Cornell University Library 
 KF 273.C43 
 
 How to study law xontaning practical s 
 
 3 1924 024 516 126 
 
 OJorndl ifctro g^nnl Slthraru 
 
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The original of this book is in 
 the Cornell University Library. 
 
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 the United States on the use of the text. 
 
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HOME LAW SCHOOL SERIES No. i 
 
 How to Study Law 
 
 CONTAINING 
 
 PRACTICAL SUGGESTIONS TO STUDENTS, BUSINESS 
 
 MEN, WOMEN AND ALL OTHERS WHO DESIRE 
 
 A KNOWLEDGE OF THE ELEMENTARY 
 
 PRINCIPLES OF LAW, INCLUDING 
 
 A CLEAR PRESENTATION 
 
 OF THE ELEMENTS OF 
 
 Blackstone's Commentaries 
 
 CHARLES E. £HADMAN, LL.D. 
 
 AUTHOR OF "THE HOME LAW SCHOOL SERIES," 
 AND MEMBER OP THE OHIO BAR. 
 
 CHICAGO 
 
 FREDERICK J. DRAKE & CO. 
 
 PUBLISHERS 
 
I MM 
 
 COPYRIGHT, IgOI, 
 BY CHARLES E. CHADMAN , 
 
AUTHOR'S PREFACE. 
 
 "How to Study Law" is a question of import- 
 ance to an ever increasing number of persons who 
 desire a practical and inexpensive method of 
 fitting themselves for the legal profession. The 
 same question is also suggesting itself to persons 
 who are, or expect to be, established in other 
 callings, who wish to understand their privileges 
 and responsibilities under the law, and the legal 
 ties that regulate their varied business and social 
 relations. This book — introducing^ the Home 
 Law School Series — seeks to answer this question 
 in a manner at once practical and satisfactory to 
 students in every sphere and condition of life. 
 The Series, it is hoped, will aid the law office 
 student and the law school student, as well as 
 that great class of persons who are unable to have 
 the advantages of either school or office instruc- 
 tion. 
 
 The time has arrived in America in which a 
 person who wishes to succeed must be able to 
 think as well as act. The law offers a large and 
 expanding field for the development of charac- 
 ter and personality, and a knowledge of it is as 
 beneficial from the standpoint of a liberal educa- 
 tion as from UnJ of a life calling. 
 
 Blackstonc cl.\v/ned for his lectures that they 
 S 
 
were "as a general map of the law, marking out 
 the shape of the country, its connections and 
 boundaries, its greater divisions and principal 
 cities" and that it was not his business "to de- 
 scribe minutely the subordinate limits, or to fix 
 the longitude and latitude of every inconsidera- 
 ble hamlet." He believed that the students' at- 
 tention should be engaged "in tracing out the 
 originals and as it were the elements of the law,'" 
 and cited Justinian to the effect that if "the ten- 
 der understanding of the student be loaded at the 
 first with a multitude and variety of matter, it will 
 either occasion him to desert his studies or will 
 carry him heavily through them, with much 
 labor, delay and despondence." Intro. Bl. Com. 
 p. 36. 
 
 The Home Law School Series aims to perform 
 the same office for the American student as the 
 Commentaries did for the English student of 
 law. It will be the fixed and general principles 
 of law and practice that will be chiefly dealt with ; 
 and these will be laid before the student in a plain 
 and simplified manner. The minute provisions 
 of statutary law will be indicated and the students 
 prepared for their interpretation and application. 
 The same author quoted above has said that a 
 plan of this nature, if executed with care and 
 ability, cannot fail of administering a most use- 
 ful and rational entertainment to students of all 
 ranks and professions, and that, an attention not 
 6 
 
greater than is usually bestowed in mastering the 
 rudiments of other sciences, or in pursuing a 
 favorite recreation or exercise, will be sufficient to 
 encompass in this manner the principles and 
 grounds of the law. 
 
 Law is the garnered wisdom of ages of polit- 
 ical development and the true conservator of civ- 
 ilization. It nominates the duties of the citizen 
 and sanctifies the rights of the individual. These 
 rights and duties must be known and fulfilled if 
 our nation is to exist for any extended period and 
 answer the high purposes for which it was estab- 
 lished. We trust that the method herein pre- 
 sented of encouraging a knowledge of the laws 
 and institutions of our advanced civilization will 
 meet with the approval of the general public, and 
 be a help and a benefit to those who desire this 
 knowledge. 
 
CONTENTS. 
 
 Page. 
 
 Publisher's Preface 3 
 
 Author's Preface 5 
 
 CHAPTER I. 
 
 The Chief Difficulty of the Student ii 
 
 Same Subject — This Difficulty Avoided 12 
 
 How the Law Was Studied Prior to 1765 13 
 
 Study of the Law Since Blackstone's Time 15 
 
 Advantages of the Home Law School Series 16 
 
 The Necessity of Legal Knowledge 17 
 
 Benefits of Legal Education 19 
 
 What Previous Education the Law Student Should 
 
 Have 21 
 
 The Time Required to Learn Law 28 
 
 Should All the Student's Time Be Devoted to Study? 31 
 
 The Cost of a Legal Education 36 
 
 At What Age Should the Student Take Up Law?. . 39 
 
 Women Should Study Law 41 
 
 To Those Who Desire to Use the Home Law School 
 
 Series 43 
 
 Same Subject, to Teachers and College Students. ... 45 
 
 Concerning Clubs of Students 46 
 
 CHAPTER II. 
 
 The Term Law Defined 48 
 
 Analysis of Blackstone's Definition of Law 48 
 
 Comprehensive Meaning of the Word Law 50 
 
 Same Subject, a Later View 52 
 
 What Laws We Are to Consider 55 
 
 Influence of the Law of Nature 56 
 
 Political Organization Precedes Law 57 
 
 8 
 
Development of the Law 58 
 
 Political Organizations Described 66 
 
 Same Subject, a People Defined 60 
 
 Same Subject, a State Defined 61 
 
 Origin of States 6a 
 
 Kinds of Governments 63 
 
 Same Subject — Republican Government 64 
 
 What Is the Best Form of Government 65 
 
 Sources of the Law 68 
 
 Legislation, or Law-making 73 
 
 Written Laws 73 
 
 The Unwritten Law 74 
 
 Common Law 74 
 
 Equity or Chancery Law 76 
 
 Depositories of the Law 76 
 
 Codification of Laws 78 
 
 Divisions or Branches of the Law 80 
 
 Public International Law 81 
 
 Private International Law 81 
 
 Constitutional Law 82 
 
 Law Pertaining to Persons 83 
 
 Law Pertaining to Property 83 
 
 Law Pertaining to Crimes 83 
 
 The Law of Procedure 84 
 
 Legal Ethics 84 
 
 The Interpretation of Laws 84 
 
 Law and Popular Influence 86 
 
 Influence of the American Lawyer 87 
 
 Subjects Treated in the Home Law School Series. . . 90 
 
 Helps to Students 91 
 
 Questions for Students 97 
 
PART II 
 
 Author's Introduction to the Study of Blackstone. . . 103 
 Nature of Laws, Section II., Introduction to Com- 
 mentaries m 
 
 Section III., of the Laws of England 149 
 
 Book the First, of the Rights of Persons 197 
 
HOW TO STUDY LAW. 
 
 CHAPTER I. 
 
 General Suggestions. 
 
 Section i. THE CHIEF DIFFICULTY OF 
 THE STUDENT— Aside from the general dif- 
 ficulties of time, money, and previous educational 
 advantages, the student, young or old, in the office 
 or in the law school, who is earnestly in quest of 
 legal knowledge, finds his enthusiasm checked 
 and his ardor cooled by discovering that there is 
 no key to the varied stores of legal lore which 
 exist, and which he is only too eager to make his 
 own. To one who has traversed the rough road 
 heretofore followed by every student of the law, 
 it is palpably apparent that much valuable time 
 is lost, and the keen edge of the student's appetite 
 for the science unnecessarily blunted because he 
 is left to delve too deeply, uncomprehendingly, in 
 some branch of the law before he has taken a 
 general and elementary view of the entire science. 
 
 The different branches of the law, like the di- 
 visions of other sciences, are correlated, and each 
 branch assists the student in the comprehension 
 of every other. 
 
12 HOW TO STUDY LAW. 
 
 Sec. 2. THIS DIFFICULTY AVOIDED.— 
 By the series of comprehensive and explanatory 
 treatises contemplated by the Home Law School 
 Series the student will be enabled to take up in 
 succession the various branches of the science, 
 master the fundamentals of each, and then be 
 prepared for a more careful and exhaustive study 
 of the history and spirit of the law as well as to 
 reason concerning the natural foundations of jus- 
 tice. The divisions which are to be followed were 
 suggested by the arrangement of subjects made 
 by the examiners appointed by the Supreme 
 Court of Ohio to conduct the examination of 
 candidates seeking admission to the bar. The 
 examination covered twenty branches and these 
 in turn exhausted the field of American law. It 
 is the aim of the author of this series' to present 
 one or more of these branches in each number of 
 the Home Law School Series. These books 
 will enable any person to study law with satis- 
 faction and profit, and not only to become fa- 
 miliar with the rights and duties of an American 
 citizen, but also, if desired, to pass the hardest 
 possible bar examination and embark with credit 
 and adequate preparation in the legal profession. 
 
 A general summary of the principles of law as 
 they stand to-day is sought to be spread out be- 
 fore the student in an interesting way, not too 
 learnedly, not too carelessly, for the lawyer must 
 never be careless, and in the study of the law we 
 cannot discard a certain degree of technicality. 
 
HOW TO STUDY LAW. 13 
 
 We take no credit to ourselves in recognizing the 
 need of the student in this regard; one would not 
 set a child to learn music by giving him the in- 
 spirations of the great masters; these are the last 
 stages in the acquirement of the art and must be 
 preceded by careful but simplified teaching in the 
 elements of music. So with law, its fundamental 
 tenets must be grasped by the student before 
 those more intricate problems will be clear to 
 him ; and if the basis of his legal education is suf- 
 ficiently broad and firm there is no limit which he 
 may not reach, and no problems which he may 
 not solve. If we can but lessen the labors of the 
 student at the outset, and give him such a view 
 and grounding as will permit him from the in- 
 ception to perceive the order and spirit of the 
 law, and thus be inspired and not discouraged we 
 shall be more than compensated for our under- 
 taking. 
 
 Sec. 3. HOW THE LAW WAS STUDIED 
 PRIOR TO 1765.— That the student may appre- 
 ciate what the Home Law School Series has un- 
 dertaken to do for him we restate here Lord 
 Chief Justice Reeve's direction to those about to 
 begin the study of legal science. He said: "Read 
 Wood's Institutes cursorily, and for an explana- 
 tion of the same, Jacob's Law Dictionary. Next 
 strike out what lights you can from Bohun's In- 
 stitutio Legalis, and Jacob's Practising Attor- 
 ney's Companion, and the like, helping yourself 
 by indexes. Then read and consider Littleton's 
 
14 HOW TO STUDY LAW. 
 
 Tenures without notes, and abridge it. Then 
 venture upon Coke's Commentaries. After read- 
 ing it once, read it again, for it will require many 
 readings. Abridge it; commonplace it; make it 
 your own; apply to it all the faculties of your 
 mind. Then read Sergeant Hawkins to throw 
 light upon Lord Coke. Then read Wood again 
 to throw light on Sergeant Hawkins. And then 
 read the Statutes at Large to throw light on 
 Wood." 
 
 If these were the trials of the English student in 
 the early days of the law, what shall we say as to 
 those of the American student of to-day? The 
 law — both common and statute law — has become 
 infinitely more complex. The student is sup- 
 posed to begin at the foundation not only of the 
 English Common Law but in many cases to delve 
 into the half-forgotten lore of the Civil or Ro- 
 man law. Thousands of text-writers now com- 
 pete for the mastery in stating with voluminous 
 detail the ever expanding subtilities of the law; 
 volumes have been written upon subjects as copy- 
 right, patents, commercial law, etc., mentioned in 
 a few lines by Blackstone, if, indeed, they were 
 reached at all by that exhaustive commentator; 
 the diverse statutes and precedents in the differ- 
 ent States add to the beginner's confusion, while 
 the extreme particularity and detail with which 
 every personal and property right of the indi- 
 vidual is guarded by statute makes the task of 
 the law student seem well-nigh endless. 
 
HOW TO STUDY LAW. is 
 
 Sec. 4. HOW LAW HAS BEEN STUDIED 
 SINCE BLACKSTONE'S TIME.— Black- 
 stone's Commentaries on the Laws of England 
 were first published in 1765, and since that time 
 almost every student of the law has made exten- 
 sive use of this valuable work from the incep- 
 tion of his studies. While this famous work is 
 now largely of historical value only, it is still the 
 beginner's fate to be asked to partake of it in 
 large doses. Prof. Walker has stated the true 
 reason, we believe, for the continued popularity 
 of Blackstone. He says : "There is no work on 
 American law at all suitable for a first book; and 
 we are compelled, for want of such a work, to 
 commence with Blackstone's Commentaries on 
 English Law, to learn the rudiments of Ameri- 
 can law." Walk. Am. Law. 4. 
 
 We now have, it is true, Walker's work, and 
 Kent's Commentaries, which are valuable to the 
 American student and much more practical than 
 Blackstone, yet these, too, have been largely out- 
 grown by the rapid changes in the American 
 legal systems. And our most successful law 
 schools make use of them simply as reference 
 books, and acquaint their students with the his- 
 tory of the common law by means of abridged 
 oral lessons upon the leading subjets. The stu- 
 dent is then occupied with principles, leading 
 cases, and statutes, with some attention to details 
 of practical procedure. The student who under- 
 takes to master the science without any assist- 
 
16 HOW TO STUDY LAW. 
 
 ance from those who have already gone over the 
 ground has a difficult task, and one which he will 
 never accomplish without a world of pluck and 
 perseverance. 
 
 Sec. 5. ADVANTAGES OF THE HOME 
 LAW SCHOOL SERIES.— The important as- 
 sistance which the law student needs is, first, to 
 be enabled to read the fundamentals of the 
 science unnderstandingly ; second, to have fur- 
 nished to him or designated what he should read; 
 and, third, to have such reading collected into 
 reasonable compass. All this is done by the 
 Home Law School Series. 
 
 First. The student is enabled to read law un- 
 derstandingly by this system, since the •whole aim 
 and scope of the school is directed to instruct the 
 novice and gradually and systematically add to 
 his present knowledge an accurate legal educa- 
 tion. Most text-books upon legal subjects are 
 for the benefit of trained men — professionals — 
 and hence little care is taken to simplify the rules 
 laid down. This school is for beginners, for stu- 
 dents just setting out upon an unknown road, 
 and every precaution will be taken to make each 
 step clear and smooth. 
 
 Second. The school furnishes in the first in- 
 stance just what is to be read, and then desig- 
 nates, by way of supplemental readings, such 
 other and further sources of knowledge as will 
 be most convenient and beneficial to the student. 
 
 Third. This information is collected into the 
 
HOW TO STUDY LAW. 17 
 
 briefest possible form, with all unnecessary and 
 antiquated details lopped off, though the refer- 
 ences are sufficiently varied as to permit the stu- 
 dent with a great amount of leisure to investigate 
 in detail any important or special subject. 
 
 Sec. 6. THE NECESSITY OF LEGAL 
 KNOWLEDGE.— To speak of the necessity of 
 some knowledge of the law to one who intends 
 making the law his profession is doubtless unnec- 
 essary. Yet we occasionally hear of persons in 
 those States where a good moral character is suf- 
 ficient to gain admission to the fear, who are ab- 
 solutely deficient in the very rudiments of the 
 profession which they are legally entitled to fol- 
 low. The results of admitting incompetent per- 
 sons to practice are, a lowering of the standard of 
 the profession, and a jeopardizing of the interests 
 of the client often amounting to a denial of right. 
 
 To the average student intending to become a 
 lawyer, we need say no more in regard to the 
 necessity of his understanding the science or pro- 
 fession he wishes to make his life's calling. But 
 there is a pressing necessity for every man and 
 every woman to understand at least the rudi- 
 ments of the law. By a rule of law, as ancient as 
 the law itself, every one is conclusively pre- 
 sumed to know the rights and duties which it 
 confers or compels. That this is a violent pre- 
 sumption no one will question, for we believe 
 there is none that has ever been made that varies 
 so generally from the truth. Still the rule re- 
 
18 HOW TO STUDY LAW. 
 
 mains, and in general all sane adults, ignorant or 
 wise, are responsible civilly or criminally for any 
 and all transgressions of the fixed rules of the 
 State or nation which we call laws. They are 
 likewise dependent upon these rules for the en- 
 forcement of their rights, and if they know not 
 their rights under the law how can they enforce 
 them? Laws, too, are not always in conformity 
 to what natural reason would lead one to infer 
 the law ought to be, and so there may easily be 
 an honest infringement of the strict letter of the 
 law, which will, nevertheless, subject the offender 
 to the prescribed penalty. The law, as we shall 
 see, in providing what is right, and forbidding 
 what is wrong, acts arbitrarily, and recognizes no 
 absolute rule save the intent and will of the law- 
 makers. 
 
 It is apparent that every man, high and low, 
 should have some general knowledge of the laws 
 under which he lives. Without such knowledge 
 he is in continual dread of some coercive and 
 irresistible power, which he may ignorantly of- 
 fend at any moment; or his dearest rights may be 
 infringed upon by others and though redress be 
 within reach he does not know that there is re- 
 dress for him. Surely, these reasons would suf- 
 fice to encourage every person to familiarize him- 
 self with the general principles of the laws to 
 which he is subject. 
 
 But there are other and higher motives Which 
 should induce each citizen to acquaint himself 
 
HOW TO STUDY LAW. i£ 
 
 with the laws of our land — a land, "perhaps the 
 only one in the universe, in which political or 
 civil liberty is the very end and scope of the con- 
 stitution." Ours is a popular government. Each 
 man in casting a vote is, in respect to that vote, a 
 law-maker. To cast his vote judiciously he 
 should have some knowledge of what law is, and 
 the ends it is expected to conserve. In England, 
 the filii nobiliunr— sons of noblemen — were in- 
 structed in the laws that they might protect and 
 guard their estates and privileges. In America, 
 by grace of God, all men are filii nobilium, and 
 if they would retain this priceless heritage be- 
 stowed by the fathers they must acquire a knowl- 
 edge of, and a love for "those equitable rules of 
 action by which the meanest individual is pro- 
 tected from the insults and oppression of the 
 greatest." 
 
 Sec. 7. BENEFITS OF LEGAL EDUCA- 
 TION. — "I think it an undeniable position," said 
 Blackstone, in the introduction to his series of 
 law lectures, "that a competent knowledge of the 
 laws of that society in which we live is the 
 proper accomplishment of every gentleman and 
 scholar; a highly useful — I had almost said essen- 
 tial — part of liberal and polite education." But 
 the average American of to-day desires further 
 benefits, and is prone to ask after the practical 
 advantages of legal study, and in this case he can 
 be fully satisfied, since in no branch of educa- 
 tion are the benefits so varied and extensive as in 
 that of the law. 
 
20 HOW TO STUDY LAW. 
 
 From birth until death the interests, not to say 
 destiny, of each individual is indissolubly con- 
 nected with the law of the land; every incident of 
 his career, every personal and property right, 
 every domestic, social, and business relation is 
 regulated or defined by it It may not be possi- 
 ble or practicable for every man to be his own 
 lawyer, but it is possible and important for a free- 
 man to be familiar with the rudiments of the 
 science which guards his liberties, and to be cog- 
 nizant of the general principles which govern his 
 ever}- day business affairs. This information 
 should be taught in the public schools, and is, in 
 our opinion, far more important than some of 
 the things which are taught there at present 
 
 It is astonishing that in a progressive age, and 
 in a land literally dotted with free schools, the 
 great mass of citizens should be utterly unac- 
 quainted with the laws regulating contracts, the 
 acquiring and disposing of real and personal 
 property, and the fiduciary relations; or with 
 commercial usages and the statutory provisions 
 governing the civil and criminal liability of in- 
 dividuals. We believe that the time has come to 
 dispel the ignorance of the masses in regard to 
 the laws of the land, and for a general study of 
 that science "which distinguishes the criterions of 
 right and wrong; which teaches to establish the 
 one a<nd prevent, punish, or redress the other; 
 which employs in its theories the noblest facul- 
 ties of the soul, and exerts in its practice the car- 
 
HOW TO STUDY LAW. 21 
 
 dinal virtues of the heart; a science which is uni- 
 versal in its use and extent, accommodated to 
 each individual, yet comprehending the whole 
 community." 
 
 Sec. 8. WHAT PREVIOUS EDUCATION 
 THE LAW STUDENT SHOULD HAVE.— 
 Every particle of education one ca/n possess along 
 any and all lines will be of help in the study of the 
 law. Even technical or professional training in 
 the allied sciences would be advantageous, so no 
 student of the law need fear that he may know too 
 much. But the important question is, how much 
 Should the student know? Shall we look to the 
 past method of legal education, or to the law 
 schools of to-day to determine this question? In 
 either event we shall find a great variety of an- 
 swers. In the multitudinous examples of emin- 
 ent lawyers we might cite, some were fully and 
 carefully trained in the highest seats of learning, 
 while others were without any of the advantages 
 of the so-called higher education. Among the 
 law schools and universities of to-day we find 
 various standards; some requiring a collegiate 
 education, including an extended course in the 
 dead languages and a term of years spent in per- 
 using the theories and sophisms of the latest ex- 
 pounder of "isms" and "ologies," and others that 
 leave their doors open to all who have a fair un- 
 derstanding of the English language and the or- 
 dinary branches taught in the common schools. 
 In the universities and colleges the tendency is 
 
as HOW TO STUDY LAW. 
 
 to raise the standard, and within the past few 
 years the standard in some schools has risen from 
 the lowest to the highest requirements. It is not 
 our purpose to decry this raising of the standard 
 of admission to law schools, though we may be 
 pardoned for sympathizing with and repeating 
 the conclusion of another writer who has can- 
 vassed these two methods of dealing with pros- 
 pective students : "One shows the selfish side of 
 learning, and the other the more liberal and 
 praiseworthy. The former would deny entrance 
 to the ranks of the profession to the ambitious 
 poor man, while the latter would open the doors 
 wide enough to take in any one who has ambition 
 and energy enough to pursue the study." 
 
 Should the schools carry their advance stand- 
 aid to the extent of asking that these re- 
 quirements be made part of the qualifications 
 necessary for the admission to the bar, we 
 should most seriously object. The ancient 
 languages, and the varied store of ornamental 
 education which go to make up university 
 training should not be forced upon every youth 
 who desires to set up as an expounder and 
 practitioner of the plain and exact rules of jus- 
 tice and rights which make up our legal system. 
 In America, we have had, and I trust may ever 
 have, two sorts of lawyers and judges, equally 
 capable, honest, and beneficial. One sort came 
 from the colleges, the other from the farms and 
 workshops direct; one skilled in all the flowery 
 
HOW TO STUDY LAW. 23 
 
 phrases of antiquity, and overflowing with his- 
 torical disquisitions upon legal theories; the 
 other with the metal of their brain and heart 
 robust and free and prepared to ring out loud 
 and clear when struck by the unanswerable logic 
 of progress, or wrung by the pleadings of op- 
 pressed humanity. "Men have worn the judicial 
 gown who have never seen the inside of a Latin 
 grammar, and they were none the less able 
 judges, despite the fact." Andrew Jackson and 
 Daniel Webster were equally necessary to mold 
 and develop our civilization, though the former 
 was but the rough, untutored frontiersman and 
 the other the college j bred student. At the bar 
 they were equally serviceable; and in the gravest 
 affairs of state who shall say that the honest de- 
 termination and direct Americanism of the 
 staunch "Old Hickory" was not as much needed 
 as the careful and profound declamations of Web- 
 ster ? Abraham Lincoln and William H. Seward 
 again illustrate the two types of American law- 
 yers. The former was home-made, his ideas of 
 right and wrong were God-given and unbiased 
 by the subtle theories of the past of human in- 
 stitutions ; the latter was coached and crammed 
 in the institutions of learning and was disposed 
 to look askance at his more humble brother from 
 the plains. Both were led to espouse the cause 
 of the enslaved negro, and to do their utmost to 
 vindicate his right to liberty and equality under 
 the law. We are permitted to judge whose in- 
 
24 HOW TO STUDY LAW. 
 
 fluence was the greatest, whose words were the 
 most potent to bring about a general recognition 
 of a principle which is now fundamental. When 
 we have decided whether the sublime yet unos- 
 tentatious words of Lincoln or the pompous 
 declamations of Seward were the most effica- 
 cious ; and whether the uncouth but true-hearted 
 executive, or his cultured and self-important sec- 
 retary were most serviceable to the nation in its 
 darkest hour, we shall have decided the contro- 
 versy between the college-trained and the home- 
 trained lawyer. 
 
 One of the prerequisite attainments of the stu- 
 dent of law suggested by Blackstone is, that he 
 be able to reason with precision, and separate 
 argument from fallacy, by the clear, simple rules 
 of pure unsophisticated logic; to fix his atten- 
 tion, and to steadily pursue truth through the 
 most intricate deductions by plain mathematical 
 demonstrations. This, we think, touches the key- 
 note of the student's qualifications to begin the 
 study of the law. There is no absolute need of 
 his having a collegiate education ; a fair ground- 
 ing in the ordinary common school branches, 
 supplemented by home readings on the History 
 of the English and American people and the de- 
 velopment of our social and political institutions 
 will enable him to pursue the study of the law 
 with the highest credit and advantage. 
 
 The languages, as Latin, Greek, French, would 
 not assist the student as much as many suppose. 
 
HOW TO STUDY LAW. 25 
 
 True, the language of the law was at one time a 
 compound and barbarous jargon ; from the con- 
 quest of England in 1066 until 1363, legal pro- 
 ceedings were conducted in Norman French. In 
 1363 the statutes required the proceedings to be 
 conducted in English and enrolled in Latin, and 
 this was the general rule until 1730, when an act 
 of Parliament required the records to be made in 
 English. (Walker's Am. Law, 2.) 
 
 Some of the terms used in these early proceed- 
 ings at law have remained, and have come to 
 possess a definite technical meaning, but the stu- 
 dent learns the meaning of these terms as he does 
 the principles of the law, and thus comes to use 
 them as clearly and correctly as though familiar 
 with the language of which they formed a part. 
 While a number of these technical law terms 
 must be mastered, they are not favored in mod- 
 ern practice and many of them are becoming ob- 
 solete, and where suitable modern terms can be 
 used they are to be preferred. Thus a fair knowl- 
 edge of the English language is all that the stu- 
 dent need have, and in the course of his study the 
 terms derived from the older languages, as "bail- 
 ment," "trover," "tort," etc., will become as fa- 
 miliar to him as the technical expressions, "hear- 
 say," "rule in Shelley's case," etc., which are used 
 by the profession. Our position is, that these 
 terms must be analyzed and learned by the 
 student; no one can comprehend them spon- 
 taneously, since they have come to have a set, 
 
26 HOW TO STUDY LAW. 
 
 technical application which cannot be varied and 
 which no other expression will convey. 
 
 A laughable incident is reported about a stu- 
 dent who relied on his general information to an- 
 swer the question : "What is the rule of law in 
 Shelley's case?" his answer was: "The rule in 
 Mr. Shelley's case is the same as in any other 
 man's case ; the law being no respecter of per- 
 sons." Another student taking the bar examina- 
 tion in Ohio in March, 1897, answered the ques- 
 tion, "What is hearsay ? Give five exceptions to 
 the general rule in regard to hearsay," as follows : 
 "It is natural for a man to here all he can if he 
 has good hearing; this is a natural instinkt for 
 humanity, and there is no exceptions." Students 
 who make such answers are generally set down 
 as being incapable of learning law at all, yet we 
 believe their chief difficulty lay in not having 
 access to comprehensive treatises upon the sub- 
 jects constituting the examination. Important 
 branches of the law may be thoroughly mastered 
 by the office student, and he may be ever so 
 capable, and yet likely to make mistakes upon 
 subjects not covered by his readings. But in the 
 latter case the composition and spelling indicate 
 such a lack of the fundamentals of education, as, 
 if not corrected, will prove a bar to success in any 
 calling. 
 
 We would advise the student, if such there 
 be, who cannot master the common branches, 
 as spelling, reading, writing, grammar, etc.. 
 
HOW TO STUDY LAW. 27 
 
 not to take up the law as a profession, merely 
 because he has a gift of "gab." This latter quali- 
 fication is coming to be less and less in demand. 
 And while we may deprecate the spirit of the 
 times that does not make orators, we can but 
 commend the quiet and orderly bearing of most 
 counselors in the conduct of a case. No bellow- 
 ing, no contortions, no dramatic poses ; simply a 
 natural and manly presentation of the client's 
 cause, in the clearest and most concise language 
 the advocate can command. There may be some 
 advocates who yet shed the "crocodile tear" in 
 pleading for their client, but for every timid soul 
 so won we believe the disgust of other honest 
 and manly jurors is aroused by such practices of 
 counsel who thereby brings defeat to the cause 
 of his client. It may not be amiss to mention 
 here a part of Judge Story's sage advice to young 
 lawyers : 
 
 "When'er you speak, remember every cause 
 Stands not on eloquence, but stands on laws ; 
 ********* 
 "Loose declamation may deceive the crowd, 
 And seem more striking as it grows more loud ; 
 But sober sense rejects it with disdain, 
 As naught but empty noise, and weak as vain." 
 In conclusion, we would say that any American 
 youth who really desires to follow the law as a 
 profession, and all citizens anxious to become 
 familiar with the principles affecting their per- 
 son and property, need not hesitate to begin the 
 
28 HOW TO STUDY LAW. 
 
 study of law if they are able to read and retain 
 thoughts and precepts, and to make deductions 
 therefrom and to apply them to the questions thai 
 daily arise. With such qualifications any person 
 can, by industry and application become pro- 
 ficient in the law. Our authority for this state- 
 ment is the fact that thousands of eminent per- 
 sons — attorneys and judges — began with no 
 further qualifications. 
 
