugglers) authority was given to the teasury by statute 12 Geo. I. c. 28. to purchase the interest of the then proprietors for the use of the crown: which purchase has at length been completed in this present year 1765, and confirmed by statutes 5 Geo. III. c. 26, & 39. whereby the whole island and all its dependencies, so granted as aforesaid, (except the landed property of the Atholl family, their manorial rights and emoluments, and the patronage of the bishopric and other ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the British excise and customs.
THE islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an ancient book of very great authority, entitled, le grand coustumier. The king's writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common acts of our parliaments, unless particularly named. All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from the to the king in council, in the last resort.
BESIDES these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.
OUR American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. They are subject however to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king in council here in England. Their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 & 8 W. III. c. 22. That all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations shall be utterly void and of none effect.
THESE are the several 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 England. Most of them have probably copied the spirit of their own law from this original; but then it receives its obligation, and authoritative force, from being the law of the country.
AS to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the Conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and its appendages, which fell to Henry the Second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the Sixth. They observed that from that time the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began, at this period to flourish all at once; and became much more considerable in Europe than when her princes where possessed of a larger territory, and her counsels distracted by foreign interests. This experience and these considerations gave birth to a conditional clause in the act of settlement, which vested the crown in his present majesty's illustrious house, “That in case the crown and “imperial dignity of this realm shall hereafter come to any per- “son not being a native of this kingdom of England, this nation “shall 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 consent of parliament.”
WE come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shown hereafter ; but they are not subject to the common law. This main sea beings at the low-watermark. But between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb
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THE territory of England is liable to two divisions ; the one ecclesiastical, the other civil.
1. THE ecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains diverse dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty-one, and York three; besides the bishopric of the Isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deanries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter ; and every deanery is divided into parishes.
A PARISH is that circuit of ground in which the souls under the care of one parson or vicar do inhabit. These are computed to be near ten thousand in number. How ancient the division of parishes is, it seems to be agreed on all hands, that in the early ages of Christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion .
MR Camden says England was divided into parishes by archbishop Honorius about the year 630. Sir Henry Hobart lays it down that parishes were first 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 shown, that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart.
WE find the distinction of parishes, nay even of mother-churches, so early as in the laws of King Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that is, every man paid his own (as was before observed) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king Edgar, that “dentur omnes decimae primariae “ecclesiae ad quam parochial pertinet.” However, if any thane, or great lord, had a church within his own demesnes, distinct from the mother-church, in the nature of a private chapel ; then, provided such church had a coemitery or consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minister : but, if it had no coemitery, the thane must himself have maintained his chaplain by some other means; for in such case all his tithes were ordained to be paid to the primariae ecclesiae or mother-church
THIS proves that the kingdom was then universally divided into parishes; which division happened probably not all at once, but by degrees. For it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. The lords, as Christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general: and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. Which will well enough account for the frequent intermixture of parishes one with another. For if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those outlying parcels.
THUS parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desert places, or for other now unsearchable reasons, were never unied to any parish, and therefore continue to this day extraparochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them, for the general good of the church. And thus much for the ecclesiastical division of this kingdom.
2. THE civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towns. Which division, as it now stands, seems to owe its original to King Alfred ; who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the Saxon, because ten freeholders with their families composed one. These all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence were committed in their district, they were bound to have the offender forthcoming. And therefore anciently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary. One of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the the head-borough, (words which speak their own etymology) and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing.
TITHINGS, town, or vills, are of the same signification in law ; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to Sir Edward Coke. The word town or vill is indeed, by the alteration of times and language, now become a generic term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or has been the see of a bishop; and though the bishopric be dissolved, as at Westminster, yet still it remains a city. A borough is now understood to be a town, either corporate or not, that sends burgesses to Parliament. Other towns there are, to the number Sir Edward Coke says of 8803, which are neither cities nor boroughs; some of which have the privileges of markets, and others not ; but both are equally towns in law. To several of these towns there are finall appendages belonging, called hamlets; which are taken notice of in the statute of Exeter, which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills Sir Henry Spelman conjectures to have consisted of ten freemen, or frank-pledges, demivills of five, and hamlets of less than five. These little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case it is, to some purposes in law, looked upon as a distinct township. These towns, as was before hinted, contained each originally but the increase of inhabitants, are divided into several parishes and tithings: and sometimes, where there is but one parish there are two or more vills or tithings.
AS ten families of freeholders made up a town or tithing, so ten tithings composes a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by an high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes.
THE subdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred: the institution of hundreds. Themselves the rather introduced than invented. For they seem to have obtained in Denmark: and we find that in France a regulation of this sort was made above two hundred years before, set on foot by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in its own division. These divisions were, in that country, as well military as civil; and each contained a hundred freemen ; who were subject to an officer called the centenaries; a number of which centenarii were themselves subject to a superior officer called the count or comes. And indeed this institution of hundreds may be traced back as far as the ancient Germans, from whom were derived both the Franks who became masters of Gaul, and the Saxons who settled in England. For we read in Tacitus, that both the thing and the name wee well known to that warlike people. “Genteni ex singulis pages sunt, idque ipsum inter suos vo- “cantur; et quod primo numerus fuit, iam nomen et honor est.”
AN indefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying a division; 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 shire, to whom the government of it was entrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time the civil administration of it is now totally devolved. In some counties there is an intermediate division, between the shire and the hundreds, as lathes in Kent, and rapes in Suffex, each of them containing about three or four hundreds apiece. These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. Where a county is divided into three of these intermediate jurisdictions, they are called trithings, which were anciently governed by a trithing-reeve. These trithings still subsist in the large county of York, where by an easy corruption they are denominated ridings ; the north, the east, and the west-riding. The number of counties in England and Wales have been different at different times: at present there are forty in England, and twelve in Wales.
THREE of these counties, Chester, Durham, and Lancaster, are called counties palatine. The two former are such by prescription, or immemorial custom; or at least as old as the Norman Conquest: the latter was created by king Edward III, in favour of Henry Plantagenet, first Earl and then Duke of Lancaster, whose heiress John of Gant the king's son had married; and afterwards confirmed in Parliament, to honour John of Gant himself; whom, on the death of his father-in-law, he had also created Duke of Lancaster. Counties palatine are so called a palatio; because the owners thereof, the Earl of Chester, the Bishop of Durham, and the Duke of Lancafter, had in those counties jura regalia, as fully as the king has in his palace; regalem potestatem in omnibus, as Bracton expresses it. They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini Regis. And indeed by the ancient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried; in a court leet, contra pacem domini; in the court of a corporation, contra pacem ballivorum; in the sheriff's court or tourn, contra pacem vice-comitis. These palatine privileges were in all probability originally granted to the counties of Chester and Durham, because they bordered upon enemies countries, Wales and Scotland, in order that the owners, being encouraged by so large an authority, might be the more watchful in its defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexamshire, the latter now united with Northumberland: but these were abolished by Parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in 27 Hen. VIII likewise, the powers beforementioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing: though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them.
