LAVORI

LAVORI (TERRA DI), a province of Italy, in the kingdom of Naples, bounded on the west by the Campania of Rome, and by Farther Abruzzo; on the north by the Citerior Abruzzo, and by the county of Molissa; on the east by the Ultra Principata; and on the south by the Principata Citra. It is about 63 miles in length and 35 in breadth; and is fertile in corn, excellent vines, and other fruits. There are also several mineral springs and mines of sulphur; Naples is the capital town.

^{Of Laws in general.} LAW, in its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, of mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.

Thus when the Supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for its direction; as, that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.

If we farther advance, from mere inanimate matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal nutrition, digestion, secretion, and all other branches of vital economy;—are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator.

This then is the general signification of law, a rule of action dictated by some superior being: and, in those creatures that have neither the power to think nor to will, such laws must be invariably obeyed, so long as the creature itself subsists; for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublumary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour.

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue but such as he prescribes to himself: but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependence consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man

depends absolutely upon his Maker for every thing, it is necessary that he should in all points conform to his Maker's will.

This will of his Maker is called the law of nature. For as God, when he created matter, and endowed it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endowed him with free-will to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that free-will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purpose of those laws.

Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature man, however unjust or severe. But as he is also a Being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: That we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Julian has reduced the whole doctrine of law.

But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As therefore the Creator is a being, not only of infinite power and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven, the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own happiness." This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action

action

action tends to man's real happiness; and therefore very justly concluding, that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason: whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by considering, what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

This has given manifold occasion for the benign interposition of Divine Providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered, we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude, that the knowledge of these truths was attainable by reason in its present corrupted state; since we find, that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law: because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority: but till then they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy: for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to,

the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural, law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientie, to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the Author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called the law of nations: which, as none of these states will acknowledge a superiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements, between these several communities: in the construction also of which compacts we have no other rule to resort to but the law of nature; being the only one to which both communities are equally subject: and therefore the civil law very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.

To the consideration, then, of the law of nature, the revealed law, and the law of nations, succeeds that of the municipal or civil law; that is, the rule by which particular districts, communities, or nations, are governed; being thus defined by Justinian, "jus civile est quod quisque sibi populus constituit." We call it municipal law, in compliance with common speech; for though, strictly, that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation which is governed by the same laws and customs.

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." Let us endeavour to explain its several properties, as they arise out of this definition.

And, first, it is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate

cate the goods of Titius, or to attain him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the Maker's will. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also.

It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, "I will, or will not, do this;" that of a law is, "Thou shalt, or shalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising any thing at all. Upon these accounts law is defined to be "a rule."

Municipal law is also "a rule of civil conduct." This distinguishes municipal law from the natural or revealed: the former of which is the rule of moral conduct; and the latter not only the rule of moral conduct, but also of faith. These regard man as a creature; and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.

It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England and of Scotland. It may be notified vox voce, by officers appointed for that purpose; as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may, lastly, be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more

effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee, that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "prescribed." But when this rule is in the usual manner notified or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

But further: Municipal law is "a rule of civil conduct prescribed by the supreme power in a state." For the legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.

This will naturally lead us into a short inquiry concerning the nature of society and civil government; and the natural inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

The only true and natural foundations of society are the wants and fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides, it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation 2000 years afterwards; both which were effected by the means of single families. These formed the first society among themselves, which every day extended its limits; and when it grew too large to subsist with convenience in that pastoral state wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society. And this is what we mean by the original

original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all, it was impossible that protection could be certainly extended to any.

For when society is once formed, government results of course, as necessary to preserve and to keep that society in order. Unless some superior 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. But as all the members of society are naturally equal, it may be asked, In whose hands are the reins of government to be entrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. In general, all mankind will agree, that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the Supreme Being; the three grand requisites, namely, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength or power to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government.

How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not our business or intention to enter into any of them. However they began, or 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 summi 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 the most likely to be found.

The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an aggregate assembly consisting of all the members of a community which is called a democracy; the second, when it is lodged in a council composed of select members, and then it is styled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.

By the sovereign power, as was before observed, is
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meant the making of laws; for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end.

In a democracy, where the right of making laws resides in the people at large, public virtue or goodness of intention is more likely to be found than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found than in the other forms of government; being composed, or intended to be composed, of the most experienced citizens: 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, all the finews of government being knit and united together in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes.

Thus these three species of government have all of them their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies, to invent the means by which that end shall be obtained; and monarchies, to carry those means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero declares himself of opinion, "esse optimo constitutionem rempublicam, quæ ex tribus generibus illis, regali, optimo, et populari, sit modice confusa;" yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure.

But, happily for us of this island, the British constitution has long remained, and we trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch that are to be found in the most absolute monarchy: and, as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing, there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two, each branch being armed with a negative power sufficient to repel any innovation which it shall think inexpedient or dangerous.

Here, then, is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the king and house of lords: our laws might be providently made and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen, that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. The legislature would be changed from that which was originally set up by the general consent and fundamental act of the society: and such a change, however effected, is, according to Mr Locke (who perhaps carries his theory too far), at once an entire dissolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.

Having thus cursorily considered the three usual species of government, and our own singular constitution selected and compounded from them all, we proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted; and this will of that one man, or assembly of men, is in

different states, according to their different constitutions, understood to be law.

Thus far as to the right of the supreme power to make laws: but farther, it is its duty likewise. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will. But as it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty: and this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty, and what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity.

From what has been advanced, the truth of the former branch of our definition is (we trust) sufficiently evident; that "municipal law is a rule of civil conduct, prescribed by the supreme power in a state." We 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 these 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.

With regard to the first of these, the declaratory part of the municipal law; this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights, then, which God and nature have established, and are therefore called 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 contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanours, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, in subordination to the Great Lawgiver, transferring and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

But with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanours, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public 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 sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seizing another's cattle shall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.

Thus much for the declaratory part of the municipal law: and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, "Thou shalt not steal," implies a declaration that stealing is a crime. And we have seen, that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them.

The remedial part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, "that the field or inheritance which belonged to 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 rather vindicatory than remuneratory, or to consist rather in punishments than in actual particular rewards: Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards: because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty: and farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good. For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are intrusted with the care of putting the laws in execution.

Of all the parts of a law the most effectual is the vindicatory. For it is but lost labour to say, "Do this, or avoid that," unless we also declare, "This shall be the consequence of your non-compliance." We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

Legislators and their laws are said to compel and oblige: not that, by any natural violence, they so constrain a man as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.

It is true, it hath been holden, and very justly, by the principal of our ethical writers, that human laws are binding upon mens consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, we apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is a matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are

Of Laws mala in se: here we are bound in conscience, because in general we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance; here seems to be conscience no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked, thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty?" and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto, for erecting cottages without annexing four acres of land to each, for not burying the dead in woollen, for not performing statute-work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offence, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must, however, be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offence. But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience.

We have now gone through the definition laid down 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 prohibiting what is wrong:" in the explication of which we have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. Before we conclude this part, it may not be amiss to add a few observations concerning the interpretation of laws.

When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions which had only the nature of things for their guide. The emperor Marcus, as his historian Capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts: he could not bear that the hasty

and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise, and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbade a 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 acceptance 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 Protestants, it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her body;" which in a legal sense comprise only certain of her lineal descendants. Lastly, where words are clearly repugnant in two laws, the latter law takes place of the elder: leges posteriores priores contrarias obrogant, is a maxim of universal law, as well as of our own constitutions. And accordingly it was laid down by a law of the twelve tables at Rome, Quod populus postremum iussit, id ius ratum esto.

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 a 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. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and, when the common law censures 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 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 benefices by the Pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, 4 H 2 That

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, 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 who opened the vein of a person that fell down in the street with a fit.

5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the rhetorical treatise inscribed to Herennius. There was a law, That those who in a storm forsook the ship should forfeit all property therein, and 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.

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 in laws all cases cannot be foreseen or expressed, it is necessary, that, when the general decrees of

the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, "lex non exa&te definit, sed arbitrio boni viri permittit."

Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion: as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

HAVING thus considered the nature of laws in general, we shall proceed to give a view of the particular law of our own country; 1. Of England; 2. Of Scotland. The English law, however, being too extensive to admit of detail in a body, we can only here give such a sketch of it as may be sufficient to show the connection of its parts; but the principal of these parts themselves are explained at large, under their proper names, in the general alphabet.—A contrary method is followed with regard to the law of Scotland. This being less extensive, is given in a body, with all its parts not only in regular connection, but sufficiently explained; these parts, again, not being explained in the order of the alphabet, but marked with numerical references to their explanations in the system.

