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, 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 section, 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. (13). 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 Macrinus, as his historian Capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts: [*59] 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, (n) 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. (14) Let us take a short view of them all:

(n) Inst. 1. 2. 6.

the payment of the penalty is the only legal consequence of a violation of the statute: Comyns v. Boyer, Cro. Eliz. 485; Gremaire v. Valon, 2 Camp. 144; is now repudiated both in England and in this country, and it is now well settled that the obligations the parties assume in consideration of the forbidden act, will not be enforced. See Drury v. Defontaine, 1 Taunt. 136; De Begins v. Armistead, 10 Bing. 107, and 3 M. and Scott, 516; Bensley v. Bignold, 5 B. and Ald. 335; Cope v. Rowlands, 2 M. and W. 149; Wheeler v. Russell, 17 Mass. 258; Mitchell v. Smith, 1 Binn. 118; Eberman v. Reitzell, 1 W. and S. 181; Hale v. Henderson, 4 Humph. 199; Brackett v. Hoyt, 9 Fost. 264; Nichols v. Ruggles, 3 Day, 145; Tyson v. Thomas, McClel. and Y. 119; Elkins v. Parkhurst, 17 Vt. 105; Territt v. Bartlett, 21 Vt. 184; Bancroft v. Dumas, ib. 456; Griffith v. Wells, 3 Denio, 226; Coombs v. Emery, 14 Me. 404; Sharp v. Teese, 4 Halst. 352. Statutes passed solely for the security of the revenue have been supposed to be exceptions to this rule. Cundell v. Dawson, 4 C. B. 398, per Wilde, Ch. J. And see Smith v. Mawhood, 14 M. and W. 452; Forster v. Taylor, 5 B. and Ad. 887; Taylor v. Crowland Gas Co., 10 Exch. 293; Hill v. Smith, Morris, 70. But certainly no such distinction can be recognized where the penalty is imposed with a view to prohibition. Smith v. Mawhood, supra.

(13) The legislature may interpret the law by a declaratory statute, but in America where the legislative and judicial functions are separated and confided to different departments, the declaratory statute will have the effect to determine the meaning of the law in its application to future transactions only, and not to bind the courts in their application of the law to transactions which have taken place previously. To declare what the law is or has been is the province of the judiciary; to prescribe what it shall be in the future belongs to the legislature. Dash v. Van Kleek, 7 Johns. 498; Greenough v. Greenough, 11 Penn. St. 494; Reiser v. Tell Association, 39 Penn. St. 137.

(14) The intention of the legislature when properly discoverable is always to control in the construction of statutes: Jackson v. Collins, 3 Cow. 89; Jackson v. Vanzandt, 12 Johns. 176; People v. Utica Insurance Co., 15 Johns. 358; Crocker v. Crane, 21 Wend. 211; Ellis v. Paige, 1 Pick. 45; Holbrook v. Holbrook, ib. 250; People v. Canal Commissioners, 3 Scam. 153; Barker v. Esty, 19 Vt. 131; Catlin v. Hull, 21 Vt. 152. But the intent must be gathered from the language employed to express it: and where the language is clear and explicit, and susceptible of but one meaning, and there is nothing incongruous in the act, a court is bound to suppose the legislature intended what the language imports. Barstow v. Smith, Wal. ch. 394; Bidwell v. Whitaker, 1 Mich. 469; People v. Purdy, 2 Hill, 35; Spencer v. State, 5 Ind. 76; United States v. Fisher, 2 Cranch, 399; United States v. Ragsdale, 1 Hemp. 497; Ingalls v. Cole, 47 Me. 530; Newell v. People, 7 N. Y. 83; Alexander v. Worthington, 5 Md. 476;

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 (o) which forbad 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 acceptation of the learned in each art, trade, and science. (15) 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.

*2. If words happen to be still dubious, we may establish their mean

ing from the context, with which it may be of singular use to compare a [*60]

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. (16) 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. (17) 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. (18)

(0) L. of N. and N. 5. 12. 3.

Cantwell v. Owens, 14 Md. 215; Pattison v. Yuba, 12 Cal. 175; Heirs of Ludlow v. Johnson, 3 Ohio, 553; In re Murphy, 3 Zab. 180; Ezekiel v. Dixon, 3 Kelly, 146; McClusky v. Cromwell, 11 N. Y. 593; Holmes v. Curley, 31 N. Y. 289; Steamboat Co. v. Transportation Co., 3 Green, N. J. 13.