OF these three, the county of Durham is now the only one remaining in the hands of a subject. For the earldom of Chester, as Camden testifies, was united to the crown by Henry III, and has ever since given title to the king's eldest son. And the county palatine, or duchy, of Lancaster was the property of Henry of Bolinbroke, the son of John of Gant, at the time when he wrested the crown from king Richard II, and assumed the title of Henry IV. But he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also. For, as Plowden and Sir Edward Coke observe, “he knew he had the “duchy of Lancafter by sure and indefeasible title, but that his “title to the crown was not so assured: for that after the decease “of Richard II the right of the crown was in the heir of Lionel “duke of Clarence , second son of Edward III; John of Gant, “father to this Henry IV, being but the fourth son.” And therefore he procured an act of Parliament, in the first year of his reign, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, 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, and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. And in 1 Hen. VII another act was made to vest the inheritance thereof in Henry VII and his heirs, and in this state, say Sir Edward Coke and Lambard, viz. in the natural heirs or posterity of Henry VII, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of England.
THE Isle of Ely is not a county palatine, though sometimes erroneously called so; but only a royal franchise; the bishop having, by grant of king Henry the First, jura regalia within the Isle of Ely, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil.
THERE are also counties corporate; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of England have granted to be counties of themselves, and not to be comprised in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such are London, York, Bristol, Norwich, Coventry, and many others. And thus much of the countries subject to the laws of England. If this notion of Lambard and Coke be well founded, it might have become a very curious question 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 statute 13 W. III. c. 3.) has now put the matter out of doubt. And yet, to give that attainder its full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.
OF THE COUNTRIES SUBJECT TO THE
LAWS OF ENGLAND.
THE kingdom of England, over which our municipal laws have jurisdiction, 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 customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries ; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.
WALES had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Caesar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostyle invasions of the Saxons, when the ancient and Christian inhabitants of the island retired to those natural entrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to Christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England ; till at length in the reign of Edward the first, who may justly be styled the conqueror of Wales, the line of their ancient princes was abolished, and the king of England's eldest son became, as a matter of course, their titular prince: the territory of Wales being then entirely annexed to the dominion of the crown of England, or, as the statute of Rutland expresses it, “terra Walliae cum incolis suis, prius regi jure feodali “subjecta, (of which homage was the sign) iam in proprietatis “dominium totaliter et cum integritate conversa est, et coronae regni “Angliae tanquam pars corporis eiusdem annexa et unita.” By the statute also of Wales very material alterations were made in diverse parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity, particularly their rule of inheritance, viz, that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independence, was given by the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practifed with great success; till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges.
IT is enacted by this statute 27 Hen. VIII. 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welchmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall be used in Wales: besides many other regulations of the police of this principality. And the statute 34 & 35 Hen. VIII. c. 26. confirms the same, adds further regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day ; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of Westminster Hall) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.
THE kingdom of Scotland notwithstanding the union of the crowns of the accession of their King James IV to that of England, continued an entirely separate and distinct kingdom for above a century, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were anciently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an Act of Parliament 1. Jac. I. c. 1. it is declared, that these two, mighty, famous, and ancient kingdoms were formerly one. And Sir Edward Coke observes, how marvelous a conformity there was, not only in the religion and language of the two nations, but also in their ancient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same, especially as their most ancient and authentic book, called regiam majestatem and containing the rules of their ancient common law, is extremely similar that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities. Subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.
HOWEVER Sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying on the projected union: but these 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 most considerable being as follows:
1. THAT on the first of May 1707, and for ever after, the kingdoms of England and Scotland, shall be united into one kingdom, by the name of Great Britain.
2. THE succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England.
3. THE United Kingdom shall be represented by one Parliament.
4. THERE shall be a communication of all rights and privileges between the subjects of both Kingdoms, except where it is otherwise agreed.
9. WHEN England raises 2,000,000 l. by a land tax, Scotland shall raise 48,000 l.
16, 17. THE standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the United Kingdoms.
18. THE laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall 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 discretion of the parliament; laws relating to private rights are not to be altered but for the evident utility of the people of Scotland.
22. SIXTEEN peers are to be chosen to represent the peerage of Scotland in parliament, and forty five members to sit in the House of Commons.
23. THE sixteen peers of Scotland shall have all privileges of Parliament: and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the House 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 statute 5 Ann. c. 8. in which statute there are also two acts of Parliament recited ; the one of Scotland, whereby the church of Scotland, and also the four universities of that Kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6. whereby the acts of uniformity of 13 Eliz. and 13 Car. II. (except as the same had been altered by Parliament at that time) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall taken an oath inviolably to maintain the fame within England, Ireland, Wales, and the own of Berwick upon Tweed. And it is enacted, that these two acts “shall for ever be observed “as fundamental and essential conditions of the union.”
UPON these articles, and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringment of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and “essential conditions of the union.” 2. That whatever else may be deemed “fundamental and essential conditions,” the preservation of the two churches, of England and Scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitutions of either of those churches, or in the liturgy of the Church of England, would be an infringement of these “fundamental and essential conditions,” and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by Parliament; and, as the Parliament has not yet thought proper, except in a few instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. Wherefore the municipal or common laws of England are, generally speaking, of no force or validity in Scotland; and, of consequence , in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of that part of the United Kingdoms.
THE town of Berwick upon Tweed, though subject to the crown of England ever since the conquest of it in the reign of Edward IV, is not part of the kingdom of England, nor subject to the common law; though it is subject to all acts of parliament, being represented by burgesses therein. And therefore it was declared by statute 20 Geo. II. c. 42. that where England only is mentioned in any act of Parliament, the same notwithstanding shall be deemed to comprehend the dominion of Wales, and town of Berwick upon Tweed. But the general law there used is the Scots law, and the ordinary process of the courts of Westminster-shall is there of no authority.
AS to Ireland, that is still a distinct kingdom; though a dependent, subordinate kingdom. It was only entitled the dominion or lordship of Ireland, and the king's style was no other than dominus Hiberniae, lord of Ireland, till the thirty third year of king Henry the Eighth ; when he assumed 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 same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind of colony, after the conquest of it by King Henry the Second, at which time they carried over the English laws along with them. And as Ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by such laws as the superior state thinks proper to prescribe.
AT the time of this conquest the Irish where governed by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons. But king John in the twelfth year of his reign went into Ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that Ireland should be governed by the laws of England: which letters patent Sir Edward Coke apprehends to have been there confirmed in Parliament. But to this ordinance many of the Irish were averse to conform, and still stuck to their Brehon law: so that both Henry the Third and Edward the First were obliged to renew the injunction; and at length in a Parliament held at Kilkenny, 40 Edw. III, under Lionel Duke of Clarence, the then lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of Queen Elizabeth, the wild natives still kept and preserved their Brehon law; which is described to have been “a rule of right unwritten, but delivered by tradition “from one to another, in which oftentimes there appeared great “shew of equity in determining the right between party and party, but in many things repugnant quite both to God's law “and man's.” The latter part of which character is alone allowed it under Edward the First and his grandson.
