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and the directory stands upon the same footing; for this virtually includes the former. The law that says “ Thou shalt not steal” implies a declaration that stealing is a crime. And we have seen that, in things naturally indifferent, the very essence of RIGHT and WRONG depends upon the direction of the laws to do or to omit them.
The remedial part of a law is so necessary a consequence of the former two, that a law 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 wrongfully withheld or invaded. This is the PROTECTION of the law. When, for instance, the declaratory part of the law has said “ that the field or inheritance which belonged to a man is vested by his death in his son;" and the directory part has “forbidden any one to enter on another's property, without the leave of the owner ;" if a stranger, after this, will presume to take possession of the land, the remedial part of the law will then interpose its office, and make the stranger not only restore possession to the son, but also make him pay 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 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; and farther, because the dread of evil is a much more forcible principle of human action than the prospect of good. For which reasons, though a prudent bestowing of rewards is sometimes beneficial, yet we find that those civil laws which enjoin and enforce our duty do seldom, 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. Unquestionably of all parts of a law, the most effectual is the vindicatory; for it is but lost labour to say “Do this," or " Avoid that,” unless we also declare, “ This shall be the consequence of your non-compliance."
It is true 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. So also in regard to natural duties, and such offences as are mala in se ; here we are bound in conscience; because we are bound by superior laws, revealed before those human laws were propounded, to perform the one and abstain from the other. But in relation to those laws which enjoin positive duties, annexing a penalty to non-compliance, conscience is no farther concerned, than in yielding obedience and submission to the penalty, in case of the breach of those laws.
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.
THE LAWS OF ENGLAND.
Next under our consideration is the Municipal Law of England, defined as the "rule of civil conduct prescribed to the inhabitants of this kingdom," which comprises in its highest and widest sense all those rules, written or customary, which have been laid down for the guidance of the community, and to which its members must, if they would avoid pena! consequences or civil liabilities, necessarily conform. It is divided into two classes—the Lex non Scripta, the unwritten or Common Law; and the Lex Scripta, the written or Statute Law.
Explain the “Lex non Scripta.” The lex non scripta, or unwritten law, is not literally unwritten, but is contained in the records of our courts of justice, in books of reports, and in the treatises of learned lawyers handed down from times of great antiquity.
The lex non scripta includes not only general customs, called the Common Law, 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.
Our ancient lawyers, and particularly Fortescue, insist that ese 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 observes,* “this assertion must be un'derstood 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."
* See "Selden's Notes."
However that may be, it is certain that these laws and customs are of higher antiquity than memory or history can reach, nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long-established custom ; whence it is that in our law the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, “ time whereof the memory of man runneth not to the contrary.” This it is that gives it its weight and authority, and of this nature are the maxims and customs which compose the common law, or lex non scripta of this kingdom.
Explain these General Customs of the Common Law.
The unwritten or Common Law is distinguishable into two kinds : -1. GENERAL CUSTOMS ; which are the universal rule of the whole kingdom, and form the COMMON Law in its stricter and more usual signification.--2. PARTICULAR CUSTOMS ; which, for the most part, affect only the inhabitants of particular districts.
First, as to general customs, by which proceedings and determinations in the Queen's ordinary courts of justice are guided and directed. These, for the most part, settle the course in which lands descend by inheritance the manner and form of acquiring and transferring property-the solemnities and obligations of contracts—the rules for expounding wills, deeds, and Acts of Parliament- -the respective remedies for civil injuries—the several species of temporal offences, and an infinite number of more minute particulars which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record- -the Courts of Chancery, the Queen's Bench, Common Pleas, and Exchequer- that the eldest son alone is heir to his ancestor- that a deed is of no validity unless sealed and delivered that wills shall be construed more favourably, and deeds more strictly—that money lent upon a bond is recoverable by action of debt-that breaking the public peace is an offence, and punishable by fine and imprisonment. All these are doctrines that are not set down in any written statute or ordinance, but depend upon immemorial usage; that is, upon common law for their support.
The SECOND BRANCH of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts. These particular customs, or some of them, are without doubt the remains of that multitude of local customs, out of which the common law as it now stands was collected, at first by King Alfred, and afterwards by King Edgar and Edward the Confessor; each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws; but for reasons that have been long forgotten, particular counties, cities, towns, manors, and lordships were indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large, which is confirmed to them by several Acts of Parliament.
1. Such is the custom of gavelkind, in Kent, and some other parts of the kingdom, which ordains, among other things, that the eldest son of the father shall not succeed to the inheritance, but all the sons alike ; and that though the ancestor be attainted and executed, yet the heirs shall succeed to his estate without any escheat to his lord.
2. Such is the custom that prevails in divers ancient boroughs, called borough-English—that the youngest son shall inherit the estate, in preference to his elder brothers.
3. Such is the custom in other boroughs, that a widow shall be entitled for her dower to all her husband's lands ; whereas, at the common law she shall be endowed of one-third part only.
4. Such also are the special and particular customs of manors,