THE municipal law of England, or the rule of civil conduct prescribed to the inhabitants of that 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 these particular laws that are by custom observed only in certain courts and jurisdictions.

In calling these parts of the law leges non scriptae, we 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

Gallie 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, we therefore style these parts of our law leges non scriptae, 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 ius 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.

habitants, 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 diverse particular countries. Our laws, faith 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 Edward IV. but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. 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 reipublicæ præstant etiam atque etiam mando, ut omnibus æquos se præbeant iudices, perinde ac in judiciali libro scriptum habetur: nec quomodo formidant quin jus commune 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 11th century there were three principal systems of laws prevailing in different districts. 1. The Merren-Lage, or Mercian laws, which were observed in many of the inland 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 same with the laws of Alfred above-mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 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 part most exposed to the visits 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 informs 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, which were formed from an assemblage of little provinces, governed by peculiar customs. As in Portugal, under king Edward, about the beginning of the 15th 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 lagsman 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 Alfred's 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 restitutur. These, however, are the laws which our historians 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 12th century a new Roman empire over the most of the states on the continent: states that have lost, and perhaps upon that account, their political liberties; while the free constitution of England, perhaps upon the same account, has been rather improved than debased. These, in short, are the laws which gave rise and origin 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 solemn, mentioned by king Edward the Elder, after the abolition of the several provincial customs and particular laws before mentioned.

But though this is the most likely foundation of this collection of maxims and customs; yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. 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 customs which compose the common law, or lex non scripta, of this 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

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 minute particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common 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 and delivered;—that wills shall be construed more favourably, 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 these seem 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 showing 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 depository of the laws; the living oracles who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study; from the viginti annorum luctationes, 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 for-

mer precedents may give light or assistance. And therefore, even so early as the conquest, we find the præteritorum memoria eventorum reckoned up as one of the chief qualifications of those who were held to be legibus patrie optimis 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 judgement, 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 law 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 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 artificial reason of it, drawn from the feudal 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

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 its judgment; taken down in short notes by persons present at the determination. And these serve as indexes 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 II. inclusive; and from his time to that of Henry VIII. were taken by the prothonotaries, or chief scribes of the court, at the expence 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 I. at the instance of lord Bacon, appointed two reporters, with a handsome stipend, for this purpose; yet that wise institution was soon neglected, and from the reign of Henry VIII. to the present time this task has been executed by many private and eotemporary 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 (A).

Besides these reporters, there are also other authors, to whom great veneration and respect are 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 hath written four volumes of Institutes, as he is pleased to call them, tho' they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge Littleton in the reign of Edward IV. This comment is a rich mine of valuable common-law learning, collected and heaped together from the ancient reports and year-books, but greatly defective in method (B). 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 (C).

And thus much for the first ground and chief cornerstone 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 the public records, explained in the reports, and digested for general use in the authoritative writings of the venerable sages of the law.

The Roman law, as practised 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 was 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 have 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 interpres legis existimatur, says the code. And again, Sacerilegium instar est rescripto principis obviare. And indeed it is one of the characteristic marks of British liberty, that the common law depends

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, though the ancestor be attainted and hanged, yet the heir shall 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. All these are contrary to the general law of the land, and are good only by special usage; though the customs 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 general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions; for it is a maxim of law, that cuiuslibet 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
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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 show 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 12 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 inquiry is into the legality of it; for if it is not a good custom, it ought to be no longer used. Malus usus abolendus est, is an established maxim of the law. To make a particular custom good, the following are necessary requisites.

1. That it have been used so long, that the memory of man runneth not to the contrary. So that, if any one can show the beginning of it, it is no good custom. For which reason, no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist.

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 10 or 20 years, will not destroy the custom. As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed though they do not use it for 10 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 was 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 show the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall

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 a l 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 reddi potest.

6. Customs, though established by consent, must be (when established) compulsory: and not left to the option of every man, whether he will use them or 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 15 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 empower 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 are understood 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 this is done after the example of Sir Matthew Hale, Vol. IX. Part. II.

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 suffrage 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 suffrage, consents, and custom; and none otherwise."

1. 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 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 12 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 a great bulk, or, as Livy expresses it, tam immensus aliarum super alias accretarum 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

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 50 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 Roman ecclesiastics, suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded.

2. 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, reduced the ecclesiastical constitutions also 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 20 constitutions of his own, called Extravagantes Joannis; 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 Extravagantes Communis. 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 pontifical collections, which during the times 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 Clement 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 divers archbishops 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 archbishops and bishops, and their derivative officers; usually called courts Christian, (curie 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 them will fall under their proper articles. 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 restrain and control them.

3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised

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 emblems 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 graviore 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 scriptæ, the written laws of the kingdom; which are statutes, acts, or edicts, made by the king's majesty, by and with the advice 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 charta, 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 being explained under the articles BILL and PARLIAMENT, we shall here only take notice of the different kinds of statutes; and of some general rules with regard to their construction (p).

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 this the courts of law are bound to take notice judicially and ex officio, without the statute being particularly pleaded, or formerly 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 shewn and pleaded. Thus, to shew the distinction, the statute 13 Eliz. c. 10. to prevent spiritual persons from making leases for longer terms than 21 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 60 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. 3. doth 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 whatsoever. 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, hath 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. 14. to make it a restraining statute. At common law, also, spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before mentioned; 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

(p) The method of citing these acts of parliament is various. Many of the ancient statutes are called after the name of the place where the parliament was held that made them; as the statutes of Merton and Marlborough, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the articuli clerici, and the prerogativa regis. Some are distinguished by their initial words, a method of citing very ancient; being used by the Jews, in denominating the books of the pentateuch; by the Christian church, in distinguishing their hymns and divine offices; by the Romanists, in describing their papal bulls; and in short by the whole body of ancient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also; in imitation of all which we still call some of the old statutes by their initial words, as the statute of Quia emptores, and that of Circumscriptæ agitis. But the most usual method of citing them, especially since the time of Edward II. is by naming the year of the king's reign in which the statute was made, together with the chapter or particular act, according to its numeral order; as, 9 Geo. II. c. 4. For all the acts of one session of parliament taken together make properly but one statute; and therefore, when two sessions have been held in one year, we usually mention stat. 1. or 2. Thus the bill of rights is cited, as 1 W. & M. st. 2. c. 2. signifying that it is the second chapter or act of the second statute or the laws made in the second sessions of parliament held in the first year of king William and queen Mary.

what remedy the parliament hath 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 13 Eliz. c. 10. 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 21 years. Now in the construction of this statute it is held, that leases, tho' for a longer term, if made by a bishop, are not void during the bishop's continuance in his see; or, if made by a dean and chapter, they are not void during the continuance 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 determination of the interest of the granters; but the leases, during their continuance, 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 Widate v. Edw. VI. c. 12. having enacted that those benefit of clergy, the judges conceived that this did not extend to him who should steal but one horse, and therefore procured a new act for that purpose in the following year. And, to come nearer to 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 sessions, it was found necessary to make another statute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, fleers, 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 voids 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 interpretation 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 principle laid down in the last section, that leges posteriores priores contrarias 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 the 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 later 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 assizes, 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 and 2 Philip 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. 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 its 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.

gislatures. "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. We lay down the rule with these restrictions; though we 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, we 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 quod 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 not.

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 them. What equity is, and how impossible is its very essence to be reduced to stated rules, hath been shewn above. It may be sufficient, therefore, to add in this place, that, besides the liberality of sentiment with which our common-law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind, there are also courts of equity established for the benefit of the subject, to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of the courts of equity, which however are only conversant 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 objects of the laws of England are, 1. The rights of persons. 2. The rights of things. 3. Private wrongs. 4. Public wrongs.

SECT. I. Of the absolute rights of individuals. [xiv.]

(1.) THE objects of the Laws of England are, 1. Rights. 2. Wrongs.

(2.) Rights are the rights of persons, or the rights of things.

(3.) The rights of persons are such as concern, and are annexed to, the persons of men: and, when the person to whom they are due is regarded, they are called (simply) rights; but, when we consider the person from whom they are due, they are then denominated duties.

(4.) Persons are either natural, that is, such as they are formed by nature: or artificial, that is, created by human policy, as bodies politic or corporations.

(5.) The rights of natural persons are, 1. Absolute, or such as belong to individuals. 2. Relative, or such as regard members of society.

(6.) The absolute rights of individuals, regarded by the municipal laws (which pay no attention to duties, or civil liberty).

(7.) Political or civil liberty is the natural liberty of mankind, so far restrained by human laws as is necessary for the good of society.

