with Notes of Reference (1803)
St. George Tucker
Of the Nature of Laws in General
Law, in its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.
Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all movable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for its direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.
If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again – the method of animal nutrition, digestion, secretion, and all other branches of vital economy – are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.
This then is the general signification of law, a rule of action dictated by some superior being: and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behavior.
Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will.
This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.
Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian1 has reduced the whole doctrine of law.
But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As therefore the creator is a being, not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own true and substantial happiness.” This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that the law of nature forbids it.
This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other-It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.
But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life: by considering, what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.
This has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, has been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their Intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law. Because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.
Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.
If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of God. Neither could any other law possibly exist; for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject,2 is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law, to regulate this mutual intercourse, called “the law of nations:” which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject: and therefore the civil law3 very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.
Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Justinian,4 “jus civile est quod quisque sibi populus constituit” . I call it municipal law, in compliance with common speech for, though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs.
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.” Let us endeavor to explain its several properties, as they arise out of this definition.
And, first, it is a rule; not a transient sudden order from a superior, to or concerning a particular person; but something permanent, uniform and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised; whereas our obedience to the law depends not upon our approbation, but upon the maker’s will, Counsel is only matter of persuasion, law is matter of injunction: counsel acts only upon the willing, law upon the unwilling also.
It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, “I will, or will not, do this;” that of a law is, “thou shall, or shalt not, do it.” It is true there is an obligation which a compact carries with it; equal in point of conscience to that of a law, but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising anything at all. Upon these accounts law is defined to be “a rule.”
Municipal law is also “a rule of civil conduct.” This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbor, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbor, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union: and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.
It is likewise “a rule prescribed.” Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified, viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament.5 Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto;6 when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.7 All laws should be therefore made to commence in futuro, and be notified before their commencement, which is implied in the term “prescribed.” But when this rule is in the usual manner notified, or prescribed, it is then the subject’s business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.
But farther: municipal law is “a rule of civil conduct prescribed by the supreme power in a state.” For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.8
This will naturally lead us into a short inquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.
The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society, either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest roan present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society, among themselves; which, every day extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But, though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together, that demonstrates the necessity of this union, and that therefore is the solid and natural foundation, as well as the cement, of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any.
For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the supreme being; the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community: goodness, to endeavor always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well-constituted frame of government.
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.9 It is not my business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.
The political writers of antiquity will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly consisting of all the free members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.
By the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases; by constituting one, or a few, or many executive magistrates: and all the other powers of the state must obey the legislative power in the discharge of their several functions, or else the constitution is at an end.10
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. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found, than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens: but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any; for by the entire conjunction of the legislative and executive powers all the sinews of government are knit together, and united in the hand of the prince: but then there is eminent danger of his employing that strength to improvident or oppressive purposes.
Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero11 declares himself of opinion, “esse optime constitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, sit modice confusa” ; yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure.12, 13
But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us, the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy: and as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valor, or their property;14 and thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous.
Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches for instance, in the king and house of lords, our laws might be providently made, and well executed, but they might not have always the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution.15 The legislature would be changed from that, which (upon the supposition of an original contract, either actual or implied) is presumed to have been originally set up by the general consent and fundamental act of the society: and such a change, however effected is according to Mr. Locke16 (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.
Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proceed to observe, that 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;17 that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted; and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.
Thus far as to the right of the supreme power to make laws; but farther, it is its duty likewise. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will. But, as it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, it is therefore incumbent on the state to establish general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another’s; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest or Indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquility.
From what has been advanced, the truth of the former branch of our definition is (I trust) sufficiently evident; that “municipal law is a rule of civil conduct prescribed by the supreme power in a state.”18 I proceed now to the latter branch of it; that it is a rule so prescribed, “commanding what is right, and prohibiting what is wrong.”
Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights and to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other.
For this purpose 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 clearly defined and laid down: another, directory: whereby the subject is instructed and 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, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.
With regard to the first of these, the declaratory part of the municipal law, this depends not so much upon the law of revelation or of nature as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights then which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se , such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.
But with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of the 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 offense: yet that right, and this offense, have no foundation in nature; but are merely created by the law, for the purposes of civil society. And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances 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. And so, as to injuries or crimes, it must be left to our own legislature 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.