BUT as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed, that though the immemorial customs, or common law, of England were made the rule of justice in Ireland also, yet no acts of the English parliament, since the twelfth of King John, extended into that kingdom; unless it were specially named, or included under general words, such as, “within any of the king's dominions.” And this is particularly expressed, and the reason given in the year book: “Ireland has “a parliament of it's own, and maketh and altereth laws ; and “our statutes do not bind them, because they do not send repre- “sentatives to our parliament : but their persons are the king's “subjects, like as the inhabitants of Calais, Gascoigny, and Guienne, “while they continued under the king's subjection.” The method made use of in Ireland, as stated by Sir Edward Coke, of making statutes in their parliaments, according to Poynings' law, of which hereafter, is this : 1. The lord lieutenant and council of Ireland must certify to the king under the great seal of Ireland the acts proposed to be passed. 2. The king and council of England are to consider, approve, alter, or reject the said acts; and certify them back again under the great seal of England. And then, 3. They are to be proposed, 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 proposing, any law. But the usage now is, that bills are often framed in either House of Parliament under the denomination of heads for a bill or bills; and in that shape they are offered to the consideration of the lord lieutenant and privy council, who then reject them at pleasure, without transmitting them to England.
BUT the Irish nation, being excluded from the benefit of the English statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and, the measure of justice in both kingdoms becoming thereby no longer uniform, therefore in the 10 Hen. VII. a set of statutes passed in Ireland, (Sir 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, should be of force within the realm of Ireland. But. by the same 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 English parliament made since the so Hen. VII. do now bind the people of Ireland, unless specially named or included under general words. 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 such acts of Parliament. For this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of this superiority is the right of conquest: a right allowed by the law of nations, if not by that of nature; and founded upon a compact either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies.
BUT this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it become necessary some years ago to declare how that matter really stood: and therefore by statute 6 Geo. I. C. 5. it is declared, that the kingdom of Ireland ought to be subordinate to, and dependent upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of Great Britain in parliament, has power to make laws to bind the people of Ireland.
THUS we see how exensively the laws of Ireland communicate with those of England: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland is, as in Wales, to those 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, as the appeal from all other courts in Ireland lies immediately to the House of Lords here: it being expressly declared, by the same statute 6 Geo. I. C. 5. that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, “that, though justice be in general administered by courts of “their own, yet that the appeal in the last resort ought to be to “the courts of the superior state,” is founded upon these two reasons. 1. Because otherwise the law, appointed or permited to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. 2. Because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of England.
WITH regard to the other adjacent islands which are subject to the crown of Great Britain, some of them (as the Isle of Wight, of Portland, Thanet, etc.) are comprised within some neighboring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of England. But there are others, which require a more particular consideration.
AND first, the Isle of Man is a distinct territory from England and is not governed by our laws; neither doth any act of Parliament extend to it, unless it be particularly named therein; and then an act of Parliament is binding there. It was formerly a subordinate feudatory kingdom, .subject 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 island by right of conquest, and disposing of it to the Earl of Northumberland; upon whose attainder it was granted (by the name of the lordship of Man) to Sir John de Stanley by letters patent 7 Hen. IV. In his lineal descendants it continued for eight generations, till the death of Ferdinando Earl of Derby, A. D. 1594; when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent, the island was seized into the queen's hands, and afterwards various grants were made of it by king James the First; all which being expired or surrendered, it was granted afresh 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 restraint of the power of alienation by the said Earl and his issue male. On the death of James Earl of Derby. A. D. 1735, the male line of Earl William failing, the duke of Atholl succeeded to the island as heir general by a female branch. In the mean time, though the title of king had long been disused, the Earls of Derby, as Lords of Man, had maintained a sort of royal authority therein; by assenting or dissenting to laws, and exercising an appellate jurisdiction. Yet, though no English writ, or process from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord of the island to the king of Great Britain in council. But, the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a convenient asylum for debtors, outlaws, and smugglers) authority was given to the teasury by statute 12 Geo. I. c. 28. to purchase the interest of the then proprietors for the use of the crown: which purchase has at length been completed in this present year 1765, and confirmed by statutes 5 Geo. III. c. 26, & 39. whereby the whole island and all its dependencies, so granted as aforesaid, (except the landed property of the Atholl family, their manorial rights and emoluments, and the patronage of the bishopric and other ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the British excise and customs.
THE islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of Normandy, and were united to the crown of England by the first princes of the Norman line. They are governed by their own laws, which are for the most part the ducal customs of Normandy, being collected in an ancient book of very great authority, entitled, le grand coustumier. The king's writ, or process from the courts of Westminster, is there of no force; but his commission is. They are not bound by common acts of our parliaments, unless particularly named. All causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from the to the king in council, in the last resort.
BESIDES these adjacent islands, our more distant plantations in America, and elsewhere, are also in some respects subject to the English laws. Plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country.
OUR American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties. And therefore the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. They are subject however to the control of the parliament; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named. The form of government in most of them is borrowed from that of England. They have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the king in council here in England. Their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 & 8 W. III. c. 22. That all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations shall be utterly void and of none effect.
THESE are the several 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 England. Most of them have probably copied the spirit of their own law from this original; but then it receives its obligation, and authoritative force, from being the law of the country.
AS to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of Hanover, and his majesty's other property in Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. The English legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of Europe; from the Norman territory which William the Conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and its appendages, which fell to Henry the Second by hereditary descent. They had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of Henry the Sixth. They observed that from that time the maritime interests of England were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began, at this period to flourish all at once; and became much more considerable in Europe than when her princes where possessed of a larger territory, and her counsels distracted by foreign interests. This experience and these considerations gave birth to a conditional clause in the act of settlement, which vested the crown in his present majesty's illustrious house, “That in case the crown and “imperial dignity of this realm shall hereafter come to any per- “son not being a native of this kingdom of England, this nation “shall 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 consent of parliament.”
WE come now to consider the kingdom of England in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends not only Wales, of which enough has been already said, but also part of the sea. The main or high seas are part of the realm of England, for thereon our courts of admiralty have jurisdiction, as will be shown hereafter ; but they are not subject to the common law. This main sea beings at the low-watermark. But between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb
.
THE territory of England is liable to two divisions ; the one ecclesiastical, the other civil.
1. THE ecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each province contains diverse dioceses, or sees of suffragan bishops; whereof Canterbury includes twenty-one, and York three; besides the bishopric of the Isle of Man, which was annexed to the province of York by king Henry VIII. Every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deanries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter ; and every deanery is divided into parishes.
