[ *49] *therefore called natural rights, such as life and liberty, may need the aid of human laws for their protection; and will receive additional strength when declared by the municipal law to be inviolable. On the contrary, no human legislature would be justified in abridging or destroying those rights, unless the owner should himself commit some act amounting to a forfeiture of them. So divine or natural duties (such, for instance, as the worship of God, the maintenance of children, and the like) may be enforced by and may receive sanction from the law of the land, being also declared to be duties by it. The case is the same as to criminal acts forbidden by the superior laws, and sometimes styled mala in se, such as murder, theft, and perjury; which contract some additional degree of turpitude from being declared unlawful by the inferior legislature. Albeit the legislature in all these cases acts only in subordination to the great Lawgiver, transcribing and publishing His precepts. Thus the declaratory part of the municipal law may be said to have some certain force and operation with regard even to such actions as are naturally and intrinsically right or wrong. With regard to things in themselves indifferent, these are often regulated by statute, and further may become either right or wrong, just or unjust, duties or offences, according as the municipal legislator sees fit, for promoting the welfare of 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; (12) and our statute law has declared smuggling to be a public offence: yet that right and this offence have no foundation in nature; they 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. For instance, obedience to superiors is the doctrine of revealed as well as of natural [ *50] religion but who those superiors shall be, and in what circumstances, or to what degrees, they shall be obeyed, it 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 a trespass or a theft; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent. 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 Directory. declaration being usually collected from the direction. The law which says, "thou shalt not steal," implies a declaration that stealing is a crime. And we have seen (r) 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. (r) Ante, p. 35. (12) In the United States this rule of the common law has been abrogated or modified in many of the states, and the real or personal property which the wife owned at marriage, or such as she subsequently acquires by gift, grant, bequest, devise, or otherwise, belongs to her in the same manner as though she were unmarried. As the rule is not the same in all of the states, the student must examine the law of the state in which he resides, if he desires specific information. See a valuable note to 1 Pars. on Cont. 370 to 380. See, also, Bishop on the Law of Married Women. Remedial. The remedial part of a law is so necessary, 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, 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 [ *51] of statutory requirements, or of *public duties; it is observable that human legislators have for the most part chosen to make the sanction Vindicatory. of their laws rather vindicatory than remuneratory, i. e., to consist rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and protection of 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 rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it would be impossible for any state to furnish stock enough for so profuse a bounty. And further, because the dread of evil is a much more forcible principle of human action than the prospect of good(s). 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, seldom, if ever, propose any privilege or gift to such as obey the law; but constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of their punishment, or else leaving it to the discretion of the judges, and of those intrusted with the care of putting the laws in execution. Where also a law regulates a matter in itself indifferent, some specific ill consequence is appointed to follow the breach or non-observance of its requirements. 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 [ *52] 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. (8) Locke, Hum. Und. b. 2, c. 21. What municipal laws bind the conscience. Human laws are, with the reservation already noticed (t), binding upon men's consciences. But if that were the only or most forcible obligation, the good only would regard the laws, the bad would set them at defiance. To perform natural duties, and to abstain from committing such offences as are mala in se, we are bound in conscience, because we are bound by superior laws, promulgated before our municipal laws were in being, to perform the one, and to abstain from the other. To those laws also 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, conscience is concerned, in yielding obedience and submission. (13) So in regard to rights when the law has determined a particular field to belong to Titius, it is a matter of conscience no longer to withhold or to invade it. When a contract or agreement has been entered into, it is matter of conscience faithfully and fully to perform it. I 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, prohibiting what is wrong, and regulating matters in themselves indifferent;" *in the explication of which I have endeavoured to interweave a few useful principles concern- [*53] ing the nature of civil government, and the obligation of human laws. The mode of interpreting laws when enacted, will be considered at the end of the ensuing section. (t) Ante, p. 35. (13) Although an act may be innocent in itself, yet if a constitutional statute prohibits the act, and gives a penalty for a violation of the law, it will be legally as obligatory as though the prohibited act were illegal in its nature. There is a wide difference in the view of a court of conscience, in reference to the two acts, but a court of law is bound to carry all constitutional statutes into effect, irrespective of any question of mere ethics. Every act done, and every contract made, which is in violation of a statute is void, whether the prohibition be in express terms, or by clear and necessary implication. It is the intention to prohibit the doing of the act, or the making of such contract, that renders the act or contract illegal. DeBegins v. Armistead, 10 Bing. 117; Langton v. Hughes, 1 M. & S. 593; Wetherell v. Jones, 3 B. & Ad. 221; Cope v. Rowlands, 2 Mees. & Wels. 149, 157; Bensley v. Bignold, 5 B. & Ald. 335; Bull v. Chapman, 8 Exch. 444; Taylor v. Crowland Gas, etc., Co., 10 id. 283, 296; Harris v. Runnells, 12 How. (U. S.) 83; Griffith v. Wells, 3 Denio, 226; Turck v. Richmond, 13 Barb. 533; Bracket v. Hoyt, 9 Fost. 264; Elkins v. Parkhurst, 17 Vt. 105; Territt v. Bartlett, 21 id. 184; Coombs v. Emery, 14 Me. 404; Hale v. Henderson, 4 Humph. 