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layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “ to « the princess Sophia, and the heirs of her body, being protes“ tants,” it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words “ heirs of her body;" which in a legal sense comprise only certain of her lineal descendants.

2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point (8). Thus, when the law of England

(8) It is an established rule of construction that statutes in pari materiê, or upon the same subject, must be construed with a reference to each other; that is, that what is clear in one statute, shall be called in aid to explain what is obscure and ambiguous in another. Thus the last qualification act to kill game (22 and 23 Car. 2. c. 25.) enacts, “that every person not having lands and tenements, or some other es. “tate of inheritance, of the clear yearly value of 1001. or for life, or hav“ing lease or leases of ninety-nine years of the clear yearly value of “ 1501.” (except certain persons) shall not be allowed to kill game. Upon this statute a doubt arose, whether the words or for life should be referred to the 1001. or to the 1501. per annum. The court of king's bench having looked into the former qualification acts, and having found that it was clear by the first qualification act (13 R. 1. st. 1. c. 13.) that a layman should have 408. a year, and a priest 101. a year, and that by the 1 Ja. c. 27. the qualifications were clearly an estate of

declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual ; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to bene

fices by the pope were called provisions, we shall see [61] that the restraint is intended to be laid upon such pro• visions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf P, which enacted, “ that whoever drew blood in “ the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon,

p l. 5. c. 12. sec. 8.

inheritance of 101. a year, and an estate for life of 301. a year, they presumed that it still was the intention of the legislature to make the yearly value of an estate for life greater than that of an estate of inheri. tance, though the same proportions were not preserved ; and thereupon decided, that clergymen, and all others possessed of a life estate only, must have 1501. a year to be qualified to kill game. Lowndes v. Lewis, E. T. 22 Geo. 3.

The same rule to discover the intention of a testator is applied to wills, viz. the whole of a will shall be taken under consideration, in order to decypher the meaning of an obscure passage in it.

who opened the vein of a person that fell down in the street with a fit. • 15. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herenniusa. There was a law, that those who in a storm forsook the ship, should forfeit all property therein ; and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel : but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to its preservation (9).

From this method of interpreting laws, by the reason of them, arises what we call equity ; which is thus defined by Grotius , “the correction of that, wherein the law (by “ reason of its universality) is deficient.” For since [62] in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a a power vested of defining those circumstances, (which had q 1. 1. c. 11.

r de aequitate. Sec. 3.

(9) See a very sensible chapter upon the interpretation of laws in general, in Rutherforth's Institutes of Natural Law, b, 2.c. 7.

they been foreseen) the legislator himself would have expressed. And these are the cases, which, according to Grotius, lex non exacte definit, sed arbitrio boni viri permit« tit (10).”

Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest there. by we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity

though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce most infinite confu sion ; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

(10) The only equity, according to this description which exists in our government, either resides in the king, who can prevent the summum jus from becoming summa injuria, by an absolute or a conditional pardon, or in juries, who determine whether any, or to what estent, damages shall be rendered. But equity, as here explained, is by no means applicable to the court of chancery; for the learned Judge has elsewhere truly said, that “the system of our courts of equity is a “ laboured connected system, governed by established rules, and bound “ down by precedents, from which they do not depart, although the “reason of some of them may perhaps be liable to objection.” 3 Vol. 432.



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, because 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 a; and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebantb. 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 profes

a Cses. de B. G. lib. 6. c. 13.

b Spelm. Gl. 367.

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