lature 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.

THE DIRECTORY PART.

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.

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 these rights, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law.

THE VINDICATORY PART.

With regard to the sanction of laws, or the evils 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.

Of all the parts of a law the most effectual is the vindicatory. For it is but lost labor 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.

INTERPRETATION OF LAWS.

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.

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. Again, terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science.

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.

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.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.

5. But, lastly, the most universal and effectual way of discovering the true meaning of 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.

EQUITY.

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 cir cumstances, which (had they been foreseen) the legislator himself would` have expressed.

The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.

THE UNWRITTEN LAWS.

The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.

When I call these parts of our law leges non scriptæ, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is

true indeed that, in the profound ignorance of letters, which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, because the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic Druids committed all their laws as well as learning to memory. 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, I therefore style these parts of our law leges non scriptæ, 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.

Here follows a discussion of the origin of English Common Law. It is of mixed origin, coming from the Briton, the Roman, the Pict, the Saxon, the Dane and the Norman. It is therefore of compound nature. The first compilation of these customs was doubtless the Dome Book, compiled under the direction of King Alfred. It is little more than a collection of punishments for offenses. Said to be still in existence. After the invasion of the Danes it fell into disuse and in the eleventh contury there were three principal systems of laws prevailing in different districts. 1. The Mercian Laws. 2. The West Saxon Laws. 3. The Danish Law. Out of these King Edward the Confessor extracted one uniform system which was merely a revised edition of Alfred's code.

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.

KINDS OF UNWRITTEN LAW.

This unwritten, or common law, is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, 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.

GENERAL CUSTOMS.

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 offenses, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires.

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 depositaries 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. 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 former precedents may give light or assistance./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 juctice 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 is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determinę, not according to his own private judgment, 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 clearly 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.

RULE AS TO PRECEDENTS.

The doctrine of the law then is this: that the 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 that they acted wholly without consideration.

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