A PARISH is that circuit of ground in which the souls under the care of one parson or vicar do inhabit. These are computed to be near ten thousand in number. How ancient the division of parishes is, it seems to be agreed on all hands, that in the early ages of Christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. There was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion .
MR Camden says England was divided into parishes by archbishop Honorius about the year 630. Sir Henry Hobart lays it down that parishes were first 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 shown, that the clergy lived in common without any division of parishes, long after the time mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before the date of that council of Lateran, to which they are ascribed by Hobart.
WE find the distinction of parishes, nay even of mother-churches, so early as in the laws of King Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that is, every man paid his own (as was before observed) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king Edgar, that “dentur omnes decimae primariae “ecclesiae ad quam parochial pertinet.” However, if any thane, or great lord, had a church within his own demesnes, distinct from the mother-church, in the nature of a private chapel ; then, provided such church had a coemitery or consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minister : but, if it had no coemitery, the thane must himself have maintained his chaplain by some other means; for in such case all his tithes were ordained to be paid to the primariae ecclesiae or mother-church
THIS proves that the kingdom was then universally divided into parishes; which division happened probably not all at once, but by degrees. For it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. The lords, as Christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general: and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. Which will well enough account for the frequent intermixture of parishes one with another. For if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those outlying parcels.
THUS parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desert places, or for other now unsearchable reasons, were never unied to any parish, and therefore continue to this day extraparochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them, for the general good of the church. And thus much for the ecclesiastical division of this kingdom.
2. THE civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towns. Which division, as it now stands, seems to owe its original to King Alfred ; who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the Saxon, because ten freeholders with their families composed one. These all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence were committed in their district, they were bound to have the offender forthcoming. And therefore anciently no man was suffered to abide in England above forty days, unless he were enrolled in some tithing or decennary. One of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the the head-borough, (words which speak their own etymology) and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing.
TITHINGS, town, or vills, are of the same signification in law ; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to Sir Edward Coke. The word town or vill is indeed, by the alteration of times and language, now become a generic term, comprehending under it the several species of cities, boroughs, and common towns. A city is a town incorporated, which is or has been the see of a bishop; and though the bishopric be dissolved, as at Westminster, yet still it remains a city. A borough is now understood to be a town, either corporate or not, that sends burgesses to Parliament. Other towns there are, to the number Sir Edward Coke says of 8803, which are neither cities nor boroughs; some of which have the privileges of markets, and others not ; but both are equally towns in law. To several of these towns there are finall appendages belonging, called hamlets; which are taken notice of in the statute of Exeter, which makes frequent mention of entire vills, demi-vills, and hamlets. Entire vills Sir Henry Spelman conjectures to have consisted of ten freemen, or frank-pledges, demivills of five, and hamlets of less than five. These little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case it is, to some purposes in law, looked upon as a distinct township. These towns, as was before hinted, contained each originally but the increase of inhabitants, are divided into several parishes and tithings: and sometimes, where there is but one parish there are two or more vills or tithings.
AS ten families of freeholders made up a town or tithing, so ten tithings composes a superior division, called a hundred, as consisting of ten times ten families. The hundred is governed by an high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. In some of the more northern counties these hundreds are called wapentakes.
THE subdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred: the institution of hundreds. Themselves the rather introduced than invented. For they seem to have obtained in Denmark: and we find that in France a regulation of this sort was made above two hundred years before, set on foot by Clotharius and Childebert, with a view of obliging each district to answer for the robberies committed in its own division. These divisions were, in that country, as well military as civil; and each contained a hundred freemen ; who were subject to an officer called the centenaries; a number of which centenarii were themselves subject to a superior officer called the count or comes. And indeed this institution of hundreds may be traced back as far as the ancient Germans, from whom were derived both the Franks who became masters of Gaul, and the Saxons who settled in England. For we read in Tacitus, that both the thing and the name wee well known to that warlike people. “Genteni ex singulis pages sunt, idque ipsum inter suos vo- “cantur; et quod primo numerus fuit, iam nomen et honor est.”
AN indefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying a division; 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 shire, to whom the government of it was entrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time the civil administration of it is now totally devolved. In some counties there is an intermediate division, between the shire and the hundreds, as lathes in Kent, and rapes in Suffex, each of them containing about three or four hundreds apiece. These had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. Where a county is divided into three of these intermediate jurisdictions, they are called trithings, which were anciently governed by a trithing-reeve. These trithings still subsist in the large county of York, where by an easy corruption they are denominated ridings ; the north, the east, and the west-riding. The number of counties in England and Wales have been different at different times: at present there are forty in England, and twelve in Wales.
THREE of these counties, Chester, Durham, and Lancaster, are called counties palatine. The two former are such by prescription, or immemorial custom; or at least as old as the Norman Conquest: the latter was created by king Edward III, in favour of Henry Plantagenet, first Earl and then Duke of Lancaster, whose heiress John of Gant the king's son had married; and afterwards confirmed in Parliament, to honour John of Gant himself; whom, on the death of his father-in-law, he had also created Duke of Lancaster. Counties palatine are so called a palatio; because the owners thereof, the Earl of Chester, the Bishop of Durham, and the Duke of Lancafter, had in those counties jura regalia, as fully as the king has in his palace; regalem potestatem in omnibus, as Bracton expresses it. They might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, contra pacem domini Regis. And indeed by the ancient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried; in a court leet, contra pacem domini; in the court of a corporation, contra pacem ballivorum; in the sheriff's court or tourn, contra pacem vice-comitis. These palatine privileges were in all probability originally granted to the counties of Chester and Durham, because they bordered upon enemies countries, Wales and Scotland, in order that the owners, being encouraged by so large an authority, might be the more watchful in its defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexamshire, the latter now united with Northumberland: but these were abolished by Parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in 27 Hen. VIII likewise, the powers beforementioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing: though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them.
OF these three, the county of Durham is now the only one remaining in the hands of a subject. For the earldom of Chester, as Camden testifies, was united to the crown by Henry III, and has ever since given title to the king's eldest son. And the county palatine, or duchy, of Lancaster was the property of Henry of Bolinbroke, the son of John of Gant, at the time when he wrested the crown from king Richard II, and assumed the title of Henry IV. But he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also. For, as Plowden and Sir Edward Coke observe, “he knew he had the “duchy of Lancafter by sure and indefeasible title, but that his “title to the crown was not so assured: for that after the decease “of Richard II the right of the crown was in the heir of Lionel “duke of Clarence , second son of Edward III; John of Gant, “father to this Henry IV, being but the fourth son.” And therefore he procured an act of Parliament, in the first year of his reign, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, 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, and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. And in 1 Hen. VII another act was made to vest the inheritance thereof in Henry VII and his heirs, and in this state, say Sir Edward Coke and Lambard, viz. in the natural heirs or posterity of Henry VII, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of England.