(8.) The absolute rights or civil liberties of Englishmen, as frequently declared in parliament, are principally three; the right of personal security, of personal liberty, and of private property.

(9.) The right of personal security consists in the legal enjoyment of life, limb, body, health, and reputation.

(10.) The right of personal liberty consists in the free power of locomotion, without illegal restraint or banishment.

(11.) The right of private property consists in every man's free use and disposal of his own lawful acquisitions, without injury or illegal diminution.

(12.) Besides these three primary rights, there are others which are secondary and subordinate; viz. (1) To preserve the former from unlawful attacks; (2) The constitution and power of parliaments; (3) The limitation of the king's prerogative;—And (to vindicate them when actually violated) (4) The regular administration of public justice; (5) The right of petitioning for redress of grievances; (6) The right of having and using arms for self defence.

SECT. II. Of the parliament. [xiv.]

(1.) THE relations of persons are, 1. Public. 2. Private. The public relations are those of magistrates and people.

people. Magistrates are superior or subordinate. And of supreme magistrates, in England, the parliament is the supreme legislative, the king the supreme executive.

(2.) Parliaments, in some shape, are of as high antiquity as the Saxon government in this island; and have subsisted, in their present form, at least five hundred years.

(3.) The parliament is assembled by the king's writs, and its sitting must not be intermitted above three years.

(4.) Its constituent parts are the king's majesty, the lords spiritual and temporal, and the commons represented by their members; each of which parts has a negative, or necessary, voice in making laws.

(5.) With regard to the general law of parliament; its power is absolute; each house is the judge of its own privileges; and all the members of either house are intitled to the privilege of speech, of person, of their domestics, and of their lands and goods.

(6.) The peculiar privileges of the lords (besides their judicial capacity), are to hunt in the king's forests; to be attended by the sages of the law; to make proxies; to enter protests; and to regulate the election of the 16 peers of North-Britain.

(7.) The peculiar privileges of the commons are to frame taxes for the subject; and to determine the merits of their own elections, with regard to the qualifications of the electors and elected, and the proceedings at elections themselves.

(8.) Bills are usually twice read in each house, committed, engrossed, and then read a third time; and when they have obtained the concurrence of both houses, and received the royal assent, then they

(9.) The houses may adjourn themselves; but the king only can prorogue the parliament.

(10.) Parliaments are dissolved, 1. At the king's will. 2. By the demise of the crown, that is, within six months after. 3. By length of time, or having sat for the space of seven years.

(1.) THE supreme executive power of this kingdom is lodged in a single person; the king or queen.

(2.) This royal person may be considered with regard to, 1. His title. 2. His royal family. 3. His councils. 4. His duties. 5. His prerogative. 6. His revenue.

(3.) With regard to his title, the crown of England, by the positive constitution of the kingdom, hath ever been descendible, and so continues.

(4.) The crown is descendible in a course peculiar to itself.

(5.) This course of descent is subject to limitation by parliament.

(6.) Notwithstanding such limitations, the crown retains its descendible quality, and becomes hereditary in the prince to whom it is limited.

(7.) King Egbert, King Canute, and King William I. have been successively constituted the common stock, or ancestors, of this descent.

(8.) At the revolution the convention of estates, or representative body of the nation, declared, that the misconduct of King James II. amounted to an abdica-

tion of the government, and that the throne was thereby vacant.

(9.) In consequence of this vacancy, and from a regard to the ancient line, the convention appointed the next Protestant heirs of the blood royal of King Charles I. to fill the vacant throne, in the old order of succession; with a temporary exception, or preference, to the person of King William III.

(10.) On the impending failure of the Protestant line of King Charles I. (whereby the throne might again have become vacant) the king and parliament extended the settlement of the crown to the Protestant line of King James I. viz. to the Princess Sophia of Hanover, and the heirs of her body, being Protestants; And she is now the common stock, from whom the heirs of the crown must descend.

(1.) THE king's royal family consists, first, of the queen; who is regnant, consort, or dowager.

(2.) The queen consort is a public person, and hath many personal prerogatives and distinct revenues.

(3.) The Prince and Princess of Wales, and the Princess-royal, are peculiarly regarded by the law.

(4.) The other princes of the blood-royal are only intitled to precedence.

(1.) THE king's councils are, 1. The parliament. 2. The great council of peers. 3. The judges, for the law. 4. The privy council.

(2.) In privy-councillors may be considered, 1. Their creation. 2. Their qualifications. 3. Their duties. 4. Their powers. 5. Their privileges. 6. Their dissolution.

(1.) THE king's duties are to govern his people according to law, to execute judgment in mercy, and to maintain the established religion. These are his part of the original contract between himself and the people; founded in the nature of society, and expressed in his oath at the coronation.

(1.) PREROGATIVE is that special power and pre-eminence which the king hath above other persons, and out of the ordinary course of law, in right of his regal dignity.

(2.) Such prerogatives are either direct, or incidental. The incidental, arising out of other matters, are considered as they arise; We now treat only of the direct.

(3.) The direct prerogatives regard, 1. The king's dignity, or royal character; 2. His authority, or regal power; 3. His revenue, or royal income.

(4.) The king's dignity consists in the legal attributes of, 1. Personal sovereignty. 2. Absolute perfection. 3. Political perpetuity.

(5.) In the king's authority, or regal power, consists the executive part of government.

(6.) In foreign concerns; the king, as the representa-

Law of England, epitomised. tive of the nation, has the right or prerogative, 1. Of sending and receiving ambassadors. 2. Of making treaties. 3. Of proclaiming war or peace. 4. Of issuing reprisals. 5. Of granting safe conducts.

(7.) In domestic affairs; the king is, first, a constituent part of the supreme legislative power; hath a negative upon all new laws; and is bound by no statute, unless specially named therein.

(8.) He is also considered as the general of the kingdom, and may raise fleets and armies, build forts, appoint havens, erect beacons, prohibit the exportation of arms and ammunition, and confine his subjects within the realm, or recall them from foreign parts.

(9.) The king is also the fountain of justice, and general conservator of the peace; and therefore may erect courts (wherein he hath a legal ubiquity), prosecute offenders, pardon crimes, and issue proclamations.

(10.) He is likewise the fountain of honour, of office, and of privilege.

(11.) He is also the arbiter of domestic commerce; (not of foreign, which is regulated by the law of merchants); and is therefore intitled to the erection of public marts, the regulation of weights and measures, and the coinage or legitimisation of money.

(12.) The king is, lastly, the supreme head of the church; and, as such, convenes, regulates, and dissolves synods, nominates bishops, and receives appeals in all ecclesiastical causes.

(1.) THE king's revenue is either ordinary or extraordinary. And the ordinary is, 1. Ecclesiastical. 2. Temporal.

(2.) THE king's ecclesiastical revenue consists in, 1. The custody of the temporalities of vacant bishoprics. 2. Corodies and pensions. 3. Extra-parochial tithes. 4. The first fruits and tenths of benefices.

(3.) THE king's ordinary temporal revenue consists in, 1. The demesne lands of the crown. 2. The hereditary excise; being part of the consideration for the purchase of his feudal profits, and the prerogatives of purveyance and pre-emption. 3. An annual sum issuing from the duty on wine-licences; being the residue of the same consideration. 4. His forests. 5. His courts of justice. 6. Royal fish. 7. Wrecks, and things jet-sam, slot-sam, and ligan. 8. Royal mines. 9. Treasure-trove. 10. Waifs. 11. Estrays. 12. Forfeitures for offences, and deodands. 13. Escheats of lands. 14. Custody of idiots and lunatics.

(4.) THE king's extraordinary revenue, consists in aids, subsidies, and supplies, granted him by the commons in parliament.

(5.) Heretofore these were usually raised by grants of the (nominal) tenth or fifteenth part of the moveables in every township; or by scutages, hydages, and talliages; which were succeeded by subsidies assessed upon individuals, with respect to their lands and goods.

(6.) A new system of taxation took place about the time of the revolution: our modern taxes are therefore, 1. Annual. 2. Perpetual.

(7.) The annual taxes are, 1. The land-tax, or the ancient subsidy raised upon a new assessment. 2. The

malt-tax, being an annual excise on malt, mum, cyder, and perry.

(8.) The perpetual taxes are, 1. The customs, or tonnage and poundage of all merchandise exported or imported. 2. The excise-duty, or inland imposition on a great variety of commodities. 3. The salt-duty, or excise on salt. 4. The post-office, or duty for the carriage of letters. 5. The stamp-duty on paper, parchment, &c. 6. The duty on houses and windows. 7. The duty on licences for hackney coaches and chairs. 8. The duty on offices and pensions.

