Imágenes de páginas

that have some affinity with the subject, or that expressly relate to the same point.

Subject Matter. Words are always supposed to have a regard thereto, and the expressions of the legislator are presumed to have been directed to the subject matter.

Effects and Consequence. The rule is, where words bear either none, or a very absurd signification, if literally understood, we must deviate a little from the received sense of them.

Reason and Spirit of the Law. This is the most universal and effectual way of discovering the true meaning of a law,

, when the words are dubious, viz.: to consider the cause which moved the legislator to enact it. For when the reason ceases, the law itself ought to cease with it.

Equity Defined. From this method of interpreting laws by the reason of them arises what is called equity ,which is defined by Grotius, to be 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 somewhere be a power vested of defining those circumstances, which, had they been foreseen, the legislator himself would have expressed.

No Fixed Rules in Equity. Equity thus depending essentially upon the particular circumstances of each individual case, there can be no established rules and fixed precepts laid down, without destroying its very essence, and reducing it to 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. Law without equity, though hard and disagreeable, is more for the public good than equity without law, which would make every judge a legislator, and introduce 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.


Division. Lex non scripta, the unwritten or common law.

Lex scripta, the written or statute law. Leges non Scriptæ. The unwritten law includes not only general customs, or the common law, 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. Though these be termed leges non scriptae, they include more than those merely oral, or communicated from the former ages to the present day solely by word of mouth.

History of Unwritten Law. It is true that in the profound ignorance of letters of earlier days, all laws were entirely traditional, because writing was but seldom employed. With us, however, at this period, the evidence 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 legal writers preserved and transmitted from ancient times. We use the term non scriptae, because their original institution and authority were 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 through the kingdom. Our laws, says Lord Bacon, are as mixed as our language, and as our language is so much the richer, the laws are the more complete. The intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes and the Normans, must have insensibly introduced and incorporated many of their own customs with those that were before established, thereby probably improving the texture and wisdom of the whole.

Saxon Laws. In the time of Alfred, the local customs of the several provinces of the kingdom had grown so various, that he deemed it expedient to compile his Dome Book for general

This volume was extant until the time of Edward the Fourth. It contained, we may suppose, the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. The occupation and establishment of the Danes in England introduced new customs and caused this code to fall into disuse, or at least to become mixed with coarser laws, so that at the beginning of the eleventh century, there were three principal divisions of laws prevailing in different districts, viz., the Mercian laws of the uniddle counties, the laws of the West Saxons in the south and west, and the Danish law of the eastern coast, the part most exposed to the visits of this piratical people. The rorthern provinces at that time were under a distinct government.

Code of Edward the Confessor. Out of these three codes, King Edward the Confessor extracted one uniform digest of laws, to be observed through the entire kingdom. This undertaking apparently was no more than a new edition or fresh promulgation of Alfred's code, with additions and improvements suggested by the experience of a century and a half. Alfred was the conditor, Edward the Confessor the restitutor. Our ancestors struggled to maintain these laws under the first Norman princes. Subsequent kings allayed popular clamor, by promising to restore and keep them, when pressed by foreign emergencies or domestic discontent.

Conflict with the Civil Law. These are the laws, that so vigorously withstood the repeated attacks of the civil law, which established in the twelfth century virtually a new Roman empire over most of the states on the continent. They probably lost their political liberties thereby, while the free constitution of England was rather improved than debased.

Its Name and Antiquity. These in short are the laws, which originated that collection of maxims and customs, now known as the common law, a name either given to it to distinguish it from other laws, or more probably as a law common to the entire realm, the jus commune. The precise beginning of an ancient custom is difficult to ascertain. Its merit depends upon it having been used time out of mind, a time, whereof the mind of man rupneth not to the contrary. This gives it weight and authority.

Divisions. 1. General customs. These are the universal rules of the whole kingdom, and form the common law in its stricter and more usual signification.

2. Particular customs. These for the most part affect the inhabitants of particular districts.

3. Certain particular laws. These by custom are adapted and used in some particular courts of somewhat extensive jurisdic

tion. Some have divided the common law into established customs and established rules and maxims.

First. General Customs. These are usually called the common law, that is, that law by which proceedings and determinations in the king's ordinary courts of justice are guided and directed.

Jurisdiction. This for the most part settles the course in which lands descend by inheritance, the manner and form of acquiring and transferring property, the obligations and solemni. ties 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.

Minor Jurisdiction. Thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas and the exchequer, that the eldest son alone is heir to his ancestor, that property may be acquired and transferred by writing, that a deed is of no validity unless sealed and delivered, that wills should be construed more favorably and deeds more strictly, that money lent upon bond is recoverable in an action of debt, and that breaking the peace is punishable by fine and imprisonment. All these are doctrines not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, common law, for their support.

Validity of Customs and Maxims. The judges of the courts of justice determine their validity. They are the depositaries of the laws, the living oracles, who decide all cases of doubt according to the law of the land. Their decisions are the most authoritative evidence that can be given of the existence of such customs, as form part of the common law.

Records. The judgment itself and the previous proceedings are carefully registered and preserved, under the name of records, in public repositories provided, to which recourse is had for precedents.

Precedents. It is an established rule to abide by former precedents, where the same points come again in litigation. This prevents the scale of justice from wavering with every new judge's opinion, and the law in that case being 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 determine 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. The exception is where the former determination is incorrect, much more if it be clearly contrary to 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. They do not decide that the former decision was bad law, but that it was not law. Lawyers tell us, that the common law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Also whenever a standing rule of law, of which the reason is not remembered or discerned, has been broken in upon by statutes, the wisdom of the rule has in the end appeared from the inconveniences that have followed the innovation.

Their Value. The doctrine of the law is this: Precedents and rules must be followed, unless flatly absurd or unjust, for though their reason be not at first obvious, yet we owe a deference to former times. The law and the opinion of the judge are not always convertible terms, or one and the same thing, since it sometimes may happen, that the judge may mistake the law. But as a rule, the decisions of courts of justice are the evidence of what is common law.

Reports of Decisions. The decisions of courts, therefore, are held in the highest regard, and are not only preserved as records, but are published in numerous volumes of reports. These reports are histories of the several cases, with a short summary of the proceedings, the arguments on both sides, and the reasons the court gave for its judgment. These serve as indices to and also explain the records. The reports are extant from the reign of Edward II, and from that time until the reign of Henry VIII were taken by the prothonatories and published annually, whence they were termed year books. Since that time this work has been done by private parties, who often have produced imperfect versions.

Roman Adherence to Custom. The ancient Roman law, during the days of its liberty, paid also a great regard to custom,

1 Besides these reporters, there are authors whose works are greatly respected by the students of common law. Among them are Glanvil, Bracton, Britton, Fleta, Hengham, Littleton, Stratham, Brooke, Fitzherbert and Coke.

« AnteriorContinuar »