THE Isle of Ely is not a county palatine, though sometimes erroneously called so; but only a royal franchise; the bishop having, by grant of king Henry the First, jura regalia within the Isle of Ely, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil.
THERE are also counties corporate; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of England have granted to be counties of themselves, and not to be comprised in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such are London, York, Bristol, Norwich, Coventry, and many others. And thus much of the countries subject to the laws of England. If this notion of Lambard and Coke be well founded, it might have become a very curious question 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 statute 13 W. III. c. 3.) has now put the matter out of doubt. And yet, to give that attainder its full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.
Blackstone: Introduction: Section Three: 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 lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.
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.
WHEN I call these parts of our law leges non scriptae, 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 leges sola memoria et usu retinebant. But with us at present the monuments and evidences of our legal 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 times of highest antiquity. However I therefore style these parts of our law leges non scripta, 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 their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that, which is “tacito “et illiterato hominum consensu et moribus expressum.”
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. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought 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 intermixture of adventitious 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 divers particular countries. Our laws, says lord Bacon, are mixed as our language: and as our language is so much the richer, the laws are the more complete.
AND indeed our antiquarians 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 he found it expedient to compile his dome-book or liber judicialis, for the general use of the whole kingdom. This book is said to have been extant so late as the reign of king Edward the fourth, 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. Thus 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 qui reipublicae praesunt, “etiam atque etiam mando, ut omnibus aeqquos se praebeant judices, “perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habetur; “nec quicquam formident quin jus commune (Saxonice, folepihre) “audacter libereque dicant.”
BUT the irruption 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 the beginning of the eleventh century there were three principal systems of laws prevailing in different districts.
1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales; the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs.
2. The West-Saxon-Lage, or laws of the west Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the fame with the laws of Alfred abovementioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence.
3. The Dane-Lage, or Danish law, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the seat of that piratical people. As for the very northern provinces, they were at that time under a distinct government.
OUT of these three laws, Roger Hoveden and Ranulphus Cestrensis 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 Alonzo X, who about the year 1250 executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled las partidas. And in Sweden about the same era, a universal body of common law was compiled out of the particular customs established by the laghman of every province, and entitled the land's lagh, being analogous to the common law of England.
BOTH these undertakings, of king Edgar and Edward the confessor, seem to have been no more than a new edition, or fresh promulgation, of Alfreds' code or dome-book, with such additions and improvements as the experience of a century and an 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 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; which 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 contradistinction 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 jus commune or folcright mentioned by king Edward the elder, after the abolition of the several provincial customs and particular laws beforementioned.
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. Whence it is that in our law the goodness of a custom depends upon its having 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. This it is that gives it its weight and authority; and of this nature are the maxims and custom which compose the common law, or lex non scripta, of the kingdom.
THIS unwritten, or common, law is properly distinguishable into three kinds:
1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification.
2. Particular customs, which for the most part affect only the inhabitants of particular districts.
3. Certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.
I. 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 solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary diftribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer; --- 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 offence, 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: 1. 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 2. 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 rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath 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 their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositary 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 “viginti annorum lucubrationes,” which Fortescue 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 “praeteritorum 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 rule 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 waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it 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 rule admits 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 bad law, but that it was not law; that is, that it is not the 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 thereto, and that what is not reason is not law. Not that the particular reason of every rule in the laws can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it hath been an ancient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom 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 must be followed, unless flatly absurd 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 a brother of the half blood (i.e. where they have only one parent the same, and the other different) shall never succeed as heir to the estate of his half brother, but it shall rather escheat 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 there is nothing repugnant to natural justice; though the reason of it, drawn from the feodal law, may not be quite obvious to every body. 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 seize 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 it 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 furnish 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; the arguments on both sides; and the reasons the court gave for their judgment; taken down in short notes by persons present at the determinations. And these serve as indexes to, and also to, 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 the Second inclusive; and from his time to that of Henry the Eighth were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. and it is much to be wished that this beneficial custom, had, under proper regulations, been continued to this day: for, though King James the First 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 the Eighth to the present time this task has been executed by many private and cotemporary 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 Coke; 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.
BESIDES these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert, with some others of ancient date, whose treatises are cited as authority; and are evidence that cases have formerly 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 Coke; who has 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 the Fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and year books, but greatly defective in method. 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 species of courts.
AND thus much for the first ground and chief corner stone of the laws of England, which is, general immemorial 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 writings of the venerable sages of the law.
THE Roman law, as practifed in the times of its liberty, paid 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 law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws “which the people hath approved without writing ought also to “bind every body. 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 did 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 habet vigorem, “cum populus ei et in eum omne suum imperium et potestatem conferat,” says Ulpian. “Imperator solus et conditor et ixterpres legis existimatur,” says the code. And again, “sacrilegii instar “est 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.
II. 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 usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But, for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament .
SUCH is the custom of gavelkind 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, succeed to his estate, without any escheat to the lord. --- Such is the custom that prevails in divers 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 dower, to all her husband's lands; whereas at the common law she shall be endowed of one third part only. --- Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold-tenants that hold of the said manors. --- Such likewise is the custom of holding divers 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 lex mercatoria; 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 maxim of law being, that “cuilibet in sua arte credendum est.”
THE rules relating to particular customs 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 gavelkind, 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 thereto. 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 shew the existence of the custom as, “that in the manor of Dale lands shall descend only to the “heirs male, and never to the heirs female;” and also to show that the lands in question are within that manor) is by a jury of twelve men, and not by the 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 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 then the law permits them not to certify on their own behalf.
WHEN a custom is actually proved to exist, the next enquiry 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.
1. THAT it have been used so long, that the memory of man runneth not to the contrary. So that if any one can shew 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.
2. IT must have been continued. Any interruption would cause a temporary ceasing: 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 an 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 any how discontinued for a day, the custom is quite at an end.
3. IT must have been peaceable, and acquiesced in; not subject to contention and dispute. For as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent way wanting.
4. CUSTOMS must be reasonable; or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke 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 sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to shew 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 peradventure the lord will never put in his; and then the tenants will lose all their profits
5. 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 tithes, 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 copyhold estate, is good: though the value is a thing uncertain. For the value may at any time be ascertained; and the maxim of law is, id certum est, quod certum redid potest.
6. CUSTOMS, though established by consent, must be (when established) compulsory; and not left to the option of very man, whether he will use them or no. 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.
7. LASTLY, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then 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 gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) convey away his lands in fee simple, or for ever. Yet this custom does not impower him to use any other conveyance, 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 lands of the nature of gavelkind, 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 leges non scriptae, or those particular customs which affect particular persons or districts only.