(9.) Part of this revenue is applied to pay the interest of the national debt, till the principal is discharged by parliament.

(10.) The produce of these several taxes were originally separate and specific funds, to answer specific loans upon their respective credits; but are now consolidated by parliament into three principal funds, the aggregate, general, and South-Sea funds, to answer all the debts of the nation: the public faith being also superadded, to supply deficiencies, and strengthen the security of the whole.

(11.) The surpluses of these funds, after paying the interest of the national debt, are carried together, and denominated the sinking fund; which, unless otherwise appropriated by parliament, is annually to be applied towards paying off some part of the principal.

(12.) But, previous to this, the aggregate fund is now charged with an annual sum for the civil list; which is the immediate proper revenue of the crown, settled by parliament on the king at his accession, for defraying the charges of civil government.

(1.) SUBORDINATE magistrates, of the most general use and authority, are, 1. Sheriffs. 2. Coroners. 3. Justices of the Peace. 4. Constables. 5. Surveyors of the highways. 6. Overseers of the poor.

(2.) THE sheriff is the keeper of each county, annually nominated in due form by the king; and is (within his county) a judge, a conservator of the peace, a ministerial officer, and the king's bailiff.

(3.) Coroners are permanent officers of the crown in each county, elected by the freeholders; whose office it is to make inquiry concerning the death of the king's subjects, and certain revenues of the crown; and also, in particular cases, to supply the office of sheriff.

(4.) Justices of the peace are magistrates in each county, statutorily qualified, and commissioned by the king's majesty: with authority to conserve the peace; to hear and determine felonies, and other misdemeanors; and to do many other acts committed to their charge by particular statutes.

(5.) Constables are officers of hundreds and townships, appointed at the leet, and empowered to preserve the peace, to keep watch and ward, and to apprehend offenders.

(6.) Surveyors of the highways are officers appointed annually in every parish; to remove annoyances in, and to direct the reparation of the public roads.

(7.) Overseers of the poor are officers appointed annually in every parish; to relieve such impotent, and employ such sturdy poor, as are settled in each parish,—by birth,—by parentage,—by marriage,—or by

40 days residence; accompanied with, 1. Notice.
2. Renting a tenement of ten pounds annual value.
3. Paying their assessed taxations. 4. Serving an annual office. 5. Hiring and service for a year. 6. Apprenticeship for seven years. 7. Having a sufficient estate in the parish.

(1.) THE people are either aliens, that is, born out of the dominions, or allegiance, of the crown of Great Britain; or natives, that is, born within it.

(2.) Allegiance is the duty of all subjects; being the reciprocal tie of the people to the prince, in return for the protection he affords them; and, in natives, this duty of allegiance is natural and perpetual; in aliens, is local and temporary only.

(3.) The rights of natives are also natural and perpetual: those of aliens, local and temporary only; unless they be made denizens by the king, or naturalised by parliament.

(1.) THE people, whether aliens, denizens, or natives, are also either clergy, that is, all persons in holy orders, or in ecclesiastical offices; or laity, which comprehends the rest of the nation.

(2.) The clerical part of the nation, thus defined, are, 1. Archbishops and bishops; who are elected by their several chapters, at the nomination of the crown, and afterwards confirmed and consecrated by each other. 2. Deans and chapters. 3. Arch-deacons. 4. Rural deans. 5. Parsons (under which are included appropriators) and vicars; to whom there are generally requisite, holy orders, presentation, institution, and induction. 6. Curates. To which may be added, 7. Church-wardens. 8. Parish-clerks and sextons.

(1.) THE laity are divisible into three states; civil, military, and maritime.

(2.) The civil state (which includes all the nation, except the clergy, the army, and the navy, and many individuals among them also), may be divided into the nobility and the commonality.

(3.) The nobility are dukes, marquises, earls, viscounts, and barons. These had anciently duties annexed to their respective honours: they are created either by writ, that is, by summons to parliament; or by the king's letters patent, that is, by royal grant: and they enjoy many privileges exclusive of their senatorial capacity.

(4.) The commonality consist of knights of the garter, knights bannerets, baronets, knights of the bath, knights bachelors, esquires, gentlemen, yeomen, tradesmen, artificers, and labourers.

(1.) THE military state, by the standing constitutional law, consists of the militia of each county, raised from among the people by lot, officered by the
No 176.

principal landholders, and commanded by the lord lieutenant.

(2.) The more disciplined occasional troops of the kingdom are kept on foot only from year to year by parliament; and, during that period, are governed by martial law, or arbitrary articles of war, formed at the pleasure of the crown.

(3.) The maritime state consists of the officers and mariners of the British navy; who are governed by express and permanent laws, or the articles of the navy, established by act of parliament.

(1.) THE private, economical, relations of persons are those of, 1. Master and servant. 2. Husband and wife. 3. Parent and child. 4. Guardian and ward.

(2.) The first relation may subdivide between a master and four species of servants: (for slavery is unknown to our laws): viz. 1. Menial servants; who are hired. 2. Apprentices; who are bound by indentures. 3. Labourers; who are casually employed. 4. Stewards, bailiffs, and factors; who are rather in a ministerial state.

(3.) From this relation result divers powers to the master, and emoluments to the servant.

(4.) The master hath a property in the service of his servant; and must be answerable for such acts as the servant does by his express, or implied, command.

(1.) THE second private relation is that of marriage; which includes the reciprocal rights and duties of husband and wife.

(2.) Marriage is duly contracted between persons, 1. Consenting; 2. Free from canonical impediments, which make it voidable; 3. Free also from the civil impediments,—of prior marriage,—of want of age,—of non-consent of parents or guardians, where requisite,—and of want of reason; either of which make it totally void. And it must be celebrated by a clergyman in due form and place.

(3.) Marriage is dissolved, 1. By death. 2. By divorce in the spiritual court; not a mensa et thoro only, but a vinculo matrimonii, for canonical cause existing previous to the contract. 3. By act of parliament, as for adultery.

(4.) By marriage the husband and wife become one person in law; which unity is the principal foundation of their respective rights, duties, and disabilities.

(1.) THE third, and most universal private relation, is that of parent and child.

(2.) Children are, 1. Legitimate; being those who are born in lawful wedlock, or within a competent time after. 2. Bastards, being those who are not so.

(3.) The duties of parents to legitimate children are, 1. Maintenance. 2. Protection. 3. Education.

(4.) The power of parents consists principally in correction, and consent to marriage. Both may after death be delegated by will to a guardian; and the former also, living the parent, to a tutor or master.

(5.) The duties of legitimate children to parents are obedience, protection, and maintenance.

(6.)

(6.) The duty of parents to bastards is only that of maintenance.

(7.) The rights of a bastard are such only as he can acquire; for he is incapable of inheriting any thing.

(1.) THE fourth private relation is that of guardian and ward, which is plainly derived from the last; these being, during the continuance of their relation, reciprocally subject to the same rights and duties.

(2.) Guardians are of divers sorts: 1. Guardians by nature, or the parents. 2. Guardians for nurture, assigned by the ecclesiastical courts. 3. Guardians in foage, assigned by the common law. 4. Guardians by statute, assigned by the father's will. All subject to the superintendence of the court of chancery.

(3.) Full age in male or female for all purposes is the age of 21 years (different ages being allowed for different purposes); till which age the person is an infant.

(4.) An infant, in respect of his tender years, hath various privileges, and various disabilities, in law; chiefly with regard to suits, crimes, estates, and contracts.

(1.) BODIES politic, or corporations, which are artificial persons, are established for preserving in perpetual succession certain rights; which, being conferred on natural persons only, would fail in process of time.

(2.) Corporations are, 1. Aggregate, consisting of many members. 2. Sole, consisting of one person only.

(3.) Corporations are also either spiritual, erected to perpetuate the rights of the church; or lay. And the lay are, 1. Civil; erected for many temporal purposes. 2. Eleemosynary; erected to perpetuate the charity of the founder.

(4.) Corporations are usually erected and named, by virtue of the king's royal charter; but may be created by act of parliament.

(5.) The powers incident to all corporations are, 1. To maintain perpetual succession. 2. To act in their corporate capacity like an individual. 3. To hold lands, subject to the statutes of mortmain. 4. To have a common seal. 5. To make by-laws. Which last power, in spiritual or eleemosynary corporations, may be executed by the king or the founder.

(6.) The duty of corporations is to answer the ends of their institution.

(7.) To enforce this duty, all corporations may be visited: spiritual corporations by the ordinary; lay corporations by the founder, or his representatives; viz. the civil by the king (who is the fundator incipiens of all) represented in his court of king's bench; the eleemosynary by the endower (who is the fundator perficiens of such), or by his heirs or assigns.