 Sec. 9. THE TIME REQUIRED TO 
 LEARN LAW. — The time which the student 
 will require to learn law will vary with the stu- 
 dent and the method by which he seeks to ac- 
 quire his knowledge. That a long term of years 
 entirely devoted to legal study is necessary we 
 do not believe. Neither do we believe that any 
 one, however great his genius, can master the 
 legal science in a few weeks or months' study. 
 The method of study is important if the 
 time is to be reduced to the smallest possible 
 limit. A student may read for years among the 
 law books and reports and not come to as full a 
 knowledge of the law as by a single year's meth- 
 odical study under a competent instructor or with 
 the assistance of a condensed and capable series 
 of guide lessons. Upon this subject another 
 writer has said: 
 
 "In the first place, then, it may be stated that 
 in no study is a capable guide more necessary 
 than in the study of the law. It may as well be 
 determined in the beginning that unless one can 
 
HOW TO STUDY LAW. 29 
 
 have capable direction in his study he may as 
 well turn his attention to other fields of effort. 
 The field of law is so broad, so compassed about 
 by jungles of difficulties, almost interminable, 
 even to the experienced student, so cut up by in- 
 tersecting paths that confuse and tend to lead 
 the student astray, so uninviting in some direc- 
 tions, which, though uninviting are important, 
 that the student who proceeds to explore it with- 
 out a chart or compass will find himself lost ere 
 he is fairly started upon his journey. * * * 
 The one matter of choice of books alone will pre- 
 sent a difficulty that cannot be solved by the 
 student without aid. It has been said that if a 
 man should calculate on living to the age of sixty 
 years, and should devote, with great industry, 
 forty of these years to the study of books, the 
 most that he could accomplish in that time would 
 be the perusal of about 1,600 octavo volumes of 
 500 pages each. One could live a life time, spend- 
 ing his entire time in the reading of the law and 
 not read a single book twice. It is important, 
 therefore, that the choice should be judicious, 
 and after it is made, the whole should be studied 
 with method." 
 
 The student who has the advantages of the 
 Home Law School Series, as well as students at- 
 tending a college of law, are so aided and guided 
 that the actual amount of time required to gain 
 a thorough knowledge of the principles of law 
 is not great. Some years ago the University of 
 
30 HOW TO STUDY LAW. 
 
 Michigan had what was called a one year course, 
 for students who had some previous knowledge 
 of the law, while the regular course of study em- 
 braced two years of nine months each. The 
 course has now been enlarged to cover another 
 year. As a matter of fact, there was little per- 
 ceptible difference as regards attainment between 
 the "one year" men, as they were called, and the 
 full-course students. And we venture to say that 
 the students finishing the course in two years 
 made as good lawyers, and were as capable as the 
 students now taking the three years' course will 
 be. What does this statement signify ? Not that 
 the less time spent as a student of law the better 
 will be the chances of success, but simply that 
 student life is but the securing of the indexes to - 
 more thorough and advanced work, and should 
 not be permitted to occupy too much of one's 
 life. This idea is well stated by Blackstone, who 
 quotes Sir John Fortescue as saying: "For, 
 though such knowledge as is necessary for a 
 judge is hardly to be acquired by the lucubra- 
 tions of twenty years, yet, with a genius of tolera- 
 ble perspicacity, that knowledge which is fit for 
 a person of birth or condition may be learned in 
 a single year, without neglecting his other im- 
 provements." 
 
 Another eminent authority has said : "If one 
 shall enter upon the study of the law under the 
 impression that the extent of his advancement 
 must necessarily bear some relation to the num- 
 
HOW TO STUDY LAW. 31 
 
 ber of hours consumed in reading, and the num- 
 ber of pages devoured, and shall, in consequence 
 of that mistaken impression, hurry over ground 
 where he should proceed slowly, cautiously, and 
 with much pains-taking, he must be brought at 
 last face to face with the fact that be is reading to 
 little purpose, and catching but surface views. 
 For it is as true with the mental as it is with the 
 physical life, that, to nourish and strengthen the 
 powers, there must be time and opportunity for 
 digestion; and this process demands considera- 
 tion, reflection, and patient and laborious 
 thought. * * * The study of the law must 
 be with active mind and receptive understand- 
 ing." Cooley's Introd. to Bl., p. xi. 
 
 Sec. 10. SHOULD ALL THE STU- 
 DENT'S TIME BE DEVOTED TO STUDY? 
 — The question whether the student should for- 
 sake all else, including manual labor and other 
 mental work, to take up the study of the law is 
 easily answered. The answer being that there 
 is no necessity for so doing, and the results at- 
 tained by the student will be better if the separa- 
 tion is not made. Blackstone says: "Sciences 
 are of a social disposition, and flourish best in 
 the neighborhood of each other ; nor is there any 
 branch of learning but may be helped and im- 
 proved by assistance drawn from other arts." So 
 it is plain that other studies may be pursued 
 simultaneously with that of the law and be of in- 
 creased benefit to the student. But thousands 
 
32 HOW TO STUDY LAW. 
 
 of persons desire to know if they can continue in 
 their ordinary daily avocations and at the same 
 time study law in the leisure hours their present 
 calling allows them? We answer this query in 
 the affirmative, and give as our reason for so do- 
 ing the fact that thousands have already done so. 
 Scores of teachers, stenographers, telegraph op- 
 erators, commercial travelers, clerks of all de- 
 scriptions, farmers, blacksmiths, artisans, etc., 
 have studied law while holding their positions 
 and have come to be creditable and capable at- 
 torneys. It must follow that any person, young 
 or old, working for himself or for others, may, if 
 he is energetic, find sufficient leisure time to read 
 as much law each day as would be covered by an 
 ordinary lecture in a law school. These home- 
 opathic doses of law will prove entertaining as 
 well as instructive, and if kept up for a period 
 covering several years, as is contemplated by the 
 Home Law School Series will familiarize one 
 with the essentials of a legal education. We 
 insert here some remarks by an attorney who 
 favors this method of study. He says : 
 
 "I would have you emulate the example of 
 persons whose time is methodically divided. 
 Some men may not be able to give but thirty 
 minutes a day to the study of the law, and some 
 may be able to give their entire time. The one 
 who can give but thirty minutes need not be dis- 
 couraged because he cannot give more. * * * 
 It is not how much we read, nor how long we 
 
HOW TO STUDY LAW. 33 
 
 are in reading it, but how we read it. A student 
 who has but thirty minutes is much more liable to 
 accomplish what he undertakes in the way in 
 which it should be done, digesting it small por- 
 tions at a time, than is the man whose whole time 
 is at his disposal, and who reads law as if it were 
 necessary and possible to take it all in at one 
 sitting. * * * One of the most frequent 
 complaints I hear is: 'I have no time.' I have 
 little patience with excuses of this character, since 
 I know that in nine cases out of ten the excuse is 
 one which is not based on facts. Time to pursue 
 any line of study does not mean that one must of 
 necessity devote several hours of each day to its 
 pursuit. * * * A few moments each day, if 
 given to the study at regular intervals, will be 
 sumcent to accomplish wonders in the end, and 
 the end need not be so very far distant. I have 
 in mind a student who has but thirty minutes in 
 the day that he can call his own, and that thirty 
 minutes is the thirty minutes before breakfast. 
 His plan is to read thoroughly and attentively 
 during the thirty minutes, with pencil in hand, 
 jotting down the main points as he passes over 
 them. The memorandum thus made he carries 
 with him through the day, and at odd intervals 
 in his work refers to it, thus thinking it over and 
 unconsciously digesting it. His work is of more 
 benefit to him than were he to spend three or four 
 hours each day in cramming his head with a vast 
 amount of reading, little of which he is able to 
 
34 HOW TO STUDY LAW. 
 
 retain, and much less of which can he understand 
 or make part of his working knowledge." Thus 
 is the question of time for the diligent person 
 entirely removed. 
 
 But while we thus designate how the person 
 employed in other work may study law, we do 
 not wish to slight the fact that this putting to use 
 hours of leisure is a task that only men of great 
 personal control and indomitable energy can 
 compass. Study, to many persons is a bugaboo 
 only to be tolerated in the school-room. We all 
 observe and credit the Franklins and Greeleys, 
 but are slow to put in practice the rules of life 
 which insured their ultimate greatness. Frank- 
 lin's motto was: "Leisure is time for doing 
 something useful," and the "something useful" 
 was the development of his mind for the respon- 
 sibilities of life. The student who, like Franklin, 
 will separate himself from his companions and 
 pursue steadily a course in law should have the 
 additional credit of having mastered present self- 
 ish considerations for his ultimate good — a feat 
 which only great and noble souls have ever un- 
 dertaken. 
 
 We recall a gentleman who, though possessing 
 a fair education, began to apply himself during 
 leisure hours to the study of law. He subse- 
 quently secured a position in a law school, where 
 he continued to make the best possible use of his 
 spare moments, and so highly did he prize them 
 and fear that they might not be usefully em- 
 
HOW TO STUDY LAW. 35 
 
 ployed that he had framed and hung directly 
 over his desk the following motto : 
 
 LOST 
 
 TWO GOLDEN HOURS, 
 
 Somewhere between 
 
 Sunrise and Sunset. 
 
 No Reward Is Offered. They 
 
 Are Gone Forever. 
 
 The gentleman is now a well-known lecturer 
 and expounder of the law, his careful and assidu- 
 ous use of leisure time have brought him both 
 credit and success. 
 
 Great deeds, great triumphs, great men, have 
 their beginnings in small things — a resolve made, 
 a habit formed, a temptation resisted, or a leisure 
 hour well spent may have been the first cause — 
 the igniting spark, of a fire which should glow 
 undimmed until the end of time. Just as the 
 little brook carves its way through the mountain 
 which rises athwart its path and goes steadily 
 onward, gathering volume and strength by the 
 wayside, until at last as a mighty river it joins the 
 ocean — the mother of waters — have the great 
 lawyers, judges and statesmen — the Storys, 
 Kents, Cooleys, Lincolns — by unrelaxed efforts 
 covering many years, grown stronger day by 
 day, until at last they loom up as the giant 
 heroes of their profession and age. Reader and 
 student, so may you ascend, not swiftly as on the 
 
j6 HOW TO STUDY LAW. 
 
 eagle's wing, but slowly, surely, if it may be said 
 of you, as of the other heroes — 
 
 "While others slept, 
 He toiled upward in the night." 
 
 Sec. ii. THE COST OF A LEGAL EDU- 
 CATION. — An important question to many 
 persons wishing to study law is, How much will 
 it cost ? And we are sorry to say that many per- 
 sons in the past have been deterred from attempt- 
 ing the study because of the large expense neces- 
 sitated. The expense of a law school education 
 ranges from $500 to $i,ooo, an amount that 
 may well deter many persons who have to de- 
 pend upon their own earnings, and who also may 
 have upon them the care and support of others, 
 from seeking the same. The method pursued by 
 some of studying in a law office is less expensive, 
 but also has numerous objections. The student 
 may have the use of books, but very seldom has 
 that definite direction and assistance which is so 
 important to the beginner. Then, too, much 
 valuable time of the student is required by the 
 office duties, and his attention is frequently di- 
 verted, and his work liable to cover only those 
 practical details of the ordinary practitioner's 
 cases, instead of embracing the general prin- 
 ciples of the science. The law office has, how- 
 ever, offered to many needy students an oppor- 
 tunity to enter a profession that otherwise would 
 have been sealed to them. At present there are 
 
HOW TO STUDY LAW. 37 
 
 more persons applying than the law offices can 
 accommodate. What shall be done with the sur- 
 plus? And what can be done to aid the thou- 
 sands of students in the offices who are in need of 
 more careful direction and assistance than can be 
 vouchsafed them by the busy office lawyer ? The 
 Home LawSchool Series answers these questions. 
 By its assistance the law school is duplicated in 
 every home of the land where a bright intellect 
 desires to expand ; it offers the advantages of a 
 skilled instructor to every one ; it places, at slight 
 expense, in the hands of its students the best and 
 most condensed legal literature, obviating the 
 need of numerous and expensive books. All this 
 the Home Law School Series does at trivial, 
 nominal, cost to the student; the entire field of 
 jurisprudence will be covered in twenty pam- 
 phlets, and these can be secured singly by the 
 student at a cost so slight as to be within the 
 reach of all. Thus at the expense of a few dollars 
 in money, and the employment of leisure mo- 
 ments for a period not longer than required to 
 complete a law school course, a student may by 
 this method come to a knowledge of the law. 
 
 Are you willing to embrace this opportunity? 
 It may seem too practicable and easy to be real 
 and genuine ; or it may appear to you to be too 
 prosaic a method to win fame and fortune at the 
 home fireside by the careful, conscientious 
 perusal of the matter furnished you by the Home 
 Law School Series. You may think that the his- 
 
38 HOW TO STUDY LAW. 
 
 toric halls of some famed institution are needed 
 to inspire the muse which guides and directs your 
 destiny; but remember, please, that others have 
 preceded you and can testify to the efficacy of 
 similar methods. A lawyer who has traversed the 
 path the student must follow, says: "I have 
 found that the best way to succeed is to do the 
 best one can in the situation in which one finds 
 one's self placed day by day, without looking fur- 
 ther than is actually necessary. One day's work 
 well done is sure to have its influence upon the 
 future, and no amount of complaining or fault- 
 finding with present conditions or future pros- 
 pects will bring a man an inch nearer to success. 
 All that a man has is the past and present. If he 
 has done the best that he could in the time that 
 he has had to use, and is doing the best that he 
 can in the present, the difficulties of the future 
 will vanish as they are approached. Many of us 
 thing too much of the future and too little of the 
 past and present. A man who has spent a year 
 at employment which leaves him none the better 
 off at the end of the year, so far as his knowledge 
 and position in life are concerned, need find no 
 fault if the future does not treat him well. It is 
 a trite saying that every man is the architect of 
 his own fortune. The man who starts in early to 
 build and builds every day, will rear a more beau- 
 tiful and more enduring structure than he who 
 begins late to build, and who has injured his 
 powers for good by neglect in the past. Much 
 
HOW TO STUDY LAW. 39 
 
 depends upon one's surroundings, much more 
 depends upon one's self. The American youth 
 has ever before him the examples of Abraham 
 Lincoln, James A. Garfield, and hosts of other 
 men who have been born amid circumstances and 
 surroundings, in comparison with which no man 
 can claim to occupy a less favorable position. No 
 American boy can read the life of Abraham Lin- 
 coln without feeling that everything is possible 
 in this country to a man who goes about seeking 
 it in the right way." We know some will say that 
 there were greater chances of success in former 
 times ; that the times have changed and the bril- 
 liant opportunities for individual success are all 
 passed. Not so; Lincoln's opportunity was to 
 assist in stamping out an injustice, others injus- 
 tices remain, and will remain until there comes 
 another great, true-hearted hero from the ranks 
 of the people to awaken mankind to the new 
 forms of oppression. Opportunities are never 
 wanting, but sometimes the man is looked for 
 long. 
 
 Sec. 12. AT WHAT AGE SHOULD THE 
 STUDENT TAKE UP LAW?— Many persons 
 ask, What is the proper age to begin the study 
 of the law ? In general we would say that a per- 
 son is never too old or too young to study law 
 if they hav& the requirements heretofore men- 
 tioned of a mind capable of retaining the 
 thoughts gleaned from the printed page. We 
 know there is a prevailing impression in the world 
 
40 HOW TO STUDY LAW. 
 
 at large that when one has attained the age of 
 majority he is a graduate from all schools of a 
 primary sort, regardless of the preparation actu- 
 ally made for the struggles of life ; and that after 
 the age of thirty most persons consider it too late 
 in life to think of changing the calling they have 
 been following, however dissatisfied they may be 
 with their condition. We take it that no extended 
 argument is necessary to show the fallacy as well 
 as danger of such conclusions. One's early ad- 
 vantages may have been such as to have pre- 
 cluded him from getting the most rudimentary 
 education, yet his life should not be suffered to 
 be dwarfed when a slight effort may remedy this 
 defect. Men who were unable to take up the 
 study of law at twenty or thirty should not hesi- 
 tate to begin at forty or even fifty. It is never 
 too late to add to one's knowledge. Life is a 
 school, and those who willingly prepare the 
 varied lessons assigned will draw the prizes of 
 position, wealth, happiness, which are freely 
 offered to all, while those evading and skulking 
 their duties in this school, must yet continue the 
 course to the end, but without hope of securing 
 any of the special prizes awarded to the mer- 
 itorious. 
 
 As the requirements for admission to the bar 
 quite generally demand that the person be of age, 
 there is no special benefit for a student to begin 
 the law too early in life. But on the other side 
 there is no possible objection to persons, how- 
 
HOW TO STUDY LAW. 41 
 
 ever old, taking up the study of law. The duties 
 of citizenship and the responsibilities of being 
 financial, executive, legislative, and judicial head 
 of a family increase with one's years, and it is 
 only right and proper that one's abilities should 
 develop apace with these demands. 
 
 Sec. 13. WOMEN SHOULD STUDY , 
 LAW. — It has not been many years since women 
 were practically excluded from the learned pro- 
 fessions, and indeed, from all work not directly 
 connected with the home. We have not space 
 nor inclination to here argue the question of 
 woman's proper sphere. Suffice it to say that 
 woman has demanded and secured the right to 
 train for and follow the professions. Most law 
 schools now welcome women students, and a 
 number of women lawyers have gained success 
 at the bar. Aside from the question of following 
 the law as a means of gaining a livelihood, which 
 is no doubt an important one to many women in 
 our day and age, is the equally important one of 
 a knowledge of the law as a branch of a liberal 
 education. Women may now contract, enter into 
 business, and control their separate property as 
 fully and freely as men, and the same reasons 
 which require the male citizen to have an ade- 
 quate knowledge of the law apply with added 
 force to women. We are pleased to note that a 
 number of women have already grasped the situa- 
 tion and have entered the law schools to prepare 
 themselves for the duties and responsibilities of 
 
42 HOW TO STUDY LAW. 
 
 managing their estates. Prominent among these 
 women is the spirited and noble-minded Miss 
 Helen Gould, now a student of Columbia Law 
 School, whose inherited wealth is so great as to 
 remove, we should think, all fears of having to 
 make her livelihood by the practice of this or any 
 other profession. 
 
 This is a practical age, and woman is a prac- 
 tical helpmeet. She wishes to do all she can in 
 every possible sphere. Who will say her nay? 
 The woman stenographer, the woman in busir 
 ness, and the wife of the lawyer have special 
 reasons for possessing a knowledge of law. The 
 stenographer, since she may at any time be called 
 upon to draft legal papers, briefs, contracts, etc. ; 
 the woman in business, since she has all the re- 
 sponsibilities of a man and must be as wary and 
 careful as he ; and the lawyer's wife, since she 
 should be able to appreciate her husband's tri- 
 umphs in the "nice, sharp quillets of the law," 
 and not be completely isolated from his intellec- 
 tual existence. 
 
 Some women will ask, Will it be a difficult un- 
 dertaking, this study of the law ? We reply, Not 
 more' so than many things woman has already 
 attempted and accomplished. Not nearly so hard 
 as numerous things which are set down as being 
 within her sphere by men of the old school. We 
 have known girls, of ordinary capacity and train- 
 ing, to take up the study of law along with a 
 class of several hundred boys, and without ap- 
 
HOW TO STUDY LAW. 43 
 
 parent effort outstrip all but a few of their male 
 competitors. The Home Law School Series 
 offers exceptional advantages to women students, 
 as it permits the work to be done within the 
 family circle, and does not necessitate breaking 
 home ties, removing to a distance to take up. a 
 course of study where most of the students are 
 men, as is the case in attending the ordinary law 
 school. We believe that many women have been 
 deterred from studying law because of the rad- 
 ically different circumstances in which they 
 would be placed while pursuing their studies. In 
 conclusion, we would say that we deem a knowl- 
 edge of the law equally important to women as 
 to other citizens of a free country, and that in the 
 preceding paragraphs, while we have used the 
 masculine gender only, we wish it understood 
 that both men and women were intended. 
 
 Sec. 14. TO THOSE WHO MAY DESIRE 
 TO USE THE HOME LAW SCHOOL 
 SERIES. — We realize that persons from various 
 conditions and callings will ask themselves the 
 question, Shall I take up the work of the Home 
 Law School Series? While we can only know 
 generally as to your position we yet believe you 
 can arrange to devote some time each day or week 
 to the law if you really desire to study it. You 
 may be a farmer's son living on the farm. If so, 
 you are honest, strong, hardy, ambitious, and are 
 in possession of every attribute and requisite 
 necessary for making a success of the law. All 
 
44 HOW TO STUDY LAW. 
 
 you need is the opportunity to study, and this the 
 Home Law School Series affords you. In the 
 summer months your work is hard and covers 
 long hours, and you will have little if any time 
 to spare for study, but in the winter months you 
 have a greater amount of leisure time than others, 
 and can make up what you have neglected during 
 the summer. Pure air, good health, and absence 
 of the many things that serve to distract the at- 
 tention of the city man, will materially aid you. 
 Or you may be a clerk in a store, or an office, or 
 a bank, and have considerable leisure time and 
 only need the requisite mental determination to 
 use it profitably. We advise you to begin the 
 study of law and you will find that though it may 
 appear as drudgery at first the time will soon 
 come when you will take a delight in your self- 
 appointed task. You may be employed as a 
 traveling salesman, in which case you will have 
 the choice of using your leisure time in one of 
 two ways ; first, in pursuing some helpful branch 
 as the law, which may materially brighten your 
 prospect of future success, or you can devote it to 
 so-called pleasurable pursuits, which, far from 
 benefiting you, will in time destroy your capacity 
 for doing any honest work. It is difficult for a 
 person to profitably use time which is so cut up 
 as that of the traveling salesman. The Home 
 Law School Series, however, is portable, and be- 
 ing of use in various ways, would be a valuable 
 companion for any salesman. Idle hours will 
 
HOW TO STUDY LAW. 45 
 
 be found when its presence will be a pleasure as 
 well as a benefit. Try it. 
 
 Sec. 15. SAME SUBJECT — TEACHERS 
 AND COLLEGE STUDENTS.— Another class 
 of persons who can profitably and easily pursue 
 the study of law in the Home Law School Series 
 are school teachers and persons attending col- 
 lege. Teachers, whether in the common, gram- 
 mar, or high schools of the country, are ever de- 
 sirous of becoming better prepared to fill their 
 present positions, as well as fit to occupy the 
 higher places to which they aspire. Innumer- 
 able persons of small means are using the position 
 of teacher as a stepping stone to something 
 higher. They aspire to enter a profession — the 
 law, medicine, or ministry. Which shall it be? 
 It is not our duty or privilege to decide for you. 
 But should your decision be in favor of law, we 
 can aid you in your pursuit of it. The Home 
 Law School Series will furnish just the aid that 
 the teacher needs, and will come to his assistance 
 at so slight a cost that his savings may be re- 
 tained to furnish his office or to take a finishing 
 year at some regular school. Again, if you are 
 a teacher you may find it to your advantage to 
 accept a higher position and accept teaching as 
 your life calling. Will a knowledge of the law 
 be of benefit to you in this case ? Yes, it will be 
 one of the best and most useful branches with 
 which you could equip yourself. The reasons 
 for our conclusion here have been so thoroughly 
 
46 HOW TO STUDY LAW. 
 
 presented in the preceding paragraphs that they 
 need not be repeated. College students, not 
 fitting themselves for any particular calling, can 
 well use some of their leisure hours in following 
 the course in law as conducted in the Home Law 
 School Series. When they have finished their 
 literary education they will also have a knowl- 
 edge of a profession which can at once be put to 
 practical use, and which in its acquirement will 
 have assisted them in their other studies. Many 
 college students now read Blackstone or Kent 
 for the purpose of getting advanced standing in 
 a law schoor when they are ready to seek ad- 
 mittance. The Home Law School Series aims not 
 only to give them this instruction, but also the 
 complete course as given by the law schools. 
 
 Sec. 16. CLUBS OF STUDENTS.— The 
 chief advantages of the regular law schools are 
 those resulting from isolation of the student from 
 the every-day cares of life, and associating him 
 with others who are pursuing the same science, 
 thus creating a special atmosphere, as it were, in 
 which the student may imbibe law from the very 
 air. "Moot Courts, Quiz Clubs, Recitations," 
 these are advantages of the school away from 
 home. Most of these advantages are afforded by 
 the Home Law School Series, and without some 
 of the serious objections which can be raised to 
 the so-called advantages of the other schools. 
 We acknowledge the great benefits to be derived 
 from association, but also have to admit that 
 there are also some great evils that may result as 
 
HOW TO STUDY LAW. 47 
 
 well. Association may have an influence in other 
 things than the study of the law, as is sometimes 
 shown. The publishers of the Home Law School 
 Series desire that each student taking up the 
 study of the law associate with himself others in 
 his community desirous of similar instruction and 
 establish a Home Club of law students, whose 
 habits, morals and ability is known and accepta- 
 ble one to another. In this way all the advan- 
 tages, of the courts, recitations and clubs of the 
 regular law school can be had without any of the 
 dangers. While we advise the formation of these 
 local clubs we wish.it understood that they are 
 not absolutely essential. It is the individual stu- 
 dent that must do the most work, and this work 
 no club nor association can do for him. No stu- 
 dent can be educated by proxy, he must "grind," 
 and grind alone, if he is to become the able and 
 proficient adviser. 
 
 In concluding these suggestions, meager as 
 they are, we cannot help but think that they will 
 prove sufficient as an introduction to the Home 
 Law School Series, and the course of study con- 
 templated by it. Americans are too keen-sighted 
 to have to be carefully instructed how to secure 
 their own best and highest welfare. We have 
 left more unsaid than we have said, but we rest 
 easy in the confidence that the bright minds that 
 shall peruse these pages will be able to add many 
 more convincing arguments why each should 
 have a knowledge of, the law which this series 
 aims to furnish. 
 
4» HOW TO STUDY LAW. 
 
 CHAPTER II. 
 Definitions and Divisions, 
 
 Sec. 17. THE TERM LAW DEFINED.— 
 Law, as the term is used by the legal profession, 
 and will be used in the Home Law School 
 Series, is defined to be, "a rule of civil conduct 
 prescribed by the supreme power in a state, com- 
 manding what is right and prohibiting what is 
 wrong." 
 
 The above is Blackstone's celebrated definition 
 of municipal law, the word "municipal" being 
 used by him with reference to the laws of a state 
 or nation, and to distinguish this meaning of the 
 word law from that broader and indiscriminate 
 use of the term in which it signifies a rule of 
 action, whether animate or inanimate, and 
 whether set by a human or superhuman author- 
 ity. I. Bl. Com. 44. 
 
 A more concise definition of law, as the term is 
 used by the courts and in the science of jurispru- 
 dence, is that given by Prof. Holland, who de- 
 fines law to be "a general rule of external human 
 action, enforced by a sovereign political author- 
 ity." Holland's Jurisprudence, Chapter III. 
 
 Sec. 18. ANALYSIS OF BLACKSTONE'S 
 DEFINITION OF LAW.— The definition of 
 municipal law is thus analyzed and justified by 
 its author: 
 
 1. Law is "a rule," as it is something perman- 
 
HOW TO STUDY LAW. 49 
 
 ent, uniform, and universal, and not a mere tran- 
 sient sudden order from a superior to or concern- 
 ing a particular person. It is also a "rule" in the 
 sense that it is an injunction and not advice or 
 counsel, it must be followed at all events, will- 
 ingly or unwillingly. The obligation is the result 
 of a command and not of an agreement. 
 
 2. It is a rule "of civil conduct," since it refers 
 only to the duties owing by the citizen to the 
 political society in which he lives, and not to 
 moral duties which are the obligations of natural 
 or revealed law. 
 
 3. It is a rule "prescribed," that is, published 
 and promulgated, and not a mere secret resolution 
 of the legislator. It is requisite that every law 
 be notified to the people who are to obey it. But 
 the manner of the notification may be varied. 
 Thus it may be notified by tradition and long 
 practice, which supposes a previous publication, 
 as in the case of the common law ; by being read 
 in public assemblages ; and by being written or 
 printed, as is now the general method. It is this 
 requirement of- notification which makes ex post 
 facto, or laws having a retroactive effect, so de- 
 cidedly unpopular, as in this case there could be 
 no possibility of previous notice of the law. 
 Hence all laws should be made to take effect 
 only after their passage and publication. 
 
 4. It is prescribed "by the supreme power in a 
 state" for the act of legislating, or prescribing 
 the rule, is the greatest act of superiority that can 
 
So HOW TO STUDY LAW. 
 
 be exercised by one being over another. "Sov- 
 ereignty and legislature are indeed convertible 
 terms ; one cannot subsist without the other." It 
 is the very essence of a law that it be made by the 
 supreme power. 
 
 5. It is a rule "commanding what is right and 
 prohibiting what is wrong," for by the law are 
 the boundaries of right and wrong established 
 and ascertained. When the law forbids any 
 action it becomes by reason of this inhibition 
 wrong for the subject to do the thing forbidden, 
 and if the law does not forbid the act, it is legally 
 right to do that act, and this regardless of moral 
 sanction. 
 
 In commanding the right and prohibiting the 
 wrong every law may be said to consist of several 
 parts, which are: (a) The declaratory part, by 
 which the rights to be observed and the wrongs 
 to be avoided are clearly stated ; (b) the directory 
 part, which orders the subject to observe the 
 rights and abstain from the commission of the 
 wrongs stated in the declaratory part; (c) the 
 remedial part, in which a method is pointed out 
 to enforce rights or redress wrongs ; and (d) the 
 sanction or vindicatory branch of the law, which 
 designates the evil or penalty to be incurred by 
 such as commit any public wrong, and neglect 
 their duty. I. Bl. Com. 44-54. 
 
 Sec. 19. COMPREHENSIVE MEANING 
 OF THE WORD LAW.— In its most compre- 
 hensive sense, the term law has been applied to 
 
HOW TO STUDY LAW. 51 
 
 designate the rules of external nature, and its 
 meaning has been rendered ambiguous, because 
 it is used indifferently to describe the order which 
 pervades the universe, the observed regular phe- 
 nomena of nature, the intangible moral restraints 
 upon human conduct, as well as those definite 
 rules of human action prescribed by some polit- 
 ical superior. But to the jurisprudent the term 
 has come to have only this latter and limited 
 sense, when used without a qualifying or ex- 
 planatory word. 
 