Thus much for the declaratory part of the municipal law: 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 shall not steal,” implies a declaration that stealing is a crime. And we have seen19 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 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 those rights, when wrongly withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, “that the field or inheritance, which belonged to Titius’s father, is vested by his death in Titius;” and the directory part has “forbidden any one to enter on another’s property, without the leave of the owner:” if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose its office; will make Gaius restore the possession to Titius, and also pay him damages for the invasion.
With regard to the sanction of laws, or the evil 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. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. And farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good.20 For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution.
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.
Legislators and their laws are said to compel and oblige; not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.
It is true, it has been held, and very justly, by the principal of our ethical writers, that human laws are binding upon men’s consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. And, true as this principle is, it must be understood with some restriction. It holds, I apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offenses as are mala in se: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to non-compliance,21 here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as impolitic, but would also be a very wicked, thing; if every such law were a snare for the conscience of the subject. But in these cases the alternative is offered to every man; “either abstain from this or submit to such a penalty:” and his conscience will be clear, whichever side of the alternative he thinks proper to embrace . . . Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August . . . And so too, by other statutes, pecuniary penalties are inflicted for exercising trades without serving an apprenticeship thereto, for not burying the dead in woolen, for not performing statute-work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offense, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must however be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offense.22 But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offense against conscience.23
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 endeavored 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. 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: 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,24 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. Let us take a short view of them all.
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 Pufendorf,25 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. 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 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.26
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.27
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 victuals; 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 Pufendorf,28 which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.
5. But, lastly, 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; or the cause which moved the legislator to enact it. 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.29 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 anything to its preservation.30
From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius,31 “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 circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, “lex non exacte definit, sed arbitrio boni viri permittit.”
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 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.
1. Juris praecepta sunt haec, honesta vivere, non laudere suum cuique tribuere. Inst. 1.1.3.
2. Pufendorf, l 7. c. 1. compared with Barbeyrac’s Commentary.
3. Ff. 1. 19.
4. Inst 1.2. 1.
5. The laws of Virginia are promulgated by printing; copies of them are sent to the clerks of the county courts for the use of each magistrate, clerk, state’s attorney, and sheriff in the County, or Corporation. Copies are likewise furnished the Judges of the Superior Courts. The Laws of the United States have been usually reprinted by the Printer to the Commonwealth, at the public expense, and distributed in the same manner. See V. L. 1794. c. 62. 3. 8. Certain laws are likewise directed to be translated and printed in the German language. Resolution of both Houses, December 23, 1794. Sessions Acts. By the Act of 3. Cong. c. 115. the Secretary of State is required to furnish the Executives of the several States, and of the Territories Northwest, and South of the River Ohio, with four thousand five hundred copies of the Edition of the Laws of the United States, by that Act directed to be printed, and the like number of the Acts passed at each succeeding Session, to be divided among them according to the rule for apportioning Representatives, and distributed as the Executive or Legislature of the States shall deem most conducive to the general information of the people. And by the act of 5. Cong. c. 136. five thousand copies are directed to be printed and distributed in like manner. The act further directs that every order, resolution, or law passed by Congress, shall be published by the Secretary of State in at least one, and not more than three, of the Newspapers in each State. T.
6. No ex post facto law shall be passed by Congress; or by any of the United States. C. U. S. Art. 1. §. 9. 10. T.
7. Such laws among the Romans were denominated privilegia, or private laws of which Cicero (de leg. 3.19. and in his oration pro domo, 17.) thus speaks: “Vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus inogari; id enim est privilegium. Nemo unquam tulit: nihil est crudelius, nihil perniciosius, nihil quod minus haec civitas ferre possit.”
8. See Appendix to this Volume, Note A. T.
9. Whatever difficulty or uncertainty there may be in tracing the origin of the several forms of government in the Old World, it is the distinguished happiness of America that no such difficulty or uncertainty can here prevail as will be shown hereafter. T.