(8.) Corporations may be dissolved, 1. By act of parliament. 2. By the natural death of all their members. 3. By surrender of their franchises. 4. By forfeiture of their charter.

(1.) ALL dominion over external objects has its original from the gift of the Creator to man in general.

(2.) The substance of things was, at first, common to all mankind; yet a temporary property, in the use of them, might even then be acquired, and continued, by occupancy.

(3.) In process of time a permanent property was established in the substance, as well as the use, of things; which was also originally acquired by occupancy only.

(4.) Left this property should determine by the owner's dereliction or death, whereby the thing would again become common, societies have established conveyances, wills, and heirships, in order to continue the property of the first occupant: and, where by accident such property becomes discontinued or unknown, the thing usually results to the sovereign of the state, by virtue of the municipal law.

(5.) But of some things, which are incapable of permanent substantial dominion, there still subsists only the same transient usufructuary property, which originally subsisted in all things.

(1.) IN this property, or exclusive dominion, consist the rights of things; which are, 1. Things real. 2. Things personal.

(2.) In things real may be considered, 1. Their several kinds. 2. The tenures by which they may be holden. 3. The estates which may be acquired therein. 4. Their title, or the means of acquiring and losing them.

(3.) All the several kinds of things real are reducible to one of these three, viz. lands, tenements, or hereditaments; whereof the second includes the first, and the third includes the first and second.

(4.) Hereditaments, therefore, or whatever may come to be inherited (being the most comprehensive denomination of things real), are either corporeal or incorporeal.

(5.) Corporeal hereditaments consist wholly of lands, in their largest legal sense; wherein they include not only the face of the earth, but every other object of sense adjoining thereto, and subsisting either above or beneath it.

(1.) INCORPoreal hereditaments are rights issuing out of things corporeal, or concerning, or annexed to, or exercisable within the same.

(2.) Incorporeal hereditaments are, 1. Advowsons. 2. Tithes. 3. Commons. 4. Ways. 5. Offices. 6. Dignities. 7. Franchises. 8. Corodies or pensions. 9. Annuities. 10. Rents.

(3.) An advowson is a right of presentation to an ecclesiastical benefice; either appendant, or in gross. This may be, 1. Presentative. 2. Collative. 3. Donative.

(4.) Tithes are the tenth part of the increase yearly arising from the profits and stock of lands, and the personal industry of mankind. These, by the ancient and positive law of the land, are due of common right to the parson, or (by endowment) to the vicar; unless specially discharged, 1. By real composition. 2. By prescription, either de modo decimandi, or de non decimando.

(5.) Common is a profit which a man hath in the lands of another; being, 1. Common of pasture; which is either appendant, appurtenant, because of vicinage, or in gross. 2. Common of piscary. 3. Common of turbary. 4. Common of etovers, or bores.

(6.) Ways are a right of passing over another man's ground.

(7.) Offices are the right to exercise a public or private employment.

(8.) For dignities, which are titles of honour, see Chap. I. Sect. 12.

(9.) Franchises are a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject.

(10.) Corodies are allotments for one's sustenance; which may be converted into pensions, see Chap. I. Sect. 8.

(11.) An annuity is a yearly sum of money, charged upon the person, and not upon the lands of the grantor.

(12.) Rents are a certain profit issuing yearly out of lands and tenements; and are reducible to, 1. Rent-service. 2. Rent-charge. 3. Rent-seck.

(1.) THE doctrine of tenures is derived from the feodal law; which was planted in Europe by its northern conquerors at the dissolution of the Roman empire.

(2.) Pure and proper feuds were parcels of land allotted by a chief to his followers, to be held on the condition of personally rendering due military service to their lord.

(3.) These were granted by investiture; were held under the bond of fealty; were inheritable only by descendants; and could not be transferred without the mutual consent of the lord and vassal.

(4.) Improper feuds were derived from the other; but differed from them in their original, their services and renders, their descent, and other circumstances.

(5.) The lands of England were converted into feuds, of the improper kind, soon after the Norman conquest; which gave rise to the grand maxim of tenure, viz. That all lands in the kingdom are holden, immediately or immediately, of the king.

(1.) THE distinction of tenures consisted in the nature of their services: as, 1. Chivalry, or knight-service; where the service was free, but uncertain. 2. Free soccage; where the service was free, and certain. 3. Pure villenage; where the service was base, and uncertain.

4. Privileged villenage, or villain soccage; where the service was base, but certain.

(2.) The most universal ancient tenure was that in chivalry, or by knight-service; in which the tenant of every knight's fee was bound, if called upon, to attend his lord to the wars. This was granted by livery, and perfected by homage and fealty; which usually drew after them suit of court.

(3.) The other fruits and consequences of the tenure by knight-service were, 1. Aid. 2. Relief. 3. Primer seisin. 4. Wardship. 5. Marriage. 6. Fines upon alienation. 7. Escheat.

(4.) Grand serjeanty differed from chivalry principally in its render, or service; and not in its fruits and consequences.

(5.) The personal service in chivalry was at length gradually changed into pecuniary assessments, which were called scutage or escuage.

(6.) These military tenures (except the services of grand serjeanty) were, at the restoration of King Charles, totally abolished, and reduced to free soccage by act of parliament.

(1.) FREE soccage is a tenure by any free, certain, and determinate service.

(2.) This tenure, the relic of Saxon liberty, includes petit serjeanty, tenure in burguage, and gavelkind.

(3.) Free soccage lands partake strongly of the feudal nature, as well as those in chivalry: being holden; subject to some service, at the least to fealty and suit of court; subject to relief, to wardship, and to escheat, but not to marriage; subject also formerly to aids, primer seisin, and fines for alienation.

(4.) Pure villenage was a precarious and slavish tenure, at the absolute will of the lord, upon uncertain services of the basest nature.

(5.) From hence, by tacit consent or encroachment, have arisen the modern copyholds, or tenure by copy of court-roll; in which lands may be still held at the (nominal) will of the lord, (but regulated) according to the custom of the manor.

(6.) These are subject, like soccage lands, to services relief, and escheat; and also to heriots, wardship, and fines upon descent and alienation.

(7.) Privileged villenage, or villain soccage, is an exalted species of copyhold tenure, upon base, but certain, services; subsisting only in the ancient demesnes of the crown; whence the tenure is denominated the tenure in ancient demesne.

(8.) These copyholds of ancient demesne have divers immunities annexed to their tenure; but are still held by copy of court-roll, according to the custom of the manor, though not at the will of the lord.

(9.) Frankalmoign is a tenure by spiritual services at large, whereby many ecclesiastical and eleemosynary corporations now hold their lands and tenements; being of a nature distinct from tenure by divine service in certain.

(1.) ESTATES in lands, tenements, and hereditaments, are such interest as the tenant hath therein; to ascertain which, may be considered, 1. The quantity of

Law of England, epitomised. of interest. 2. The time of enjoyment. 3. The number and connections of the tenants.

(2.) Estates, with respect to their quantity of interest, or duration, are either freehold, or less than freehold.

(3.) A freehold estate, in lands, is such as is created by livery of seisin at common law; or, in tenements of an incorporeal nature, by what is equivalent thereto.

(4.) Freehold estates are either estates of inheritance, or not of inheritance, viz. for life only: and inheritances are, 1. Absolute, or fee simple. 2. Limited fees.

(5.) Tenant in fee simple is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever.

(6.) Limited fees are, 1. Qualified, or base, fees. 2. Fees conditional at the common law.

(7.) Qualified or base fees are those which, having a qualification subjoined thereto, are liable to be defeated when that qualification is at an end.

(8.) Conditional fees, at the common law, were such as were granted to the donee, and the heirs of his body, in exclusion of collateral heirs.

(9.) These were held to be fees, granted on condition that the donee had issue of his body; which condition being once performed by the birth of issue, the donee might immediately alien the land; but the statute de donis being made to prevent such alteration, thereupon from the division of the fee (by construction of this statute) into a particular estate and a reversion, the conditional fees began to be called fees-tail.

(10.) All tenements real, or favouring of the realty, are subject to entails.

(11.) Estates tail may be, 1. general, or special; 2. male, or female; 3. given in frank marriage.

(12.) Incident to estates tail are, 1. Wast. 2. Dower. 3. Curtesy. 4. Bar;—by fine, recovery, or lineal warranty with assets.

(13.) Estates tail are now, by many statutes and resolutions of the courts, almost brought back to the state of conditional fees at the common law.

(1.) FREEHOLDS, not of inheritance, or for life only, are, 1. Conventional, or created by the act of the parties. 2. Legal, or created by operation of law.