199; Wheeler v. Russell, 17 Mass. 258; Eberman v. Reitzel, 1 W. & S. 181. Where the sole object of the statute is to secure a revenue, and not to prohibit any act or contract for the protection of the public, there a neglect to comply with the statute will not render the act or the contract void, as in the case of an omission to procure a license to carry on a business. Smith v. Mawhood, 14 Mees. & Wels. 452, 463; Brown v. Duncan, 10 Barn. & Cress. 93; Wetherell v. Jones, 3 B. & Ad. 221; Bailey v. Harris, 12 Q. B. 905; Foster v. Oxford, etc., R. R. Co., 13 C. B. 200; Johnson v. Hudson, 11 East, 180; Griffith v. Wells, 3 Denio, 226; Larned v. Andrews, 106 Mass. 435; Aiken v. Blaisdell, 41 Vt. 655. Where the object of the statute is to protect the public from the evils of a general traffic in an article such as intoxicating liquors, and a penalty is imposed on those who sell without first obtaining a license, there any contract made in violation of the statute will be void. Griffith v. Wells, 3 Denio, 226; Turck v. Richmond, 13 Barb. 533; Mabry's Executors v. Bullock, 7 Dana, 337. [*54] *SECTION III. THE LAWS OF ENGLAND. THE municipal law of England, or the rule of civil conduct prescribed to the Division of the inhabitants of this kingdom, may be divided into two kinds: laws of England. I. The lex non scripta, the unwritten or common law(a); and II. The lex scripta, the written or statute law. 1. leges non scriptæ. I. The lex non scripta, or unwritten law, includes: 1. General customs; 2. Particular or local customs, i. e., customs prevailing in certain parts of the kingdom; and 3. Such portions of the lex mercatoria or law merchant as are not prescribed and regulated by statute. In this part of the section the above-mentioned subdivisions of our unwritten law will be considered, and it will also be convenient to speak of some particular laws which have been partially adopted by our own, or which are by custom observed in certain courts and jurisdictions. By leges non scriptæ, I would not be understood to mean laws merely oral, or communicated from former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, because the nations amongst which they prevailed had but little *idea of [*55] writing. Thus the British as well as the Gallic Druids committed their laws as well as learning to memory(b); and it is said of the primitive Saxons here, as well as of their brethren on the continent, that leges sold memoriá et usu retinebant(c). But with us, at present, the monuments and evidences of our legal customs are contained in the records of the 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 times of high antiquity. However, I style these parts of our law leges non scripta, because their original institution and authority are not set down in writing, as acts of Parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. Our ancient lawyers, particularly Fortescue(d), insist that these customs are as old as the primitive Britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may possibly be the case as to some few; but in general, as Mr. Selden observes (e), this assertion must be understood with many grains of allowance, and only as signifying 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, customs peculiar to them must have been insensibly introduced and incorporated with those which had been before established here; thereby in all probability improving the texture and wisdom of the whole by the accumulated wisdom of divers particular countries. Our laws, says Lord Bacon(ƒ), are (a) The term "common law" is sometimes used to signify the law administered in courts of common law, i. e., as distinguished from equity, ecclesiastical, or martial law; and is sometimes used to signify the unwritten as distinguished from the statute law. (b) Cæs. de B. G. lib. 6, c. 13. (e) Notes ad idem. (ƒ) See his Proposals for a Digest. mixed as our language: and as our *language is so much the richer, the laws are the more complete. [*56] "We ought not perhaps to suppose that among our Saxon forefathers, any more than among ourselves, there ever existed a complete corpus juris Anglici(g)," but should rather imagine that theirs, like our own, was a customary or common law, comprising records of decisions to serve as precedents for the future, or enactments passed in the Witena-gemôts for the repeal, confirmation, amendment, or completion of the existing law(h). Portions of the laws of Alfred, framed in part upon the Mercian laws of Offa(i), portions likewise of the laws of Edward the Confessor, and of other Anglo-Saxon kings, in form more or less authentic, yet remain to us; and in those ascribed to King Henry I., though probably compiled by a private person, the laws and legal usages of England, as they existed under the Confessor, seem to have been collected. The laws of the Confessor, if complete and genuine, would have had for us a peculiar interest; they were repeatedly demanded by our ancestors, especially under Henry I., King Stephen, and Henry II., and may in some sense be looked on as the origin of our common or customary law. But though the fragments which have come down to us from Saxon and Anglo-Saxon, or even from Norman times, by no means justify the hypothesis that a legal code or assemblage of customs at all approaching to completeness then existed here, we may at all events affirm that from the date of Magna Carta a body of laws, known as the "Laws of England," has existed, drawn from many distinct sources, and largely permeated by feudal doctrines, yet quite independent of, and owning no subservience to, any other code or system of jurisprudence whatsoever. Immeasurably the most perfect body of law from which *our own has [*57] borrowed is the Roman(k); but to the Saxons, the Danes, and Normans, we have yet more deeply been indebted, for by them has our national genius been bequeathed to us-by them have our liberties been assured. Vain certainly might be the effort to trace each component element in our laws and constitution to its proper source, to refer to its true origin each rule or maxim, which through revolving ages has been sanctioned. This may, however, partially be done, and as regards the parentage of leading principles, speculations may sometimes be hazarded, with a well-grounded conviction that they are just. We may believe that the great principle of personal liberty, the inherent love of freedom which has vindicated it, came to us, not from our Roman conquerors, but rather from those ruder tribes which subsequently established themselves amongst us. It is to our Anglo-Saxon ancestors, and, more remotely, to the races whence they sprung, that we are indebted for our fundamental liberties. But whatever may have been the foundation of our common law, many of the rules and customs composing it 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(1). This it is which gives it (g) Ancient Laws and Inst. of England, Pref. (h) Ibid. (i) Ibid. VOL. I.-6 |