III. THE third branch of them are those peculiar 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 leges non scriptae, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; 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 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 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 give them no authority here: for the legislature of England doth 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 subjects. 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 leges non scriptae, 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 leges scriptae, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21. addressed to the king's royal majesty. --- “This your grace's “realm, recognizing no superior under God but only your grace, “hath 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 liberty, by their own “consent, to be used among them; and have bound themselves “by long use and custom to the observance of the same: not as “to the observance of the laws of any foreign prince, potentate, “or prelate; but as to the customed and ancient laws of this realm, “originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise.”
BY the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprised in the institutes, the code, 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 occasion 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 decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the responsa prudentum or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or as Livy expresses it, “tam immensus aliarum super alias acervatarum legum cumulus,” that they were computed to be many camels' load by an author who preceded Justinian. This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compiled, A. D. 438, being a methodical collection of all the imperial constitutions then in force: which Theodosian 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 their 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 compiled and finished by Tribonian and other lawyers, about the year 533.
THIS consists of, 1. The institutes, which contain the elements or first principles of the Roman law, in four books. 2. The digests, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions, the lapse of a whole century having rendered the former code, of Theodosius, imperfect. 4. The novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris 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 the Romish ecclesiastical, 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.
THE canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, the decretal epistles and bulls of the Holy See. All which lay in the same disorder and confusion as the Roman civil law, till about the year 1151, one Gratian an Italian monk, animated by the discovery of Justinian's Pandects at Amalfi, reduced them into some method in three books, which he entitled concordia discordantium canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of Pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX, were published in much the same method under the auspices of that pope, about the year 1230, in five books entitled Decretalia Gregorii Noni. A sixth book was added by Boniface VIII, about the year 1298, which is called sextus decretalium. The Clementine Constitutions, or decrees of Clement V, were in like manner authenticated in 1317 by his successor John XXII; who also published twenty constitutions of his own, called the Extravagantes Toannis: all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes in five books, called extrovagantes communes. And all these together, Gratian’s Decree, Gregory's Decretals, the sixth decretal, the Clementine constitutions, and the extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.
BESIDES these pontificial collections, which during the time of popery were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of national canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legatine constitutions were ecclesiastical laws, enacted in national synods, 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 constitutions are principally the decrees of provincial synods, held under diverse arch-bishops of Canterbury, from Stephen Langton in the reign of Henry III to Henry Chichele in the reign of Henry V; and adopted also by the province of York in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliament that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute 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 solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity; whatever regard the clergy may think proper to pay them.
THERE are four species of courts in which the civil and canon laws are permitted under different restrictions to be used.
1. The courts of the arch-bishops and bishops and their derivative officers, usually called in our law courts christian, curiae christianitatis, or the ecclesiastical courts.
2. The military courts.
3. The courts of admiralty.
4. The courts of the two universities.
In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them.
1. AND, first, the courts of common law have the superintendency over these courts ; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.
2. THE common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts or the matters depending before them. And therefore if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to refrain and control them.
3. AN appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own. --- And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called, the king's ecclesiastical, the king's military, the king's maritime, or the king's academical, laws.
LET us next proceed to the leges scriptae, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king's majesty by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled. The oldest of these now extant, and printed in our statute books, is the famous Magna Carta, as confirmed in parliament 9 Hen. III: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.
THE manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. At present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction.
FIRST, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an universal rule, that regards the whole community ; and of these the courts of law are bound to take notice judicially and ex officio; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns ; such as the Romans entitled senatus-decreta, in contradistinction to the senatus-consulta, which regarded the whole community : and of these the judges are not bound to take notice, unless they be formally shown and pleaded. Thus, to show the distinction, the statute 13 Eliz, c. 10. to prevent spiritual persons from making leases for longer terms than twenty one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of Chester to make a lease to A. B. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act.
STATUTES also are either declaratory of the common law, or remedial of some defects therein. Declaratory where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2. does not make any new species of treasons ; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsovever. And, this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law : so that this was an enlarging statute . At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. beforementioned : this was therefore a restraining statute.
SECONDLY, the rules to be observed with regard to the construction of statutes are principally these which follow.
1. THERE are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy : that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide ; and what remedy the parliament has provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy. Let us instance again in the same restraining statute of the 13 Eliz. By the common law ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors : the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years. Now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop'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 successor. The mischief is therefore sufficiently suppressed by vacating them after the death of the grantor ; but the leases, during their lives, being not within the mischief, are not within the remedy.
2. A STATUTE, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior. So, a statute, treating of “deans, prebendaries, “parsons, vicars, and others having spiritual promotion,” is held not to extend to bishops, though they have spiritual promotion ; deans being the highest persons named, and bishops being of a still higher order.
3. PENAL statutes must be construed strictly. Thus a statute 1. Edw. VI. having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horse, and therefore procured a new act for that purpose in the following year. And, to come nearer our own times, by the statute 14 Geo. II. c. 6. stealing sheep, or other cattle, was made felony without benefit of clergy. But these general words, “or “other cattle,” being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next feffions, it was found necessary to make another statute , 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.
4. STATUTES against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly: but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5. which avoids all gifts of goods, & c, made to defraud creditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture.
5. ONE part of a statute must be so construed by another, that the whole may if possible stand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A; and A has at that time a lease of it for three years : here A shall hold it for his term of three years, and afterwards it shall go to the king. For this interpreation furnishes matter for every clause of the statute to work and operate upon. But
6. A SAVING, totally repugnant to the body of the act, is void. If therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A in the king, saving the right of A : in either of these cases the saving is totally repugnant to the body of the statute , and (if good) would render the statute of no effect or operation ; and therefore the saving is void, and the land vests absolutely in the king.
7. WHERE the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon the general principal laid down in the last fection, that “leges posteriores priores contraries abrogant.” But this is to be understood, only when the latter statute is couched in negative terms, or by its matter necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute comes and says, he shall have twenty marks: here the latter statute , though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end. But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assizes; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either; unless the new statute subjoins express negative words, as that the offence shall be indictable at the assises, and not elsewhere.
8. IF a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII, declaring the king to be the supreme head of the church, were repealed by a statute 1 & 2 Ph. and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in queen Elizabeth's statute, but these acts of king Henry were impliedly and virtually revived.
9. ACTS of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs, that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder o. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority : it acknowledges no superior upon earth, which the prior legislature must have been, if it's ordinances could bind the present parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses which endeavour to tie up the hands of succeeding legislatures. “When you repeal the law itself, says he, you at the same time repeal the prohibitory “clause, which guards against such repeal.”
10. LASTLY, acts of parliament that are impossible to be performed are of no validity ; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel. But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.
THESE are the several grounds of the laws of England: over and above which, equity is also frequently called in to assist, to moderate, and to explain it. What equity is, and how impossible in its very essence to be reduced to stated rules, hath been shown in the preceding section. I shall therefore only add, that there are courts of this kind established for the benefit of the subject, to correct and soften the rigor of the law, when through its generality it bears too hard in particular cases; to detect and punish latent frauds, which the law is not minute enough to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though perhaps not strictly legal; to deliver from such dangers as are owing to misfortune or oversight; and, in short, to relieve in all such cases as are, bona fide, objects of relief. This is the business of our courts of equity, which however are only converfant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but in cases where the letter induces any apparent hardship, the crown has the power to pardon.