(2.) Conventional estates for life are created by an express grant for term of one's own life, or per auter vie; or by a general grant, without expressing any term at all.

(3.) Incident to this, and all other estates for life, are estovers, and emblements: and to estates per auter vie general occupancy was also incident; as special occupancy still is, if estrey que vie survives the tenant.

(4.) Legal estates for life are, 1. Tenancy in tail, after possibility of issue extinct. 2. Tenancy by the curtesy of England. 3. Tenancy in dower.

(5.) Tenancy in tail, after possibility of issue extinct, is where an estate is given in special tail; and, before issue had, a person dies from whose body the issue was to spring; whereupon the tenant (if surviving) becomes tenant in tail, after possibility of issue extinct.

(6.) This estate partakes both of the incidents to an estate tail, and those of an estate for life.

(7.) Tenancy by the curtesy of England is where a man's wife is seised of an estate of inheritance; and he by her has issue, born alive, which was capable of inheriting her estate; in which case he shall, upon her death, hold the tenements for his own life, as tenant by the curtesy.

(8.) Tenancy in dower is where a woman's husband is seised of an estate of inheritance, of which her issue might by any possibility have been heir; and the husband dies: the woman is thereupon intitled to dower, or one third part of the lands and tenements, to hold for her natural life.

(9.) Dower is either by the common law; by special custom; ad ostium ecclesia; or, ex assensu patris.

(10.) Dower may be forfeited or barred, particularly by an estate in jointure.

(1.) ESTATES less than freehold are, 1. Estates for years. 2. Estates at will. 3. Estates at sufferance.

(2.) An estate for years is where a man, seised of lands and tenements, letteth them to another for a certain period of time, which transfers the interest of the term; and the lessee enters thereon, which gives him possession of the term, but not legal seisin of the land.

(3.) Incident to this estate are estovers; and also emblements, if it determines before the full end of the term.

(4.) An estate at will is where lands are let by one man to another, to hold at the will of both parties; and the lessee enters thereon.

(5.) Copyholds are estates held at the will of the lord, (regulated) according to the custom of the manor.

(6.) An estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all.

(1.) ESTATES (whether freehold or otherwise) may also be held upon condition; in which case their existence depends on the happening, or not happening, of some uncertain event.

(2.) These estates are, 1. On condition implied. 2. On condition expressed. 3. Estates in gage. 4. Estates by statute, merchant or staple. 5. Estates by elig.

(3.) Estates on condition implied are where a grant of an estate has, from its essence and constitution, a condition inseparably annexed to it; though none be expressed in words.

(4.) Estates on condition expressed are where an express qualification or provision is annexed to the grant of an estate.

(5.) On the performance of these conditions either expressed or implied (if precedent) the estate may be vested or enlarged; or, on the breach of them (if subsequent) an estate already vested may be defeated.

(6.) Estates in gage, in radio, or in pledge, are estates granted as a security for money lent; being,

1. In vivo vadio, or living gage; where the profits of land are granted till a debt be paid, upon which payment the grantor's estate will revive. 2. In mortuo vadio, or dead, or mort gage; where an estate is granted, on condition to be void at a day certain, if the grantor then repays the money borrowed; on failure of which, the estate becomes absolutely dead to the grantor.

(7.) Estates by statute-merchant, or statute-staple, are also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt.

(8.) Estates by debt are where, in consequence of a judicial writ so called, lands are delivered by the sheriff to a plaintiff, till their profits shall satisfy a debt adjudged to be due by law.

(1.) ESTATES, with respect to their time of enjoyment, are either in immediate possession, or in expectancy; which estates in expectancy are created at the same time, and are parcel of the same estates, as those upon which they are expectant. These are, 1. Remainders. 2. Reversions.

(2.) A remainder is an estate limited to take effect, and be enjoyed, after another particular estate is determined.

(3.) Therefore, 1. There must be a precedent particular estate, in order to support a remainder. 2. The remainder must pass out of the grantor, at the creation of the particular estate. 3. The remainder must vest in the grantee, during the continuance, or at the determination, of the particular estate.

(4.) Remainders are, 1. Vested; where the estate is fixed to remain to a certain person, after the particular estate is spent. 2. Contingent; where the estate is limited to take effect, either to an uncertain person, or upon an uncertain event.

(5.) An executory devise is such a disposition of lands, by will, that an estate shall not vest thereby at the death of the devisor, but only upon some future contingency, and without any precedent particular estate to support it.

(6.) A reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted: to which are incident fealty, and rent.

(7.) Where two estates, the one less, the other greater, the one in possession, the other in expectancy, meet together in one and the same person, and in one and the same right, the less is merged in the greater.

(1.) ESTATES, with respect to the number and connexions of their tenants, may be held, 1. In severalty. 2. In joint-tenancy. 3. In coparcenary. 4. In common.

(2.) An estate in severalty is where one tenant holds it in his own sole right, without any other person being joined with him.

(3.) An estate in joint-tenancy is where an estate is granted to two or more persons; in which case the law construes them to be joint-tenants, unless the words of the grant expressly exclude such construction.

(4.) Joint-tenants have an unity of interest, of title, of time, and of possession: they are seised per my & per tout; and therefore upon the decease of one joint-tenant, the whole interest remains to the survivor.

(5.) Joint-tenancy may be dissolved, by destroying one of its four constituent unities.

(6.) An estate in coparcenary is where an estate of inheritance descends from the ancestor to two or more persons; who are called parceners, and all together make but one heir.

(7.) Parceners have an unity of interest, title, and possession; but are only seised per my, and not per tout: wherefore there is no survivorship among parceners.

(8.) Incident to this estate is the law of hotchpot.

(9.) Coparcenary may also be dissolved, by destroying any of its three constituent unities.

(10.) An estate in common is where two or more persons hold lands, possibly by distinct titles, and for distinct interests; but by unity of possession, because none knoweth his own severalty.

(11.) Tenants in common have therefore an unity of possession, (without survivorship: being seised per my, and not per tout;) but no necessary unity of title, time, or interest.

(12.) This estate may be created, 1. By dissolving the constituent unities of the two former; 2. By express limitation in a grant: and may be destroyed, 1. By uniting the several titles in one tenant; 2. By partition of the land.

(1.) A title to things real is the means whereby a man cometh to the just possession of his property.

(2.) Herein may be considered, 1. A mere or naked possession. 2. The right of possession; which is, 1st, an apparent, 2dly, an actual right. 3. The mere right of property. 4. The conjunction of actual possession with both these rights; which constitutes a perfect title.

(1.) THE title to things real may be reciprocally acquired or lost, 1. By descent. 2. By purchase.

(2.) Descent is the means whereby a man, on the death of his ancestor, acquires a title to his estate, in right of representation, as his heir at law.

(3.) To understand the doctrine of descents, we must form a clear notion of consanguinity; which is the connection, or relation, of persons descended from the same stock or common ancestor; and it is, 1. Lineal, where one of the kinsmen is lineally descended from the other. 2. Collateral, where they are lineally descended, not one from the other, but both from the same common ancestor.

(4.) The rules of descent, or canons, of inheritance, observed by the laws of England, are these:

1st, Inheritances shall lineally descend to the issue of the

the person last actually seised, in infinitum; but shall never lineally ascend.

2d, The male issue shall be admitted before the female.

3d, Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.

4th, The lineal descendants, in infinitum, of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.

5th, On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to the blood of the first purchaser; subject to the three preceding rules. To evidence which blood, the two following rules are established.

6th, The collateral heir of the person last seised must be his next collateral kinsman, of the whole blood.

7th, In collateral inheritances, the male stock shall be preferred to the female; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female: unless where the lands have, in fact, descended from a female.

(1.) PURCHASE, or perquisition, is the possession of an estate which a man hath by his own act or agreement; and not by the mere act of law, or descent from any of his ancestors. This includes, 1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation.

(2.) Escheat is where, upon deficiency of the tenant's inheritable blood, the estate falls to the lord of the fee.

(3.) Inheritable blood is wanting to, 1. Such as are not related to the person last seised. 2. His maternal relations in paternal inheritances, and vice versa. 3. His kindred of the half blood. 4. Monsters. 5. Bastards. 6. Aliens, and their issue. 7. Persons attainted of treason or felony. 8. Papists, in respect of themselves only, by the statute law.

(1.) OCCUPANCY is the taking possession of those things which before had no owner.

(2.) Thus, at the common law, where tenant par auer vie died during the life of cestuy que vie, he, who could first enter, might lawfully retain the possession; unless by the original grant the heir was made a special occupant.

(3.) The law of derelictions and allusions has narrowed the title by occupancy.