 The older writers, as Blackstone, were prone 
 to find a higher sanction for laws than that of 
 their being prescribed by the sovereign political 
 authority. They regarded man as a creature, and 
 hence subject to the laws of his Creator. Man's 
 free will being restrained and modified by the 
 "immutable laws of human nature," and by his 
 reason rendered capable of discovering the pur- 
 port of those laws. Thus were the laws estab- 
 lished by man for his social regulation, sought 
 to be connected with the "eternal and immutable 
 laws of good and evil, to which the Creator him- 
 self in all his dispensations conforms." Human 
 reason, rightly exerted, discovers the laws which 
 the Creator has set, as the principles, "that we 
 should live honestly, should hurt nobody, and 
 should render to every one his due," the funda- 
 mental precepts of the law laid down by Justinian. 
 Again, according to these writers, the Creator in 
 his infinite goodness has so regulated his crea- 
 
52 HOW TO STUDY LAW. 
 
 ture, man, "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," and the rule of obedience is 
 reduced to the one paternal precept, "that man 
 should pursue his own true and substantial hap- 
 piness." In addition to the laws discovered by 
 reason, are those revealed directly by the Creator, 
 and to be "found only in the holy scriptures." 
 
 "Upon these two foundations," says Black- 
 stone, "the law of nature and the law of revela- 
 tion, depend all human laws ; that is to say, no 
 human laws should be suffered to contradict 
 these." Thus, according to Blackstone, human 
 laws, except in a number of indifferent points in 
 which the divine and natural law leave man at his 
 own liberty, are "only declaratory of, and act in 
 subordination to, the former." And he concludes, 
 "No human laws, are of any validity, if contrary to 
 this natural law, and such of them as are valid 
 derive all their force and all their authority, medi- 
 ately or immediately, from this original." This 
 conclusion, as will be seen, is not in accord with 
 his definition of municipal law, save on the sup- 
 position that all legislation is sanctioned by nat- 
 ural law. 
 
 Sec. 20. SAME SUBJECT — A LATER 
 VIEW. — A later school of jurisprudents separate 
 positive or municipal law entirely from the so- 
 called natural or revealed law. Their reasoning 
 is, that while man is a" mystery to himself, ex- 
 
HOW TO STUDY LAW. 53 
 
 ternal nature is a greater one, and he seeks to 
 explain the more, by the less obscure. "As he 
 governs his flocks and his family, so he supposes 
 that unseen beings govern the waters and the 
 winds. The greater the regularity in nature, the 
 fewer such beings does he suppose to be at work 
 in her ; till at length he rises to the conception of 
 one great being whose laws are obeyed by the 
 whole universe, or having gotten the idea of the 
 universe he holds that and not a supreme ruler 
 and law-giver." Man believes himself acquainted 
 either by experience or revelation with certain 
 rules intended for his guidance, and hence the 
 terms, laws of Nature, of God, of beauty, of mor- 
 ality, etc., which he applies to observed relations 
 and arrangements of external objects. So in the 
 theoretical sciences; the term law denotes the 
 abstract idea of the causes of phenomena ; in the 
 physical sciences law denotes the method of the 
 phenomena of the universe ; and in the practical 
 sciences it signifies a rule of human action which 
 is its usual and proper meaning. The practical 
 sciences are divided into (1) Ethic, which is the 
 science of conformity of human character to a 
 type, and looks to duties binding on the con- 
 science for which external legislation is impossi- 
 ble ; and (2) Nomology, the science of the con- 
 formity of human actions to rules, which looks to 
 the rights which are the elements of social life. 
 
 Another definition of Nomology is "the science 
 of the totality of the laws for which external leg- 
 
54 HOW TO STUDY LAW. 
 
 islation is possible." Nomological sciences are 
 divided into (i) those whose rules are enforced 
 by an indeterminate authority, as so-called moral 
 laws, laws of fashion, chivalry, etiquette, and all 
 conventional laws, and (2) those whose rules are 
 enforced by a determinate authority, as all statute 
 laws, and other regulations of a political sov- 
 ereign. It is these latter laws which are the sole 
 concern of the jurist. 
 
 "The jurist is not obliged to decide as to the 
 essential quality of virtue in itself, or whether it 
 be conducive to utility, or is in accordance with 
 nature; nor need he profess belief or disbelief, 
 either in an innate moral sense or in a categorical 
 imperative of the practical reason. The business 
 of the jurist is, first, to accept as an undoubted 
 fact the existence of moral principles in the world, 
 differing in many particulars in different nations 
 and at different epochs, but having certain broad 
 resemblances ; second, to observe the sort of 
 sanction by which these principles are made 
 effective." Holland's Jurisprudence, Chapters II. 
 and III. 
 
 In this view of the subject it appears that in- 
 stead of human laws being derived from and 
 based upon divine or natural law, it was by the 
 gradual expansion of municipal and positive law 
 that man has come to his present high conception 
 of moral and natural law. The question raised 
 by these two views — Is, or is not, law an inborn 
 conception, drawn by the process of reasoning 
 
HOW TO STUDY LAW. 55 
 
 from the immutable and eternal reservoir of di- 
 vine justice? — cannot be settled here. There are 
 two schools of thought on this question, and it is 
 the student's privilege to choose his side. The 
 question is not of such importance as to demand 
 immediate solution. Whatever may be the true 
 theory it still remains that municipal law is pre- 
 scribed by the supreme power in a state, and its 
 rules are enforced by the same power. 
 
 "Rights are and can be real, only as they are 
 established in the civil and political organization. 
 They are slowly and only with toil and endeavor 
 enacted in laws and molded in institutions. It is 
 only with care and steadiness and tenacity of 
 purpose that those guaranties are forged which 
 are the securance of freedom, and they are to be 
 clinched and riveted to be strong for defense 
 and against assault. The rhetoric which holds 
 the loftier abstract conception avails nothing, 
 until in the constructive grasp and tentative skill 
 of those who apprehend the conditions of posi- 
 tive rights, it is shaped and formed in the process 
 of the state." E. Mulford, "The Nation," p. 83. 
 
 Sec. 21. WHAT LAWS WE ARE TO CON- 
 SIDER. — It is only the laws for the control of 
 human action, set by a definite human authority, 
 which must be a sovereign authority, that we are 
 to consider. So that a law to the jurisprudent 
 is a general rule of human action, taking cog- 
 nizance only of external acts, enforced by a de- 
 terminate authority, which authority is that 
 
56 HOW TO STUDY LAW. 
 
 which is paramount in a political society. Hol- 
 land's Jurisprudence, Ch. IV. 
 
 Thus we exclude from consideration the prin- 
 ciples or sentiments of right and justice which 
 are termed laws of Nature, and which have been 
 designated as "The unwritten and steadfast cus- 
 toms of the gods." "In their widest sense," says 
 Prof. Holland, "the law of Nature includes ani- 
 mal instincts, regulating the care of the young 
 and the union of sexes ; in their narrower sense 
 they are the Ius Gentium of the Romans, that 
 is, a body of principles found in all nations which 
 point to the similiarity of needs and ideas of all 
 peoples." It is evident that these indefinite and 
 general ideas, deep-rooted as they are, cannot be 
 termed laws in the same sense as those positive 
 directions of the sovereign power of a state. 
 
 We also exclude from our consideration all 
 those rules of indeterminate and indefinite au- 
 thority, as moral rules, rules of fashion, etiquette, 
 etc., which, though binding in some instances, 
 are not enforced by a determinate superior ; and 
 also those rules enforced by a determinate au- 
 thority, if the authority is superhuman or politic- 
 ally subordinate. Hence we have left the field of 
 positive or municipal law — being those general 
 rules of external human action enforced by the 
 sovereign political authority in a state. 
 
 Sec. 22. INFLUENCE OF THE LAW OF 
 NATURE. — The influence of the so-called law 
 of Nature is such that where the positive law has 
 
HOW TO STUDY LAW. 57 
 
 made no provision the natural ideas of justice, 
 equity and good conscience are used to determine 
 the question in dispute. Thus the law of nature 
 is the scaffolding upon which Gentilus and 
 Grotius built up the science of International Law, 
 or the usages which regulate the intercourse of 
 "nations. And this law of nature or natural equity 
 has been called in to help modify the rigor of 
 the common law, and established what we now 
 term Equity. Holland's Jur., Ch. III. 
 
 The law of nature, or the divine law, is also re- 
 sponsible for the division made by Blackstone of 
 mala in se, and mala prohibita. Crimes and 
 misdemeanors forbidden by the natural or divine 
 law, as well as positive law, are termed mala in 
 se (evils in themselves), while things not forbid- 
 den by divine law and yet proscribed by positive 
 law are called mala prohibita (evils prohibited). 
 
 So far we have made use of the word "posi- 
 tive" or "municipal" to distinguish law as a rule 
 of civil conduct from its more general uses ; here- 
 after we shall drop these words and use simply 
 the term law, with the same meaning. 
 
 Sec. 23. POLITICAL ORGANIZATION 
 PRECEDES LAW.— "Morality may precede, 
 but law must follow, the organization of a polit- 
 ical society." Holland's Jur., Ch. IV. 
 
 The student who has followed the foregoing 
 reasoning, which separates law from the meta- 
 physical rules to which it has been inacurately 
 applied, and sees that it is only to the decrees of 
 
58 HOW TO STUDY LAW. 
 
 a sovereign political authority that the terra ap- 
 plies, will also see that there can be no law in 
 this sense without previous political organization. 
 There may have been principles of right more 
 or less authoritative, but they are not laws until 
 so declared by a law-making power. 
 
 Here again there is a division of opinion 
 among jurisprudents, the German or Historical 
 school, of which Savigny is a leading light, re- 
 gards the political organization or state as the 
 highest stage in the procreation of law, while 
 the Austinian school, followed by Prof. Holland, 
 regards the formation of the state as the in- 
 cipiency of law. 
 
 Sec. 24. DEVELOPMENT OF THE LAW. 
 — While the term law, always means an estab- 
 lished rule, it does not follow that these rules 
 are fixed and immutable. In fact one of the dif- 
 ficulties encountered in the study of the law, and 
 one which arises from its very nature, is that the 
 law is continually changing; adapting itself to 
 the needs and situations of the people and things 
 which it regulates. Thus, as we have heard Prof. 
 Bigelow remark, the continued relations of 
 things will create a custom, and the custom will 
 come to be enacted into a law and in turn regu- 
 late the relations which brought it into existence. 
 But law only relates to binding rules. A thing 
 which morally should be, and in time may be, is 
 not a law until it is recognized and enforced. 
 "Conscience might inform you what the moral 
 
HOW TO STUDY LAW. 59 
 
 law is, and what the municipal law ought to be ; 
 but it might greatly mislead you as to what the 
 municipal law actually is." Walker's Am. 
 Law. 5. 
 
 When the question arises what is the law in a 
 matter, we cannot reason it out abstractly; we 
 have to ascertain who has the law-making power 
 in such a matter, and what that power has or- 
 dained in reference thereto. To determine this 
 the lawyer must search the records of the statute 
 law, or if a question of construction, the pre- 
 cedents, or authoritative decisions. 
 
 While law is thus arbitrary it is yet progres- 
 sive and deserves those high encomiums which 
 from the first have been lavished upon it by its 
 most careful students. Edmund Burke called it 
 "the pride of the human intellect, and the col- 
 lected wisdom of ages ; combining the principles 
 of original justice with the boundless variety of 
 human concerns." We have already seen Sec. 7, 
 with what high favor Blackstone regards the 
 science, while Professor Walker terms it "the 
 grand regulator of human affairs." Without law 
 there would be a constant chaos in human so- 
 ciety, which is best described by the fearful name, 
 anarchy. We believe all the encomiums con- 
 ferred upon the law as a science are just and 
 appropriate. The law is progressive; it loses 
 nothing helpful ; it seeks to retain nothing hurt- 
 ful ; it extends in an unbroken, expanding chain 
 from the remotest antiquity to the present mo- 
 
60 HOW TO STUDY' LAW. 
 
 ment, governing the momentous affairs of na- 
 tions and the trifling details of every-day life 
 among individuals with equal exactitude and 
 wisdom ; it indicates as well as preserves the de- 
 velopment of the past, and points out the path of 
 our future progress. 
 
 Sec. 25. POLITICAL ORGANIZATIONS 
 DESCRIBED.— We have seen that law results 
 from the action of a political sovereignty or the 
 supreme power in a state. How have these po- 
 litical organizations come to exist? From the 
 earliest recorded history we learn that mankind 
 was divided into groups or tribes possessing a 
 common language, common customs and char- 
 acteristics. We know that these groups ex- 
 panded, developed, and colonized until they came 
 to occupy a great extent of territory. That in 
 some instances a group would establish a gov- 
 ernment within itself, and thus the political unit 
 would be composed of a single people who would 
 also be united by the ties of ancestry, language 
 and customs. In other instances several groups 
 would unite in the establishment of a common 
 government, or by conquest one group would 
 acquire the right .to govern other groups, in 
 which cases several tribes or peoples, differing 
 greatly, might be subject to the same political 
 authority. 
 
 Sec. 26. SAME SUBJECT — A PEOPLE 
 DEFINED. — A people is defined to be a large 
 number of human beings united by a common 
 
HOW TO STUDY LAW. 61 
 
 language, and by similar customs and opinions, 
 resulting usually from common ancestry, religion 
 and historical circumstances. Holland's Jur., 
 Ch. IV. 
 
 Sec. 27. SAME SUBJECT— A STATE DE- 
 FINED. — A state is the whole people of one 
 body politic, and has been defined by the United 
 States Supreme Court to be "a body of free per- 
 sons, united together for the common benefit, to 
 enjoy peaceably what is their own, and to do 
 justice to others." Chisholm v. Georgia, 2 
 Dall. 456. 
 
 Prof. Woolsey's definition is, "A state is a 
 community of persons living within certain limits 
 of territory, under a permanent organization, 
 which aims to secure the prevalence of justice by 
 self-imposed law. Woolsey, Introd. to Inter. 
 Law, Sec. 36. 
 
 A band of robbers or pirates, though inhabit- 
 ing fixed territory and permanently organized, 
 would not constitute a state within either of these 
 definitions. 
 
 In the organic state there are two parts, one 
 of which is sovereign and the other subject ; the 
 will of the majority, or of an ascertained class in 
 a state, prevailing against any of their number 
 who oppose it, constitutes the sovereign author- 
 ity, while the persons subject to this power when 
 exercised, including the majority, or the per- 
 sons whose will constitute the sovereignty, are 
 the subject part. 
 
62 HOW TO STUDY LAW. 
 
 Sec. 28. ORIGIN OF STATES.— The 
 Greeks supposed state to be of superhuman 
 origin. From Grotius and Rousseau, writers 
 of the seventeenth and eighteenth centuries, came 
 the idea of the Social Compact or Contract, by 
 which people were regarded as having met and 
 voluntarily formed their political organization. 
 Hobbes, a writer of the seventeenth century, 
 called a "City" one person, whose will, by the 
 compact of many men, is to be received for the 
 will of them all. Herbert Spencer finds the state 
 to be a mere growth, the same as organisms have 
 developed from lower to higher species. The 
 formation of the United States into a Federal 
 State was certainly by means of a compact agreed 
 upon by the delegates of the people.. Blackstone 
 points out that "The only true and natural 
 foundations of society are the wants and fears of 
 individuals." And while he makes light of the 
 Social Contract theory, by which men, actuated 
 by a sense of their weaknesses, met and estab- 
 lished governments for their protection, he ac- 
 cepts the family as the first political unit, and 
 acknowledges it to have been held together by 
 man's sense of weakness, and developed and ex- 
 panded from the necessity of union. "And this," 
 says Blackstone, "is what we mean by the orig- 
 inal contract of society, which, though perhaps 
 in no instance it has ever been formally ex- 
 pressed at the first institution of a state, yet in 
 nature and reason must always be understood 
 
HOW TO STUDY LAW. 63 
 
 and implied in the very act of associating to- 
 gether, namely, that the whole should protect 
 all its parts, and that every part should pay obedi- 
 ence to the will of the whole, or, in other words, 
 that the community should guard the rights of 
 each individual, and that in return for this pro- 
 tection each individual should submit to the laws 
 of the community, without which submission of 
 all it was impossible that protection could be cer- 
 tainly extended to any." I. Bl. Com. 47, 48. 
 
 Families, or groups of persons once formed 
 for mutual benefit and protection, have at the 
 same time constituted a political organization or 
 government and nominated expressly or im- 
 pliedly some supreme authority whose rules all 
 are to obey. This supreme authority is neces- 
 sary to all forms of government and is called 
 sovereignty. 
 
 Sec. 29. KINDS OF GOVERNMENTS.— 
 By Government is meant the system of polity or 
 body of principles and rules by which the affairs 
 of a state are conducted. Governments are 
 almost as numerous in variety as there are states 
 to have governments. The chief distinctions re- 
 late to the residence of the sovereign power, and 
 in this regard the older writers have divided 
 them into three divisions which are mentioned 
 by Blackstone. These are : 
 
 First. A Monarchy, in which the sovereignty 
 resides in a single person. 
 
 Second. An Aristocracy, where the sovereign 
 
64 HOW TO STUDY LAW. 
 
 power is lodged in the hands of a select body of 
 persons or council. 
 
 Third. A Democracy, where the sovereignty 
 is exercised in an aggregate assembly consisting 
 of all the citizens of a community. 
 
 These three forms are said to cover all the 
 other forms of government, which are either cor- 
 ruptions of or reducible to these. I. Bl. Com. 49. 
 
 Sec. 30. SAME SUBJECT — REPUBLI- 
 CAN GOVERNMENT.— A Republic differs 
 from each of the governments above described 
 in theory, though it resembles an aristocracy in 
 practice. A republic was defined by James Madi- 
 son to be "A government which derives all its 
 powers directly or indirectly from the great body 
 of the people, and is administered by persons 
 holding their offices during pleasure, for a limited 
 period, or during good behavior." The Feder- 
 alist, No. 39. The sovereignty, in a republic, re- 
 sides in the whole body of the citizens, and in 
 this it resembles a democracy, but instead of 
 being exercised by the people directly it is dele- 
 gated to certain persons selected by the majority 
 of the citizens entitled to vote. 
 
 A republic is sometimes called a constitu- 
 tional democracy, in distinction from a pure de- 
 mocracy. The constitution directing the man- 
 ner in which the people shall proceed to exercise 
 their sovereignty. Calhoun's Works, I., 185. 
 
 A republican government, and especially our 
 own, can lay claim to being a sort of a mixed 
 
HOW TO STUDY LAW. 6s 
 
 goverhment, and partaking of the best features 
 of the other three. This is the sort of govern- 
 ment extolled by Blackstone when he commends 
 the English system of king, lords, and com- 
 mons as being the best form of government. Our 
 own republican government was modeled after 
 that of England; we have the single executive, 
 but elective instead of hereditary ; the legislative 
 power is intrusted to two houses, the one more 
 numerous and nearer to the people than the 
 other ; and we have added the judicial to balance 
 the other two. Thus we have, as Blackstone 
 claims for the English system, by a single execu- 
 tive, the strength and dispatch found in the most 
 absolute monarchy; in the Senate we are sup- 
 posed to have an assembly of persons selected for 
 their wealth, influence, wisdom, etc., and con- 
 stituting an eminently aristocratic body; while 
 the lower house of Congress are "freely chosen 
 by the people from among themselves," which 
 makes it democratic in nature. I. Bl. Com., 
 50, 51- 
 
 Sec. 31. WHAT IS THE BEST FORM OF 
 GOVERNMENT?— We should not, perhaps, 
 at this time raise the question, What is the best 
 form of government ? We aim at present simply 
 to give a brief outline of political history to en- 
 able the student to understand our own institu- 
 tions and laws, which are to be taken up more 
 fully under the subject, Constitutional Law, in 
 the next nr^he.r of the Home Law School 
 
66 HOW TO STUDY LAW. 
 
 Series. But the question is so important to us in 
 America, as we claim to be making an experi- 
 ment in government, that we will not pass the 
 opportunity. Blackstone, who was called to ex- 
 pound the English laws, found in the course of 
 his study that the limited monarchy of England 
 was the best government. Many American 
 writers, emulating Blackstone's example, have 
 in writing of our laws claimed our government 
 to be the best possible. We fully appreciate the 
 merits of our American government. But as a 
 student of the law we should regard all govern- 
 ments not as the best, but rather as progressive 
 experiments, tending to approach the highest 
 ideals of the members of the body politic. Our 
 government has many advantages over all that 
 have preceded it, and our people have many polit- 
 ical ideals unknown to the peoples of the past. 
 These ideals of our people are constantly expand- 
 ing and developing and it is the province of the 
 "best government" to constantly approach and 
 realize these political aspirations of mankind. 
 
 The best government should, like the bark that 
 surrounds the growing tree, expand and grow as 
 the tree grows, then it will not be cracked or 
 burst asunder by the force which it seeks to en- 
 close and regulate. A government which does 
 not grow, and cannot be overthrown by the peo- 
 ple, will dwarf and blast the races that have the 
 misfortune to be subject thereto. 
 
 We are safe in saying that no existing govern- 
 
HOW TO STUDY LAW. 6j 
 
 merit answers the definition given for either a 
 Monarchy, an Aristocracy, or a Democracy. All 
 are now mixed governments, each seeking to 
 partake of the features best suited to its citizens. 
 The English government, from which ours is 
 largely derived, began as an absolute monarchy, 
 but from its earliest dawn it had to combat the 
 rising spirit of democracy. The spirit grew and 
 monarchy yielded; in fact, the whole course of 
 English history is marked by the concessions 
 granted democracy. This change was slow; 
 monarchy resisted, was overthrown, and re-estab- 
 lished with more concessions. Growing democ- 
 racy was transplanted to America, and soon blos- 
 somed and bore fruit. The fruit was the Declar- 
 ation of Independence, and .a government in 
 which the people were recognized and declared 
 to be the possessors of the political sovereignty. 
 Has democracy finished? and should it go no 
 further ? No ; democracy, we believe, to be the 
 most permanent factor in civilization and the 
 strongest force of our time. The untrammeled 
 sway of the people is now the master force of the 
 world, and as the years proceed this power must 
 overthrow all tyranny, all despotism, and all 
 monopoly of social, industrial and political func- 
 tions. 
 
 It is not practicable for the people of a great 
 and populous state to meet in assemblages and 
 enact measures for their common good ; neither 
 is it practicable for a monarch to exercise all the 
 
68 HOW TO STUDY LAW. 
 
 power necessary to govern such a state; but it 
 is possible and practicable for intelligent citizens 
 of the greatest of nations to meet at stated in- 
 tervals and vote by the referendum and initiative 
 upon the laws they deem necessary for their wel- 
 fare, and it is also possible for a monarch or an 
 aristocratic class to enact measures that will 
 tyrannize and despoil the masses of the greatest 
 nation. Hence we conclude the best government 
 is that which conforms most nearly to the require- 
 ments of a progressive and aspiring people. 
 
 Sec. 32. SOURCES OF THE LAW.— By 
 sources of the law we do not wish to be under- 
 stood as meaning the depositories in which the 
 law is recorded, as the statutes, reports and 
 treatises ; nor do we mean the authority which 
 gives them the sanction of law, but we mean to 
 discuss the channels through which principles 
 have come which are now recognized and en- 
 forced by a sovereign political authority. It is 
 to be understood that these principles and rules 
 are not laws in their earliest stages, any more than 
 is the brook, which is the source of the river, en- 
 titled to be called a river until it has reached a 
 certain definite stage of growth and recognition. 
 
 1. Custom as a Source of Law. A custom may 
 result from the moral sense of mankind or from 
 mere convenience. It develops as a path is 
 formed across a common; one person passes 
 across, others follow, and gradually a regular 
 pathway is formed, which is easier to be followed 
 
HOW TO STUDY LAW. 69 
 
 than avoided. These customs may be quite gen- 
 eral in extent or confined to locally limited com- 
 munities. When they have become fixed and 
 notorious the sovereignty in the state may see 
 fit to recognize them, and they are thus raised to 
 the dignity of laws. The courts sometimes give 
 validity retrospectively to good customs, and the 
 historical school of the origin of law claims this 
 as an example where law arises from the intelli- 
 gence of the people without an arbitrary political 
 authority. But it is clear that the custom is only 
 a law when passed upon by the sovereignty, and 
 if this action is given a retrospective effect we 
 do not see that it changes the conclusion. Hol- 
 land's Jut., Ch. V. 
 
 2. Religion, or the Revealed Law. It was 
 formerly supposed that Christianity was a part 
 of the law of England. This is now questioned. 
 In America Christianity has never been claimed 
 to be a part of the law of the land. We have no 
 union of church and state, nor has our govern- 
 ment ever been vested with authority to enforce 
 any religious observance simply because it is re- 
 ligious. Of course, it is no objection, but, on the 
 contrary, it is a high recommendation to a legis- 
 lative enactment, based upon justice or public 
 policy, that it is found to coincide with the pre- 
 cepts of a pure religion ; nevertheless, the power 
 to make the law rests in the legislative control 
 over things temporal and not over things spir- 
 itual. Bloom v. Richards, 2 Ohio St. 387. 
 
70 HOW TO STUDY LAW. 
 
 Thus religion may influence and assist in the 
 development of the law, but the dogmas of re- 
 ligion are in no sense laws which will be enforced. 
 This is well stated by the court in Bloom v. 
 Richards, just cited, where it is said, "The statute 
 prohibiting common labor on the Sabbath could 
 not stand for a moment as the law of Ohio, if its 
 sole foundation was the Christian duty of keep- 
 ing that day holy, and its sole motive to enforce , 
 the observance of that duty. It is to be regarded 
 as a mere municipal or police regulation, whose 
 validity is neither strengthened nor weakened by 
 the fact that the day of rest it enjoins is the Sab- 
 bath day."* 
 
 *Lest some might through mistaken zeal misunder- 
 stand the true reason for the separation of law from 
 religion, we append the following clear reasoning from 
 Professor Walker: "They commit an egregious error 
 who consider jurisprudence as looking forward into 
 eternity. It begins and ends with this world. It re- 
 gards men only as members of civil society. It assists 
 to conduct them from the cradle to the grave, as social 
 beings; and there it leaves them to their final Judge. I 
 would that this attribute of the Jaw were more generally 
 appreciated. * * * Religion and morality embrace 
 both time and eternity in their mighty grasp; but human 
 laws reach not beyond the boundaries of time. As im- 
 mortal beings they leave men to their conscience and 
 their God. And though this consideration may seem, at 
 first view, to detract from their dignity, I rejoice at it 
 as a consequence of our absolute moral freedom. I re- 
 joice that in this country at least government dares not 
 interfere between man and his Creator. I know no 
 higher subject of congratulation than the fact that we 
 have confined our legislatures to their proper sphere; 
 
HOW TO STUDY LAW. 71 
 
 3. Adjudication as a Source of Law. Adju- 
 dication, or so-called judge-made law, arises 
 from the fact that courts have the power to in- 
 terpret and apply the law to the cases which come 
 before them. In Europe the decisions of the 
 court in applying the law to the facts are not 
 binding or used as authorities in subsequent 
 cases, other than as mere helps. But in the 
 United States and England decisions of the courts 
 are regarded as precedents, with considerable, 
 though not conclusive, authority in subsequent 
 cases. Thus by adjudication the law may be ex- 
 panded and made to have a more far-reaching 
 effect. Unless these decisions are expressly re- 
 pudiated by the law-making power they become 
 laws as of the express or implied intent of that 
 power. I. Law Quart. Rev. 313. 
 
 4. Science. The scientifical and learned dis- 
 courses and treaties of men who have made a life- 
 long study of laws have weight in determining 
 what the law is and ascertaining its proper appli- 
 cation. In the Roman or civil law the "Re- 
 sponsa Prudentium," or decisions of the sages of 
 the law, were given a recognized place in the 
 laws. While the opinions of law writers are not 
 now accepted as law, we can say that the monu- 
 mental works of Coke, Hale, Lyttleton, Black- 
 stone, Story, Cooley, Mechem, etc., are accepted 
 
 . which is, to provide for our social welfare here on earth, 
 and leave each to select his own pathway to immor- 
 tality." Walker's Am. Law, 10, n, 
 
72 HOW TO STUDY LAW. 
 
 sometimes as the best evidence of what the law 
 was and is. 
 
 5. Equity as a Source of Law. Equity or the 
 natural justice of men expanding with civilization 
 made changes in the rigorous and comprehensive 
 precepts of the law necessary. In Rome the 
 Praetor had power to modify by an edict the 
 strict letter of the law to suit the particular cases 
 that came before him. These edicts, being pre- 
 served and followed by others, came to be re- 
 garded as laws. In England, the chancellor, a 
 sort of clerk to the king, was delegated to dis- 
 pense justice in cases where the common law of 
 the realm was deficient, but to prevent this jus- 
 tice from becoming, as Selden thought, "a 
 roguish thing," and as varying as the length of 
 the different chancellors' noses, rules were estab- 
 lished to regulate the chancellor's equitable juris- 
 diction, and these rules, together with the decis- 
 ions of the chancery courts, are laws and shall be 
 studied under the head of "Equity of Chancery 
 Law." 
 
 A sixth source of law as given by Holland is 
 legislation. This, he says, is the chief source of 
 law. Hoi. Jur., Ch. 5. We prefer to regard leg- 
 islation not as a source of law, such as we have 
 already described, but rather as the process by 
 which rules of civil conduct, from whatever 
 source, are, by the sanction of the supreme polit- 
 ical authority of a state, changed into laws. 
 
HOW TO STUDY LAW. 73 
 
 Sec. 33. LEGISLATION, OR LAW-MAK- 
 ING. — Legislation is the process of law-making ; 
 the exercising of the power of sovereignty, and 
 may be expressed or implied. The results of leg- 
 islation are laws. These laws are either (1) 
 written or (2) unwritten. 
 
 Sec. 34. WRITTEN LAWS.— The written 
 law in the United States consists of constitutions, 
 treaties and statutes. 
 