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.
WHEN I call these parts of our law leges non scriptae, 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 leges sola memoria et usu retinebant. But with us at present the monuments and evidences of our legal 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 times of highest antiquity. However I therefore style these parts of our law leges non scripta, 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 their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that, which is “tacito “et illiterato hominum consensu et moribus expressum.”
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. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought 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 intermixture of adventitious 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 divers particular countries. Our laws, says lord Bacon, are mixed as our language: and as our language is so much the richer, the laws are the more complete.
AND indeed our antiquarians 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 he found it expedient to compile his dome-book or liber judicialis, for the general use of the whole kingdom. This book is said to have been extant so late as the reign of king Edward the fourth, 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. Thus 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 qui reipublicae praesunt, “etiam atque etiam mando, ut omnibus aeqquos se praebeant judices, “perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habetur; “nec quicquam formident quin jus commune (Saxonice, folepihre) “audacter libereque dicant.”
BUT the irruption 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 the beginning of the eleventh century there were three principal systems of laws prevailing in different districts.
1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales; the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs.
2. The West-Saxon-Lage, or laws of the west Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the fame with the laws of Alfred abovementioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence.
3. The Dane-Lage, or Danish law, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the seat of that piratical people. As for the very northern provinces, they were at that time under a distinct government.
OUT of these three laws, Roger Hoveden and Ranulphus Cestrensis 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 Alonzo X, who about the year 1250 executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled las partidas. And in Sweden about the same era, a universal body of common law was compiled out of the particular customs established by the laghman of every province, and entitled the land's lagh, being analogous to the common law of England.
BOTH these undertakings, of king Edgar and Edward the confessor, seem to have been no more than a new edition, or fresh promulgation, of Alfreds' code or dome-book, with such additions and improvements as the experience of a century and an 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 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; which 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 contradistinction 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 jus commune or folcright mentioned by king Edward the elder, after the abolition of the several provincial customs and particular laws beforementioned.
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. Whence it is that in our law the goodness of a custom depends upon its having 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. This it is that gives it its weight and authority; and of this nature are the maxims and custom which compose the common law, or lex non scripta, of the kingdom.
THIS unwritten, or common, law is properly distinguishable into three kinds:
1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification.
2. Particular customs, which for the most part affect only the inhabitants of particular districts.
3. Certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.
I. 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 solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary diftribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer; --- 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 offence, 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: 1. 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 2. 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 rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath 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 their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositary 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 “viginti annorum lucubrationes,” which Fortescue 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 “praeteritorum 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 rule 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 waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it 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 rule admits 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 bad law, but that it was not law; that is, that it is not the 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 thereto, and that what is not reason is not law. Not that the particular reason of every rule in the laws can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it hath been an ancient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom 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 must be followed, unless flatly absurd 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 a brother of the half blood (i.e. where they have only one parent the same, and the other different) shall never succeed as heir to the estate of his half brother, but it shall rather escheat 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 there is nothing repugnant to natural justice; though the reason of it, drawn from the feodal law, may not be quite obvious to every body. 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 seize 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 it 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 furnish 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; the arguments on both sides; and the reasons the court gave for their judgment; taken down in short notes by persons present at the determinations. And these serve as indexes to, and also to, 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 the Second inclusive; and from his time to that of Henry the Eighth were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. and it is much to be wished that this beneficial custom, had, under proper regulations, been continued to this day: for, though King James the First 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 the Eighth to the present time this task has been executed by many private and cotemporary 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 Coke; 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.
BESIDES these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert, with some others of ancient date, whose treatises are cited as authority; and are evidence that cases have formerly 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 Coke; who has 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 the Fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and year books, but greatly defective in method. 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 species of courts.
AND thus much for the first ground and chief corner stone of the laws of England, which is, general immemorial 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 writings of the venerable sages of the law.
THE Roman law, as practifed in the times of its liberty, paid 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 law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws “which the people hath approved without writing ought also to “bind every body. 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 did 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 habet vigorem, “cum populus ei et in eum omne suum imperium et potestatem conferat,” says Ulpian. “Imperator solus et conditor et ixterpres legis existimatur,” says the code. And again, “sacrilegii instar “est 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.
II. 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 usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But, for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament .
SUCH is the custom of gavelkind 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, succeed to his estate, without any escheat to the lord. --- Such is the custom that prevails in divers 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 dower, to all her husband's lands; whereas at the common law she shall be endowed of one third part only. --- Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold-tenants that hold of the said manors. --- Such likewise is the custom of holding divers 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 lex mercatoria; 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 maxim of law being, that “cuilibet in sua arte credendum est.”
THE rules relating to particular customs 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 gavelkind, 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 thereto. 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 shew the existence of the custom as, “that in the manor of Dale lands shall descend only to the “heirs male, and never to the heirs female;” and also to show that the lands in question are within that manor) is by a jury of twelve men, and not by the 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 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 then the law permits them not to certify on their own behalf.
WHEN a custom is actually proved to exist, the next enquiry 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.
1. THAT it have been used so long, that the memory of man runneth not to the contrary. So that if any one can shew 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.
2. IT must have been continued. Any interruption would cause a temporary ceasing: 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 an 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 any how discontinued for a day, the custom is quite at an end.
3. IT must have been peaceable, and acquiesced in; not subject to contention and dispute. For as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent way wanting.
4. CUSTOMS must be reasonable; or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke 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 sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to shew 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 peradventure the lord will never put in his; and then the tenants will lose all their profits
5. 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 tithes, 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 copyhold estate, is good: though the value is a thing uncertain. For the value may at any time be ascertained; and the maxim of law is, id certum est, quod certum redid potest.
6. CUSTOMS, though established by consent, must be (when established) compulsory; and not left to the option of very man, whether he will use them or no. 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.
7. LASTLY, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then 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 gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) convey away his lands in fee simple, or for ever. Yet this custom does not impower him to use any other conveyance, 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 lands of the nature of gavelkind, 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 leges non scriptae, or those particular customs which affect particular persons or districts only.
III. THE third branch of them are those peculiar 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 leges non scriptae, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; 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 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 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 give them no authority here: for the legislature of England doth 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 subjects. 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 leges non scriptae, 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 leges scriptae, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21. addressed to the king's royal majesty. --- “This your grace's “realm, recognizing no superior under God but only your grace, “hath 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 liberty, by their own “consent, to be used among them; and have bound themselves “by long use and custom to the observance of the same: not as “to the observance of the laws of any foreign prince, potentate, “or prelate; but as to the customed and ancient laws of this realm, “originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise.”