10. In a former note, (Appendix, note A,) we endeavored to shew that this maxim does not apply to the governments of the American Stales; by whose respective Constitutions, as also by the Constitution of the Federal Government, the legislative power is restrained within certain limits, both in the Federal and State Governments, which neither the Congress, nor the State Legislatures can transgress, without an absolute breach of the Constitutions from whence the Legislative Authority is derived. For, both the Federal, and State Constitutions derive their authority and existence from the immediate act, and consent of the people, “in whom” as our bill of rights expresses it, “all power is vested, and consequently, is derived from them.” These acts of the people having, then, the stamp of primitive authority, must be paramount to the act of the Legislative body, which derives its authority, and even its existence from that origin.32 And since the powers of the Legislature are thus limited, it follows that the Jura summi imperii, or that supreme, irresistible, absolute, uncontrolled authority, of which the commentator makes mention in a preceding paragraph, doth not reside in the legislature, nor in any other of the branches of the Government, nor in the whole of them united. For if it did reside in them, or either of them, then would there be no limits, such as may be found in all the American Constitutions, to the powers of Government. The existence of such limits proves the existence of an higher power elsewhere; that is, in the PEOPLE; in whom, and in whom, only, the rights of sovereignty remain: the people, therefore, only, and not the Legislature, have it at any time in their option to alter the form and administration of Government, by a new edict or rule, and to put the execution of their authority into whatever hands they please: and all the powers of the State, the Legislature as well as the rest, must obey them in the execution of their several functions, or
the Constitution will, indeed, be at an end. For the Constitution is a law to the Government, “which derives its just powers therefrom, as from the consent of the governed, for whose benefit that power is entrusted, and by whom, whenever it is abused, or exceeded, it may be revoked, and a new government instituted.” See the American Declaration of Independence, July 1776. T.
11. In his fragments de rep. l. 2.
12. “Cunctas nationes et urbes, populus, aut primores, aut singuli regunt: delecta ex his et constituta reipublicae forma laudari facilius quam eveniri, vel, si evenit, haud diuturna esse potest.” Ann l. 4.”
13. See Appendix. Note B. T.
14. This is an imposing picture: but let us see how this assembly is described, by an Ethical writer of the same country, and age. Officers of the army and Navy, courtiers, ecclesiastics, young men who have just attained the age of twenty one, and who have passed their youth in the dissipation and pursuits which commonly accompany the possession, or inheritance of great fortunes; country gentlemen occupied in the management of their estates, or in the care of their domestic concerns, and family interests; the greater part of the Assembly born to their station, that is, placed in it by chance; most of the rest advanced to the peerage, for services,” etc. Paley’s Philosophy B. 6. c. 8. May we not conclude with him. That there appears to be nothing in the education, habits, character, or professions of the members who compose that Assembly; in the mode of their appointment, or in the right by which they succeed to their places in it, to qualify them for their station? T.
15. How then must it be if the two most numerous branches should become subservient to the views of the third. See Mackintosh’s Defence of the French Revolution, 3d. London Edition … pa. 264, 265, and pa. 337, to 341, cited in Appendix to this Volume. Note B. “The Constitution of Great Britain, says an American writer, is established only on precedents, or compulsory concessions, between parties at variance. These can be no longer binding than whilst the parties respectively possess the means of enforcing their observance. Of course it is, and always has been a government of contention, in which the opposite parties have been for a length of time by chance so nearly balanced, as not to have destroyed each other. How long this will last it is difficult to say; but it may be affirmed that there is nothing of stability in their Constitution, and that almost every new case of importance introduces some new innovation in it. This is evident from their history and will appear particularly so from a perusal of Judge Blackstone’s ingenious explanation of the right of succession to the crown; where it may be seen how every fresh incident has given occasion to a different modification of this right. The several powers of government are limited, though in an uncertain way, with respect to each other; but the three together are without any check in the Constitution, although neither can be properly called the Representatives of the people. It is for this reason that this transcendent power, or omnipotence is ascribed to their parliaments …. What stretch of authority they have usurped and exercised with impunity, is considered as their established privilege; for they hold it as a maxim, that whatever they have once done, however improperly, they have a right to do again. What farther powers they may safely assume experiment only can teach.” Conciliatory Hints to the Citizens of South Carolina: by Philodemus …. 1784. T.