(15) See United States v. Magill, 1 Wash. C. C. 463; United States v. Palmer, 3 Wheat. 610; Merchant's Bank v. Cook, 4 Pick. 411; Poole v. Poole, 3 B. and P. 620; Astor v. Union Ins. Co., 7 Cow. 202.

(16) The title of a statute may be a guide to the intent of the law-maker, where the body of the statute appears to be ambiguous or doubtful. United States v. Palmer, 3 Wheat. 610; Burgett v. Burgett, 1 Ohio, 480; Eastman v. McAlpin; 1 Kelly, 157; Bristow v. Barker, 14 Johns. 206; Cohen v. Barrett, 5 Cal. 195. So also may the preamble. Edwards v. People, 3 Scam. 465; Jackson v. Gilchrist, 15 Johns. 89; People v. Utica Insurance Co., ib. 390; Holbrook v. Holbrook, 1 Pick. 250; Halton v. Cove, 1 B. and Ad. 538; Whitmore v. Robertson, 8 M. and W. 472; Flynn v. Abbott, 16 Cal. 358; Constantine v. Van Winkle, 6 Hill, 177. Under the constitutions of some of the American States, which require the object or subject of a statute to be expressed in the title, it is obvious that the title has become more important, and may control the construction. See Cooley Const. Lim. 141.

(17) [It is an established rule of construction that statutes in pari materia, or upon the same subject. must be construed with a reference to each other; that is, that what is clear in one statute shall be called in aid to explain what is obscure and ambiguous in another. Thus the qualification act to kill game (22 and 23 Car. II, c. 25,) enacts, "that every person not having lands and tenements, or some other estate of inheritance, of the clear yearly value of 1001. or for life, or having lease or leases of ninety-nine years of the clear yearly value of 1501.” (except certain persons,) shall not be allowed to kill game. Upon this statute a doubt arose whether the words or for life should be referred to the 1007. or to the 1501. per annum. The court of king's bench having looked into the former qualification acts, and having found that it was clear by the first qualification act; 13 R. I. St. 1, c. 13; that a layman should have 40s. a year, and a priest 107. a year, and that, by the 1 Ja. c. 27, the qualifications were clearly an estate of inheritance of 101. a year, and an estate for life of 301. a year, they presumed that it still was the intention of the legislature to make the yearly value of an estate for life greater than that of an estate of inheritance, though the same proportions were not preserved; and thereupon decided that clergymen, and all others possessed of a life estate only must have 150l. a year to be qualified to kill game. Lowndes v. Lewis, E. T. 22 Geo. III.

That same rule to discover the intention of a testator is applied to wills, viz., the whole of a will shall be taken under consideration, in order to decipher the meaning of an obscure passage in it.] The statutes in pari materia are to be construed together, see Church v. Crocker, 3 Mass. 17; Mendon v. Worcester Co., 10 Pick. 235; Frink v. King, 3 Scam. 144; M'Cartee v. Orphan Asylum Society, 9 Cow. 507; Isham v. Bennington Iron Co., 19 Vt. 230; Hayes v. Hanson, 12 N. HI. 284; Manuel v. Manuel, 13 Ohio St. 458; McLaughlin v. Hoover, 1 Oregon, 31; Rogers v. Bradshaw, 20 Johns. 735; Green v. Commonwealth, 12 Allen, 155: Billingslea v. Baldwin, 23 Md. 85; Robbins v. Railroad Co., 32 Cal. 472.

(18) See United States v. Palmer, 3 Wheat. 610.

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 our 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, 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, (p) 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. (19)

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

[*61] 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. (20) 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 treatise inscribed to Herennius. (q) There was a law, that those who in a storm forsook the ship 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 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. (21)

From this method of interpreting laws, by the reason of them, arises what we call equity, which is thus defined by Grotius: (r) "the corrections of that wherein the law (by reason of its universality,) is deficient." For, since in laws all cases cannot be forseen 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