BY the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprised in the institutes, the code, 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 occasion 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 decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the responsa prudentum or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or as Livy expresses it, “tam immensus aliarum super alias acervatarum legum cumulus,” that they were computed to be many camels' load by an author who preceded Justinian. This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compiled, A. D. 438, being a methodical collection of all the imperial constitutions then in force: which Theodosian 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 their 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 compiled and finished by Tribonian and other lawyers, about the year 533.
THIS consists of, 1. The institutes, which contain the elements or first principles of the Roman law, in four books. 2. The digests, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions, the lapse of a whole century having rendered the former code, of Theodosius, imperfect. 4. The novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris 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 the Romish ecclesiastical, 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.
THE canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, the decretal epistles and bulls of the Holy See. All which lay in the same disorder and confusion as the Roman civil law, till about the year 1151, one Gratian an Italian monk, animated by the discovery of Justinian's Pandects at Amalfi, reduced them into some method in three books, which he entitled concordia discordantium canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of Pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX, were published in much the same method under the auspices of that pope, about the year 1230, in five books entitled Decretalia Gregorii Noni. A sixth book was added by Boniface VIII, about the year 1298, which is called sextus decretalium. The Clementine Constitutions, or decrees of Clement V, were in like manner authenticated in 1317 by his successor John XXII; who also published twenty constitutions of his own, called the Extravagantes Toannis: all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes in five books, called extrovagantes communes. And all these together, Gratian’s Decree, Gregory's Decretals, the sixth decretal, the Clementine constitutions, and the extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.
BESIDES these pontificial collections, which during the time of popery were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of national canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legatine constitutions were ecclesiastical laws, enacted in national synods, 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 constitutions are principally the decrees of provincial synods, held under diverse arch-bishops of Canterbury, from Stephen Langton in the reign of Henry III to Henry Chichele in the reign of Henry V; and adopted also by the province of York in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliament that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute 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 solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity; whatever regard the clergy may think proper to pay them.
THERE are four species of courts in which the civil and canon laws are permitted under different restrictions to be used.
1. The courts of the arch-bishops and bishops and their derivative officers, usually called in our law courts christian, curiae christianitatis, or the ecclesiastical courts.
2. The military courts.
3. The courts of admiralty.
4. The courts of the two universities.
In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them.
1. AND, first, the courts of common law have the superintendency over these courts ; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.
2. THE common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts or the matters depending before them. And therefore if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to refrain and control them.
3. AN appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own. --- And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called, the king's ecclesiastical, the king's military, the king's maritime, or the king's academical, laws.
LET us next proceed to the leges scriptae, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king's majesty by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled. The oldest of these now extant, and printed in our statute books, is the famous Magna Carta, as confirmed in parliament 9 Hen. III: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.
THE manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. At present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction.
FIRST, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an universal rule, that regards the whole community ; and of these the courts of law are bound to take notice judicially and ex officio; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns ; such as the Romans entitled senatus-decreta, in contradistinction to the senatus-consulta, which regarded the whole community : and of these the judges are not bound to take notice, unless they be formally shown and pleaded. Thus, to show the distinction, the statute 13 Eliz, c. 10. to prevent spiritual persons from making leases for longer terms than twenty one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of Chester to make a lease to A. B. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act.
STATUTES also are either declaratory of the common law, or remedial of some defects therein. Declaratory where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2. does not make any new species of treasons ; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsovever. And, this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law : so that this was an enlarging statute . At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. beforementioned : this was therefore a restraining statute.
SECONDLY, the rules to be observed with regard to the construction of statutes are principally these which follow.
1. THERE are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy : that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide ; and what remedy the parliament has provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy. Let us instance again in the same restraining statute of the 13 Eliz. By the common law ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors : the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years. Now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop'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 successor. The mischief is therefore sufficiently suppressed by vacating them after the death of the grantor ; but the leases, during their lives, being not within the mischief, are not within the remedy.
2. A STATUTE, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior. So, a statute, treating of “deans, prebendaries, “parsons, vicars, and others having spiritual promotion,” is held not to extend to bishops, though they have spiritual promotion ; deans being the highest persons named, and bishops being of a still higher order.
3. PENAL statutes must be construed strictly. Thus a statute 1. Edw. VI. having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horse, and therefore procured a new act for that purpose in the following year. And, to come nearer our own times, by the statute 14 Geo. II. c. 6. stealing sheep, or other cattle, was made felony without benefit of clergy. But these general words, “or “other cattle,” being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next feffions, it was found necessary to make another statute , 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.
4. STATUTES against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly: but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5. which avoids all gifts of goods, & c, made to defraud creditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture.
5. ONE part of a statute must be so construed by another, that the whole may if possible stand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A; and A has at that time a lease of it for three years : here A shall hold it for his term of three years, and afterwards it shall go to the king. For this interpreation furnishes matter for every clause of the statute to work and operate upon. But
6. A SAVING, totally repugnant to the body of the act, is void. If therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A in the king, saving the right of A : in either of these cases the saving is totally repugnant to the body of the statute , and (if good) would render the statute of no effect or operation ; and therefore the saving is void, and the land vests absolutely in the king.
7. WHERE the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon the general principal laid down in the last fection, that “leges posteriores priores contraries abrogant.” But this is to be understood, only when the latter statute is couched in negative terms, or by its matter necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute comes and says, he shall have twenty marks: here the latter statute , though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end. But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assizes; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either; unless the new statute subjoins express negative words, as that the offence shall be indictable at the assises, and not elsewhere.
8. IF a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII, declaring the king to be the supreme head of the church, were repealed by a statute 1 & 2 Ph. and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in queen Elizabeth's statute, but these acts of king Henry were impliedly and virtually revived.
9. ACTS of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs, that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder o. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority : it acknowledges no superior upon earth, which the prior legislature must have been, if it's ordinances could bind the present parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses which endeavour to tie up the hands of succeeding legislatures. “When you repeal the law itself, says he, you at the same time repeal the prohibitory “clause, which guards against such repeal.”
10. LASTLY, acts of parliament that are impossible to be performed are of no validity ; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel. But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.
THESE are the several grounds of the laws of England: over and above which, equity is also frequently called in to assist, to moderate, and to explain it. What equity is, and how impossible in its very essence to be reduced to stated rules, hath been shown in the preceding section. I shall therefore only add, that there are courts of this kind established for the benefit of the subject, to correct and soften the rigor of the law, when through its generality it bears too hard in particular cases; to detect and punish latent frauds, which the law is not minute enough to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though perhaps not strictly legal; to deliver from such dangers as are owing to misfortune or oversight; and, in short, to relieve in all such cases as are, bona fide, objects of relief. This is the business of our courts of equity, which however are only converfant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but in cases where the letter induces any apparent hardship, the crown has the power to pardon.
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