 (a) Constitutions. In America a constitution 
 is a solemn written declaration of the people, and 
 declared to be the fundamental law of the land. 
 The United States Constitution is the supreme 
 law and unites the people for all national pur- 
 poses into a single Federal State. The State 
 Constitutions are supreme within a State and 
 unite the people for municipal purposes. Walk- 
 er's Am. Law, 50, 51. 
 
 (b) Treaties. A treaty is a written compact en- 
 tered into between two or more politically inde- 
 pendent nations regulating their intercourse. 
 These treaties are by the Constitution of the 
 United States declared to be a part of the supreme 
 law of the land. Art. VI., cl. 2, U. S. Const. 
 
 (c) Statutes. These include all laws duly en- 
 acted by the law-making authority and written 
 down as a perpetual memorial of what the law 
 really is. Statutes are either (1) Public, or (2) 
 Private. Public statutes are those whose pro- 
 visions are designed to regulate the entire com- 
 munity. Private statutes apply only to certain 
 
74 HOW TO STUDY LAW. 
 
 specified individuals or associations. Walker's 
 Am. Law, 51. 
 
 Sec. 35. THE UNWRITTEN LAW.— The 
 unwritten law literally means statutes that have 
 never been recorded, or whose formal records 
 have been lost. But as a matter of fact these 
 statutes were never in existence, and the legisla- 
 tive sanction is implied rather than expressed. 
 The unwritten law consists of the so-called com- 
 mon law, and equity or chancery law. 
 
 Sec. 36. THE COMMON LAW.— "The 
 common law is said to be unwritten, because 
 there is no record of its formal enactment. It is 
 sometimes pretended that it consists of statutes 
 worn out by time, their records having been lost. 
 It is called a collection of customs and traditions, 
 commencing in immemorial times, acquiesced in 
 by successive generations, and gradually en- 
 larged and modified in the process of civilization. 
 The true account, however, is that it is the stu- 
 pendous work of judicial legislation. Theorize 
 as we may, it has been made from first to last by 
 judges ; and the only records it ever had are the 
 reports of their decisions, and the essays, com- 
 mentaries, and digests founded thereon. To ex- 
 plain its formation, we may suppose a question to 
 have arisen in England centuries ago, respecting 
 which the written law contained no provision. 
 Upon presenting this question to the judge, he 
 must either let a wrong go unredressed or make 
 
HOW TO STUDY LAW. 75 
 
 a law to meet the exigency. He chose the latter 
 alternative; and in making up his decision, 
 sought light from every available source. If % 
 case exactly similar had before been decided, he 
 would naturally adopt the decision 'hen made. 
 (The doctrine of Stare Decisis.) Or ii an analo- 
 gous case could be found, he wouk^adopt its prin- 
 ciples so far as they wouM af.ply. If neither of 
 these he would consult public policy and the ab- 
 stract principles of n;. l ural justice. He would 
 moreover be asshtt -C by tie arguments of the op- 
 posing counsel wh : would present the case in 
 all its bearirVs. With these aids, and in this 
 mam *?• he Would take up his decision ; and if 
 no sinister motive operated, the presumption is 
 that it would be on the side of abstract right. 
 Such briefly is the process by which the vast 
 fabric of the common law has been reared. A 
 succession of judges, during a long lapse of years, 
 have contributed the results of their reason and 
 learning to elaborate and perfect it. In its theory, 
 each successive adjudication has become a pre- 
 cedent for all similar cases involving the same 
 principle; and it is obvious that just in propor- 
 tion as precedents are multiplied, the number of 
 unprecedented cases must be diminished. Leg- 
 islation, moreover, has been constantly supply- 
 ing deficiences. It follows, therefore, that the 
 field of judicial discretion, almost boundless at 
 first, has been gradually but steadily narrowing. 
 Still, however, admitting precedents to be abso- 
 
76 HOW TO STUDY LAW. 
 
 lutely binding, which is not the fact, though it is 
 the theory, judges even at this day exercise a far 
 wider discretion under the common law than it 
 is usually supposed by those not conversant with 
 the subject. And to this extent there is not that 
 complete separation between the legislative and 
 judicial power, which the theory of our govern- 
 ment supposes." Walker's Am. Law, 53. 
 
 "Of the United States as a nation, there is no 
 common law. 'The Federal government is com- 
 posed of sovereign and independent states, each 
 of which may have its local usages, customs and 
 common law. There is no principle which per- 
 vades the Union, and has the authority -of law, 
 that is not embodied in the Constitution or laws 
 of the Union. The common law could be made 
 a part of our Federal system only by legislative 
 adoption.' " Cooley's Bl., p. 69 n. ; Wheaton v. 
 Peters, 8 Pet., 658. 
 
 Sec. 37. EQUITY OR CHANCERY LAW. 
 — In its literal acceptation, equity is nearly syn- 
 onymous with justice, but in its technical sense 
 it means chancery law, or that system of rules by 
 which courts of chancery are governed in the 
 administration of justice. This, like the com- 
 mon law, consists of precedents running through 
 nearly the same lapse of time. Walker's Am. 
 Law, 55. 
 
 Sec. 38. DEPOSITORIES OF THE LAW. 
 — Where the law is to be found, or the legitimate 
 depositories of the law, is an important point to 
 the student. 
 
HOW TO STUDY LAW. 77 
 
 The written law, embracing constitutions, trea- 
 ties and statutes is to be found in the authorized 
 public records. Both the National and State 
 constitutions and statutes are published in au- 
 thenticated editions, and these have been com- 
 piled and digested for the convenience of the 
 profession. 
 
 The unwritten law, comprising the common 
 law, and equity or chancery law, is not so easily 
 located. 
 
 The common law, as we have seen, Sec. 36, 
 consists of a vast mass of decisions supposedly 
 resting upon former statutes. The record of 
 these decisions is the only authoritative deposi- 
 tory of the common law. Legal experts and text- 
 writers have written commentaries and books 
 upon these decisions, which are also used to de- 
 termine what the common law is. 
 
 These judicial precedents date back to the very 
 beginning of English history. They accumu- 
 lated in England and at the time of colonizing 
 this country they were brought over the ocean as 
 the heritage of the English settlers, where they 
 have continued to accumulate up to the present 
 moment. They are to be found in hundreds of 
 volumes of reports, embracing the decisions of 
 the various English and American courts, and the 
 digested and abridged commentaries thereon. 
 Walker's Am. Law, 7. 
 
 Equity or chancery law consists also of judicial 
 precedents to a large extent and is to be found 
 
jrff HOW TO STUDY LAW. 
 
 in the reports of the courts of chancery. The 
 number of books containing these precedents of 
 common and chancery law are estimated to be 
 1,500. Walker's Am. Law, 7. 
 
 Sec. 39. CODIFICATION OF LAWS.— 
 The codification or systematic classification of 
 statutory laws was early rendered necessary in 
 the various States of the Union. The express 
 regulations and enactments necessitated to estab- 
 lish local self-government, and to inaugurate a 
 political and civil system under such novel cir- 
 cumstances as prevailed in America were soon 
 so numerous that their revision, simplification 
 and abridgment became necessary. This work 
 of codification began as early as the beginning of 
 the present century and has been found so effica- 
 cious as to commend itself to all classes of citi- 
 zens, and has led to the adoption by a number of 
 States of a complete statutory, or code system of 
 laws, designed to supersede the cumbrous and 
 undigested mass of precedents which contain the 
 common and chancery law. The States adopting 
 these statutory codes are called code States, as 
 distinguished from those in which the common 
 law is still relied upon to a great extent. 
 
 The State Codes. The first attempt to codify 
 the laws of any State were regarded as vision- 
 ary schemes. A few clear-headed men believed 
 that through statutes and classification it would 
 be possible to get rid of the numerous distinct 
 actions of the common law and to establish a 
 
HOW TO STUDY LAW. 79 
 
 uniform and comprehensive mode of proceeding 
 without reference to any distinction between law 
 and equity. The State of New York was the 
 first to adopt such a comprehensive code in 1850. 
 Other States have followed the example of New 
 York, and it is possible that in time all the States 
 will simplify their legal system. The codes as 
 adopted by these States embrace four parts — 
 Political, Civil, Remedial, Penal — and are in- 
 tended to set forth in generalized and systematic 
 form the principles of the entire law, whether 
 written or unwritten, positive or customary, de- 
 rived from enactments or from precedents, and 
 within their scope to supersede all other laws. 
 Abbott's Law Diet. "Code." 
 
 While the adoption of a code of laws has in 
 some States superseded much of the common 
 law, as well as common law terms and actions, it 
 is still desirable for the student of law in a code 
 State to be more or less familiar with the law as 
 it stood prior to the adoption of the new system. 
 A knowledge of the forms that were superseded 
 is frequently necessary to understand those that 
 now exist, while most of the principles of the com- 
 mon law are either expressly or impliedly a con- 
 stituent part of the code law. 
 
 "Nor are the works on common law pleading 
 superseded by the new codes which have been 
 introduced in many of the States. A careful 
 study of those works is the very best preparation 
 for the pleader, as well where a code is in force as 
 
8o HOW TO STUDY LAW. 
 
 where the old common law forms are still ad- 
 hered to. Any expectation which may have ex- 
 isted, that the code was to banish technicality 
 and substitute such simplicity that any man of 
 common understanding was to be competent, 
 without legal training, to present his case in due 
 form of law, has not been realized. After a trial 
 of the code system for many years, its friends 
 must confess that there is something more than 
 form in the old system of pleading, and that the 
 lawyer who has learned to state his case in logical 
 manner, after the rules laid down by Stephen 
 and Gould, is better prepared to draw a pleading 
 under the code which will stand the test on de- 
 murrer than the man who, without that training, 
 undertakes to tell his story to the court as he 
 might tell it to a neighbor, but who, never hav- 
 ing accustomed himself to a strict and logical 
 presentation of the precise facts which constitute 
 the legal cause of action or the legal defense, is 
 in danger of stating so much or so little, or of 
 presenting the facts so inaccurately as to leave 
 his rights in doubt on his own showing. Let 
 the common law rules be mastered, and the work 
 under the code will prove easy and simple, and it 
 will speedily be seen that no time has been lost 
 or labor wasted in coming to the new practice by 
 the old road." Cooley's Introd. to Bl. Com., p. 
 xxvii. 
 
 Sec. 40. DIVISIONS OR BRANCHES OF 
 THE LAW. — Scientific divisions of the law, ac- 
 
HOW TO STUDY LAW. 81 
 
 cording to meaning and application, have been 
 attempted by various writers, but inasmuch as 
 their efforts in this line have produced no uniform 
 classification we are led to assume that all such 
 divisions must be rather for convenience of study 
 than for scientific accuracy. We reproduce for 
 convenience the most general classification as 
 given by Blackstone and Walker. 
 
 Sec. 41. PUBLIC INTERNATIONAL 
 LAW. — By Public International Law, or the law 
 of nations, we mean those equitable precepts 
 which have on grounds of general convenience 
 come to govern the intercourse between distinct 
 nations or sovereign peoples. These rules, begin- 
 ning in mere customs or usages, have come at the 
 pr- sent time to have certain well-defined sanc- 
 tions which cannot be easily disregarded. In 
 some portions the international code has been 
 enacted as a part of the municipal law of our 
 country. 
 
 Sec. 42. PRIVATE INTERNATIONAL 
 LAW. — Private International Law, or conflict of 
 Laws, as it is also termed, arises from the fact 
 that the internal laws of the various nations 
 differ widely, and when a citizen of one nation 
 comes into the jurisdiction of another there is a 
 conflict of laws, from which conflict has arisen 
 rules of comity and practice which, as prece- 
 dents, constitute Private International Law. So 
 that "when citizens of one nation remove to or 
 
&z MOW TO STUDY LAW. 
 
 travel in another, and make contracts, acquire 
 property, marry or die there, it is no longer a 
 matter of doubt by which law their rights will be 
 determined." Walker's Am. Law, 13. 
 
 Sec. 43. CONSTITUTIONAL LAW.— Hav- 
 ing seen what it is that regulates the relations be- 
 tween nation and nation, we next come to the 
 domestic laws of a nation regulating its own 
 internal affairs. Every people in the course of 
 their associated life have formulated certain 
 fundamental provisions regarding the nature of 
 their political organization, and limiting, as it 
 were, the extent to which the individual is re- 
 sponsible to the collective whole. These prin- 
 ciples circumscribing the powers of the politic 1 
 entity form the constitution of a nation. VhetherV 
 these principles exist as mere unwritten usages 
 and precedents, subject to the omnipotent will of 
 parliament and capable of being overturned by 
 an ordinary statute, as is the case in England, or 
 consist of carefully formulated precepts of gov- 
 ernment, written out and adopted by the people 
 as the supreme law of the land, they are equally 
 designated as constitutions. 
 
 In the United States we have National and 
 State Constitutions as a result of our dual form 
 of government. The States, on gaining their in- 
 dependence, were distinct sovereignties ; but "to 
 promote the general welfare," the sovereign peo- 
 ple of the various States united in establishing a 
 national sovereignty supreme in all matters dele- 
 
HOW TO STUDY LAW. & 
 
 gated to it, while the individual states retained 
 the sovereignty not delegated. The United States 
 Constitution fixes the sphere of the national gov- 
 ernment; and the State Constitutions regulate 
 the exercise of State sovereignty, thereby creating 
 Federal and State Constitutional Law. 
 
 Sec. 44. LAW PERTAINING TO PER- 
 SONS. — By law pertaining to persons we mean 
 statute and precedent law regulating the relations 
 which members of political society can sustain 
 towards each other ; whether as male or females, 
 infants or adults, masters or servants, or whether 
 natural or artificial persons, acting for them- 
 selves or through others. So that under this di- 
 vision we have the subjects: Domestic Rela- 
 tions, Personal Rights, Public Corporations, Pri- 
 vate Corporations, Partnerships, Principal and 
 Agent, and Principal and Surety. 
 
 Sec. 45. LAW PERTAINING TO PROP- 
 ERTY. — Property according to Blackstone is 
 either Real or Personal; and Personal property 
 is either in possession or in action, the latter in- 
 cluding all the various kinds of contracts. Hence 
 under things real and things personal, including 
 the modes of acquiring and transferring property, 
 we have the subjects: Real Property, Personal 
 Property, Contracts, Negotiable Instruments, 
 Bailments, and Wills. 
 
 Sec. 46/ LAW PERTAINING TO CRIMES. 
 — Public wrongs or crimes give rise to the divis- 
 
84 HOW TO STUDY LAW. 
 
 ion of Criminal Law ; and the application of this 
 law is called Criminal Procedure. The two will 
 be treated together. 
 
 Sec. 47. THE LAW OF PROCEDURE.— 
 It is not only necessary that laws be declared, but 
 also that they be applied or carried into effect. 
 Law confers rights, but these must be enforced or 
 a remedy given when they are transgressed. The 
 former is called the field of substantive law, while 
 the latter is procedure or adjective law. Under 
 the latter is called procedure or adjective law. 
 Under the latter head we have the subjects of 
 Pleading, Practice, and Evidence. Equity might 
 also be put under this head since it is chiefly 
 remarkable for its peculiar rules of procedure. 
 
 Sec. 48. LEGAL ETHICS.— The moral prin- 
 ciples and rules applying to and governing the 
 relation between the lawyer and his client, the 
 courts and the community are now termed 
 "Legal Ethics'' and constitute a regular branch 
 upon which law students are examined. This 
 subject will be appropriately treated in the Home 
 Law School Series. 
 
 Sec. 49. THE INTERPRETATION OF 
 LAWS. — "The fairest and most rational method 
 to interpret the will of the legislator is by ex- 
 ploring his intentions at the time when the law 
 was made, by signs the most natural and prob- 
 able. And these signs are either the words, the 
 context, the subject matter, the effects and con- 
 
HOW TO STUDY LAW. 85 
 
 sequences, or the spirit and reason of the law." 
 Intro. Bl. Com., p. 59. These he explains as fol - 
 lows : 
 
 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. Again, terms of 
 art, or technical terms, must be taken according 
 to the acceptation of the learned in each art, 
 trade and science. 
 
 2. The "context," or that which precedes or 
 follows the part in question, may be of singular 
 use whenever there is an ambiguous, equivocal 
 or intricate sentence. Thus the proeme, or pre- 
 amble, 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. 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. 
 
 In States where the object or subject of a 
 statute must be stated in the title, the ■title is of 
 more importance and may control the construc- 
 tion. And it is a general rule that statutes upon 
 the same subject must be construed with refer- 
 ence to each other ; that is, that what is clear in 
 one statute shall be called in to explain what is 
 obscure in another. 
 
86 HOW TO STUDY LAW. 
 
 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. 
 
 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 deviate a little from the received sense 
 of them. 
 
 5. The last and 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. * * * From this method of 
 interpreting laws, by the reason of them, arises 
 what we call equity, which is thus defined by 
 Grotius: "The corrections of that wherein the 
 law by reason of its universality is deficient." 
 Intro. Bl. Com., pp. 59-61. 
 
 Sec. 50. LAW AND POPULAR INFLU- 
 ENCE. — In the United States the people consti- 
 tute the sovereign power. Delegates of the peo- 
 ple make, construe and execute the laws. Popu- 
 lar influence thus decides largely both what the 
 laws shall be, and how well they shall be ob- 
 served. A law may be enacted and spread at 
 large on the pages of the statute book, but if it 
 does not appeal to the sense of right and iustice 
 
HOW TO STUDY LAW. 87 
 
 of the people it soon becomes a dead letter, and 
 its enforcement is not even attempted. But, on 
 the other hand, if there is any wrong which the 
 people see, and which appeals to their natural 
 sense of justice a law is soon demanded to cover 
 and redress it. Thus the real binding law in 
 America, as has been remarked by Professor 
 Mechem, is armed and organized public senti- 
 ment. "It is the formal and manifest expression 
 of the public sense of justice. Not the aroused 
 and abnormal impulses of the people in their mo- 
 ments of agitated fervor ; not the sense of justice 
 of the few seers upon the mountain tops, to whom 
 it is given to look with undimmed vision far over 
 the distant boundaries into the promised land, 
 but the moral sentiment, and the sense of justice 
 of the great average masses of mankind at their 
 normal periods. The truth is, law is written not 
 alone upon tables of stone, or upon the printed 
 pages of the statute book, but it has been in- 
 scribed in indelible characters by the finger of 
 Almighty God upon the imperishable tablets of 
 the human heart." From a lecture by Prof. 
 Mechem to the graduating class at University 
 of Michigan, 1896. 
 
 INFLUENCE OF THE AMERICAN 
 LAWYER. — The potent and beneficial influence 
 of the American lawyer is well expressed by these 
 words of Prof. Mechem in the lecture above cited : 
 "Who drafted our Declarations of Independence ? 
 Who framed our Constitutions? Who inter- 
 
88 HOW TO STUDY LAW. 
 
 preted, defended and applied those Constitu- 
 tions ? Who has drawn our treaties ? Who has 
 led our nation in times of public peril? Who 
 has issued our Proclamations of Emancipation? 
 Who, in short, has been most prominent and 
 most potent in securing and protecting our cher- 
 ished institutions? I answer: More than any 
 other class, it has been the lawyers of our coun- 
 try. Whether it was a Patrick Henry, rousing 
 by his eloquence and patriotism his countrymen 
 to resist oppression; or a Thomas Jefferson, 
 drafting a Declaration of Independence; or a 
 Madison, a Wilson, a Sherman and a score of 
 others framing a Constitution; or a Hamilton, 
 applying the new Constitution to the pressing 
 needs of the young republic ; or a Marshall, lay- 
 ing broad and deep the principles of its interpre- 
 tation; or a Webster, defending it against the 
 attacks of its enemies ; or a Lincoln, laying down 
 his life that the government established by that 
 Constitution should riot perish from the earth — 
 there never has been wanting some brave, high- 
 minded, patriotic lawyer to fight and win the 
 people's battles for their public liberties." 
 
 Political liberties have been secured by the aid 
 of law; there is a growing desire and demand 
 for industrial liberty. Shall not the lawyer be the 
 means and instrument by which this new ideal, 
 the hope and prayer of the people, shall be real- 
 ized and crystallized into laws ? We believe that 
 he will prove as true and as potent in fulfilling this 
 
HOW TO STUDY LAW. 89 
 
 latter duty as he has been in the past. To the 
 coming Henrys, Jeffersons, Lincolns, we bid a 
 Godspeed and a welcome. We say, in the words 
 of Adams, "At the bar is the scene of indepen- 
 dence. Integrity and skill at the bar are better 
 supporters of independence than any fortune, tal- 
 ents or eloquence elsewhere. * * * Presi- 
 dents, governors, senators, judges, have not so 
 much honest liberty; but it ought always to be 
 regulated by prudence, and never abused." John 
 Adams' Works, X., 21. 
 
90 
 
 HOW TO STUDY LAW. 
 
 Subjects Treated in the Home Law 
 School Series. 
 
 Publio International Law. 
 
 „ . . T . .. , T ( Will be treated in conneo- 
 Private International Law, j tion with otller Bubject8 . 
 
 
 Constitutional Law: 1 c*. a t e 
 
 
 
 ' 1. 
 
 Domestic Relations. 
 
 National 
 
 Persons: 
 
 2. 
 3. 
 4. 
 5. 
 6. 
 7. 
 
 Personal Eights. 
 Partnerships. 
 Principal and Agent. 
 Principal and Surety. 
 Public Corporations. 
 Private Corporations. 
 
 or 
 
 Municipal 
 Law. 
 
 Property: < 
 
 1. 
 2. 
 3. 
 i. 
 5. 
 6. 
 
 Eeal Property. 
 
 Personal Property. 
 
 Contracts. 
 
 Negotiable Instruments 
 
 Bailments. 
 
 Wills. 
 
 • 
 
 Crimes: 
 
 | Criminal Law and 
 ( Criminal Procedure. 
 
 
 Procedure: 
 
 15 
 
 Pleadings & Practice. 
 Evidence. 
 
 
 Chancery L 
 
 aw 
 
 or Equity. 
 
 
 [ Legal Ethic 
 
 S. 
 
 
HOW TO STUDY LAW. gi 
 
 HELPS TO STUDENTS. 
 
 The Home Law School Series is devoted en- 
 tirely to the subject of law, but in these helps we 
 desire to mention several subjects germane to 
 law or necessary to its successful practice. 
 
 "It scarcely seems necessary," says Judge 
 Cooley, "to remark that the student of American 
 law ought to be well-grounded in English his- 
 tory, and to have studied the development of con- 
 stitutional principles in the struggles and revolu- 
 tions of the English people. It is idle to come to 
 an examination of American constitutions with- 
 out some familiarity with that from which they 
 have sprung, and impossible to understand the 
 full force and meaning of the maxims of personal 
 liberty, which are so important a part of our law, 
 without first learning how and why it was that 
 they became incorporated in the legal system." 
 
 To those students who have not already had 
 this grounding in English history we suggest 
 that as a preliminary preparation to the study of 
 the next number of this series — Constitutional 
 Law — that some comprehensive English history 
 be read carefully and notes made thereon. Nearly 
 all libraries contain several standard English his- 
 tories, any one of which will serve the student's 
 purpose. 
 
 Again, the lawyer must, of necessity, use hi$ 
 
92 HOW TO STUDY LAW. 
 
 voice, and this like his intellect to be of the most 
 service and benefit to him must be trained and 
 developed. Skill in speaking has wrongly been 
 supposed to be a natural talent ; in some cases it 
 may be so, but in the majority of instances the 
 effective speaker has developed his powers of 
 voice and action in the same manner as other 
 capacities. Most lawyers in the course of years 
 become good speakers, not to say orators, and 
 this without being specially gifted in the begin- 
 ning. Judge Cooley remarks that the learned 
 man cannot well be dull when speaking of the 
 science he has mastered, and Socrates exclaimed 
 that all men are eloquent in that which they un- 
 derstand. Thus lawyers filled with the science 
 they follow and earnest in their efforts to secure 
 the rights of their clients unconsciously develop 
 the three chief requisites of a good speaker, 
 namely, clearness, force, and earnestness. 
 
 But if oratorical skill can be developed at the 
 bar, it may also be developed to some extent 
 while preparing for admission to the bar. We 
 again quote from Judge Cooley who says in this 
 regard, "Some experience in extempore speak- 
 ing every young man ought to have before com- 
 ing to the bar, and if he begin his practice with- 
 out the discipline it would give, he cannot be cer- 
 tain that timidity and embarrassment will not 
 overcome him at the outset of his career. Few 
 men are Erskines and Patrick Henrys, gifted with 
 powers that make their first essay a triumph ; the 
 
HOW TO STUDY LAW. 93 
 
 first efforts are, almost necessarily, mortifying 
 failures." The eminent judge advocates that 
 these maiden efforts of the student should be 
 made in small societies and among friends rather 
 than before a critical public audience, and con- 
 cludes with the statement that, "Self-confidence 
 the advocate must acquire ; and, in order that he 
 may possess it, he must have the necessary knowl- 
 edge; and, secondly, he must have tried his 
 powers until he is certain of them." Cooley's 
 Intro. Bl. Com., p. xxviii. 
 
 Among the advertisements in this book will be 
 found that of a Speaker and Manual of Oratory: 
 This book was prepared chiefly for those stu- 
 dents who have to forego the advantages of a 
 teacher. It gives and explains the principles of 
 elocution and oratory, including gesture and 
 voice training. The Speaker contains the fa- 
 mous speeches and orations of the leading his- 
 torical personages, which are adapted for study 
 and practice. Some such a book the students 
 should have, and, which is still more important, 
 should follow its advice to practice speaking in 
 public. 
 
 For the purpose of practice in speaking, as well 
 as the advantages of association, we advise stu- 
 dents, where possible, to form a club or society 
 of such persons as are desirous of advancing 
 themselves along this line. In almost every town 
 or village a half dozen or more persons can be 
 secured who will gladly embrace the opportunity 
 
94 HOW TO STUDY LAW. 
 
 to learn law as given by the Home Law School 
 Series. If care is taken in the selection of the 
 persons forming these little groups they cannot 
 help but be of great benefit to the individuals 
 composing them. Roger North, the English his- 
 torian, said: "A student of the law hath more 
 than ordinary reason to be curious in his con- 
 versation, and to get such as are of his own pre- 
 tension, that is, to study and improvement; and 
 I will be bold to say, that they shall improve one 
 another by discourse as much as all their other 
 study without it could improve them." 
 
 A further suggestion seems to be demanded 
 since many of the persons who make use of this 
 series of books will do so in their spare hours. 
 Care must be taken not to neglect one's health, or 
 to lose track of current events while securing this 
 special training. And further, "the law student 
 must not forget that he is fitting himself to be a 
 minister of justice ; and that he owes it to him- 
 self, to those who will be his clients, to the courts 
 he shall practice in, and to society at large, that 
 he cultivate carefully his moral nature to fit it for 
 the high and responsible trust he is to assume. 
 The temptations of dishonest gain and the allure- 
 ments of dissipation are all the time leading to 
 shame and ruin,' from the ranks of our profes- 
 sion, a long and melancholy train of men once 
 hopeful, perhaps gifted; but the true lawyer is 
 pure in life, courteous to his associates, faithful 
 to his clients, just to all ; and the student must 
 
HOW TO STUDY LAW. 95 
 
 keep this true ideal before him, observe temper- 
 ance, be master of his actions, and seek in all 
 things the approval of his own conscience, if he 
 would attain the highest possible benefit from the 
 study of the law." Cooley's Intro. Bl. Com., p. 
 xxxii. 
 
HOW TO STUDY LAW. 97 
 
 QUESTIONS FOR STUDENTS. 
 
 (The questions are numbered to correspond with the 
 sections in this book; the answers may be obtained by 
 referring to the corresponding sections.) 
 
 CHAPTER I. 
 
 1. Mention the leading difficulties encountered 
 by the law student. 
 
 2. How is the chief obstacle to the study of law 
 removed by the Home Law School Series? 
 What was the purpose of Blackstone's Com- 
 mentaries? (See Preface.) What has been said 
 as to the merit of such a system ? 
 
 3. Was there any system for the study of law 
 prior to 1765 ? Is the law more voluminous now 
 than in Blackstone's time ? 
 
 4. When were Blackstone's lectures first pub- 
 lished? What American authors have written 
 commentaries on the law ? Why should the stu- 
 dent be directed in his studies? 
 
 5. What important assistance does the law stu- 
 dent require ? 
 
 6. Why is a knowledge of the law necessary 
 to others than lawyers ? Give the special reasons 
 why an American citizen should be familiar with 
 the laws of his country. 
 
 7. Is a knowledge of the law regarded as an 
 accomplishment? State its practical benefits. 
 
98 HOW TO STUDY LAW. 
 
 8. What may be said as to the law student's 
 previous education ? What requirement is men- 
 tioned by Blackstone ? Is a knowledge of other 
 languages important? What has been the lan- 
 guage of the English law? What, in general, is 
 a sufficient preparation for the study of law ? 
 
 9. How may the time necessary to acquire a 
 knowledge of the law be greatly reduced? 
 
 10. Should all other work and study be laid 
 aside to master law? Have persons studied law 
 while following their usual avocations? What 
 was Franklin's definition of leisure ? How much 
 leisure time have you, and how do you cm- 
 ploy it? 
 
 11. What may be said of the cost of a legal 
 education? How may it be reduced to a mini- 
 mum? 
 
 12. What may be said as to the proper age at 
 which to begin the study of law? 
 
 13. Should women study law? Give reasons 
 for your answer. 
 
 14. Is not your occupation such that you could 
 study the Home Law School Series with advan- 
 tage? 
 
 15. Are you desirous of attaining a higher in- 
 tellectual and social plane ? Will not a knowledge 
 of the law assist you ? 
 
 16. Have you not friends and acquaintances 
 who would gladly join with you in establishing 
 a local club for the purpose of studying law ? 
 
HOW TO STUDY LAW. 99 
 
 CHAPTER II. 
 
 17. Give Blackstone's definition of law; Hol- 
 land's. 
 
 18. Give fully the analysis of Blackstone's def- 
 inition. What are the several parts of a law ? 
 
 19. In what more comprehensive sense is the 
 word law used ? By what reasoning does Black- 
 stone find a higher sanction for law than the 
 state ? 
 
