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Municipal, or civil law.

Inst. 1. 2, 1.

Forms of government; monarchy, aristocracy, democracy.

The British constitution.

between independent countries with each other, and depending upon mutual compacts, in the construction of which we have no other rule to resort to but the law of nature, to which all communities are equally subject (b). The municipal, or civil law, though strictly denoting the particular customs of one single municipium, or free town, may be also applied to a state or nation governed by the same laws, being explained by Justinian to be "the law which every nation has established for its own government." 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." 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. The political writers of antiquity will not allow of more than three regular forms of government,- a monarchy, an aristocracy, and a democracy. These three species of government have all of them their several perfections and imperfections. A monarchy is the most powerful, as uniting in the hand of the prince all the sinews of government; but there is danger of his employing that strength to improvident or oppressive purposes. In an aristocracy, which is composed, or intended to be composed, of the most experienced, there is more wisdom to be found than in the other frames of government, but there is less honesty than in a republic, and less strength than in a monarchy; whilst 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. Tacitus, in his Fragments, treats of a mixed government as one that, if effected, could not be lasting or secure; but Cicero declares, that the best constituted republic is that which is duly compounded of the monarchical, aristocratical, and democratical estates; and, happily for us, the British constitution has long proved the truth of this opinion; for with us, the legislature of the kingdom is entrusted to three distinct powers,-the king; the lords, spiritual and temporal, selected for their piety, birth, wisdom, valour, or property; and the commons,

(b) It is in the words of Grotius, "jus illud quod inter populos plures aut populorum rectores intercedit, sive ab ipsâ naturâ profectum, aut divinis constitutum legibus, sive moribus et pacto tacito introductum." It is in this signification that the term Droit des Gens is usually employed by the French, and the term Völker-Recht, by the Germans.-Manning's Commentaries on the Law of Nations, p. 2.

Laws are directory, remedial and vindicatory.

declaratory,

chosen by the people from among themselves (c). 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. 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 defined; another, directory, whereby the subject is 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, termed the sanction, or vindicatory branch of the law, whereby it is declared what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty. The things prohibited by the law are such as are mala in Difference bese, and those which are mala prohibita, and the difference tween things prohibited by between them consists in this,—that the former are forbidden the law which by God and nature, as murder, theft, and perjury, which contract no additional turpitude from being declared unlawful by the inferior legislature; and the latter are in themselves indifferent, and become either right or wrong, just or unjust duties, or misdemeanors, according as the municipal legislator sees proper 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: 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, when the thing itself has its rise from the law of nature, the particular circumstances

are mala in se
which are
mala prohibita.

and those

(c) Aristotle inclines to the opinion of those, who esteem, a mixed government the best that can be devised. Of this they considered the Lacedæmonian constitution a good specimen; the kings connecting it with monarchy, the senate with oligarchy, and the ephori and syssytia with democracy.-Arist. Pol. 1, 2, cap. 4. Modern speculators on this subject, with one accord allow the consitution of Great Britain, as it stands at present, to be a much more judicious and perfect mixture of the three powers, which are so contrived as to check and counterbalance each other, without impeding that action of the whole machine which is necessary to the well being of the people.Beloe's Herodotus, vol. 1, 299, n. The government of England, (says Dr. Paley,) which has been sometimes called a mixed government, sometimes a limited monarchy, is formed by a combination of the three regular species of government; the monarchy residing in the king; the aristocracy in the house of lords; and the republic being represented in the house of commons.

Interpretation

of laws.

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, it is the province of human laws to determine.

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. Words are to be understood in their usual and most known signification; not so much regarding the propriety of grammar as their general and popular use; and terms of art, and technical terms, must be taken according to the acceptation of the learned in each art, trade, and science: as in the Act of Settlement, where the crown is limited "to the Princess Sophia, and the heirs of her body, being Protestants," the assistance of lawyers must be called in to ascertain the precise meaning of the words "heirs of her body," which, in a legal sense, comprise certain of her lineal descendants. If words happen to be still dubious, we may establish their meaning from the context. Thus the preamble is often called in to help the construction of an act of parliament. 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. As to the effects and consequence; where words bear either none, or an absurd signification, if literally understood, a little deviation from the received sense of them becomes necessary. Therefore, the law mentioned by Puffendorf, that "whoever drew blood in the streets should be punished with the utmost severity," was held not to extend to a surgeon who opened the vein of a person that fell down in the street with a fit. But 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; as in an instance put by Cicero:-There was a law, that those who forsook the ship in a storm should forfeit all property therein, and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest, all the mariners forsook the ship, except one sick passenger, who was unable to get up and escape. By chance, the ship came safe to port. The sick man kept possession, and claimed the benefit of the law; here all the

learned agreed that he was not within the reason of the law, which was to give encouragement to such as should venture their lives to save the vessel; but this is a merit which he could not pretend to, who neither staid in the ship on that account, or contributed any thing to its preservation.

From this method of interpreting laws by the reason of Equity. them, arises what we call equity, which is defined by Grotius

s. 3.

to be "the correction of that wherein the law, by reason of its De Equitate, universality, is deficient," and which is, therefore, applied to those cases which the law does not exactly define but leaves something to the discretion of a just and wise judge.

SECTION II.

OF THE LAWS OF ENGLAND.

how divisible.

Unwritten law includes general and particular customs.

THE municipal law of England, or the rule of civil conduct Municipal law, prescribed to the inhabitants of this kingdom, is of two kinds. The lex non scripta, the unwritten or common law, and the lex scripta, the written, or statute law. The 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 those particular laws that are by custom observed only in certain courts and jurisdictions. These laws are to be found in the records of our several courts of justice in books of reports and judicial decisions, and in treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. They 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. But though this is the most likely foundation of them, yet they are of higher antiquity than memory or history can reach, whence it is that the goodness of a custom depends upon its having been used time out of mind. The unwritten or common law is distinguishable into three kinds. General customs, which are the universal rule of the whole kingdom, and form the common law in its stricter and more usual signification; certain customs, which affect only the inhabitants of particular districts; and certain laws, which by custom are used by particular courts.

General customs, or the common law properly so called, is General that law by which proceedings and determinations in the king's customs.

6

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 obligations of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment, and an infinite number of minuter particulars. These customs or maxims are to be known, and their validity is to be determined by the judges of the several courts of justice, whose recorded decisions are the principal evidence of them. It is an established rule to abide by former precedents, where the same points come again in litigation, except where the former determination is evidently contrary to reason or to the divine law, in which case 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. It is one of the characteristic marks of English liberty that our common law depends upon custom, which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people. As to the customs which affect only the inhabitants of particular districts, for reasons that have been now long forgotten, some 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. These are contrary to the general law of the land, and good only by special usage, though some of them are confirmed by act of parliaSuch is the custom of gavelkind in Kent, and some Cro. Car. 347. other parts of the kingdom, that not the eldest son only, but all the sons shall succeed to their father's inheritance (a), and the custom of borough English, that the youngest son shall inherit the estate in preference to all his elder brothers (b). Such, also, are the particular customs of manors which bind the copyhold and customary tenants; and the custom of holding inferior courts, with the right of trying causes in cities and trading towns, and many customs in the city of London, and Proof of parthe custom of merchants allowed only among themselves for ticular customs. the benefit of trade. The rules relating to particular customs

Particular customs.

8 Rep. 126,

ment.

(a) The Real Property Commissioners have proposed the total abolition of the tenure in gavelkind. Third Rep. p. 12.

(b) And also the custom of borough English. Third Rep. p. 8.

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