(1.) PRESCRIPTION (as distinguished from custom) is a personal immemorial usage of enjoying a right in some incorporeal hereditament, by a man, and either his ancestors or those whose estate of inheritance he hath; of which the first is called prescribing in his ancestors, the latter in a que estate.

(1.) FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of things real; whereby the estate is transferred to another, who is usually the party injured.

(2.) Forfeitures are occasioned, 1. By crimes. 2. By alienation, contrary to law. 3. By lapse. 4. By simony. 5. By nonperformance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

(3.) Forfeitures for crimes, or misdemeanors, are for, 1. Treason. 2. Felony. 3. Misprision of treason. 4. Premunire. 5. Assaults on a judge, and batteries, fitting the courts. 6. Popish recusancy, &c.

(4.) Alienations, or conveyances, which induce a forfeiture, are, 1. Those in mortmain, made to corporations contrary to the statute law. 2. Those made to aliens. 3. Those made by particular tenants, when larger than their estates will warrant.

(5.) Lapse is a forfeiture of the right of presentation to a vacant church, by neglect of the patron to present within six calendar months.

(6.) Simony is the corrupt presentation of any one to an ecclesiastical benefice, whereby that turn becomes forfeited to the crown.

(7.) For forfeiture by nonperformance of conditions, see Sect. 10.

(8.) Waste is a spoil, or destruction, in any corporeal hereditaments, to the prejudice of him that hath the inheritance.

(9.) Copyhold estates may have also other peculiar causes of forfeiture, according to the custom of the manor.

(10.) Bankruptcy is the act of becoming a bankrupt; that is, a trader who secretes himself, or does certain other acts tending to defraud his creditors, (See Sect. 22.)

(11.) By bankruptcy all the estates of the bankrupt are transferred to the assignees of his commissioners, to be sold for the benefit of his creditors.

(1.) ALIENATION, conveyance, or purchase in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man, and accepted by another.

(2.) This formerly could not be done by a tenant, without licence from his lord; nor by a lord, without attornment of his tenant.

(3.) All persons are capable of purchasing; and all that are in possession of any estates, are capable of conveying them; unless under peculiar disabilities by law; as being attainted, non composites, infants, under duresis, feme-coverts, aliens, or papists.

(4.) Alienations are made by common assurances; which are, 1. By deed, or matter in pais. 2. By matter of record. 3. By special custom. 4. By devise.

(1.) In assurances by deed may be considered, 1. Its general nature. 2. Its several species.

(2.) A deed, in general, is the solemn act of the parties,

parties; being usually a writing sealed and delivered; and it may be, 1. A deed indented, or indenture. 2. A deed poll.

(3.) The requisites of a deed are, 1. Sufficient parties, and proper subject-matter. 2. A good and sufficient consideration. 3. Writing on paper, or parchment, duly stamped. 4. Legal and orderly parts: (which are usually, 1st, the premises; 2dly, the habendum; 3dly, the tenendum; 4thly, the reddendum; 5thly, the conditions; 6thly, the warranty, which is either lineal or collateral; 7thly, the covenants; 8thly, the conclusion, which includes the date). 5. Reading it, if desired. 6. Sealing, and, in many cases, signing it also. 7. Delivery. 8. Attestation.

(4.) A deed may be avoided, 1. By the want of any of the requisites before-mentioned. 2. By subsequent matter; as, 1st, Rasure, or alteration. 2dly, Defacing its seal. 3dly, Cancelling it. 4thly, Disagreement of those whose consent is necessary. 5thly, Judgment of a court of justice.

(5.) Of the several species of deeds, some serve to convey real property, some only to charge and discharge it.

(6.) Deeds which serve to convey real property, or conveyances, are either by common law, or by statute. And, of conveyances by common law, some are original or primary, others derivative or secondary.

(7.) Original conveyances are, 1. Feoffments. 2. Gifts. 3. Grants. 4. Leases. 5. Exchanges. 6. Partitions. Derivative are, 7. Releases. 8. Confirmations. 9. Surrenders. 10. Assignments. 11. Deceazances.

(8.) A feoffment is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily possession from the feoffor to the feoffee; without which no freehold estate therein can be created at common law.

(9.) A gift is properly the conveyance of lands in tail.

(10.) A grant is the regular method, by common law, of conveying incorporeal hereditaments.

(11.) A lease is the demise, granting, or letting to farm of any tenement, usually for a less term than the lessor hath therein; yet sometimes possibly for a greater; according to the regulations of the restraining and enabling statutes.

(12.) An exchange is the mutual conveyance of equal interests, the one in consideration of the other.

(13.) A partition is the division of an estate held in joint-tenancy, in coparcenary, or in common, between the respective tenants; so that each may hold his distinct part in severalty.

(14.) A release is the discharge or conveyance of a man's right, in lands and tenements, to another that hath some former estate in possession therein.

(15.) A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased.

(16.) A surrender is the yielding up of an estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge.

(17.) An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usually in a lease, for life or years.

(18.) A deceazance is a collateral deed, made at the same time with the original conveyance; contain-

ing some condition, upon which the estate may be defeated.

(19.) Conveyances by statute depend much on the doctrine of uses and trusts: which are a confidence reposed in the terre-tenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of cestuy que use, or cestuy que trust.

(20.) The statute of uses, having transferred all uses into actual possession, (or, rather, having drawn the possession to the use), has given birth to divers other species of conveyance: 1. A covenant to stand seised to use. 2. A bargain and sale, enrolled. 3. A lease and release. 4. A deed to lead or declare the use of other more direct conveyances. 5. A revocation of uses; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so creating. All which owe their present operation principally to the statute of uses.

(21.) Deeds which do not convey, but only charge real property, and discharge it, are, 1. Obligations. 2. Recognizances. 3. Deceazances upon both.

(1.) ASSURANCES by matter of record are where the sanction of some court of record is called in, to substantiate and witness the transfer of real property. These are, 1. Private acts of parliament. 2. The king's grants. 3. Fines. 4. Common recoveries.

(2.) Private acts of parliament are a species of assurances, calculated to give (by the transcendent authority of parliament) such reasonable powers or relief as are beyond the reach of the ordinary course of law.

(3.) The king's grants, contained in charters or letters patent, are all entered on record, for the dignity of the royal person, and security of the royal revenue.

(4.) A fine (sometimes said to be a feoffment of record) is an amicable composition and agreement of an actual, or fictitious, suit; whereby the estate in question is acknowledged to be the right of one of the parties.

(5.) The parts of a fine are, 1. The writ of covenant. 2. The licence to agree. 3. The concord. 4. The note. 5. The foot. To which the statute hath added, 6. Proclamations.

(6.) Fines are of four kinds: 1. Sur cognizance de droit, come ceo que il ad de son done. 2. Sur cognizance de droit tantum. 3. Sur concessit. 4. Sur done, grant, et render; which is a double fine.

(7.) The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizee, by barring the respective rights of parties, privies, and strangers.

(8.) A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who thereupon vouches another, who undertakes to warrant the tenant's title: but, upon such vouchee's making default, the land is recovered by judgment at law against the tenant: who, in return, obtains judgment against the vouchee to recover lands of equal value in recompense.

(9.) The force and effect of a recovery are to assure lands

Law of England, epitomised.

lands to the recoverer, by barring estates tail, and all remainders and reversions expectant thereon; provided the tenant in tail either suffers, or is vouched in, such recovery.

(10.) The use of a fine or recovery may be directed by, 1. Deeds to lead such uses; which are made previous to the levying or suffering them. 2. Deeds to declare the uses; which are made subsequent.

(1.) ASSURANCES by special custom are confined to the transfer of copyhold estates.

(2.) This is effected by, 1. Surrender by the tenant into the hands of the lord to the use of another, according to the custom of the manor. 2. Presentment, by the tenants or homage, of such surrender. 3. Admittance of the surrenderee by the lord, according to the uses expressed in such surrender.

(3.) Admittance may also be had upon original grants to the tenant from the lord, and upon descents to the heir from the ancestor.

(1.) DEVISE is a disposition of lands and tenements, contained in the last will and testament of the owner.

(2.) This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Henry VIII. since made more universal by the statute of tenures under Charles II. with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign.

(3.) The construction of all common assurances should be, 1. Agreeable to the intention. 2. To the words of the parties. 3. Made upon the entire deed. 4. Bearing strongest against the contractor. 5. Conformable to law. 6. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will. 7. Most favourable in case of a devise.

(1.) THINGS personal are comprehended under the general name of chattels; which includes whatever wants either the duration, or the immobility, attending things real.