 20. What other view of the origin of law can 
 you give? How is the word law as used in the 
 theoretical sciences distinguished from its use in 
 the practical sciences ? What is Ethic ? Nomol- 
 ogy? Give the divisions of Nomology. Which 
 of the Nomological sciences is the jurist's con- 
 cern? 
 
 21. What class of laws are we to consider? 
 Explain what is meant by the "law of nature." 
 Why are laws of indeterminate authority ex- 
 cluded by the jurist? 
 
 22. What influence has the law of nature on 
 the positive law? What is International Law? 
 Explain what is meant by mala in se, and mala 
 prohibitum. 
 
 23. Why is political organization necessary 
 to law ? 
 
 24. What may be said as to the development 
 of the law ? How does a law differ from a moral 
 rule? How would we go about to ascertain 
 what the law is on a particular subject? What 
 may be said as to changes in laws ? 
 
loo HOW TO STUDY LAW. 
 
 25. Explain the origin of political societies. 
 
 26. What is meant by a people ? 
 
 2j. Define a state. What two parts in a state ? 
 Define each. 
 
 28. Discuss the origin of States. What is 
 Blackstone's opinion of the original contract of 
 society ? 
 
 29. Define government. What are the divis- 
 ions of government in regard to the residence of 
 sovereignty? Define Monarchy; Aristocracy; 
 Democracy. 
 
 30. Define a republican government. Why is 
 a republican government said to be a mixed gov- 
 ernment? What advantages did Blackstone 
 claim for the English system of government? 
 Are these advantages found in our system ? After 
 which government is ours modeled ? 
 
 31. What is the best form of government? 
 Discuss fully. What may be said as to the spread 
 of democracy? 
 
 32. What is meant by sources of the law? 
 Explain how custom may be said to be a source 
 of law ; religion ; adjudication ; science ; equity. 
 
 33. What is meant by legislation? What is 
 the result of legislation? Into what general 
 classes are laws divided ? 
 
 34. Of what does the written law of the United 
 States consist ? What is meant by a constitution ? 
 Explain the difference between the Federal Con- 
 stitution and State Constitution. Define a treaty. 
 What is meant by statutes ? Into what two gen- 
 eral classes are statutes divided ? Define each. 
 
HOW TO STUDY LAW. 101 
 
 35. Discuss the unwritten law. Of what does 
 it consist? 
 
 36. Discuss the common law in regard to its 
 origin and development. What is a precedent? 
 What is meant by the doctrine of stare decisis? 
 Is- there a common law of the United States as a 
 nation ? Of the States ? 
 
 37. What is meant by equity or chancery law ? 
 Of what does it consist? 
 
 38. What are the depositories of the written 
 law ? Of the unwritten law ? What is meant by 
 reports ? 
 
 39. What is meant by codification of laws? 
 Why was codification necessary and practical in 
 the United States? What is meant by a code 
 State? What was the purpose and object of 
 codification ? When and by which State was the 
 first code adopted? Does the statutory code 
 supersede within its scope all other laws? Is a 
 knowledge of common law yet necessary to the 
 student in the code States? What does Judge 
 Cooley say as to the value of the common law 
 rules of pleading? 
 
 40. What may be said as to separating the law 
 into separate branches ? In what way is such a 
 division helpful? 
 
 41. Define public international law. 
 
 42. Define and discuss private international 
 law. 
 
 43. Define a constitution. How do you ac- 
 count for dual constitutions in the United States ? 
 
102 HOW TO STUDY LAW. 
 
 44. Discuss laws pertaining to persons. What 
 branches or subjects fall under this division? 
 
 45. Into what two general' classes is property 
 divided? What subjects are considered under 
 property law? 
 
 46. What name is given to the law regulating 
 crimes or public wrongs ? 
 
 47. What is meant by substantive law? By 
 adjective law or procedure? What subjects come 
 under the head of procedure ? 
 
 48. What is meant by legal ethics ? 
 
 49. By what signs may the will of the legisla- 
 ture be interpretend ? How are words to be gen- 
 erally understood? What is meant by the con- 
 text? Subject matter? Effects and conse- 
 quences? What branch of law arises from in- 
 terpreting a law according to its reason and 
 spirit ? 
 
 50. Where does sovereignty reside in the 
 United States? Is the law influenced by popu- 
 lar sentiment? Discuss fully. What influence 
 has the lawyer had upon political liberty in Amer- 
 ica ? What further service can the lawyer render 
 to his country? 
 
PART II. 
 
 IN WHICH THE STUDENT IS INTRODUCED TO SIR 
 
 WILLIAM BLACKSTONE, AND GIVEN A TASTE 
 
 OF HIS IMMORTAL COMMENTARIES ON 
 
 THE LAWS OF ENGLAND. 
 
 INTRODUCTORY. 
 
 Sir William Blackstone was born at London, 
 July ioth, 1723, and died February 14th, 1780. 
 The plan of his great work was completed 
 at the age of thirty, when he delivered in 
 Oxford, a course of lectures which, in the year 
 1765, took the form of "Blackstone's Commen- 
 taries on the Laws of England. ' ' Eight edi- 
 tions of this monumental work appeared in 
 the author's lifetime, and a great many more 
 have been published since. Among the Eng- 
 lish editors and annotators of Blackstone's 
 work are Coleridge, Chitty, Christian, and 
 others. Sharswood and Cooley are American 
 editors of the same work. The edition of 
 Blackstone's Commentaries by the late Judge 
 
 Thomas M. Cooley, of Michigan, the well- 
 103 
 
104 HOW TO STUDY LAW. 
 
 known and respected jurist and author, is 
 doubtless the best American edition, and is one 
 of the first books to which the ambitious stu- 
 dent of law is usually introduced. 
 
 William Blackstone not only made it his 
 object to show that a knowledge of the laws of 
 his country was of the first importance to 
 every Englishman of rank and distinction, and 
 especially to those who aspired to be justices 
 or legislators, but also aimed to put in pala- 
 table and accessible form the laws of England, 
 so that every one who wished might come to a 
 fair and accurate knowledge of the laws of his 
 country. For this laudable and painstaking 
 work thousands of students in England and 
 America have offered and will offer unstinted 
 praise to the author of the "Commentaries." 
 
 While England and America are greatly in- 
 debted to Blackstone for collecting and pre- 
 senting in compact and intelligible form the 
 laws of his land, yet the student to-day must 
 not lose sight of the fact that even so great a 
 genius and writer as he, could use his reason- 
 ing powers, apt sentences, and ready logic to 
 the bolstering up of laws and institutions which 
 his own best judgment must have told him 
 were not to be justified in law or reason. 
 
INTRODUCTORY. 105 
 
 Blackstone was not an ideal jurist, he was 
 simply a practical codifier ; he had no care for 
 the future of the law, only for the past ; it was 
 his task to find out what the law was and set it 
 down, not to speculate what it might or should 
 be to best answer the purposes of mankind. 
 It is true that he commends many things in the 
 common law and finds the origin of certain 
 precepts in reason and natural justice, but 
 nevertheless his vision is confined to the cus- 
 toms and institutions which immediately sur- 
 round him ; he has no light to throw a shadow 
 of the higher and truer State wherein all should 
 be equal in the eye of the law, and the whole 
 people constitute the sovereign power ; he finds 
 no inconsistency in trusting the administra- 
 tion of justice to the arbitrary instincts of a 
 monarch; and utters not a word of protest 
 against the grinding laws that the hereditary 
 nobility enacted for the mulcting of a helpless 
 people. 
 
 The student must bear in mind while perus- 
 ing the first few chapters of the "Commen- 
 taries" that Blackstone was an Englishman, 
 with' all of the Englishman's sluggish hate 
 towards new ideas in matters of law or custom, 
 and that he became one of the King's justices 
 
106 HOW TO STUDY LAW. 
 
 and a staunch supporter of royalty, then he 
 may understand the different sentiments ex- 
 pressed by Blackstone in his eulogy of the 
 British Constitution (Com. Sec. 2, Intro.), and 
 his remarks upon the laws governing land 
 tenure (Com. Book II., page 2), from which 
 we quote the following: 
 
 "There is nothing which so generally strikes 
 the imagination, and engages the affections of 
 mankind, as the right of property ; or that sole 
 and despotic dominion which one man claims 
 and exercises over the external things of the 
 world, in total exclusion of the right of any 
 other individual in the universe. And yet 
 there are very few that will give themselves 
 the trouble to consider the original and foun- 
 dation of this right. Pleased as we are with the 
 possession, we seem afraid to look back to the 
 means by which it was acquired, as if fearful of 
 some defect in our title; or at best we rest satis- 
 fied with the decision of the laws in our favour, 
 without examining the reason or authority upon 
 which those laws have been built. We think it 
 enough that our title is derived by the grant of 
 the former proprietor, by descent from our 
 ancestors, or by the last will and testament of 
 the dying owner; not caring to reflect that 
 (accurately and strictly speaking) there is no 
 foundation in nature or natural law , why a set of 
 words upon parchment should convey the domin- 
 ion of land; why the son should have a right to 
 exclude his fellow creatures from a determinate 
 spot of ground, because his father had done so 
 before him; or why the occupier of a particular 
 
INTRODUCTORY. 107 
 
 field or of a jewel, when lying on his death- 
 bed, and no longer able to maintain possession, 
 should be entitled to tell the rest of the world 
 which of them should enjoy it after him. 
 These inquiries, it must be owned, would be 
 useless and even troublesome in common life. 
 It is well if the mass of mankind will obey the 
 laws when made, without scrutinizing too nicely 
 into the reasons of making them. ' ' 
 
 Note. — The italics are the authors. What a com- 
 mentary on class legislation do these few truthful utter- 
 ances furnish. 
 
 These few lines from the second book of the 
 "Commentaries" make it clear that Blackstone 
 could see that there was no sound reason why 
 a few should own the land and pass it on 
 entailed to certain of their children while the 
 rest should be denied the right to use the nat- 
 ural resources of the earth. But his philosophy 
 was non-resisting; whatever is, is good, and it 
 would make trouble to question it. He may 
 have seen clearly that the laws pertaining to 
 property were radically wrong, but it was not 
 his purpose to raise a dissenting voice, or to 
 advocate a needed reform ; he was not of the 
 class of the Roman Gracchi, or of Henry 
 George. As a commentator then, Blackstone 
 was but an apathetic reviewer, seeking simply 
 to set forth the building as it was, and caring 
 nothing for needful repairs or additions. 
 
io8 HOW TO STUDY LAW. 
 
 Like Blackstone, many law writers, and 
 legislators, and judges, of to-day, seek simply 
 to apply the old rules as they were applied 
 by the forefathers, refusing to consider that 
 laws being for the purpose of governing and 
 regulating the affairs of mankind should keep 
 pace with man's activities and adapt them- 
 selves to the circumstances and conditions 
 which surround him. That the laws to-day 
 are lax in the regulation of modern commercial 
 industries and in the controlling of a new type 
 of malefactors which infest and prey upon 
 modern society is evident by a perusal of the 
 following quotation from an excellent article 
 by Prof. Frank Parsons, in the July, 1901, 
 number of the Arena: 
 
 "Slavery and serfdom have been abolished. 
 Piracy is dead. The press-gang has vanished 
 and thievery is trying to hide itself. Our prin- 
 cipal robbers do not club their victims on the 
 highways, but carry them in street cars and 
 railway trains, or capture their money politely 
 with stocks and trusts. Nothing has improved 
 more than robbery. Instead of a dangerous 
 encounter with pistols, to get the goods and 
 cash that two or three travelers might have 
 with them, the modern highwayman builds a 
 railroad system with other people's money, or 
 a gas or electric plant, or a street railway, or 
 secures a telegraph or telephone franchise, or 
 watefs some stock, or gets a rebate on oil, 
 
INTRODUCTORY. 109 
 
 beef, or wheat, or forms a giant trust and robs 
 the population of a continent at a stroke. 
 Then the robber buys a newspaper or caresses 
 it with greenbacks, and has himself entitled a 
 "Napoleon of Finance," while the rudimen- 
 tary, undeveloped aggressor or peculative sur- 
 vival of more primitive times who steals a bag 
 of flour instead of a grain crop, or takes a few 
 hundred instead of a million, has to put up 
 with the old-time, uncivilized name of "thief." 
 Imprisonment for debt has been abolished, and 
 also imprisonment for theft — if it is committed 
 according to the law and by methods approved 
 by the particular variety of "Napoleon" hav- 
 ing control of the government. ' ' 
 
 Almost every citizen of this great Republic 
 is palpably impressed with the truth of Pro- 
 fessor Parson's caustic comments, but a- vast 
 number say with Blackstone that it is useless 
 and troublesome to resist the "Napoleons" of 
 finance and their unjust methods. It lies with 
 the students of law, the statesmen and orators 
 to come, to arouse the common people, and 
 then the law will advance as it should. 
 
 C. E. C. 
 
NATURE OF LAWS. 
 SECTION II.* 
 
 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 gravita- 
 tion, 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 
 
 * Sections one and four of Blackstone's Introduction 
 to his Commentaries have been left out as unimportant 
 to the student to-day. 
 
 in 
 
Ita HOW TO STUDY LAW. 
 
 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 numer- 
 ous 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 
 L ' vital economy; are not left to chance, 
 or the will of the creature itself, but are per- 
 formed 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 de- 
 pends 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 
 
HOW TO STUDY LAW. 113 
 
 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 
 behaviour. 
 
 Man, considered as a creature, must neces- 
 sarily 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 pur- 
 sue, 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, in- 
 deed, 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 conse- 
 quently, as man depends absolutely upon his 
 Maker for everything, 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, 
 endued it with a principle of mobility, estab- 
 lished 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 
 
H4 HOW TO STUDY LAW. 
 
 down certain immutable laws of human na- 
 ture, 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 he 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 Justinian (a) 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 other- 
 wise be obtained than by a chain of meta- 
 physical disquisitions, mankind would have 
 
 (a) Juris prtzcepta sunt hac, honeste vivere, alterum 
 non Icedere suum cuique tribuere. Inst. 1. i. 3 
 
HOW TO STUDY LAW. 115 
 
 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 com- 
 panion. 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 human- 
 ity, 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 mu- ri)t 
 tual connexion of justice and human •■ 4 J 
 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 mainly sur- 
 mised, but has graciously reduced the rule of 
 obedience to this one paternal precept, "that 
 man should pursue his own true and sub- 
 stantial 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 demon- 
 strating that this or that action tends to man's 
 
ii6 HOW TO STUDY LAW. 
 
 real happiness, and therefore very justly con- 
 cluding 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 man- 
 kind, 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 neces- 
 sary 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 transgres- 
 sion, 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. 
 
HOW TO STUDY LAW. 1 17 
 
 This has given manifold occasion for the 
 benign interposition of divine Providence, 
 which, in compassion to the frailty, the imper- 
 fection, and the blindness of human reason, 
 *hath been pleased, at sundry times and in 
 divers manners, to discover and enforce rs|c 
 its laws by an immediate and direct •■ 4 J 
 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 com- 
 parison to be really a part of the original law 
 of nature, as they tend in all their conse- 
 quences 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 pre- 
 cepts of this law are indeed of the same orig- 
 inal 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, 
 
ti8 HOW TO STUDY LAW. 
 
 both would have an equal authority ; but, till 
 then, they can never be put in any competi- 
 tion 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 subordina- 
 tion 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 for o conscientice, 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 
 
HOW TO STUDY LAW. 119 
 
 superior laws, — such, for instance, as export- 
 ing 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, un- 
 connected 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 writ- 
 ers on this subject, (b) 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, common- 
 wealths, and nations entirely independent of 
 each other, and yet liable to a mutual inter- 
 course. 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 
 
 (6) Puffendorf, /. 7, c. 1. compared with Barbeyrac's 
 Commentary. 
 
120 HOW TO STUDY LAW. 
 
 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 cival law (c) very justly observes, that 
 quod naturalis ratio inter omnes homines con- 
 stituit, vocatur jus gentium. 
 r+ . *Thus much I thought it necessary 
 
 *■ * to premise concerning the law of na- 
 ture, 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 ; 
 thus being defined by Justinian, (d) "jus civile 
 est quod quisque sibi populis 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 pre- 
 scribed by the supreme power in a state, com- 
 manding what is right and prohibiting what is 
 wrong " Let us endeavour to explain its 
 
 (c) Ff. i. i, 9. (rf) Inst. I 2. 1. 
 
HOW TO STUDY LAW. iai 
 
 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. There- 
 fore a particular act of the legislature to con- 
 fiscate 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 sen- 
 tence 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 dis- 
 tinguish 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 L 5J 
 compact is a promise proceeding from us, law 
 is a command directed to us. The language 
 of a compact is, "I will, or will uot, do this;" 
 that of a law is, "thou shalt, or shalt not, dp 
 
122 HOW TO STUDY LAW. 
 
 it." It is true there is an obligation which a 
 compact carries with it, equal in point of con- 
 science 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 deter- 
 mining or promising any thing at all. Upon 
 these accounts law is defined to be "a rule." 
 
 Municipal law is also "a rule of civil con- 
 duct. ' ' 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 crea- 
 ture, and point out his duty to God, to him- 
 self, and to his neighbour, 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 neighbour 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 man- 
 
HOW TO STUDY LAW. i«3 
 
 ner in which this notification is to be made, is 
 matter of very great indifference. It may be 
 notified by universal tradition and long prac- 
 tice, which supposes a previous publication, 
 and is the case of the common law of England. 
 It may be notified viva voce, by officers ap- 
 pointed for. that purpose, as is done with regard 
 to proclamations, and such acts of parliament 
 as are appointed* to be publicly read r:|t .. 
 in churches and other assemblies. It L ■" 
 may lastly be notified by writing, printing, or 
 the like; which is the general course taken 
 with all our acts of parliament. 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 upon 
 high pillars, the more effectually to ensnare 
 the people. There is still a more unreason- 
 able method than this, which is called making 
 of laws ex post facto; when after an action 
 (indifferent in itself) is committed, the legis- 
 lator 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 
 
124 HOW TO STUDY LAW. 
 
 of consequence be cruel and unjust, (e) All 
 laws should be therefore made to commence 
 in futuro, and be notified before their com- 
 mencement; 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 im- 
 punity. 
 
 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 con- 
 vertible terms ; one cannot subsist without the 
 other. 
 
 „. , "This will naturally lead us into a 
 
 *■ ^ short inquiry concerning the nature of 
 society and civil government ; and the natural 
 
 (e) Such laws among the Romans were denominated 
 privilegia, or private laws, of which Cicero (de leg. 3, 
 1 9, and in his oration pro domo, 17,) thus speaks : ' ' Vet ant 
 leges sacratce vetant duodecim tabula, leges privatis 
 hominibus irrogari ; id enim est privilegium. Nemo 
 unquam tulit, nihil est crudelius, nihil pemiciosius, 
 nihil quod minus hcec civitasferre, possit," 
 
HOW TO STUDY LAW. 125 
 
 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 indi- 
 viduals. 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 man present to be their gov- 
 ernor. This notion of an actually existing un- 
 connected 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 preser- 
 vation two thousand years afterwards ; both of 
 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 im- 
 perfect 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 
 
iz6 HOW TO STUDY LAW. 
 
 less frequent: and various tribes, which had 
 formerly separated, reunited again ; sometimes 
 by compulsion and conquest, sometimes oy 
 accident, and sometimes perhaps by compact. 
 But though society had not its formal begin- 
 ning from any convention of individuals, actu- 
 ated by their wants and their fears ; yet it is 
 the sense of their weakness and imperfection 
 that keeps mankind together; that demon- 
 strates 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 
 rM! .. implied, *in the very act of associating 
 *■ 4 ^ 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 impos- 
 sible that protection could be certainly ex- 
 tended to any. 
 
 For when civil society is once formed, gov- 
 ernment at the same time results of course, as 
 necessary to preserve and to keep that society 
 
HOW TO STtJDY LAW. xaj 
 
 in order. Unless some superior can be consti- 
 tuted, 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 mis- 
 chiefs, which are apt to proceed from mis- 
 guided 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 endeavour always to pursue that real inter- 
 est; 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 
 
1*8 HOW TO STUDY LAW. 
 
 infinite disputes. It is not my business of 
 intention to enter into any of them. However 
 they began, or by *what right soever they 
 rs|t .. subsist, there is and must be in all of 
 L - 1 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 suprem- 
 acy, 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 govern- 
 ment; 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 mem- 
 bers,- 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 reduc- 
 ible 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 
 
HOW TO STUDY LAW. 129 
 
 appearance the outward form and administra- 
 tion 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 con- 
 stituting one or a few, or many executive mag- 
 istrates : and all the other powers of the state 
 must obey the legislative power in the dis- 
 charge of their several functions, or else the 
 constitution is at an end. 
 
 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 fre- 
 quently 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 pub- r<< .. 
 lie spirit. In *aristocracies there is L 5 J 
 more wisdom to be found, than in the other 
 frames of government; being composed, or 
 intended to be composed, of the most experi- 
 enced citizens : but there is less honesty than 
 in a republic, and less strength than in a mon- 
 archy. A monarchy is indeed the most power- 
 ful 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 
 
130 HOW TO STUDY LAW. 
 
 there is imminent 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 ; aris- 
 tocracies 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 govern- 
 ment but these three: for though Cicero (/) 
 declares himself of opinion, "esse optime consti- 
 tutam rempublicam quce ex tribus generibus 
 Mis, regali, Optimo, et populari, sit modice con- 
 fusa;" 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, (g ) 
 
 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 
 
 (/) In his fragments, de rep. I. 2. 
 
 (g) Cunctas nationes et urbes populus aut primores, 
 aui singuli regunt; delecta ex kis et constitute!, repub- 
 lics forma laudarifaciliusquam evenire, vet, sievenit, 
 hand diuturna esse potest." Ann. I. 4. 
 
HOW TO STUDY LAW. 13 1 
 
 stngle person, they have all the advantages of 
 strength and dispatch, that are to be found in 
 the most absolute monarchy : and as the legis- 
 lature of the kingdom is entrusted to three dis- 
 tinct powers, entirely independent of each 
 other; first, the king; secondly, the lords 
 spiritual and temporal, which is an aristo- 
 cratical assembly of persons selected for their 
 piety, *their birth, their wisdom, their ..„, .. 
 valour, or their property ; and, thirdly, L 5 J 
 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 parlia- 
 ment, and' has the supreme disposal of every 
 thing; there can no inconvenience be at- 
 tempted 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 incon- 
 veniences of either absolute monarchy, aristoc- 
 
132 HOW TO STUDY LAW. 
 
 racy, or democracy; and so want two or 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 
 iaws might be providently made, and well 
 executed, but they might not always have the 
 good o/ the people in view; if lodged in the 
 king and commons we should want that circum- 
 spection and mediatory caution, which the wis- 
 dom 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 preroga- 
 tive, or perhaps to abolish the kingly office, 
 and thereby weaken (if not totally destroy) the 
 strength of the executive power. But the con- 
 stitutional government of this island is so 
 admirably tempered and compounded, that 
 nothing can endanger or hurt it, but destroy- 
 ing 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 
 ra! , an end of our constitution. The lejjis- 
 L J lature would be changed from that, 
 which (upon the supposition of an original 
 contract, either actual or implied) is presumed 
 
HOW TO STUDY LAW. 133 
 
 to have been originally set up by the general 
 consent and fundamental act of the society; 
 and such a change, however affected is, accord- 
 ing to Mr. Locke, {h) (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 usual 
 three species of government, and our own sin- 
 gular 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; 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 dis- 
 
 (h) On government, part 2. sec. 212. 
 
134 HOW TO STUDY LAW. 
 
 posed into a lasting harmony, so as to consti- 
 tute and produce that one uniform will of the 
 whole. It can therefore be no otherwise pro- 
 duced 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 constitu- 
 tions, understood to be law. 
 
 Thus far as to the right of the supreme 
 r* -i power to make laws ; but farther, it is 
 *- J its duty likewise. For since the "re- 
 spective members are bound to conform 
 themselves to the will of the state, it is expe- 
 dient that they receive directions from the state 
 declaratory of that its will. 
 
 But, as it is impossible, in so great a multi- 
 tude, 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 
 
HOW TO STUDY LAW. 135 
 
 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 tranquillity. 
 
 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. " 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 fol- 
 low of course that it is likewise the business 
 of the law, considered as a rule of civil con- 
 duct, 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 L 54J 
 
136 HOW TO' STUDY LAW. 
 
 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 declar- 
 atory 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 lib- 
 erty, 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 
 
HOW TO STUDY LAW. 137 
 
 by the law of the land. The case is the same 
 as to crimes and misdemeanors, that are for- 
 bidden by the superior laws, and therefore 
 styled mala in se, such as murder, theft, and 
 perjury; which contract no additional turpi- 
 tude 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, tran- 
 scribing 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 re- 
 gard to things in themselves indiffer- ri)c 
 ent, the case is entirely altered. These l 55J 
 become either right or wrong, just or unjust, 
 duties or misdemeanors, according as the munic- 
 ipal 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 hus- 
 band; and our statute law has declared all 
 monopolies a public offence: yet that right, 
 and this offence, have no foundation in nature, 
 but are merely created by the law, for the 
 purpose ef civil society. And sometimes, 
 where the thing itself has its rise from the law 
 of nature, the particular circumstances and 
 
138 HOW TO STUDY LAW. 
 
 mode of doing it becomes 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 de- 
 grees 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 dis- 
 tress 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 shalt not steal," implies a 
 declaration that stealing is a crime. And we 
 have seen (1) that, in things naturally indiffer- 
 ent, the very essence of right and wrong de- 
 pends upon the direction of the laws to do or 
 omit them. 
 
 The remedial part of a law is so necessary a 
 consequence of the former two, that 
 *- 5 * laws must be very vague and imper- 
 fect *without it. For in vain would rights be 
 declared, in vain directed to be observed, if 
 
 (*) See page 43. 
 
HOW TO STUDY LAW. 139 
 
 tnere were no methoa of recovering and assert- 
 ing those rights, when wrongfully 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 posses- 
 sion 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 punish- 
 ments, than in actual particular rewards. 
 Because, in the first place, the quiet enjoy- 
 ment 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 valu- 
 able of all rewards. Because also, were the 
 exercise of every virtue to be enforced by the 
 proposal of particular rewards, it were impos- 
 sible for any state to furnish stock enough for 
 
140 HOW TO STUDY LAW. 
 
 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, (k) 
 For which reasons though a prudent bestow- 
 ing of rewards is sometimes of exquisite use, 
 yet we find that those civil laws, which enforce 
 and enjoin our duty, do seldom, if ever, pro- 
 pose 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 dis- 
 cretion 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 
 
 L "J 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." 
 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 impos- 
 sible for him to act otherwise than as they 
 direct, which is the strict sense of obligation ; 
 but because, by declaring and exhibiting a pen- 
 
 (k) Locke, Hum. Und. b. 2. c. 21. 
 
HOW TO STUDY LAW. 141 
 
 alty 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 hath been holden, and very 
 justly, by the principal of our ethical writ- 
 ers, 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 defi- 
 ance. And, true as this principle is, it must 
 still 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 offences as 
 are mala in se: here we are bound in con- 
 science; 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 pro- 
 hibita merely, without any intermixture of 
 
142 HOW TO STUDY LAW. 
 
 rs| . .. moral guilt,* annexing a penalty to non- 
 L 5 J compliance, (/) here I apprehend con- 
 science is no farther concerned, than by direct- 
 ing a submission to the penalty, in case of our 
 breach of those laws : for otherwise the multi- 
 tude of penal laws in a state would not only 
 be looked upon as an 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 sub- 
 mit to such a penalty:" and his conscience 
 will be clear, whichever side of the alter- 
 native he thinks proper to embrace. Thus, by 
 the statutes for preserving the game, a pen- 
 alty is denounced against every unqualified 
 person that kills a hare, and against every per- 
 son who possesses a partridge in August. 
 And so too, by other statutes, pecuniary pen- 
 alties are inflicted for exercising trades with- 
 out serving an apprenticeship thereto, for not 
 burying the dead in woollen, for not perform- 
 ing the statute-work on the public roads, and 
 for innumerable other positive misdemeanors. 
 Now these prohibitory laws do not make the 
 transgression a moral offence, 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 
 (I) See Book II, p. 420. 
 
HOW TO STUDY LAW. 143 
 
 thing forbidden or enjoined is wholly a matter 
 of indifference, and where the penalty inflicted 
 is an adequate compensation for the civil incon- 
 venience supposed to arise from the offence. 
 But where disobedience to the law involves in 
 it also any degree of public mischief or private 
 injury, there it falls within our former distinc- 
 tion, and is also an offence against con- 
 science, (ni) 
 
 I have now gone through the definition laid 
 down of a municipal law ; and have shown that 
 it is "a rule of civil conduct prescribed by the 
 supreme power in a state, commanding what 
 is right, and prohibiting what is wrong;" in 
 the explication of which I have endeavoured to 
 interweave a few useful principles concerning 
 the nature of civil government, and the obliga- 
 tion of human laws. Before I conclude this 
 section, it may not be amiss to add a few obser- 
 vations 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 opin- 
 ion upon it. This was certainly a bad method 
 of interpretation. To interrogate the legisla- 
 ture to decide particular disputes is not only 
 endless, but affords great room for partiality 
 and oppression. Tho answers of the emperor 
 
 (m) Lex pure paenalis obligct tantum ad pcenam, non 
 item ad culpam: lex p&nalis mixta et ad culpam obit- 
 gat, et ad pcenam. . (Sanderson de conscient, obligat, 
 prael. viii. §17. 24.) 
 
144 HOW TO STUDY LAW. 
 
 were called his rescripts, and these had in suc- 
 ceeding 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 
 I-,,. , once resolved to *abolish these re- 
 *■ -" scripts, 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. 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 explor- 
 ing his intentions at the time when the law 
 was made, by signs the most natural and prob- 
 able. 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: 
 
 i. 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 
 
 in) Inst. i. 2. 6. 
 
