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is what we mean by the original contract of society; that the whole shall protect all its parts, and that every part shall pay obedience to the will of the whole; without which submission of all, it is impossible that protection can be certainly extended to any.
When civil society is once formed, government at the same time results, of course, as necessary to preserve and to keep that society in order : for unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs.
In what manner, however, the several forms of government we now see in the world at first actually began, it is not my business or intention to discuss. By what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summa imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are most likely to be found.
Political writers will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly, consisting of all the free members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is intrusted in the hands of a single person, and then it takes the name of a monarchy. By the sovereign power is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form of the government may be. For the legislature may at any time alter that form, and put the execution of the laws into whatever hands it pleases; and all the other powers of the state must obey the legislature, or else the constitution is at an end.
In a democracy, public virtue, or goodness of intention, is more likely to be found than either of the other qualities of government. In aristocracies there is more wisdom to be found than in the other frames of government; but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is, indeed, the most powerful of any; for the legislative and executive powers are united in the hand of the prince, subject to the imminent danger of his employing that strength to improvident or oppressive purposes.
These three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of the law; aristocracies to invent the means by which that end shall be obtained ; and monarchies to carry those means into execution.
The British constitution is supposed to combine the advantages of each. For the executive power being lodged in a single person, has all the advantages of strength and despatch that are to be found in the most absolute monarchy: and the legislature is intrusted to three distinct powers, entirely independent of each other; first, the crown ; secondly, the lords spiritual and temporal, which is an aristocratic assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and thirdly, the house of commons, chosen by the people from among themselves, which makes it a kind of democracy. This aggregate body composes the British parliament, wherein is lodged the sovereignty of the British constitution; that is to say, the right to make laws, or in the words of our definition, to prescribe the rule of civil action.
Thus far as to the right of the supreme power to make laws; but further, it is its duty likewise. For since the respective members are bound to conform themselves to the will of the whole body or state, it is expedient that they receive directions from the state declaratory of that its will. But as it is impossible to give injunctions to every particular man, relative to each particular action, it is incumbent on the state to establish general rules for the perpetual information and direction of all persons in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what degree he retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner he is to use and exercise those rights which the state assigns him, in order to secure the public tranquillity.
From what has been advanced, the truth of the former branch of our definition is (I trust) sufficiently evident; that “municipal law “ is a rule of civil conduct prescribed by the supreme power in a state.” I proceed now to the latter branch of it; that it is a rule so prescribed, “ commanding what is right, and prohibiting what is wrong."
Now, in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights, and to restrain or redress those wrongs. It remains, therefore, only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.
For this purpose every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, directory; whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs : a third, remedial; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs : to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.
The first of these, the declaratory part of the municipal law, depends upon the wisdom and will of the legislator. Natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are ; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the other hand, no legislature has power to abridge or destroy them, unless the owner shall himseif commit some act that amounts to a forfeiture. Neither do natural duties (such as the maintenance of children and the like) receive any sanction from being also declared to be duties by the law of the land. The case is the same as to crimes that are forbidden by the superior law, and styled mala in se, such as murder; which contract no additional turpitude from being declared unlawful by the inferior legislature. But with regard to things in themselves indifferent, the case is entirely altered. These become right or wrong, according as the legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our common law has declared, that the goods of the wife do instantly upon marriage become the property of the husband; and our statute law has declared all monopolies a public offence : yet that right and this offence have no foundation in nature ; but are merely created by the law, for the purposes of civil society. And so, as to injuries or crimes, it must be left to our own legislature to decide in what cases the seizing of another's cattle shall amount to a trespass or a theft; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.
The directory part of a law stands much upon the same footing; the declaration being usually collected from the direction. Thus the law that says, “thou shalt not steal,” implies a declaration that stealing is a crime.
The remedial part of the law is a necessary consequence of it; for in vain would rights be declared if there were no method of asserting them, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, “ that the field 6 or inheritance, which belonged to Titius's father, is vested by his “ death in Titius ;” and the directory part has “forbidden any one “ to enter on another's property, without the leave of the owner :" if Gaius, after this, will presume to take possession of the land, the remedial part of the law will then interpose its office; will make Gaius restore the possession to Titius, and also pay him damages for the invasion.
With regard to the sanction of laws, or the evil that may attend the breach of public duties, it is observed, that human legislators have for the most part chosen to make the sanction of their laws vindicatory rather than remuneratory, or to consist rather in punishments than in rewards. The dread of evil is a much more forcible principle of human action than the prospect of good ; for which reason the law seldom, if ever, proposes any privilege or gift to such as obey it; but constantly comes armed with a penalty denounced against transgressors.
I have now gone through the definition of a municipal law: and have shown that it is a “rule—of civil conduct-prescribed by the “supreme power in a state--commanding what is right, and pro“hibiting what is wrong.” I proceed now to consider the origin and nature of the laws of England.
SECTION II. OF THE LAWS OF ENGLAND. Early laws traditional - Alfred's Dom-boe ---Laws of Edward the Confessor
-Unwritten or common law-Particular customs-Peculiar laws—Civil
and canon law—Written or statute law. The municipal law of England 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 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, because the nations among which they prevailed had but little idea of writing. 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. I, therefore, style these parts of our law leges non scriptoe, 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.
Our ancient lawyers insist that these customs are as old as the primitive Britons, and continued down, through the several mutations of governments and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some; but 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 the Romans, the Picts, the Saxons, the Danes, and the Normans, who successively occupied parts of England, 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.
And indeed our early historians 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 for general use his dome-book, or liber judicialis; which is said to have been extant so late as the reign of King Edward IV., but is now unfortunately lost. But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred to fall into disuse; or at least to be mixed with other laws. 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. 2. The West-Saxen-Lage, or laws of the West Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. 3. The Dane-Lage, or Danish law, the very name of which speaks its origin and composition.