(2.) In these are to be considered, 1. Their distribution. 2. The property of them. 3. The title to that property.

(3.) As to the distribution of chattels, they are, 1. Chattels real. 2. Chattels personal.

(4.) Chattels real are such quantities of interest, in things immovable, as are short of the duration of freeholds; being limited to a time certain, beyond which they cannot subsist. (See Sect. 7.)

(5.) Chattels personal are things moveable; which may be transferred from place to place, together with the person of the owner.

(1.) PROPERTY, in chattels personal, is either in possession, or in action.

(2.) Property in possession, where a man has the actual enjoyment of the thing, is, 1. Absolute. 2. Qualified.

(3.) Absolute property is where a man has such an exclusive right in the thing, that it cannot cease to be his, without his own act or default.

(4.) Qualified property is such as is not, in its nature, permanent; but may sometimes subsist, and at other times not subsist.

(5.) This may arise, 1. Where the subject is incapable of absolute ownership. 2. From the peculiar circumstances of the owners.

(6.) Property in action, is where a man hath not the actual occupation of the thing; but only a right to it, arising upon some contract, and recoverable by an action at law.

(7.) The property of chattels personal is liable to remainders, expectant on estates for life; to joint-tenancy; and to tenancy in common.

(1.) THE title to things personal may be acquired or lost by, 1. Occupancy. 2. Prerogative. 3. Forfeiture. 4. Custom. 5. Succession. 6. Marriage. 7. Judgement. 8. Gift, or grant. 9. Contract. 10. Bankruptcy. 11. Testament. 12. Administration.

(2.) Occupancy still gives the first occupant a right to those few things which have no legal owner, or which are incapable of permanent ownership. Such as, 1. Goods of alien enemies. 2. Things found. 3. The benefit of the elements. 4. Animals feræ nature. 5. Emblements. 6. Things gained by accession; or, 7. By confusion. 8. Literary property.

(1.) By prerogative is vested in the crown, or its grantees, the property of the royal revenue, (see Chap. I. Sect. 8.); and also the property of all game in the kingdom, with the right of pursuing and taking it.

(2.) By forfeiture, for crimes and misdemeanors, the right of goods and chattels may be transferred from one man to another; either in part or totally.

(3.) Total forfeitures of goods arise from conviction of, 1. Treason, and misprision thereof. 2. Felony. 3. Excusable homicide. 4. Outlawry for treason or felony. 5. Flight. 6. Standing mute. 7. Assaults on a judge; and batteries, sitting the courts. 8. Premunire. 9. Pretended prophecies. 10. Owling. 11. Residing abroad of artificers. 12. Challenges to fight, for debts at play.

(1.) By custom, obtaining in particular places, a right may be acquired in chattels: the most usual of which customs are those relating to, 1. Heriots. 2. Mortuaries. 3. Heir looms.

(2.) Heriots are either heriot-service, which differs little from a rent; or heriot-custom, which is a customary tribute, of goods and chattels, payable to the lord of the fee on the decease of the owner of lands.

(3.) Mortuaries are a customary gift, due to the minister in many parishes, on the death of his parishioners.

(4.)

(4.) Heir-looms are such personal chattels, as descend by special custom to the heir, along with the inheritance of his ancestor.

(1.) By succession the right of chattels is vested in corporations aggregate; and likewise in such corporations sole as are the heads and representatives of bodies aggregate.

(2.) By marriage the chattels real and personal of the wife are vested in the husband, in the same degree of property, and with the same powers, as the wife when sole had over them; provided he reduces them to possession.

(3.) The wife also acquires, by marriage, a property in her own paraphernalia.

(4.) By judgment, consequent on a suit at law, a man may in some cases, not only recover, but originally acquire, a right to personal property. As, 1. To penalties recoverable by action popular. 2. To damages. 3. To costs of suit.

(1.) A gift, or grant, is a voluntary conveyance of a chattel personal in possession, without any consideration or equivalent.

(2.) A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing; and, by such contract, any personal property (either in possession or in action) may be transferred.

(3.) Contracts may either be express or implied; either executed or executory.

(4.) The consideration of contracts is, 1. A good consideration. 2. A valuable consideration; which is, 1. Do, ut des. 2. Facio, ut facias. 3. Facio, ut des. 4. Do, ut facias.

(5.) The most usual species of personal contracts are, 1. Sale or exchange. 2. Bailment. 3. Hiring or borrowing. 4. Debt.

(6.) Sale or exchange is a transmutation of property from one man to another, in consideration of some recompense in value.

(7.) Bailment is the delivery of goods in trust; upon a contract, express or implied, that the trust shall be faithfully performed by the bailee.

(8.) Hiring or borrowing is a contract, whereby the possession of chattels is transferred for a particular time, on condition that the identical goods (or sometimes their value) be restored at the time appointed: together with (in case of hiring) a stipend or price for the use.

(9.) This price, being calculated to answer the hazard as well as inconvenience of lending, gives birth to the doctrine of interest, or usury, upon loans; and, consequently, to the doctrine of bottomry or respondentia, and insurance.

(10.) Debt is any contract, whereby a certain sum of money becomes due to the creditor. This is, 1. A debt of record. 2. A debt upon special contract. 3. A debt upon simple contract; which last includes paper credit, or bills of exchange, and promissory notes.

(1.) BANKRUPTCY (as defined in Sect. 18.) is the act of becoming a bankrupt.

(2.) Herein may be considered, 1. Who may become a bankrupt. 2. The acts whereby he may become a bankrupt. 3. The proceedings on a commission of bankrupt. 4. How his property is transferred thereby.

(3.) Persons of full age, using the trade of merchandise, by buying, and selling, and seeking their livelihood thereby, are liable to become bankrupts; for debts of a sufficient amount.

(4.) A trader, who endeavours to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit an act of bankruptcy.

(5.) The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, 1. Petition. 2. Commission. 3. Declaration of bankruptcy. 4. Choice of assignees. 5. The bankrupt's surrender. 6. His examination. 7. His discovery. 8. His certificate. 9. His allowance. 10. His indemnity.

(6.) The property of a bankrupt's personal estate is, immediately upon the act of bankruptcy, vested by construction of law in the assignees; and they, when they have collected, distribute the whole by equal dividends among all the creditors.

(1.) CONCERNING testaments and administrations, considered jointly, are to be observed, 1. Their original and antiquity. 2. Who may make a testament. 3. Its nature and incidents. 4. What are executors and administrators. 5. Their office and duty.

(2.) Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, reserving anciently to his wife and children their reasonable part of his effects.

(3.) The goods of intellates belonged anciently to the king; who granted them to the prelates to be disposed in pious uses: but, on their abuse of this trust in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law.

(4.) All persons may make a testament unless disabled by, 1. Want of discretion. 2. Want of free-will. 3. Criminal conduct.

(5.) Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, 1. Written. 2. Nuncupative.

(6.) An executor is he, to whom a man by his will commits the execution thereof.

(7.) Administrators are, 1. Durante minore estate of an infant executor or administrator; or durante absentia; or pendente lite. 2. Cum testamento annexo; when no executor is named, or the executor refuses to act. 3. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. 4. Administrators de bonis non; when a former executor or administrator dies without completing his trust.

(8.) The office and duty of executors (and, in many points, of administrators also), are, 1. To bury the deceased. 2. To prove the will, or take out administration. 3. To make an inventory. 4. To collect the goods and chattels. 5. To pay debts; observing the rules of priority. 6. To pay legacies, either general or specific; if they be vested, and not lapsed. 7. To distribute the undivided surplus, according to the statute of distributions.

xxv. SECT. I. Of the redress of private wrongs, by the mere act of the parties.

(1.) WRONGS are the privation of right; and are, 1. Private. 2. Public.

(2.) Private wrongs, or civil injuries, are an infringement, or privation, of the civil rights of individuals, considered as individuals.

(3.) The redress of civil injuries is one principal object of the laws of England.

(4.) This redress is effected, 1. By the mere act of the parties. 2. By the mere operation of law. 3. By both together, or suit in courts.

(5.) Redress, by the mere act of the parties, is that which arises, 1. From the sole act of the party injured. 2. From the joint act of all the parties.

(6.) Of the first sort are, 1. Defence of one's self, or relations. 2. Recaption of goods. 3. Entry on lands and tenements. 4. Abatement of nuisances. 5. Distress; for rent, for suit or service, for amercements, for damage, or for divers flatutable penalties;—made of such things only as are legally distrainable;—and taken and disposed of according to the due course of law. 6. Seizing of heriots, &c.

(7.) Of the second sort are, 1. Accord. 2. Arbitration.

xxvi. SECT. II. Of redress by the mere operation of law.