HOW TO STUDY LAW. 145 
 
 mentioned by Puffendorf (0) 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 accepta- 
 tion of the learned in each art, trade, and 
 science. So in the act of settlement, where 
 the crown of England is limited "to the prin- 
 cess Sophia, and the heirs of her body, being 
 protestants, " it becomes necessary to call in 
 the assistance of lawyers, to ascertain the pre- 
 cise 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 f ^ _ 
 dubious, we may establish their mean- *• ^ 
 ing 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. Thus, when the law 
 of England declares murder to be a 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 cen- 
 
 (o) L. of N. and N. 5. 12. 3. 
 
146 HOW TO STUDY LAW. 
 
 sures 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 pur- 
 chase provisions at Rome, it might seem to pro- 
 hibit the buying of grain and other victual; 
 but, when we consider that the statute was 
 made to repress the usurpations of the papal 
 see, and that the nominations to benefices by 
 the pope were called provisions, we shall see 
 that the restraint is intended to be laid upon 
 such provisions only. 
 
 4. As to the effects and consequences, the rule 
 is, that where words bear either none, or a 
 very absurd signification, if literally under- 
 stood, we must a little deviate from the 
 received sense of them. Therefore the Bolog- 
 nian law, mentioned by Puffendorf, (J>) which 
 enacted "that whoever drew blood in the streets 
 should be punished with the utmost severity," 
 was held after long debate not to extend to the 
 surgeon, who opened the vein of a person that 
 fell down in the street with a fit. 
 
 *5. But, lastly, the most universal 
 L ^ and effectual way of discovering the 
 
 (/) /. 5. c. 12. §8. 
 
HOW TO STUDY LAW. 147 
 
 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. (g) 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 dis- 
 ease, 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 con- 
 tributed 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: (r) "the 
 corrections of that wherein the law (by reason 
 of its universality,) is deficient." For, since 
 
 {g) I. 1. c. 11. (r) De Equitatm, §3. 
 
148 HOW TO STUDY LAW. 
 
 in laws all cases cannot be forseen or ex- 
 pressed, it is necessary that, when the general 
 decrees of the law come to be applied to par- 
 ticular 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 
 exact e definit, sed arbitrio boni viri permit tit." 
 Equity thus depending, essentially, upon the 
 particular circumstances of each individual 
 case, there can be no established *rules and 
 -x , fixed precepts of equity laid down, 
 L •* 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 with- 
 out law; which would make every judge a 
 legislator, and introduce most infinite con- 
 fusion ; 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. 
 
HOW TO STUDY LAW. 545 
 
 SECTION III. 
 
 OF THE LAWS OF ENGLAND. 
 
 The municipal law of England, or the rule 
 of civil conduct prescribed to the inhabitants 
 of this kingdom, may with sufficient propriety 
 be divided into two kinds : The lex non scripta, 
 the unwritten, or common law; and the lex 
 scripta, the written, or statute law. 
 
 The lex non scripta, or unwritten law, in- 
 cludes not only general customs, or the common 
 law properly so called ; but also the particular 
 customs, of certain parts of the kingdom ; and 
 likewise those particular laws, that are by cus- 
 tom observed only in certain courts and juris- 
 dictions. 
 
 When I call these parts of our law leges non 
 scripta, I would not be understood as if all 
 those laws were at present merely oral, or 
 communicated from the former ages to the 
 present solely by word of mouth. It is true 
 indeed that, in the profound ignorance of let- 
 ters which formerly overspread the whole 
 western world, all laws were entirely tradi- 
 tional, for this plain reason, because the nations 
 among which they prevailed had but little idea 
 of writing. Thus the British as well as the 
 
15° HOW TO STUDY LAW. 
 
 Gallic Druids committed all their laws as well 
 as learning to memory ; (a) and it is said of the 
 primitive Saxons, here as well as their brethren 
 on the continent, that leges sola memoria et usu 
 retinebant. (b) But with us at present, the 
 monuments and evidences of our legal customs 
 are contained in the records of the several 
 courts of justice, in books of *reports and 
 r# fi -i judicial decisions, and in the treatises 
 J of learned sages of the profession, pre- 
 served and handed down to us from the times 
 of highest antiquity. However, I therefore 
 style these parts of our law leges non script®, 
 because their original institution and authority 
 are not set down in writing as acts of parlia- 
 ment are, but they receive their binding power 
 and the force of laws by long and immemorial 
 usage, and by their universal reception 
 throughout the kingdom. In like manner as 
 Aulus Gellius defines the jus non scriptum to be 
 that, which is "tacito et illiterato hominum 
 consensu et moribus expressum." 
 
 Our ancient lawyers, and particularly For- 
 tescue, (c) insist with abundance of warmth 
 that these customs are as old as the primitive 
 Britons, and continued down, through the 
 several mutations of government and inhabit- 
 ants to, the present time, unchanged and un- 
 adulterated. This ma3' be the case as to some ; 
 
 (a) Caes., de b. G. lib. 6, c. 13. (b) Spelm. Gl. 362. 
 (c) C. 17. 
 
HOW TO STUDY LAW. 151 
 
 but in general, as Mr. Selden in his notes 
 observes, this assertion must be understood 
 with many grains of allowance; and ought 
 only to signify, as the truth seems to be, that 
 there never was any formal exchange of one 
 system of laws for another; though doubtless, 
 by the intermixture of adventitious nations, 
 the Romans, the Picts, the Saxons, the Danes, 
 and the Normans, they must have insensibly 
 introduced and incorporated many of their own 
 customs with those that were before estab- 
 lished; thereby, in all probability, improving 
 the texture and wisdom of the whole by the 
 accumulated wisdom of divers particular coun- 
 tries. Our laws, saith Lord Bacon, (d) are 
 mixed as our language ; and, as our language is 
 so much richer, the laws are the more com- 
 plete. 
 
 And indeed our antiquaries and early his- 
 torians do all positively assure us, that our 
 body of laws is of this compounded nature. 
 For they tell us that in the time of Alfred the 
 local customs of the several provinces of the 
 kingdom were grown so various, that he found 
 it expedient to compile his Dome-Book, or Liber 
 Judicialis, for the general use of the whole 
 kingdom. *This book is said to have been 
 extant so late as the reign of King ^ .. 
 Edward the Fourth, but is now unfor- L 5J 
 tunately lost. It contained, we may probably 
 (d ) See his proposals for a digest. 
 
152 HOW TO STUDY LAW/ 
 
 suppose, the principal maxims of the common 
 law, the penalties for misdemeanors, and the 
 forms of judicial proceedings. Thus much 
 may at least be collected from that injunction 
 to observe it, which we find in the laws of 
 King Edward the elder, the son of Alfred, (e) 
 "Omnibus qui republics prcesunt etiam at que 
 etiam mano, ut omnibus cequos se prabeant 
 judices, perinde ac in judicali libro (Saxonice, 
 &om-2)ec ) scriptum habetur: nee quicquam for- 
 mident quin jus commune (Saxonice, TOlcpihce) 
 audacter liber eque dicant." 
 
 But the irruption and establishment of the 
 Danes in England, which followed soon after, 
 introduced new customs, and caused this code of 
 Alfred in many provinces to fall into disuse, or 
 at least to be mixed and debased with other laws 
 of a coarser alloy ; so that, about the beginning 
 of the eleventh century, there were three prin- 
 cipal systems of laws prevailing in different 
 districts: i. The Mercen-Lage, or Mercian 
 laws, which were observed in many of the mid- 
 land counties, and those bordering on the 
 principality of Wales, the retreat of the ancient 
 Britains; and therefore very probably inter- 
 mixed with the British or Druidical customs. 
 2. The West-Saxon-Lage, or laws of the West 
 Saxons, which obtained in the counties to the 
 south and west of the island, from Kent to 
 Devonshire. These were probably much the 
 
 M C. x. 
 
HOW TO STUDY LAW. 153 
 
 same with the laws of Alfred above men- 
 tioned, being the municipal law of the far most 
 considerable part of his dominions, and partic- 
 ularly including Berkshire, the seat of his 
 peculiar residence. 3. The Dane-Lage, or 
 Danish law, the very name of which speaks 
 its original and composition. This was prin- 
 cipally maintained in the rest of the midland 
 counties, and also on the eastern coast, the 
 part most exposed to the visits of that piratical 
 people. As for the very northern provinces, 
 they were at that time under a distinct gov- 
 ernment. (/) 
 
 *Out of these three laws, Roger Hoveden (g) 
 and Ranulphus Cestrensis {h) informs r* 66 -i 
 us, King Edward the Confessor ex- 
 tracted one uniform law, or digest of laws, to 
 be observed throughout the whole kingdom; 
 though Hovenden, and the author of an old 
 manuscript chronicle (?) assure us likewise 
 that this work was projected and begun by his 
 grandfather King Edgar. And indeed a gen- 
 eral digest of the same nature has been con- 
 stantly found expedient, and therefore put in 
 practice by other great nations, which were 
 formed from an assemblage of little provinces, 
 governed by peculiar customs, as in Portugal, 
 under King Edward, about the beginning of 
 
 (/) Hal. Hist. 55. (.f) In Hen - n - 
 
 (a) In Ediv. Confessor. 
 («) In Seld. ad Eadmer, 6. 
 
1 54 HOW TO STUDY LAW. 
 
 the fifteenth century, (k) In Spain under 
 Alonzo X., who, about the year 1250, executed 
 the plan of his father St. Ferdinand, and col- 
 lected all the provincial customs into one uni- 
 form law, in the celebrated code entitled Las 
 Partidas. (/) And in Sweden, about the same 
 era, when a universal body of common law 
 was compiled out of the particular customs 
 established by the laghman of every province, 
 and entitled the land's lagh, being analogous 
 to the common law of England, (m) 
 
 Both these undertakings of King Edgar and 
 Edward the Confessor seem to have been no 
 more than a new edition, or fresh promulga- 
 tion, of Alfred's code or dome-book, with such 
 additions and improvements as the experience 
 of a century and a half had suggested; for 
 Alfred is generally styled by the same his- 
 torians the legum Anglicanarum conditor, as 
 Edward the Confessor is the restitutor. These, 
 however, are the laws which our histories so 
 often mention under the name of the laws of 
 Edward the Confesser, which our ancestors 
 struggled so hardly to maintain, under the 
 first princes of the Norman line; and which 
 subsequent princes so frequently promised to 
 keep and restore, as the most popular act they 
 could do, when pressed by foreign emer- 
 gencies or domestic discontents. These are 
 
 (k) Mod. Un. Hist. xxii. 135. (/) Ibid. xx. an. 
 itri) Ibid, xxxiii. 21, 58. 
 
HOW TO STUDY LAW. 155 
 
 the laws that so vigorously withstood *the 
 repeated attacks of the civil law ; which r!|! 
 established in the twelfth century a *- ^ 
 new Roman empire over most of the states of 
 "the continent : states that have lost, and per- 
 haps upon that account, their political liberties ; 
 while the free constitution of England, per- 
 haps upon the same account, has been rather 
 improved than debased. These, in short, are 
 the laws which gave rise and original to that 
 collection of maxims and customs which is now 
 known by the name of the common law; a 
 name either given to it in contradistinction to 
 other laws, as the statute law, the civil law, 
 the law merchant, and the like ; or, more prob- 
 ably, as a law common to all the realm, the 
 jus commune, or folcrigh*, mentioned by king 
 Edward the elder, after the abolition of the 
 several provincial customs and particular laws 
 before mentioned. 
 
 But though this is the most likely foundation 
 of this collection of maxims and customs, yet 
 the maxims and customs, so collected, are of 
 higher antiquity than memory or history can 
 reach, nothing being more difficult than to 
 ascertain the precise beginning and the first 
 spring of an ancient and long established cus- 
 tom. Whence it is that in our law the good- 
 ness 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 
 
156 HOW TO STUDY LAW. 
 
 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 nonscripta, of 
 this kingdom. 
 
 This unwritten, or common, law is properly 
 distinguishable into three 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. 3. Certain particular laws; which, 
 by custom, are adopted and used by some par- 
 ticular courts of pretty general and extensive 
 jurisdiction. 
 
 r**ai * I " "^ s to S enera l customs, or the 
 L J common law, properly so called; this 
 is that law, by which proceedings and deter- 
 minations in the king's ordinary courts of 
 justice are guided and directed. This, for the 
 most part, settles the course in which lands 
 descend by inheritance ; the manner and form 
 of acquiring and transferring property; the 
 solemnities and obligation 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 pun- 
 ishment; and an infinite number of minuter 
 particulars, which diffuse themselves as exten- 
 
HOW TO STUDY LAW. 157 
 
 sively as the ordinary distribution of common 
 justice requires. 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 shall be construed more 
 favourably, and deeds more strictly; — that 
 money lent upon bond is recoverable by action 
 of debt; — that breaking the public peace is an 
 offence, and punishable by fine and imprison- 
 ment; — all these are doctrines that are not 
 set down in any written statute or ordi- 
 nance, but depend merely upon immemorial 
 usage, that is, upon common law, for their sup- 
 port. 
 
 Some have divided the common law into two 
 principal grounds or foundations: 1. Estab- 
 lished customs; such as that, where there are 
 three brothers, the eldest brother shall be heir 
 to the second, in exclusion of the youngest: 
 and 2. Established rules and maxims; as "that 
 the king can do no wrong, that no man shall 
 be bound to accuse himself," and the like. 
 But I take these to be one and the same thing. 
 For the authority of these maxims rests entirely 
 upon general reception and usage: and the 
 only method of proving, that this or that 
 maxim is a rule of the common law, is by 
 
158 HOW TO STUDY LAW. 
 
 [Sj . , shewing that it hath been always the 
 L ■* custom to observe it. *But here a very- 
 natural, and very material, question arises: 
 how are these customs and maxims to be 
 known and by whom is their validity to be 
 determined? The answer is, by the judges in 
 the several courts of justice. They are the 
 depositaries of the laws; the living oracles, 
 who must decide in all cases of doubt, and who 
 are bound by an oath to decide according to 
 the law of the land. Their knowledge of that 
 law is derived from experience and study; 
 from the "viginti annorum lucubrationes" 
 which Fortescue (n) mentions ; and from being 
 long personally accustomed to the judicial 
 decisions of their predecessors. And indeed 
 these judicial decisions are the principal and 
 most authoritative evidence, that can be given, 
 of the existence of such a custom as shall form 
 a part of the common law. The judgment 
 itself, and all the proceedings previous thereto, 
 are carefully registered and preserved, under 
 the name of records, in public repositories set 
 apart for that particular purpose ; and to them 
 frequent recourse is had, when any critical 
 question arises, in the determination of which 
 former precedents may give light or assist- 
 ance. And therefore, even, so early as the 
 conquest, we find the "prceteritorum memoria 
 eventoru7n" reckoned up as one of the chief 
 
 («) Cap. 8. 
 
HOW TO STUDY LAW. 159 
 
 qualifications of those who were held to be 
 "legibus patrim optime instituti." (0) For it is 
 an established rule to abide by former pre- 
 cedents, where the same points come again in 
 litigation: as well to keep the scale of justice 
 even and steady, and not liable to waver with 
 every new judge's opinion; as also because the 
 law in that case being solemnly declared and 
 determined, what before was uncertain, and 
 perhaps indifferent, is now become a perma- 
 nent rule which it is not in the breast of any 
 subsequent judge to alter or vary from accord- 
 ing to his private sentiments ; he being sworn 
 to determine, not according to his own private 
 judgment, but according to the known laws 
 and customs of the land ; not delegated to pro- 
 nounce a new law, but to maintain and ex- 
 pound the old one. Yet this rule admits of 
 exception, where the former determination is 
 most evidently contrary to reason; *much 
 more if it be clearly contrary to the divine 
 law. But even in such cases the sub- rst , 
 sequent judges do not pretend to make 
 a new law, but to vindicate the old one from 
 misrepresentation. For if it be found that the 
 former decision is manifestly absurd or unjust, 
 it is declared, not that such a sentence was bad 
 law; but that it was not law; that is, that it is 
 not the established custom of the realm, as has 
 been erroneously determined. And hence it is 
 
 (0) Seld. Review of Tith. c. 8. 
 
160 HOW TO STUDY LAW. 
 
 that our lawyers are with justice so copious in 
 their encomiums on the reason of the common 
 law; that they tell us, that the law is the per- 
 fection of reason, that it always intends to con- 
 form thereto, and that what is not reason is 
 not law. Not that the particular reason of 
 every rule in the law can at this distance of 
 time be always precisely assigned; but it is 
 sufficient that there be nothing in the rule flatly 
 contradictory to reason, and then the law will 
 presume it to be well founded, {p ) And it 
 hath been an ancient observation in the laws 
 of England, that whenever a standing rule of 
 law, of which the reason perhaps could not be 
 remembered or discerned, hath been wantonly 
 broken in upon by statutes or new resolutions, 
 the wisdom of the rule hath in the end appeared 
 from the inconveniences that have followed the 
 innovation. 
 
 The doctrine of the law then is this : that 
 precedents and rules must be followed, unless 
 flatly absurd or unjust: for though their reason 
 be not obvious at first view, yet we owe such a 
 deference to former times as not to suppose 
 that they acted wholly without consideration. 
 To illustrate this doctrine by examples. It 
 has been determined time out of mind, that a 
 
 (i>)- Herein agreeing with the civil law, Ff. i. 3. 20. 21. 
 "JVon omnium, quo: a majoribus nostris constituta 
 sunt, ratio-reddi potest. Et ideo rationes eorum, quae 
 constituuntur, inquiri non ofiortet: alioquin mult a ex 
 his quae certa sunt, subvertuntur." 
 
HOW TO STUDY LAW. 161 
 
 brother of the half blood shall never succeed as 
 heir to the estate of his half brother, but it 
 shall rather escheat to the king, or other 
 superior lord. Now this is a positive law, 
 fixed and established by custom, which custom 
 is evidenced by judicial decisions ; and there- 
 fore can never be departed from by any mod- 
 ern judge without a breach of his oath ™ n 
 
 I 7 1 
 
 and *the law. For herein there is L J 
 nothing repugnant to natural justice ; though 
 the artificial reason of it, drawn from the 
 feudal law, may not be quite obvious to every 
 body. And therefore, though a modern 
 judge, on account of a supposed hardship upon 
 the half brother, might wish it had been other- 
 wise settled, yet it is not in his power to alter 
 it. But if any court were now to determine, 
 that an elder brother of the half blood might 
 enter upon and seize any lands that were pur- 
 chased by his younger brother, no subsequent 
 judges would scruple to declare that such 
 prior determination was unjust, was unreason- 
 able, and therefore was not law. So that 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 
 they judge may mistake the law. Upon the 
 whole, however we may take it as a general 
 rule, "that the decisions of courts of justice 
 are the evidence of what is common law:" in 
 the same manner as, in the civil law, what the 
 
162 HOW TO STUDY LAW. 
 
 emperor had once determined was to serve as 
 a guide for the future, (q) 
 
 The decisions therefore of courts are held in 
 the highest regard, and are not only preserved 
 aS authentic records in the treasuries of the 
 several courts, but are handed out to public 
 view in the numerous volumes of reports 
 which furnish the lawyer's library. These 
 reports are histories of the several cases, with 
 a short summary of the proceedings, which 
 are preserved at large in the record ; the argu- 
 ments on both sides and the reasons the court 
 gave for its judgment; taken down in short 
 notes by persons present at the determination. 
 And these serve as indexes to, and also to ex- 
 plain, the records, which always, in matters of 
 consequence and nicety, the judges direct to 
 be searched. The reports are extant in a 
 regular series from the reign of King Edward 
 the Second inclusive; and, from his time, to 
 that of Henry the *Eighth, were taken f!|c 
 by the prothonotaries, or chief scribes L 7 J 
 of the court, at the expense of the crown, and 
 published annually, whence they are known 
 under the denomination of the year books. 
 And it is much to be wished that this bene- 
 
 (q) "Si imperialis majestas causam cognitionaliter 
 examinaverit, et partibus, cominus constitutes senten- 
 tian dixerit, omnes omnino judices, qui sub nostro 
 imperio sunt, sciant hanc esse legem, non solum illi 
 causes pro qua producta est, sed et in omnibus simil- 
 ibus." C. i. 14. 12. 
 
HOW TO STUDY LAW. 163 
 
 ficial custom had, under proper regulations, 
 been continued to this day; for, though King 
 James the First, at the instance of Lord Bacon, 
 appointed two reporters (r) with a handsome 
 stipend for this purpose, yet that wise institu- 
 tion was soon neglected, and from the reign of 
 Henry the Eighth to the present time this task 
 has been executed by many private and con- 
 temporary hands; who sometimes through 
 haste and inaccuracy, sometimes through mis- 
 take and want of skill, have published very 
 crude and imperfect (perhaps contradictory) 
 accounts of one and the same determination. 
 Some of the most valuable of the ancient re- 
 ports are those published by Lord Chief- 
 Justice Coke ; a man of infinite learning in his 
 profession, though not a little infected with 
 the pedantry and quaintness of the times he 
 lived in, which appear strongly in all his 
 works. However, his writings are so highly 
 esteemed, that they are generally cited without 
 the author's name, (s) 
 
 Besides these reporters, there are also other 
 
 (r) Pat. 15 Jac. I. p. 18. 17. Rym. 26. 
 
 (s) His reports, for instance, are styled kot' ei-oxiv, the 
 reports; and, in quoting them, we usually say, 1 or 2 
 Rep. not 1 or 2 Coke's Rep. as in citing other authors. 
 The reports of Judge Oroke are also cited in a peculiar 
 manner, by the names of those princes, in whose reigns 
 the cases reported in his three volumes were determined; 
 viz. : Queen Elizabeth, King James, and King Charles 
 the First: as well as by the number of each volume. 
 For sometimes we call them 1, 2. and 3. Cro. but more 
 commonly Cro. Eliz., Cro. Jac. and Cro. Car. 
 
1 64 HOW TO STUDY LAW. 
 
 authors, to whom great veneration and respect 
 is paid by the students of the common law. 
 Such are Glanvil and Bracton, Britton and 
 Fleta, Hengham and Littleton, Statham, 
 Brooke, Fitzherbert, and Staundforde, with 
 some others of ancient date; whose treatises 
 are cited as authority, and are evidence that 
 cases have formerly happened in which such 
 and such points were determined, which are 
 now become settled and first principles. One 
 of the last of these methodical writers in point 
 of time, whose works are of any intrinsic 
 authority in the courts of justice, and do not 
 entirely depend on the strength of their quota- 
 tions from older authors, is the *same learned 
 judge we have just mentioned, Sir Edward 
 Coke ; who hath written four volumes of insti- 
 r4s , tutes, as he is pleased to call them, 
 L 73 -' though they have little of the institu- 
 tional method to warrant such a title. The 
 first volume is a very extensive comment upon 
 a little excellent treatise of tenures, compiled 
 by Judge Littleton in the reign of Edward the 
 Fourth. This comment is a rich mine of valu- 
 able common law learning, collected and 
 heaped together from the ancient reports and 
 year books, but greatly defective in method. (/) 
 The second volume is a comment upon many 
 old acts of parliament, without any systematical 
 
 (t) It is usually cited either by the name of Co. Litt. or 
 as i Inst. 
 
HOW TO STUDY LAW. 165 
 
 order; the third a more methodical treatise of 
 the pleas of the crown; and the fourth an 
 account of the several species of courts, (u) 
 
 And thus much for the first ground and chief 
 corner stone of the laws of England, which is 
 general immemorial custom, or common law, 
 from time to time declared in the decisions of 
 the courts of justice; which decisions are pre- 
 served among our public records, explained in 
 our reports, and digested for general use in the 
 authoritative writings of the venerable sages 
 of the law. 
 
 The Roman law, as practised in the times of 
 its liberty, paid also a great regard to custom ; 
 but not so much as our law; it only then 
 adopting it, when the written law was de- 
 ficient. Though the reasons alleged in the 
 digest {v) will fully justify our practice, in 
 making it of equal authority with, when it is 
 not contradicted by, the written law. "For, 
 since (says Julianus,) the written law binds us 
 for no other reason but because it is approved 
 by the judgment of the people, therefore those 
 laws which the people have approved without 
 writing ought also to bind every body. For 
 where is the difference, whether the people 
 
 («) These are cited as j., 3, or 4 Inst, without any 
 author's name. An nonary distinction, which, we 
 observed, is paid to the works of no other writer ; the 
 generality of reports and other tracts being quoted in the 
 name of the compiler, as 2 Ventris, 4 Leonard, 1 Siderfin, 
 and the like. (v) Ff. 1. 3. 32. 
 
166 HOW TO STUDY LAW. 
 
 declare their *assent to a law by suffrage, or 
 rs|s . by a uniform course of acting accor- 
 *• J dingly?" Thus did they reason while 
 Rome had some remains of her freedom ; but, 
 when the imperial tyranny came to be fully 
 established, the civil laws speak a very differ- 
 ent language. "Quod principi placuit legis 
 habet vigorem, cum populus ei et in eum omne 
 suum imperium et protestatem comferat" says 
 Ulpian. (w) ' 'Imperator solus et conditor et 
 interpres legis existimatur, ' ' says the code, (x) 
 And again, " sacrilegii instar est rescripto prin- 
 cipis obviari." (y) And indeed it is one of the 
 characteristic marks of English liberty, that 
 our common law depends upon custom ; which 
 carries this internal evidence of freedom along 
 with it, that it probably was introduced by the 
 voluntary consent of the people, (n) 
 
 (w) Ff. i. 4. 1. {x) C. 1. 14. 12. 
 
 (/) C. 1. 23. 5. 
 
 (;z) [Lord Chief -Justice Wilmot has said that "the 
 statute law is the will of the legislature in writing ; the 
 common law is nothing else but statutes worn out by 
 time. All our law began by consent of the legislature, 
 and whether it is now law by usage or writing is the 
 same thing. 2 Wils. 348. And statute law, and common 
 law, both originally flowed from the same fountain." 
 lb. 350. And to the same effect Lord Hale declares, 
 "that many of those things that we now take for common 
 law, were undoubtedly acts of parliament, though now 
 not to be found of record." Hist. Com. Law, 66. Though 
 this is the probable origin of the greatest part of the 
 common law, yet much of it certainly has been intro- 
 
HOW TO STUDY LAW. 167 
 
 II. 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 multi- 
 tude of local customs before mentioned, out of 
 which the common law, as it now stands, was 
 collected at first by King Alfred, and after- 
 wards by King Edgar and Edward the Con- 
 fessor: 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 now long forgotten, 
 particular counties, cities, towns, manors, and 
 lordships, were very early indulged with the 
 privilege of abiding by their own customs, in 
 contradistinction to the rest of the nation at 
 large : which privilege is confirmed to them by 
 several acts of parliament.^.) 
 
 duced by usage, even of modern date, which general 
 convenience has adopted. Of this nature is the law of 
 the road, viz: that horses and carriages should pass each 
 other on the whip hand. This law has not been enacted 
 by statute, and is so modern, that perhaps this is the 
 first time that it has been noticed in a book of law. But 
 general convenience discovered the necessity of it, and 
 our judges have so far confirmed it, as to declare fre- 
 quently at nisi prius, that he who disregards this salutary 
 rule is answerable in damages for all the consequences. ] 
 — Coole/s Blackstone, page 73, n. 
 
 (z) Mae-. Cart. 9 Hen. III. c. 9. — 1. Edw. III. St. 2. 
 c. 9. —14 Edw. III. St. 1. c. 1. —and 2 Hen. IV. c. 1. 
 
1 68 HOW TO STUDY LAW. 
 
 Such is the custom of gavelkind in Kent, 
 and some other parts of the kingdom (though 
 perhaps it was also general till the Norman 
 rHc , conquest), which ordains, among other 
 "- J things, *that not the eldest son only of 
 the father shall succeed to his inheritance, but 
 all the sons alike : and that, though the ances- 
 tor be attainted and hanged, yet the heir shall 
 succeed to his estate^ without any escheat to 
 the lord. Such is the custom that prevails in 
 divers ancient boroughs, and therefore called 
 borough- English, that the youngest son shall 
 inherit the estate, in preference to all his 
 elder brothers. 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. Such also are the special 
 and particular customs of manors, of which 
 every one has more or less, and which bind all 
 the copyhold and customary tenants that hold 
 of the said manors. Such likewise is the cus- 
 tom of holding divers inferior courts, with 
 power of trying causes, in cities and trading 
 towns, the right of holding which, when no 
 royal grant can be shewn, depends entirely 
 upon immemorial and established usage. 
 Such, lastly, are many particular customs 
 within the city of London, with regard to 
 trade, apprentices, widows, orphans, and a 
 variety other matters. All these are contrary 
 
HOW TO STUDY LAW. 169 
 
 to the general law of the land, and are good 
 only by special usage; though the customs of 
 London are also confirmed by act of parlia- 
 ment, (a) 
 
 To this head may most properly be referred 
 a particular system of customs used only 
 among one set of the king's subjects, called 
 the customs of merchants, or lex mercatoria: 
 which, however different from the general 
 rules of the common law, is yet ingrafted into 
 it, and made a part of it; (b) being allowed, 
 for the benefit of trade, to be of the utmost 
 validity in all commercial transactions : for it 
 is a maxim of law, that "cuilibet in sua arte 
 credendum est. ' ' 
 
 The rules relating to particular customs 
 regard either the proof of their existence ; their 
 legality when proved; or their usual method 
 of allowance. And first we will consider the 
 rules oi proof . 
 
 *As to gavelkind, and borough-English, the 
 law takes particular notice of them, (c) rHt - 
 and there is no occasion to prove that 
 such customs actually exist, but only that the 
 lands in question are subject thereto. All 
 other private customs must be particularly 
 pleaded, (d) and as well the existence of such 
 customs must be shewn, as that the thing in 
 dispute is within the custom alleged. The 
 
 (a) 8 Rep. 126. Cro. Car. 347. (i) Winch. 24. 
 (c) Co. Litt. 175. (d) Litt. §265. 
 