16. On government, part ii. §. 212.
17. Since, according to the fundamental principles of both the Federal and State Constitution, and Government, the supreme power (or Jura summi imperii) resides in the people, it follows that it is the right of the people to make laws. But as the exercise of that Right by the people at large would be equally inconvenient and impracticable, the constitution of the State has vested that power in the General Assembly of the Commonwealth; and the Constitution of the United States has reposed the exercise of the1 same power as it relates to the Federal Government, in the Congress of the United States; a body composed either immediately, or mediately, of Representatives of the People; the House of Representatives being the immediate delegates of the people in their individual capacity; the Senate representing them in their politic capacity, as forming different States; the latter although not chosen by the people, themselves, yet being chosen by the State Legislatures, which have no rights, nor authority, nor even an existence, but from the People, must be considered in the same light as the Representatives who are immediately chosen by them. It is from these express provisions both in the State, and Federal Constitutions, and not from metaphysical deduction, that the State, and Federal Legislatures derive the power of making Laws. See Constitution of Virginia, Art. 8. C. U. S. Art. 1. T.
18. After what has been said in two former notes, it may be expected that we should refuse our assent, in America, to the applicability of this part of the commentator’s definition of municipal law to the nature of our own governments. I therefore incline to prefer the definition of Justinian; “Just civile est quod quisque sibi populus constituit,” to that of Mr. Blackstone, thus far. This I apprehend may be considered as comprehending the whole body of national institutions, from whatever source or authority derived; whether the immediate act of the people, or that of the ordinary legislature, or founded on long and immemorial usage; whereas Mr. Blackstone’s definition presupposes an act of the legislature in every case whatsoever; otherwise according to his own principles, no rule of law can be said to be “prescribed by the supreme power in the state.” And however ingenious, and specious the argument may appear, that all the unwritten rules of law are founded upon some positive Statute, the memory of which has been lost, I can not help suspecting that there is more of ingenuity than truth in the idea; for the remote vestiges of legislative authority in England are too faint at this day, for us to repose much confidence in such theoretical conjectures. According to Cicero, every rule of law must have a just sanction for its support. This may be, either the immediate act of the people declaring and establishing the fundamental laws and constitution of the state; or the act of the ordinary legislature; or immemorial Custom, and Usage; or former precedents, founded upon the nature of the Government, and the application of its principles, and the maxims of sound reason, to each particular case; or lastly, the application of those maxims and principles, to any new case; where no former precedent, custom, usage or positive precept can be found: but in this application we must be careful not to introduce any new law, but, as far as possible to adapt the established rules of law to
every such new case; and where that can not otherwise be done, we must adhere to the maxim, “potior est conditio defendentis.” We shall now proceed with the Commentator to the remaining parts of his definition, in which we shall probably meet with no difficulty in subscribing to his opinion. T.
19. See page 43.
20. Locke, Hum. Und. b. 2. c. 21.
21. See Vol III. 420.
22. This is a doctrine to which the Editor cannot subscribe. It is an important question, and deserves a more extensive discussion than can conveniently be introduced into a note. The solution of it may not only affect the quiet of the minds of conscientious men, but may be the foundation of arguments and decisions in every branch of the law. To form a true judgment upon this subject, it is necessary to take into consideration the nature of moral and positive laws. The principle of both is the same, viz. utility, or the general happiness and true interests of mankind, Atque ipsa utilitas justi prope mater et aequi. But the necessity of one set of laws is seen prior to experience; of the other, posterior. A moral rule is such, that every man’s reason (if not perverted) dictates it to him as soon as he associates with other men. It is universal, and must be the same in every part of the world. Do not kill, do not steal, do not violate promises, must be equally obligatory in England, Lapland, Kamchatka, and New Holland. But a positive law is discovered by experience to be useful and necessary only to men in certain districts, or under peculiar circumstances. It is said that it is a capital crime in Holland to kill a stork, because that animal destroys the vermin which would undermine the dykes or banks, upon which the existence of the country depends. This may be a wise law in Holland; but the life of a stork in England would probably be of no more value than that of a sparrow, and such a law would be useless and cruel in this country. By the laws of nature and reason, every man is permitted to build his house in any manner he pleases; but from the experience of the destructive effects of fire in London, the legislature with great wisdom enacted that all party-walls should be of a certain thickness; and it is somewhat surprising that they did not extend this provident act to all other great towns. (14 Geo. 3. c. 78.)
