without any intermixture of moral guilt, annexing a penalty to non-compliance', here I apprehend confcience is no farther concerned, than by directing a fubmiffion to the penalty, in cafe of our breach of thofe laws: for otherwife the multitude of penal laws in a ftate would not only be looked upon as an impolitic, but would alfo be a very wicked, thing; if every fuch law were a fnare for the confcience of the fubject. But in these cases the alternative is offered to every man; "either abftain from this, or fubmit "to fuch a penalty:" and his confcience will be clear, whichever fide of the alternative he thinks proper to embrace. Thus, by the statutes for preferving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who poffeffes a partridge in Auguft. And fo too, by other ftatutes, pecuniary penalties are inflicted for exercifing trades without ferving an apprenticeship thereto, for not burying the dead in woollen, for not performing ftatute-work on the public roads, and for innumerable other pofitive mifdemefnors. Now thefe prohibitory laws do not make the tranfgreffion a moral offence, or fin: the only obligation in confcience is to fubmit to the penalty, if levied. It must however be obferved, that we are here fpeaking of laws that are fimply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compenfation for the civil inconvenience fuppofed to arise from the offence. But where difobedience to the law involves in it alfo any degree of public mifchief or private injury, there it falls within our former diftinction, and is alfo an offence against conscience". I HAVE now gone through the definition laid down of a municipal law; and have fhewn that it is "a rule-of civil "conduct-prefcribed-by the fupreme power in a ftate 1 See Vol. II. 420. m. Lax pure permalis Migat tantum ad poenam, non item ad culpam : lx pecualis mixta et ad culpam obligat, et ad premam. (Sanderson de confcient.obligat.prael.viii. §. 17.24.) "command "commanding what is right, and prohibiting what is wrong:" in the explication of which I have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. Before I conclude this fection, it may not be amifs to add a few obfervations concerning the interpretation of laws. WHEN any doubt arofe upon the conftruction of the Roman laws, the ufage was to ftate the cafe to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legiflature to decide particular difputes, is not only endless, but affords great room for partiality and oppreflion. The answers of the emperor were called his refcripts, and these had in fucceeding cafes the force of perpetual laws; though they ought to be carefully diftinguished, by every rational civilian, from thofe general conftitutions, which had only the nature of things for their guide. The emperor Macrinus, as his hiftorian Capitolinus informs us, had once refolved to abolish these refcripts, and retain only the general edicts; he could not bear that the hafty and crude anfwers of such princes as Commodus and Caracalla fhould be reverenced as laws. But Juftinian thought otherwife", and he has preferved them all. In like manner the canon laws, or decretal epiftles of the popes, are all of them refcripts in the strictest fenfe. Contrary to all true forms of reafoning, they argue from particulars to generals. THE faireft and most rational method to interpret the will of the legiflator, is by exploring his intentions at the time when the law was made, by figus the most natural and probable. And thefe figns are either the words, the context, the fubject-matter, the effects and confequence, or the spirit and reafon of the law. Let us take a fhort view of them all. 1. WORDS are generally to be understood in their ufual and most known fignification; not so much regarding the n Inst. 1. 2. 6. propriety propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbad a layman to lay hands on a prieft, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of fettlement, where the crown of England is limited" to the princess Sophia, and the heirs of her body, being proteftants," it becomes neceffary to call in the affistance of lawyers, to afcertain the precife idea of the words "heirs of her body;" which in a legal fenfe comprize only certain of her lineal defcendants. 2. IF words happen to be still dubious, we may establish their meaning from the context; with which it may be of fingular 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 fame nature and use is the comparison of a law with other laws, that are made by the fame legiflator, that have fome affinity with the subject, or that exprefsly relate to the fame point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must refort to the fame law of England to learn what the benefit of clergy is: and when the common law cenfures fimoniacal contracts, it affords great light to the subject to confider what the canon law has adjudged to be fimony. 3. As to the fubject-matter, words are always to be understood as having a regard thereto; for that is always fuppofed to be in the eye of the legislator, and all his expreffions directed to that end. Thus, when a law of our Edward III. forbids all ecclefiaftical persons to purchase provisions at Rome, it might feem to prohibit the buying of grain and other victual; but when we confider that the ftatute was made to reprefs the ufurpations of the papal fee, and that the nominations to benefices by the pope were called provifions, we L. of N. and N. 5. 12. 3. fhall fhall fee that the restraint is intended to be laid upon fuch provifions only. 4. As to the effects and confequence, the rule is, that where words bear either none, or a very abfurd fignification, if literally understood, we must a little deviate from the received fense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in "the ftreets fhould be punished with the utmost severity," was held after a long debate not to extend to the furgeon, who opened the vein of a person that fell down in the street with a fit. 5. BUT, laftly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by confidering the reafon and spirit of it; or the caufe which moved the legiflator to enact it. For when this reafon ceafes, the law itself ought likewise to cease with it. An inftance of this is given in a cafe put by Cicero, or whoever was the author of the treatise inscribed to Herennius". There was a law, that those who in a storm forfook the ship fhould forfeit all property therein; and that the ship and lading fhould belong entirely to those who staid in it. In a dangerous tempeft all the mariners forfook the fhip, except only one fick paffenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The fick man kept poffeffion, and claimed the benefit of the law. Now here all the learned agree, that the fick man is not within the reafon of the law; for the reason of making it was, to give encouragement to fuch as fhould venture their lives to fave the veffel: but this is a merit, which he could never pretend to, who neither staid in the fhip upon that account, nor contributed any thing to it's prefervation. FROM this method of interpreting laws, by the reafon of them, arises what we call equity; which is thus defined by Grotius, "the correction of that, wherein the law (by "reafon of it's univerfality) is deficient." For fince in laws ↑ de aequitate. §. 3. Pl. 5. c. 12. §. 8. 9 %. 1. c. 11. all all cafes cannot be forefeen or expreffed, it is necessary, that when the general decrees of the law come to be applied to particular cafes, there fhould be somewhere a power vefted of defining thofe circumstances, which (had they been foreseen) the legislator himself would have expreffed. And these are the cafes, which, according to Grotius, "lex non exacte de"finit, fed arbitrio boni viri permittit.” EQUITY thus depending, effentially, upon the particular circumftances of each individual cafe, there can be no established rules and fixed precepts of equity laid down, without deftroying it's very effence, and reducing it to a positive law. And, on the other hand, the liberty of confidering all cases in an equitable light must not be indulged too far; left thereby we destroy all law, and leave the decifion of every queftion entirely in the breaft of the judge. And law, without equity, though hard and difagreeable, is much more defirable for the public good, than equity without law: which would make every judge a legiflator, and introduce most infinite confufion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and fentiment in the human mind. |