17° HOW TO STUDY LAW. 
 
 trial in both cases (both to shew the existence 
 ■ of the custom, as, "that in the manor of Dale 
 lands shall descend only to the heirs male, and 
 never to the heirs female;" and also to shew 
 "that the lands in question are within that 
 manor") is by a jury of twelve men, and not by 
 the judges ; except the same particular custom 
 has been before tried, determined, and re- 
 corded in the same court, (e) 
 
 The customs of London differ from all others 
 in point of trial: for, if the existence of the 
 custom be brought in question, it shall not be 
 tried by a jury, but by certificate from the lord 
 mayor and aldermen by the mouth of their 
 recorder ;(/) unless it be such a custom as the 
 corporation is itself interested in, as a right of 
 taking toll, &c. , for then the law permits them 
 not to certify on their own behalf, (g) 
 
 When a custom is actually proved to exist, 
 the next inquiry is into the legality of it ; for, 
 if it is not a good custom, it ought to be no 
 longer used; Malus usus abolendus est, is an 
 established maxim of the law. (h) To make a 
 particular custom good, the following are 
 necessary requisites. 
 
 i. That it have been used so long, that the 
 memory of man runneth not to the contrary. 
 So that, if any one can shew the beginning of 
 it, is no good custom. For which reason no 
 
 (<?) Dr. and St. i. 10. (/) Cro. Car. 516. 
 
 (g) Hob. 85. {h) Litt. §212. 4 Inst. 274. 
 
HOW TO STUDY LAW. 171 
 
 custom can prevail against an express # 
 act of *parliament, since the statute L 77J 
 itself is a proof of a time when such a custom 
 did not exist. (z) 
 
 2. It must have been continued. Any inter- 
 ruption would cause a temporary ceasing: the 
 revival gives it a new beginning, which will be 
 within time of memory, and thereupon the 
 custom will be void. But this must be under- 
 stood with regard to an interruption of the 
 right; for an interruption of the possession 
 only, for ten or twenty years, will not destroy 
 the custom. (J) As if the inhabitants of a 
 parish have a customary right of watering 
 their cattle at a certain pool, the custom is not 
 destroyed, though they do not use it for ten 
 years ; it only becomes more difficult to prove : 
 but if the right be any how discontinued for a 
 day, the custom is quite at an end. 
 
 3. It must have been peaceable, and acqui- 
 esced in; not subject to contention and dis- 
 pute, (k) For as customs owe their original to 
 common consent, their being immemorially 
 disputed, either at law or otherwise, is a proof 
 that such consent was wanting. 
 
 4. Customs must be reasonable; (/) or rather, 
 taken negatively, they must not be unreason- 
 able. Which is not always, as Sir Edward 
 Coke says, (in) to be understood of every un- 
 
 (*) Co. Litt. 114. {j ) Co. Litt. 114. 
 
 (k) Ibid. (I) Litt. § 212. (m) 1 Inst 62. 
 
172 HOW TO STUDY LAW. 
 
 learned man's reason, but of artificial and legal 
 reason, warranted by authority of law. Upon 
 which account custom may be good, though the 
 particular reason of it cannot be assigned ; for 
 it sufficeth, if no good legal reason can be 
 assigned against it. Thus a custom in a parish, 
 that no man shall put his beasts into the com- 
 mon till the third of October, would be good ; 
 and yet it would be hard to shew the reason 
 why that day in particular is fixed upon, rather 
 than the day before or after. But a custom, 
 that no cattle shall be put in till the lord of 
 the manor has first put in his, is unreason- 
 able, and therefore bad: for peradventure the 
 lord will never put in his, and then the tenants 
 will lose all their profits, (w) 
 r* o-\ *S- Customs ought to be certain. A 
 
 L ■* custom, that lands shall descend to the 
 must worthy of the owner's blood, is void; for 
 how shall this worth be determined? but a cus- 
 tom to descend to the next male of the blood, 
 exclusive of females, is certain, and therefore 
 good, (o) A custom to pay two-pence an acre in 
 lieu of tithes, is good; but to pay sometimes 
 two-pence, and sometimes three-pence, as the 
 occupier of the land pleases, is bad for its 
 uncertainty. Yet a custom, to pay a year's 
 improved value for a fine on a copyhold estate, 
 is good; though the value is a thing uncertain: 
 
 (») Co. Copyh. § 33. (p) 1 Roll. Abr. 565. 
 
HOW TO STUDY LAW. 173 
 
 for the value may at any time be ascertained ; 
 and the maxim of law is, id certum est, quod 
 certum reddi potest. 
 
 6. Customs, though established by consent, 
 must be (when established) compulsory; and 
 not left to the option of every man, whether he 
 will use them or no. Therefore a custom, 
 that all the inhabitants shall be rated towards 
 the maintenance of a bridge, will be good ; but 
 a custom that every man is to contribute 
 thereto at his own pleasure, is idle and absurd, 
 and indeed no custom at all. 
 
 7. Lastly, customs must be consistent with 
 each other: one custom cannot be set up in 
 opposition to another. For if both are really 
 customs, then both are of equal antiquity, and 
 both established by mutual consent : which to 
 say of contradictory customs is absurd. There- 
 fore, if one man prescribes that by custom he 
 has a right to have windows looking into an- 
 other's garden; the other cannot claim a right 
 by custom to stop up or obstruct those win- 
 dows : for these two contradictory customs can- 
 not both be good, nor both stand together. 
 He ought rather to deny the existence of the 
 former custom, (p ) 
 
 Next, as to the allowance of special customs. 
 Customs, in derogation of the common law, 
 must be construed strictly. Thus, by the cus- 
 tom of gavelkind, an infant of fifteen years 
 
 (J) 9 Rep. 58. 
 
174 HOW TO STUDY LAW. 
 
 *may, by one species of conveyance, (called a 
 rslc _ deed of feoffment,) convey away his 
 J lands in fee simple, or forever. Yet 
 this custom does not impower him to use any 
 other conveyance, or even to lease them for 
 seven years • for the custom must be strictly 
 pursued.^) And, moreover, all special cus- 
 toms must submit to the king's prerogative. 
 Therefore, if the king purchases lands of the 
 nature of gavelkind, where all the sons inherit 
 equally; yet, upon the king's demise, his eldest 
 son shall succeed to those lands alone, (r) And 
 thus much for the second part of the leges non 
 scriptce, or those particular customs which 
 affect particular persons or districts only. 
 
 III. The third branch of them are those 
 peculiar laws, which by custom are adopted 
 and used only in certain peculiar courts and 
 jurisdictions. And by these I understand the 
 civil and canon laws, (s) 
 
 It may seem a little improper at first view to 
 rank these laws under the head of leges non 
 scriptce, or unwritten laws, seeing they are set 
 forth by authority in their pandects, their 
 codes, and their institutions; their councils, 
 decrees, and decretals; and enforced by an 
 immense number of expositions, decisions, and 
 treatises of the learned in both branches of the 
 law. But I do this, after the example of Sir 
 
 (q) 9 Co. Cop. §33 (r) Co. Litt. 15. 
 
 (s) Hist. C. L. c. 2. (/) Hist. C. L. c. 2. 
 
HOW TO STUDY LAW. 175 
 
 Matthew Hale, (t) because it is most plain, 
 that it is not on account of their being written 
 laws that either the canon law, or the civil law, 
 have any obligation within this kingdom: 
 neither do their force and efficacy depend upon 
 their own intrinsic authority, which is the case 
 of our written laws, or acts of parliament. 
 They bind not the subjects of England, 
 because their materials were collected from 
 popes or emperors; were digested by Jus- 
 tinian, or declared to be authentic by Gregory. 
 These considerations give them no authority 
 here; for the legislature of England doth not, 
 nor ever did, recognize any foreign power as 
 superior or equal to it in this kingdom, or as 
 having the right to give law to any, the mean- 
 est, of its subjects. But all the *strength that 
 either the papal or imperial laws have r 1 
 obtained in this realm, or indeed in "• -* 
 any other kingdom in Europe, is only because 
 they have been admitted and received by im- 
 memorial usage and custom in some particular 
 cases, and some particular courts; and then 
 they form a branch of the leges non scriptce, or 
 customary laws ; or else because they are in 
 some other cases introduced by consent of 
 parliament, and they owe their validity to the 
 leges scriptce, or statute law. This is expressly 
 declared in those remarkable words of the 
 statute 25 Hen. VIII, c. 21, addressed to the 
 king's royal majesty: "This your grace's 
 
ij6 HOW TO STUDY LAW. 
 
 realm, recognizing no superior under God but 
 only your grace, hath been and is free from 
 subjection to any man's laws, but only to such 
 as have been devised, made, and ordained 
 within this realm, for the wealth of the same ; 
 or to such other as, by sufferance of your grace 
 and your progenitors, the people of this your 
 realm have taken at their free liberty, by their 
 own consent, to be used among them; and 
 have bound themselves by long use and custom 
 to the observance of the same ; not as to the 
 observance of the laws of any foreign prince, 
 potentate, or prelate; but as to the customed 
 and ancient laws of this realm, originally 
 established as laws of the same, by the said 
 sufferance, consents, and custom; and none 
 otherwise. ' ' 
 
 By the civil law, absolutely taken, is gener- 
 ally understood the civil or municipal law of 
 the Roman empire, as comprised in the insti- 
 tutes, the code, and the digest of the emperor 
 Justinian, and the novel constitutions of him- 
 self and some of his successors. Of which, 
 as there will frequently be occasion to cite 
 them, by way of illustrating our own laws, it 
 may not be amiss to give a short and general 
 account. 
 
 The Roman law (founded first upon the 
 regal constitutions of their ancient kings, next 
 upon the twelve tables of the decemviri, then 
 upon the laws or statutes enacted by the senate 
 
HOW TO STUDY LAW. 177 
 
 or people, the edicts of the praetor, and .. 
 
 the responsa prudentum, or opinions of *■ ^ 
 learned lawyers, *and lastly upon the imperial 
 decrees, or constitutions of successive em- 
 perors,) had grown to so great a bulk, or, as 
 Livy expresses it, (u) "tarn immensus aliarum 
 super alias ascervatarum legum cumulus," that 
 they were computed to be many camels' load 
 by an author who preceded Justinian, (v) This 
 was in part remedied by the collections of 
 three private lawyers, Gregorius, Hermogenes, 
 and Papirius ; and then by the emperor Theo- 
 dosius the younger, by whose orders a code 
 was compiled A. D. 438, being a methodical 
 collection of all the imperial constitutions then 
 in force : which Tteodosian code was the only 
 book of civil law received as authentic in the 
 western part of Europe till many centuries 
 after; and to this it is probable that the 
 Franks and Goths might frequently pay some 
 regard, in framing legal constitutions for their 
 newly erected kingdoms; for Justinian com- 
 manded only in the eastern remains of the 
 empire ; and it was under his auspices that the 
 present body of civil law was compiled and 
 finished by Tribonian and other lawyers, about 
 the year 533. 
 
 This consists of, 1. The institutes, which 
 contain the elements or first principles of the 
 Roman law in four books. 2. The digest, or 
 
 («) /. 3. c. 34. (v) Taylor's Elements of Civil Law, 17. 
 
178 HOW TO STUDY LAW. 
 
 pandects, in fifty books; containing the opin- 
 ions and writings of eminent lawyers, digested 
 in a systematical method. 3. A new code, or 
 collection of imperial constitutions, in twelve 
 books; the lapse of a whole century having 
 rendered the former code of Theodosius imper- 
 fect. 4. The novels, or new constitutions, 
 posterior in time to the other books, and 
 amounting to a supplement to the code ; con- 
 taining new decrees of successive emperors, as 
 new questions happened to arise. These form 
 the body of Roman law, or corpus juris civilis, 
 as published about the time of Justinian; 
 which, however, fell soon into neglect and 
 oblivion, till about the year 1130, when a copy 
 of the digests was found at Amalfi, in Italy; 
 which accident, concurring with the policy of 
 the Roman ecclesiastics, {w) suddenly gave 
 new vogue and authority to the civil law, 
 
 ra ,„ -, introduced it into several nations, and 
 
 82 
 L J ''occasioned that mighty inundation of 
 
 voluminous comments, with which this system 
 of law, more than any other, is now loaded. 
 
 The canon law is a body of Roman ecclesias- 
 tical law, relative to such matters as that 
 church either has, or pretends to have, the 
 proper jurisdiction over. This is compiled 
 from the opinions of the ancient Latin fathers, 
 the decrees of general councils, and decretal 
 epistles and bulls of the holy see; all which 
 
 (w) See §i, page 18. 
 
HOW TO STUDY LAW. 179 
 
 lay in the same disorder and confusion as the 
 Roman civil law, till, about the year 1151, one 
 Gratian, an Italian monk, animated by the dis- 
 covery of Justinian's pandects, reduced the 
 ecclesiastical constitutions also into some 
 method, in three books, which he entitled 
 Concordia Discordantium Canonum, but 
 which are generally known by the name of 
 Decretum Gratiani. These reached as low as 
 the time of Pope Alexander III. The subse- 
 quent papal decrees, to the pontificate of 
 Gregory IX, were published in much the same 
 method, under the auspices of that pope, 
 about the year 1230, in five books, entitled 
 Decretalia Gregorii Noni. A sixth book was 
 added by Boniface VIII, about the year 1298, 
 which is called Sextus Decretalium. The 
 Clementine constitutions, or decrees of Clem, 
 ent V, were in like manner authenticated in 
 131 7, by his successor John XXII, who also 
 published twenty constitutions of his own, 
 called the Extravagantes Joannis, all which in 
 some measure answer to the novels of the 
 civil law. To these have been since added 
 some decrees of later popes, in five books, 
 called Extravagantes Communes: and all these 
 together, Gratian's decree, Gregory's decretals, 
 the sixth decretals, the Clementine constitu- 
 tions, and the extravagants of John and his 
 successors, form the corpus juris canonici, or 
 body of the Roman canon law. 
 
180 HOW TO STUDY LAW. 
 
 Besides these pontifical collections, which, 
 during the times of popery, were received as 
 authentic in this island, as well as in other 
 parts of Christendom, there is also a kind of 
 national canon law, composed of legatine and 
 Provincial constitutions, and adapted only to 
 ^ , the exigencies of this church* and king- 
 L - 1 dom. The legatine constitutions were 
 ecclesiastical laws, enacted in national synods, 
 held under the cardinals Otho and Othobon, 
 legates from Pope. Gregory IX and Pope 
 Clement IV, in the reign of King Henry III, 
 about the years 1220 and 1268. The provincial 
 constitutions are principally the decrees of 
 provincial synods, held under divers arch- 
 bishops of Canterbury, from Stephen Langton, 
 in the reign of Henry III, to Henry Chichelle, 
 in the reign of Henry V ; and adopted also by 
 the province of York (x) in the reign of Henry 
 VI. At the dawn of the reformation, in the 
 reign of King Henry VIII, it was enacted in 
 parliament {y) that a review should be had of 
 the canon law ; and, till such review should be 
 made, all canons, constitutions, ordinances, 
 and synodals provincial, being then already 
 made, and not repugnant to the law of the 
 land or the king's prerogative, should still be 
 used and executed. And, as no such review 
 
 (x) Burn's Eccl. Law, pref. viii. 
 
 (y) Statute 25 Hen. VIII. c. 19, revived and confirmed 
 by 1 Eliz. c. 1. 
 
HOW TO STUDY LAW. 181 
 
 has yet been perfected, upon this statute now de- 
 pends the authority of the canon law in England. 
 
 As for the canons enacted by the clergy under 
 James I in the year 1603, and never confirmed 
 in parliament, it has been solemnly adjudged 
 upon the principles of law and the constitution, 
 that where they are not merely declaratory of 
 the ancient canon law, but are introductory of 
 new regulations, they do not bind the laity, (z) 
 whatever regard the clergy may think proper 
 to pay them. 
 
 There are four species of courts in which 
 the civil and canon laws are permitted, under 
 different restrictions, to be used:- 1. The 
 courts of the archbishops and bishops, and 
 their derivative officers, usually called in our 
 law courts Christian curice Christianitatis, or 
 the ecclesiastical courts. 2. The military 
 courts. 3. The courts of admiralty. 4. The 
 courts of the two universities. In all, their 
 reception in general, and the different degrees 
 of that reception, are grounded entirely upon 
 custom, corroborated in the latter instance by 
 act of *parliament, ratifying those charters 
 which confirm the customary law of ^ 
 the universities. The more minute L - 1 
 consideration of these will fall properly under 
 that part of these commentaries which treats 
 of the jurisdiction of courts. It will suffice at 
 present to remark a few particulars relative to 
 
 (z) Stra. 1057. 
 
1 82 HOW TO STUDY LAW. 
 
 them all, which may serve to inculcate more 
 strongly the doctrine laid down concerning 
 them, (a) 
 
 i. And, first, the courts of common law 
 have the superintendency over these courts ; to 
 keep them within their jurisdictions, to deter- 
 mine wherein they exceed them, to restrain 
 and prohibit such excess, and, in case of con- 
 tumacy, to punish the officer who executes, and 
 in some cases the judge who enforces, the 
 sentence so declared to be illegal. 
 
 2. The common law has reserved to itself 
 the exposition of all such acts of parliament as 
 concern either the extent of these courts, or 
 the matters depending before them. And 
 therefore, if these courts either refuse to allow 
 these acts of parliament, or will expound them 
 in any other sense than what the common law 
 puts upon them, the king's courts at Westmin- 
 ster will grant prohibitions to restrain and con- 
 trol them. 
 
 3. An appeal lies from all these courts to the 
 king, in the last resort ; which proves that the 
 jurisdiction exercised in them is derived from 
 the crown of England, and not from any foreign 
 potentate, or intrinsic authority of their own. 
 And, from these three strong marks and 
 ensigns of superiority, it appears beyond a 
 doubt that the civil and canon laws, though 
 admitted in some cases by custom in some 
 
 (a) Hale, Hist. c. 2. 
 
HOW TO STUDY LAW. 183 
 
 courts, are only subordinate, and leges sub 
 graviori lege; and that, thus admitted, re- 
 strained, altered, new-modeled, and amended, 
 they are by no means with us a distinct inde- 
 pendent species of laws, but are inferior 
 branches of the customary or unwritten laws 
 of England, properly called the king's ecclesi- 
 astical, the king's military, the king's maritime, 
 or the king's academical laws. 
 
 *Let us next proceed to the leges _ 
 scriptce, the written laws of the king- *■ $1 
 dom, which are statutes, acts or edicts, made 
 by the king's majesty, by and with the advice 
 and consent of the lords spiritual and temporal, 
 and commons in parliament assembled. (5) 
 The oldest of these now extant, and printed in 
 our statute books, is the famous magna charta, 
 as confirmed in parliament 9 Hen. Ill, though 
 doubtless there were many acts before that 
 time, the records of which are now lost, and 
 the determinations of them perhaps at present 
 currently received for the maxims of the old 
 common law. 
 
 The manner of making these statutes will be 
 better considered hereafter, when we examine 
 the constitution of parliaments. At present 
 we will only take notice of the different kinds 
 of statutes, and of some general rules with 
 regard to their construction, (c) 
 
 (6)8 Rep. 20. 
 
 (c) The method of citing these acts of parliament is 
 
184 HOW TO STUDY LAW. 
 
 First, as to their several kinds. Statutes are 
 either general or special, public or private. A 
 r*o fi i general or public act is an ""universal 
 L J rule, that regards the whole com- 
 munity; and of this the courts of law are 
 bound to take notice judicially and ex officio; 
 
 various. Many of our ancient statutes are called after 
 the name of the place where the parliament was held 
 that made them ; as the statutes of Merton and Marle- 
 berge, of Westminster, Gloucester, and Winchester. 
 Others are denominated entirely from their subject, as 
 the statutes of Wales and Ireland, the articuli cleri, and 
 the prcsrogativa regis. Some are distinguished by their 
 initial words, a method of citing very ancient, being used 
 by the Jews in denominating the books of the Penta- 
 teuch: by the Christian church in distinguishing their 
 hymns and divine offices: by the Romanists in describ- 
 ing their papal bulls ; and, in short, by the whole body 
 of ancient civilians and canonists, among whom this 
 method of citation generally prevailed, not only with 
 regard to chapters, but inferior sections also ; in imitation 
 of all which we still call some of our old statutes by their 
 initial words, as the statute of quia emptores, and that 
 of circumspecte agatis. But the most usual method of 
 citing them, especially since the time of Edward the 
 Second, is by naming the year of the king's reign in 
 which the statute was made, [together with the chapter, 
 or particular act, according to its numeral order, as g 
 Geo. II. c. 4, for all the acts of one session of Parliament 
 taken together made properly but one statute; and there- 
 fore when two sessions have been held in one year, we 
 usually mention stat. i or 2. Thus the bill of rights is 
 cited as 1 W. and M. St. 2. c. 2, signifying that it is the 
 second chapter or act of the second statute, or the laws 
 made in the second session of parliament, in the first year 
 of King William and Queen Mary. 
 
HOW TO STUDY LAW. 185 
 
 without the statute being particularly pleaded, 
 or formally set forth by the party who claims 
 an advantage under it. Special or private acts 
 are rather exceptions than rules, being those 
 which only operate upon particular persons, 
 and private concerns; such as the Romans 
 entitled senatus-decreta, in contradistinction to 
 the senatus consulta, which regarded the whole 
 community; (d) and of these (which are not 
 promulgated with the same notoriety as the 
 former,) the judges are not bound to take 
 notice, unless they be formally shewn and 
 pleaded. Thus, to show the distinction, the 
 statute 13 Eliz. c. 10, to prevent spiritual per- 
 sons from making leases for longer terms than 
 twenty-one years, or three lives, is a public 
 act; it being a rule prescribed to the whole 
 body of spiritual persons in the nation; but an 
 act to enable the bishop of Chester to make a 
 lease to A. B. for sixty years is an exception to 
 this rule ; it concerns only the parties and the 
 bishop's successors ; and is therefore a private 
 act. 
 
 Statutes also are either declaratory of the 
 common law, or remedial of some defects 
 therein. Declaratory where the old custom of 
 the kingdom is almost fallen into disuse, or 
 become disputable ; in which case the parlia- 
 ment has thought proper, in perpetuum rei 
 tetimonium, and for avoiding all doubts and 
 
 (d) Gravin, Orig. i. §24. 
 
186 . HOW TO STUDY LAW. 
 
 difficulties, to declare what the common law is 
 and ever hath been. Thus the statute of 
 treasons, 25 Edw. Ill, cap. 2, doth not make 
 any new species of treasons, but only, for the 
 benefit of the subject, declares and enumerates 
 those several kinds of offence which before 
 were treason at the common law. Remedial 
 statutes are those which are made to supply 
 such defects, and abridge such superfluities, in 
 the common law, as arise either from the gen- 
 eral imperfection of all human laws, from 
 change of time and circumstances, from the 
 mistakes and unadvised determinations of 
 unlearned (or even learned) Judges, or from 
 any other cause whatsoever. And this being 
 done, either by enlarging the common law, 
 where it was too narrow and circumscribed, or 
 r*o -1 by restraining it *where it was too lax 
 "- - 1 and luxuriant, hath occasioned another 
 subordinate division of remedial acts of parlia- 
 ment into enlarging and restraining statutes. 
 To instance again in the case of treason: clip- 
 ping the current coin of the kingdom was an 
 offence not sufficiently guarded against by the 
 common law; therefore it was thought expe- 
 dient, by statute 5 Eliz. c. 11, to make it high 
 treason, which it was not at the common law: 
 so that this was an enlarging statute. At com- 
 mon law also spiritual corporations might 
 lease out their estates for any term of years till 
 prevented by the statute 13 Eliz. before men- 
 
HOW TO STUDY LAW. 187 
 
 tioned: this was therefore, . a restraining 
 statute. 
 
 Secondly, the rules to be observed with re- 
 gard to the construction of statutes are prin- 
 cipally these which follow. 
 
 1. There are three points to be considered in 
 the construction of all remedial statutes; the 
 old law, the mischief, and the remedy: that is, 
 how the common law stood at the making of 
 the act ; what the mischief was, for which the 
 common law did, not provide; and what 
 remedy the parliament hath provided to cure 
 this mischief. And it is the business of the 
 judges so to construe the act as to suppress the 
 mischief and advance the remedy, (e) Let us 
 instance again in the same restraining statute 
 of 13 Eliz. c. 10: By the common law, ecclesi- 
 astical corporations might let as long leases as 
 they thought proper: the mischief was, that 
 they let long and unreasonable leases, to the 
 impoverishment of their successors ; the rem- 
 edy applied by the statute was by making void 
 all leases by ecclesiastical bodies for longer 
 terms than three lives, or twenty-one years. 
 Now in the construction of this statute, it is 
 held that leases, though for a longer term, if 
 made by a bishop, are not void during the 
 bishop's continuance in his see: or, if made by 
 a dean and chapter, they are not void during 
 the continuance of the dean , for the act was 
 {e) 3 Rep. 7 Co. Litt. 11. 42. 
 
188 HOW TO STUDY LAW. 
 
 made for the benefit and protection of the suc- 
 cessor^/) The mischief is therefore suffi- 
 r* i ciently suppressed by vacating them 
 *■ ■" after the determination of the interest 
 of the *grantors ; but the leases, during their 
 continuance, being not within the mischief, 
 are not within the remedy. 
 
 2. A statute, which treats of things or per- 
 sons of an inferior rank, cannot by any general 
 words be extended to those of a superior. So 
 a statute, treating of "deans, prebendaries, 
 parsons, vicars, and others having spiritual 
 promotion, ' ' is held not to extend to bishops, 
 though they have spiritual promotion, deans 
 being the highest persons named, and bishops 
 being of a still higher order, (g ) 
 
 3. Penal statutes must be construed strictly. 
 Thus the statute 1 Edw, VI, c. 12, having 
 enacted that those who are convicted of steal- 
 ing horses should not have the benefit of clergy, 
 the judges conceived that this did not extend 
 to him that should steal but one horse, and 
 therefore procured a new act for that purpose 
 in the following year, (h) And, to come nearer 
 our own times, by the statute 14 Geo. II, c. 6, 
 stealing sheep, or other cattle, was made 
 felony, without benefit of clergy. But these 
 general words, "or other cattle," being looked 
 
 (/) Co. Litt. 45. 3 Rep. 60. 10 Rep. 58. 
 
 (.g) 2 Rep. 46. 
 
 (k) 2 and 3 Edw. VI. c. 33. Bac. Elem c. 12. 
 
HOW TO STUDY LAW. 189 
 
 upon as much too loose to create a capital 
 offence, the act was held to extend to nothing 
 but mere sheep. And therefore, in the next 
 sessions, it was found necessary to make an- 
 other statute, 15 Geo. II, c. 34, extending the 
 former to bulls, cows, oxen, steers, bullocks, 
 heifers, calves and lambs, by name. 
 
 4. Statutes against frauds are to be liberally 
 and beneficially expounded. This may seem a 
 contradiction to the last rule; most statutes 
 against frauds being in their consequences 
 penal. But this difference is here to be taken: 
 where the statute acts upon the offender, and 
 inflicts a penalty, as the pillory or a fine, it is 
 then to be taken strictly ; but when the statute 
 acts upon the offence, by setting aside the 
 fraudulent transaction, here it is to be construed 
 liberally. Upon this footing the statute of 13 
 Eliz. c. s, which avoids all gifts of goods, &c, 
 made to defraud creditors and others, was 
 *held to extend by the general words to ^ .. 
 a gift made to defraud the queen of a L 9J 
 forfeiture, (z) 
 
 One part of a statute must be so construed 
 by another, that the whole may (if possible) 
 stand: ut res magis valeat, quam per eat. As if 
 land be vested in the king and his heirs by act 
 of parliament, saving the right of A., and A. 
 has at that time a lease of it for three years : 
 here A. shall hold it for his term of three 
 
 (?) 3 Rep. 82. 
 
190 HOW TO STUDY LAW. 
 
 years, and afterwards it shall go to the king. 
 For this interpretation furnishes matter for 
 every clause of the statute to work and oper- 
 ate upon. But, 
 
 6. A saving, totally repugnant to the body 
 of the act, is void. If, therefore, an act of 
 parliament vests land in the king and his heirs, 
 saving the right of all persons whatsoever; or 
 vests the land of A. in the king, saving the 
 right of A. ; in either of these cases the saving 
 is totally repugnant to the body of the statute, 
 and (if good) would render the statute of no 
 effect or operation ; and therefore the saving is 
 void, and the land vests absolutely in the 
 king.(£) 
 
 7. Where the common law and the statute 
 differ, the common law gives place to the 
 statute; and an old statute gives place to a 
 new one. And this upon a general principle of 
 universal law, that ''''leges posterior es, prior es 
 contr arias abrogant;" consonant to which it 
 was laid down by a law of the twelve tables at 
 Rome, that "quodpopulus postremum Jussit, id 
 jus ratum esto. ' ' But this is to be understood, 
 only when the latter statute is couched in 
 negative terms, or where its matter is so 
 clearly repugnant, that it necessarily implies a 
 negative. As if a former act says, that a juror 
 upon such a trial shall have twenty pounds a 
 year; and a new statute afterwards enacts, 
 
 (k) 1 Rep. 47. 
 
HOW TO STUDY LAW. 191 
 
 that he shall have twenty marks: here the 
 latter statute, though it does not express, yet 
 necessarily implies a negative, and virtually 
 repeals the former. For if twenty marks be 
 made qualification sufficient, the former statute 
 which requires twenty pounds is at an „ .. 
 end. (/) But, if both acts be merely «■ 9 J 
 affirmative, *and the substance such that both 
 may stand together, here the latter does not 
 repeal the former, but they shall both have a 
 concurrent efficacy. If by a former law an 
 offence be indictable at the quarter-sessions, 
 and a latter law makes the same offence 
 indictable at the assizes; here the jurisdiction 
 of the sessions is not taken away, but both 
 have a concurrent jurisdiction, and the offender 
 may be prosecuted at either: unless the new 
 statute subjoins express negative words, as, 
 that the offence shall be indictable at the 
 assizes, and not elsewhere, (m) 
 
 8. If a statute, that repeals another, is itself 
 repealed afterwards, the first statute is hereby 
 revived, without any formal words for that 
 purpose. So when the statutes of 26 and 35 
 Henry VIII, declaring the king to be the 
 supreme head of the church, were repealed by 
 a statute 1 and 2 Philip and ..Mary, and this 
 latter statute was afterwards repealed by an act 
 of 1 Eliz. there needed not any express words 
 of revival in Queen Elizabeth's statute, but 
 
 (/) Jenk. Cent. 2. 73. (tri) 11 Rep. 63. 
 