It was also discovered by experience, that dreadful consequences ensued, when sea-faring people, who returned from distant countries infected with the plague, were permitted immediately to come on shore, and mix with the healthy inhabitants, it was therefore a wise and merciful law, though restrictive of natural right and liberty, which compelled such persons to be purified from all contagion by performing quarantine. (4 Vol. 161.) He who, by the breach of these positive laws, introduces conflagration and pestilence, is surely guilty of a much greater crime than he is who deprives another of his purse or his horse. The laws against smuggling are entirely juris positivi; but the criminality of actions can only be measured by their consequences; and he who saves a sum of money by evading the payment of a tax, does exactly the same injury to society as he who steals so much from the treasury; and is therefore guilty of as great immorality, or as great an act of dishonesty. Or smuggling has been compared to that species of fraud which a man would practice who should join with his friends in ordering a dinner at a tavern, and after the festivity and gratifications of the day, should steal away, and leave his companions to pay his share of the reckoning. Punishment or penalties are never intended as an equivalent or a composition for the commission of the offence; but they are that degree of pain or inconvenience, which are supposed to be sufficient to deter men from introducing that greater degree of inconvenience, which would result to the community from the general permission of that act, which the law prohibits. It is no recompense to a man’s country for the consequences of an illegal act, that he should afterwards be whipped, or should stand in the pillory, or lie in a jail. But in positive laws, as in moral rules, it is equally false that omnia peccata paria sunt. If there are laws, such perhaps as the game-laws, which in the public opinion produce
little benefit or no salutary effect to society, a conscientious man will feel perhaps no further regard for the observance of them, than from the consideration that his example may encourage others to violate those laws which are more highly beneficial to the community. Indeed, the last sentence of the learned Judge upon this subject, is an answer to his own doctrine; for the disobedience of any law in existence, must be presumed to involve in it cither public mischief or private injury. It is related of Socrates, that he made a promise with himself to observe the laws of his country; but this is nothing more than what every good man ought both to promise and to perform: and he ought to promise still farther, that he will exert all his power to compel others to obey them. As the chief design of established government is the prevention of crimes and the enforcement of the moral duties of man, obedience to that government necessarily becomes one of the highest of moral obligations: and the principle of moral and positive laws being precisely the same, they become so blended, that the discrimination between them is frequently difficult or impracticable, or, as the author of the Doctor and Student has expressed it with beautiful simplicity “In every law positive well-made, is somewhat of the law of reason and of the law of God; and to discern the law of God and the law of reason from the law positive, is very hard.” 1 Dial. c. 4. Christian. T.
23. Lex pure poenalis obligat tantum ad poenam, non item ad culpam: lex poenalis mixta et ad culpam obligat et ad poenam. (Sanderson de conscient. obligat. prael. viii. §. 17. 24.)
24. Inst. 1.2.6.
25. L. of N. and N. 5.12. 3.
26. 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 last qualification act to kill game (22 and 23 Car. 2. c. 25.) enacts, “that every person not having lands and tenements, or some other estate of inheritance, of the clear yearly value of 100l. or for life, or having lease or leases of ninety-nine years of the clear yearly value of 150l.” (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 100l. or to the 150l. 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. 1. st. 1. c 13 ) that a layman should have 40s. a year, and a priest 10l a year, and that by the 1 Jac. 27. the qualifications were clearly an estate of inheritance of 10l. a year, and an estate for life of 30l. 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 150£ a year to be qualified to kill game. Lowndes v. Lewis, E. T. 22 Geo. 3. The same rule to discover the intention of a testator is applied to wills, viz. he whole of a will shall be taken under consideration, in order to decipher the meaning of an obscure passage in it. Christian. T.
27. So we must resort to the Common-Law of England to explain that part of the Constitution of the United States, which declares, that the benefit of the Writ of Habeas Corpus, shall not be suspended except in case of rebellion, or invasion. T.
28. l. 5. C. 12. §8.
29. l. 1. c. 11.
30. On this subject of the interpretation of Laws in General, see Doctor Rutherforth’s Inst. of Nat. Law, B. 2. c. 7. T.
31. de aequitate, §3.
32. And herewith Vattel, B. 1. c. 3. §. 34. agrees. T.