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 mersood it there and most known sadance: not so much regarding the propriety of grammar, as her genera and popular 1962 the law mentioned by Pufendori va inat & lay hands on a priest, was adjudged & ement um hurt a priest with a wapo nical terms, mast be taken warang i de zeren va learned in each a trade mi scence settlement, where me my Lagant im "Princess Scha ad de en fer vez, sing iM "testants," i becomes rezar a si ne bude lawyers, to aceran de re des te mrta "her bod." en ee varie synth her lineal descendance 2. Ir words are a se mi wa m their meaning in te riz gular use as sampare are ancurice sur or preampie e a an 11 act of parliament parison of a a of te ment, 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", and he has preserved them all. n Inst. 1. 2. 6. "which is already broad enough, yet wider and more receptive of misera"ble and perishing souls." I cannot see how, on principles of justice, this differs at all from the conceded power of binding the conscience to the payment of penalties; or how a compulsory payment of them, when incurred, can discharge the conscience. And it cannot seriously be maintained, that the law is made on a theory of voluntary payment of the penalty. It can never have been supposed, that the man who smuggles to avoid paying the duty, intends to pay, except on compulsion, the treble value of the article, or a penalty of 100%. But, if we pass over this inconsistency in the text, and admit the argument in its fullest extent, it is undoubtedly strong to shew the inconvenience of an unnecessary law, and the heavy responsibility under which any law is made. But it can go no farther, if the principles laid down in the beginning of this note are true. It should be remembered, too, that this is not the only instance, indeed that the instances are not few, in which human powers are allowed to act indirectly on the consciences of men. And as, in a question of convenience, it is always allowable to strike a general balance, it may be said that a less evil flows from this indirect consequence of some laws, which consequence it is always in the power of the subject to avoid, than good from the vast addition of strength thereby given to the sanctions of human legislators in general. Con In like manner the canon laws, or decretal epistles of the 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 [60] the law mentioned by Puffendorfo, 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 pro"testants," 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 comprize only certain of her lineal descendants. (7) 2. Ir 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 o L. of N. and N. 5. 22. 3. (7) The words "heirs of her body" will comprise all her lineal .de legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: 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. 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 [61] 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 consequences, 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 Puffendorfp, 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. 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. FROM this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius, "the correction of that, wherein the law (by rea66 son of it's universality) is deficient." For, since in laws all cases cannot be foreseen or expressed, it is necessary that [ 62 ] 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 1 de aequitate, § 3. |