(19) See Langdon v. Potter, 3 Mass. 220; Gore v. Brazier, ib. 523; Ayres v. Knox, 7 Mass. 310. Putnam v. Longley, 11 Pick. 487; Dash v. Van Kleek, 7 Johns. 502; Henry v. Tilson, 17 Vt. 479; The inconveniences resulting from disregarding the practical construction of a statute, and long continued usage under it, will sometimes be allowed great weight in cases of doubt. Rogers v. Goodwin, 2 Mass. 478; State v. Mayhew, 2 Gill, 487; Essex Co. v. Pacific Mills, 14 Allen, 389; Isaacs v. Steele, 3 Scam. 97; Edwards v. Pope, ib. 465; Chestnut v. Shane's Lessee, 16 Ohio, 599; Union Insurance Co. v. Hoge, 21 How. 66; Britton v. Ferry, 14 Mich. 66; Plummer v. Plummer, 37 Miss. 185; Norris v. Clymer, 2 Penn. St. 277; Hedgecock v. Davis, 64 N. C. 652. (20) See further, Dash v. Van Kleek, 7 Johns. 486; People v. Utica Insurance Co., 15 Johns. 381; Miller v. Dobson, 1 Gilm. 572; Durousseau v. United States, 6 Cranch, 307; People v. Canal Commissioners, 3 Scam. 153; Tonele v. Hall, 4 N. Y. 140. Henry v. Tilson, 21 Vt. 485.

(21) A statute is always to be construed so as to render it effectual, if possible, rather than to defeat it. Watervliet Turnpike Co. v. McKean, 6 Hill, 616; Shrewsbury v. Boylston, 1 Pick. 105. And so as to give effect to all its provisions, if practicable: People v. Purdy, 2 Hill, 36; Parkinson v. State, 14 Md. 184; Ryegate v. Wardsboro, 30 Vt. 746; Brooks v. School Commissioners, 31 Ala. 227; Green v. Weller, 32 Miss. 650; Wolcott v. Wigton, 7 Ind. 49; People v. Burns, 5 Mich. 114.

And if a statute is susceptible of two constructions, one of which would render it unconstitutional, and the other not, it is to receive the latter construction as presumptively expressing the legislative intent. Newland v. Marsh, 19 Ill. 384; Dow v. Norris, 4 N. H. 17; People v. Supervisors of Orange, 17 N. Y. 241; Clark v. Rochester, 24 Barb. 471.

On interpretation generally, see Rutherford's Institutes of Natural Law, B. 2, c. 7, and Lieber's Hermeneutics,

which according to Grotius, "lex non exacte definit, sed arbitrio boni viri permittit." (22)

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 [*62] 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. (23)

SECTION III.

OF THE LAWS OF ENGLAND.

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 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; (a) and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant (b). But with us at present, the monuments and evidences of our legal customs are

(22) [I cannot forbear observing, (said Lord Tenderden), that I think there is always danger in giving effect to what is called "the equity of a statute;" and that it is much safer and better to rely on and abide by the plain words; although the legislature might possibly have provided for other cases had their attention been directed to them. 6 B. and C. 475. And in a recent case in which this rule was much discussed, Mr. Justice Coleridge said, "It is, in my opinion, so important for the court, in construing modern statutes, to act upon the principle of giving full effect to their language, and of declining to mould that language in order to meet either an alleged convenience or an alleged equity, upon doubtful evidence of intention, that nothing will induce me to withdraw a case from the operation of a section which is within its words, but clear and unambiguous evidence that so to do is to fulfill the general intent of the statute; and also to adhere to its literal interpretation, is to decide inconsistently with other overruling provisions of the same statute." 6 A. and E. 7.]

(23) [The only equity, according to this description, which exists in our government, either resides in the king, who can prevent the summum jus from becoming summa injuria, by an absolute or a conditional pardon, or in juries, who determine whether any, or to what extent, damages shall be rendered. But equity, as here explained, is by no means applicable to the court of chancery; for the learned judge has elsewhere truly said, that "the system of our courts of equity is a laboured confected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection." Book iii. 432.]

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 [*64] 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. In like manner as Aulus Gellius defines the jus non scriptum to be that, which is "tacito et illiterato hominum consensu et moribus expressum."

Our ancient lawyers, and particularly Fortescue, (c) 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 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 divers particular countries. Our laws, saith Lord Bacon, (d) are mixed as our language; and, as our language is so much the richer, the laws are the more complete.

And indeed our antiquaries and early 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 [*65] is said to have been extant so late as the reign of King Edward the Fourth, but is now unfortunately lost.(1) 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.(e)" Omnibus qui republicæ præsunt etiam atque etiam mando, ut omnibus æquos se præbeant judices, perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habetur: nec quicquam formident quin jus commune (Saxonice, rolcnice) 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 eleventh century, there were three principal systems of laws prevailing in different districts: 1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the ancient Britains; 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

(c) C. 17.

(d) See his proposals for a digest.

(e) C. 1.

(1) [It is a loose report of late writers that Alfred compiled a dom-boc, or general code for the government of his kingdom. Hallam's Mid. Ag. 2,402.Ĵ