19* HOW TO STUDY LAW. 
 
 these acts of King Henry were impliedly and 
 virtually revived. («) 
 
 9. Acts of parliament derogatory from the 
 power pi subsequent parliaments bind not. So 
 the statute n Hen. VII, c. 1, which directs 
 that no person for assisting a king de facto 
 shall be attainted of treason by act of parlia- 
 ment or otherwise, is held to be good only as 
 to common prosecution for high treason ; but 
 will not restrain or clog any parliamentary 
 attainder, (o) Because the legislature, being 
 in truth the sovereign power, is always of 
 equal, always of absolute authority ; it acknowl- 
 edges no supeiior upon earth which the prior 
 legislature must have been, if its ordinances 
 could bind a subsequent parliament. And 
 upon the same principle Cicero, in his letters 
 to Atticus, treats with a proper contempt these 
 restraining clauses, which endeavor to tie up 
 the hands of succeeding legislatures. "When 
 r# 1 you repeal the *law itself, (says he,) you 
 L J at the same time repeal the prohibitory 
 clause, which guards against such repeal." (p) 
 
 10. Lastly, acts of parliament that are im- 
 possible to be performed are of no validity; 
 and if there arise out of them collaterally any 
 absurd consequences, manifestly contradictory 
 to common reason, they are, with regard to 
 
 (») 4 Inst. 325. (o) 4 Inst. 43. 
 
 ( p) Cum lex abrogatur, Mud ipsum abrogatur, quo 
 non earn abrogari oporteat. I. 3. cp. 23. 
 
HOW TO STUDY LAW. 193 
 
 those collateral consequences void. I lay 
 down the rule with these restrictions ; though 
 I know it is generally laid down more largely, 
 the acts of parliament contrary to reason are 
 void. But if the parliament will positively 
 enact a thing to be done which is unreason- 
 able I know of no power in the ordinary forms 
 of the constitution that is vested with author- 
 ity to control it ; and the examples usually al- 
 leged in support of this sense of the rule do 
 none of them prove, that, where the main 
 object of a statute is unreasonable, the judges 
 are at liberty to reject it ; for that were to set 
 the judicial power above that of the legislature, 
 which would be subversive of all government. 
 But where some collateral matter arises out of 
 the general words, and happens to be unrea- 
 sonable, there the judges are in decency to 
 conclude that this consequence was not fore- 
 seen by the parliament, and therefore they are 
 at liberty to expound the statute by equity, 
 and only quoad hoc disregard it. Thus if an 
 act of parliament gives a man power to try all 
 causes, that arise within his manor of Dale; 
 yet, if a cause should arise in which he himself 
 is party, the act is construed not to extend to 
 that, because it is unreasonable that any man 
 should determine his own quarrel, (y) But, if 
 we. could conceive it possible for the parlia- 
 ment to enact, that he should try as well his 
 (g) 8. Rep. 11S. 
 
194 HOW TO STUDY LAW. 
 
 own causes as those of other persons, there is 
 no court that has power to defeat the intent of 
 the legislature, when couched in such evident 
 and express words, as leave no doubt whether 
 it was the intent of the legislature or no. 
 
 These are the several grounds of the laws of 
 -% , England; over and above which, 
 *■ - 1 equity is also freqently called in to 
 *assist, to moderate and to explain them. 
 What equity is, and how impossible in its very 
 essence to be reduced to stated rules, hath 
 been shewn in the preceding section. I shall 
 therefore only add, that (besides the liberality 
 of sentiment with which our common law 
 judges interpret acts of parliament, and such 
 rules of the unwritten law as are not of a posi- 
 tive kind) there are also peculiar courts of 
 equity established for the benefit of the sub- 
 ject: to detect latent frauds and concealments, 
 which the process of the courts of law is not 
 adapted to reach ; to enforce the execution of 
 such matters of trust and confidence, as are 
 binding in conscience, though not cognizable 
 in a court of law; to deliver from such dangers 
 as are owing to misfortune or oversight; and 
 to give a more specific relief, and more adapted 
 to the circumstances of the case, than can 
 always be obtained by the generality of the 
 rules of the positive or common law. This is 
 the business of our courts of equity, which how- 
 ever are only conversant in matters of prop- 
 
HOW TO STUDY LAW. 195 
 
 erty. For the freedom of our constitution will 
 not permit, that in criminal cases a power 
 should be lodged in any judge, to construe the 
 law otherwise than according to the letter. 
 This caution, while it admirably protects the 
 public liberty, can never bear hard upon indi- 
 viduals. A man cannot suffer more punish- 
 ment than the law assigns, but he may suffer 
 less. The laws cannot be strained by partiality 
 to inflict a penalty beyond what the letter will 
 warrant ; but, in cases where the letter induces 
 any apparent hardship, the crown has the 
 power to pardon. 
 
BOOK THE FIRST 
 
 OF THE RIGHTS OF PERSONS 
 CHAPTER I 
 
 OF THE ABSOLUTE RIGHTS OF INDIVIDUALS 
 
 The objects of the laws of England are so 
 very numerous and extensive, that in order to 
 consider them with any tolerable ease and 
 perspicuity, it will be necessary to distribute 
 them methodically, under proper and distinct 
 heads ; avoiding as much as possible divisions 
 too large and comprehensive on the one hand, 
 and too trifling and minute on the other; both 
 of which are equally productive of confusion. 
 
 *Now, as municipal law is a rule of ra , ., 
 
 122 
 
 civil conduct, commanding what is L J 
 right, and prohibiting what is wrong; or as 
 Cicero, (a) and after him our Bracton, (b) 
 have expressed it, sanctio justa, jubens honesta 
 et prohibens contraria, it follows that the pri- 
 mary and principal objects of the law are 
 rights and wrongs. In the prosecution, 
 therefore, of these commentaries, I shall fol- 
 low this very simple and obvious division; 
 
 (A) ii Philipp. 12. fj>) I. i. e. 3. 
 
 197 
 
198 HOW TO STUDY LAW. 
 
 and shall, in the first place, consider the rights 
 that are commanded, and secondly the wrongs 
 that are forbidden, by the laws of England. 
 
 Rights are, however, liable to another sub- 
 division; being either, first, those which con- 
 cern and are annexed to the persons of men, 
 and are then called jura personarum, or the 
 rights of persons; or they are, secondly, such 
 as a man may acquire over external objects, 
 or things unconnected with his person; which 
 are styled jura rerum., or the rights of things. 
 Wrongs also are divisible into, first, private 
 wrongs, which, being an infringement merely 
 of particular rights, concern individuals only, 
 and are called civil injuries; and secondly, 
 public wrongs, which, being a breach of gen- 
 eral and public rights, affect the whole com- 
 munity, and are called crimes and misde- 
 meanors. 
 
 The objects of the laws of England falling 
 into this fourfold division, the present com- 
 mentaries will therefore consist of the four 
 following parts. 1 . The rights of persons, with 
 the means whereby such rights may be either 
 acquired or lost. 2. The rights of things, •with 
 the means also of acquiring and losing them. 
 3. Private wrongs, or civil injuries; with the 
 means of redressing them by law. 4. Public 
 wrongs, or crimes and misdemeanors ; with the 
 means of prevention and punishment. 
 
 We are now first to consider the rights of 
 
HOW TO STUDY LAW. 199 
 
 persons, with the means of acquiring and los- 
 ing them. 
 
 *Now the rights of persons that are 
 commanded to be observed by the ^ ^ 
 municipal laws are of two sorts : first, such as 
 are due from every citizen, which are usually 
 called civil duties; and, secondly, such as 
 belong to him, which is the more popular 
 acceptance of rights or jura. Both may in- 
 deed be comprised in this latter division ; for, 
 as all social duties are of a relative nature, at 
 the same time that they are due from one 
 man, or set of men, they must also be due to 
 another. But I apprehend it will be more 
 clear and easy to consider many of them as 
 duties required from, rather than as rights 
 belonging to, particular persons. Thus, for 
 instance, allegiance is usually, and therefore 
 most easily, considered as the duty of the 
 people, and protection as the duty of the mag- 
 istrate; and yet they are reciprocally the rights 
 as well as duties of each other. Allegiance is 
 the right of the magistrate, and protection the 
 right of the people. 
 
 Persons also are divided by the law into 
 either natural persons, or artificial. Natural 
 persons are such as the God of nature formed 
 us; artificial are such as are created and de- 
 vised by human laws for the purposes of 
 society and government, which are called cor- 
 porations or bodies politic. 
 
*oo HOW TO STUDY LAW. 
 
 The rights of persons considered in their 
 natural capacities are also of two sorts, abso- 
 lute and relative. Absolute, which are such 
 as appertain and belong to particular men, 
 merely as individuals or single persons: rela- 
 tive, which are incident to them as members 
 of society, and standing in various relations to 
 each other. The first, that is, absolute rights, 
 will be the subject of the present chapter. 
 
 By the absolute rights of individuals, we 
 mean those which are so in their primary and 
 strictest sense ; such as would belong to their 
 persons merely in a state of nature, and which 
 every man is entitled to enjoy, whether out of 
 rs|c , society or in it. But with regard to 
 *• -* the absolute duties, which man is bound 
 *to perform considered as a mere individual, 
 it is not to be expected that any human munic- 
 ipal law should at all explain or enforce them. 
 For the end and intent of such laws being only 
 to regulate the behaviour of mankind, as they 
 are members of society, and stand in various 
 relations to each other, they have consequently 
 no concern with any other but social or relative 
 duties. Let a man therefore be ever so aban- 
 doned in his principles, or vicious in his prac- 
 tice, provided he keeps his wickedness to 
 himself, and does not offend against the rules 
 of public decency, he is out of the reach of 
 human laws. But if he makes his vices pub- 
 lic, though they be such as seem principally 
 
HOW TO STUDY LAW. 201 
 
 to affect himself, (as drunkenness, or the like,) 
 they then become, by the bad example they 
 set, of pernicious effects to society; and there- 
 fore it is then the business of human laws to 
 correct them. Here the circumstance of pub- 
 lication is what alters the nature of the case. 
 Public sobriety is a relative duty, and therefore 
 enjoined by our laws; private sobriety is an 
 absolute duty, which, whether it be performed 
 or not, human tribunals can never know ; and 
 therefore they can never enforce it by any 
 civil sanction. But, with respect to rights, the 
 case is different. Human laws define and 
 enforce as well those rights which belong to a 
 man considered as an individual, as those 
 which belong to him considered as related to 
 others. 
 
 For the principal aim of society is to protect 
 individuals in the enjoyment of those absolute 
 rights, which were vested in them by the im- 
 mutable laws of nature; but which could not 
 be preserved in peace without that mutual 
 assistance and intercourse, which is gained 
 by the institution of friendly and social com- 
 munities. Hence it follows that the first and 
 primary end of human laws is to maintain and 
 regulate these absolute rights of individuals. 
 Such rights as are social and relative result 
 from, and are posterior to, the formation of 
 states and societies : so that to maintain and 
 regulate these is clearly a subsequent con- 
 
202 HOW TO STUDY LAW. 
 
 sideration. And therefore the principal view 
 of human law is, or ought always to be to 
 explain, protect, and enforce such rights as 
 are absolute, which in *themselves are few and 
 simple : and then such rights as are relative, 
 r<1 , which, arising from a variety of con- 
 *■ * ^ nexions, will be far more numerous 
 and more complicated. These will take up a 
 greater space in any code of laws, and hence 
 may appear to be more attended to, though in 
 reality they are not, than the rights of the 
 former kind. Let us therefore proceed to 
 examine how far all laws ought, and how far 
 the laws of England actually do, take notice 
 of these absolute rights, and provide for their 
 lasting security. 
 
 The absolute rights of man, considered as a 
 free agent, endowed with discernment to 
 know good from evil, and with power of choos- 
 ing those measures which appear to him to be 
 most desirable, are usually summed up in one 
 general appellation, and denominated the 
 natural liberty of mankind. This natural lib- 
 erty consists properly in a power of acting as 
 one thinks fit, without any restraint or con- 
 trol, unless by the law of nature ; being a right 
 inherent in us by birth, and one of the gifts of 
 God to man at his creation, when he endued 
 him with the faculty of free will. But every 
 man, when he enters into society, gives up a 
 part of his natural liberty, as the price of so 
 
HOW TO STUDY LAW. 203 
 
 valuable a purchase ; and, in consideration of 
 receiving the advantages of mutual commerce, 
 obliges himself to conform to those laws, 
 which the community has thought proper to 
 establish. And this species of legal obedience 
 and conformity is infinitely more desirable 
 than that wild and savage liberty which is 
 sacrificed to obtain it. For no man, that con- 
 siders a moment, would wish to retain the 
 absolute and uncontrolled power of doing 
 whatever he pleases: the consequence of 
 which is, that every other man would also 
 have the same power; and then there would 
 be no security to individuals in any of the 
 enjoyments of life. Political, therefore, or 
 civil liberty, which is that of a member of 
 society, is no other than natural liberty so far 
 restrained by human laws (and no farther) as 
 is necessary and expedient for the general 
 advantage of the public, (c) Hence we may 
 
 collect that the law, which restrains a r!t ... 
 
 I 126 1 
 man from doing *mischief to his fel- L J 
 
 low-citizens, though it diminishes the natural, 
 increases the civil liberty of mankind; but 
 that every wanton and causeless restraint of 
 the will of the subject, whether practised by a 
 monarch, a nobility, or a popular assembly, is 
 a degree of tyranny : nay, that even laws them- 
 selves, whether made with or without our con- 
 
 VI 
 
 (c) Facultas ejus, quod cuique facere libet nisi quid 
 aut jure prohibetur. Inst, 1. 3. 1. 
 
804 HOW TO STUDY LAW. 
 
 sent, if they regulate and constrain our 
 conduct in matters of mere indifference with- 
 out any good end in view, are regulations 
 destructive of liberty; whereas, if any public 
 advantage can arise from observing such pre- 
 cepts, the control of our private inclinations, 
 in one or two particular points, will con- 
 duce to preserve our general freedom in 
 others of more importance; by supporting 
 that state of society, which alone can secure 
 our independence. Thus the statute of King 
 Edward IV, (d) which forbade the fine gentle- 
 men of those times (under the degree of a 
 lord) to wear pikes on their shoes or boots of 
 more than two inches in length, was law that 
 savoured of oppression; because, however 
 ridiculous the fashion then in use might ap- 
 pear, the restraining it by pecuniary penalties 
 could serve no purpose of common utility. 
 But the statute of King Charles II, (e) which 
 prescribes a thing seemingly indifferent, (a 
 dress for the dead, who are all ordered to be 
 buried in woollen) is a law consistent with pub- 
 lic liberty : for it encourages the staple trade, 
 on which in great measure depends the uni- 
 versal good of the nation. So that laws, when 
 prudently framed, are by no means subversive, 
 but rather introductive of liberty ; for, as Mr. 
 Locke has well observed, (/) where there is 
 
 (rf) 3 Edw. IV, c. 5- (<?) 3<> Car. II St.i. c. 3. 
 
 (/) On Gov. p. 2. §57. 
 
HOW TO STUDY LAW. 205 
 
 no law there is no freedom. But then, on the 
 other hand, that constitution or frame of gov- 
 ernment, that system of laws, is alone calcu- 
 lated to maintain civil liberty, which leaves the 
 subject entire master of his own conduct, ex- 
 cept in those points wherein the public good 
 requires some direction or restraint. 
 
 The idea and practice of this political or civil 
 liberty flourish in their highest vigor in these 
 kingdoms, where it falls *little short of perfec- 
 tion, and can only be lost or destroyed by the 
 folly or demerits of its owner: the ^ , 
 legislature and of course the laws of *- '■' 
 England, being peculiarly adapted to the 
 preservation of this inestimable blessing even 
 in the meanest subject. Very different from 
 the modern constitutions of other states, on 
 the continent of Europe, and from the genius 
 of the imperial law; which in general are 
 calculated to vest an arbitrary and despotic 
 power, of controlling the actions of the sub- 
 ject, in the prince, or in a few grandees. And 
 this spirit of liberty is so deeply implanted in 
 our constitution, and rooted even in our very 
 soil, that a slave or negro, the moment he 
 lands in England, falls under the protection of 
 the laws, and so far becomes a freeman; {g) 
 though the master's right to his service may 
 fossibly still continue 
 
 The absolute rights of every Englishman, 
 
 "~ (£) Salk. 666. See ch. 14. 
 
206 HOW TO STUDY LAW. 
 
 which, (taken in a political and extensive 
 sense, are usually called their liberties,) as 
 they are founded on nature and reason, so 
 they are coeval with our form of government ; 
 though subject at times to fluctuate and 
 change ; their establishment (excellent as it is) 
 being still human. At some times we have 
 seen them depressed by overbearing and 
 tyrannical princes; at others so luxuriant as 
 even to tend to anarchy, a worse state than 
 tyranny itself, as any government is better 
 than none at all. But the vigour of our free 
 constitution has always delivered the nation 
 from these embarrassments: and, as soon as 
 the convulsions consequent on the struggle 
 have been over, the balance of our rights 
 and liberties has settled to its proper level; 
 and their fundamental articles have been 
 from time to time asserted in parliament, 
 as often as they were thought to be in 
 danger. 
 
 First, by the great charter of liberties, 
 which was obtained, sword in hand, from 
 King John, and afterwards, with some altera- 
 tions, confirmed in parliament by King Henry 
 the Third, his son. Which charter contained 
 very few new grants; but, as Sir Edward 
 r* o-i Coke (h) observes, was for the most 
 L ■* part declaratory of the principal grounds 
 of the fundamental *laws of England. After- 
 
 (A) 2 Inst, proem. 
 
HOW TO STUDY LAW. 907 
 
 wards by the statute called confirmatio carta- 
 rum, (?) whereby the great charter is directed to 
 be allowed as the common law; all judgments 
 contrary to it are declared void ; copies of it 
 are ordered to be sent to all cathedral churches, 
 and read twice a year to the people, and sen- 
 tence of excommunication is directed to be as 
 constantly denounced against all those that, 
 by word, deed, or counsel, act contrary thereto, 
 or in any degree infringe it. Next, by a 
 multitude of subsequent corroborating statutes 
 (Sir Edward Coke, I think, reckons thirty- 
 two,) (k) from the first Edward to Henry the 
 Fourth. Then, after a long interval, by the 
 petition of right; which was a parliamentary 
 declaration of the liberties of the people, 
 assented to by King Charles the First in the 
 beginning of his reign. Which was closely 
 folio vved by the still more ample concessions 
 made by that unhappy prince to his parlia. 
 ment before the fatal rupture between them ; 
 and by the many salutary laws, particularly the 
 habeas corpus act, passed under Charles the 
 Second. To these succeeded the bill of rights, 
 or declaration delivered by the lords and com- 
 mons to the prince and princess of Orange, 
 13th of February, 1688; and afterwards en- 
 acted in parliament, when they became king 
 and queen: which declaration concludes in 
 these remarkable words : "and they do claim, 
 
 (i) 25 Edw. 1. (£) 2 Inst, proem. 
 
ao8 HOW TO STUDY LAW. 
 
 demand, and insist upon, all and singular the 
 premises, as their undoubted rights and lib- 
 erties." And the act of parliament itself (/) 
 recognizes "all and singular the rights and 
 liberties asserted and claimed in the said 
 declaration to be the true, ancient, and indubit- 
 able rights of the people of this kingdom." 
 Lastly, these liberties were again asserted at 
 the commencement of the present century, in 
 the act of settlement, (m) whereby the crown 
 was limited to his present majesty's illustrious 
 house : and some new provisions were added, 
 at the same fortunate era, for better securing 
 our religion, laws and liberties; which the 
 statute declares to be "the birthright of the 
 people of England, ' ' according to the ancient 
 doctrine of the common law. (n) 
 rst , *Thus much for the declaration of 
 
 I I 2Q I 
 
 L J our rights and liberties. The rights 
 themselves, thus defined by these several 
 statutes, consist in a number of private im- 
 munities; which will appear from what has 
 been premised, to be indeed no other, than 
 either that residuum of natural liberty, which 
 is not required by the laws of society to be 
 sacrificed to public convenience ; or else those 
 civil privileges, which society hath engaged to 
 provide, in lieu of the natural liberties so 
 
 (/) i W. and M. St. 2, c. 2. s 
 
 (»z) 12 and 13 W. Ill, c. 2. 
 (») Plowd. 55. 
 
HOW TO STUDY LAW. 209 
 
 given up by individuals. These therefore 
 were formerly, either by inheritance or pur- 
 chase, the rights of all mankind ; but, in most 
 other countries of the world being now more 
 or less debased and destroyed, they at present 
 may be said to remain, in a peculiar and 
 emphatical manner, the rights of the people 
 of England. And these may be reduced to 
 three principal or primary articles ; the right 
 of personal security, the right of personal 
 liberty and the right of private property: 
 because, as there is no other known method of 
 compulsion or of abridging man's natural free 
 will, but by an infringement or diminution of 
 one or other of these important rights, the 
 preservation of these, inviolate, may justly be 
 said to include the preservation of our civil 
 immunities in their largest and most extensive 
 sense. 
 
 I. The right of personal security consists in 
 a person's legal and uninterrupted enjoyment 
 of his life, his limbs, his body, his health, and 
 his reputation. 
 
 1. Life is the immediate gift of God, a right 
 inherent by nature in every individual : and it 
 begins in contemplation of law as soon as an 
 infant is able to stir in the mother's womb. 
 For if a woman is quick with child, and by a 
 potion or otherwise, killeth it in her womb ; ci 
 if any one beat her, whereby the child dieth in 
 her body, and she is delivered of a dead child ; 
 
2io HOW TO STUDY LAW. 
 
 this, though not murder, was by the ancient 
 law homicide or manslaughter.^) But the 
 modern law doth not look *upon this offence 
 V x , in quite so atrocious a light but merely 
 *- ■* as a heinous misdemeanor. (/) 
 
 An infant in ventre sa mere, or in the 
 mother's womb, is supposed in law to be born 
 for many purposes. It is capable of having a 
 legacy, or a surrender of a copyhold estate, 
 made to it. It may have a guardian assigned 
 to it ; (q) and it is enabled to have an estate 
 limited to its use, and to take afterwards by 
 such limitation as if it were then actually 
 born, (r) And in this point the civil law 
 agrees with ours, (s) 
 
 2. A man's limbs (by which for the present 
 we only understand those members which 
 may be useful to him in fight, and the loss of 
 which alone amounts to mayhem by the com- 
 mon law) are also the gift of the wise Creator, 
 to enable him to protect himself from external 
 injuries in a state of nature. To these there- 
 fore he has a natural inherent right ; and they 
 
 (o) Si aliquis mulierem pregnantum percusserit, 
 vel eivenenum dederit, per quoafecerit abortivam; si 
 puerperium j am formatum fuerit, et maxime sifuerit 
 animatum, facit homicidium. Bracton, /. 3 c. 21. 
 
 (p) 3 Inst. 50. (q) Stat. 12 Car. II, c. 24. 
 
 (r;Stat. 10 and 11 W. Ill, c. 16. 
 
 (s) Qui in utero sunt, injure civili intelliguntur in 
 rerum natura esse, cum de eorum commodo agatur, 
 Ff. 1. 5. 26. 
 
HOW TO STUDY LAW. 211 
 
 cannot be wantonly destroyed or disabled 
 without a manifest breach of civil liberty. 
 
 Both the life and limbs of a man are of such 
 high value, in the estimation of the law of 
 England, that it pardons even homicide if 
 committed se defendendo, or in order to pre- 
 serve them. For whatever is done by a man, 
 to save either life or member, is looked upon 
 as done upon the highest necessity and com- 
 pulsion. Therefore, if a man through fear of 
 death or mayhem is prevailed upon to execute 
 a deed, or do any other legal act: these, 
 though accompanied with all other the re- 
 quisite solemnities, may be afterwards 
 avoided, if forced upon him by a well- 
 grounded apprehension of losing his life, or 
 even his limbs, in case of his non-compli- 
 ance, {t) And the same is also a sufficient 
 excuse for the commission of many misde- 
 meanors, as will appear in the fourth book. 
 The constraint a man is under in these circum. 
 stances is called in law duress, from the Latin 
 durities of which there are two *sorts : duress 
 of imprisonment, where a man actually r „. , 
 loses , his liberty, of which we shall 
 presently speak; and duress per minas, where 
 the hardship is only threatened and impending, 
 which is that we are now discoursing of. 
 Duress per minas is either for fear of loss of 
 life, or else for fear of mayhem, or loss of limb. 
 
 (t) 2 Inst. 483. 
 
sis HOW TO STUDY LAW. 
 
 And this fear must be upon sufficient reason ; 
 "non," as Bacton expresses it, "suspicio 
 cujuslibet vani et meticulosi kominis, sed talis 
 qui possit cadera in virum constantem; talis 
 enim debet esse metus, qui in se contineat vita 
 periculum, aut corporis cruciatum." (u) A fear 
 of battery, or being beaten, though never so 
 well grounded, is no duress ; neither is the fear 
 of having one's house burned, or one's goods 
 taken away and destroyed; because in these 
 cases, should the threat be performed, a man 
 may have satisfaction by recovering equivalent 
 damages: (w) but no suitable atonement can 
 be made for the loss of life or limb. And the 
 indulgence shewn to a man under this, the 
 principal, sort of duress, the fear of losing his 
 life or limbs, agrees also with that maxim of 
 the civil law ; ignoscitur ei qui sanguinem suum 
 qualiter, qualiter redemptum voluit. {pc) 
 
 The law not only regards life and member, 
 and protects every man in the enjoyment of 
 them, but also furnishes him with everything 
 necessary for their support. For there is no 
 man so indigent or wretched, but he may de- 
 mand a supply sufficient for all the necessities 
 of life from the more opulent part of the com- 
 munity, by means of the several statutes 
 enacted for the relief of the poor, of which in 
 their proper places. A humane provision; 
 
 («) /. 2. c. 5. {w) 2 Inst.' 483. 
 
 \x) Ff. 48. 21. 1. 
 
HOW TO STUDY LAW. 213 
 
 yet, though dictated by the principles of 
 society, discountenanced by the Roman laws. 
 For the edicts of the emperor Constantine, 
 commanding the public to maintain the children 
 of those who were unable to provide for 
 them, in order to prevent the murder and 
 exposure of infants, an institution founded 
 on the same principle as our foundling hos- 
 pitals, though comprised in the Theodosian 
 code, (j/) were rejected in Justinian's collec 
 tion. 
 
 *These rights, of life and member, 
 can only be determined by the death of *■ I32 -' 
 the person ; which was formerly accounted to be 
 either a civil or natural death. The civil death 
 commenced, if any man was banished or ab- 
 jured the realm (z) by the process of the com- 
 mon law, or entered into religion ; that is, went 
 into a monastery, and became there a monk 
 professed; in which cases he was absolutely 
 dead in law, and his next heir should have his 
 estate. For such banished man was entirely 
 cut off from society; and such a monk, upon 
 his profession, renounced solemnly all secular 
 concerns: and besides, as the popish clergy 
 claimed an exemption from the duties of civil 
 life and the commands of the temporal magis- 
 trate, the genius of the English laws would not 
 suffer those persons to enjoy the benefits of 
 society, who secluded themselves from it, and 
 
 (y) L. 11. t 27. • (z) Co. Litt. 133. 
 
414 HOW TO STUDY LAW. 
 
 refused to submit to its regulations, (a) A 
 monk was therefore accounted civiliter mor- 
 tuus, and when he entered into religion might, 
 like other dying men, make his testament and 
 executors; or, if he made none, the ordinary 
 might grant administration to his next of kin, 
 as if he were actually dead intestate. And 
 such executors and administrators had the 
 same power, and might bring the same actions 
 for debts due to the religious, and were liable 
 to the same actions for those dae/rom him, as 
 if he were naturally deceased. (i>) Nay, so far 
 has this principle been carried, that when one 
 was bound in a bond to an abbot and his suc- 
 cessors, and afterwards made his executors, 
 and professed himself a monk of the same 
 abbey, and in process of time was himself 
 made abbot thereof; here the law gave him, in 
 the capacity of abbot, an action of debt 
 against his own executors to recover the 
 money due.(<?) In short, a monk or religious 
 was so effectually dead in law, that a lease 
 made even to a third person, during the life 
 (generally) of one who afterwards became a 
 monk, determined by such his entry into reli- 
 gion: for which reason leases, and other con- 
 veyances for life, were usually made to have 
 
 (a) This was also a rule in the feudal law, /. 2. /. si. 
 "desiit esse miles seculi, qui f actus est miles Christi ; 
 nee beneficium pertinet ad eum qui non debet gerere 
 officium. 
 
 (i) Litt. §200. (f) Co. Litt 133. 
 
HOW TO STUDY LAW. 215 
 
 and to hold for the term of one's natural 
 life, (d) But, *even in the time of pop- r ^ 
 ery, the law of England took no cogniz- *■ 3 ^ 
 ance of profession in any foreign country, 
 because the fact could not be tried in our 
 courts; (e) and therefore, since the reforma- 
 tion, this disability is held to be abolished : (/) 
 as is also the disability of banishment, conse- 
 quent upon abjuration, by statute 21 Jac. I, 
 c. 28. 
 
 This natural life being, as was before 
 observed, the immediate donation of the great 
 Creator, cannot legally be disposed of or 
 destroyed by any individual, neither by the 
 person himself, nor by any other of his fellow- 
 creatures, merely upon their own authority. 
 Yet nevertheless it may, by the divine permis- 
 sion, be frequently forfeited for the breach of 
 those laws of society, which are enforced by 
 the sanction of capital punishments; of the 
 nature, restrictions, expedients, and legality 
 of which, we may hereafter more conveniently 
 inquire in the concluding book of these com- 
 mentaries. At present, I shall only observe, 
 that whenever the constitution of a state vests 
 in any man, or body of men, a power of 
 destroying at pleasure, without the direction of 
 laws, the lives or members of the subject, such 
 constitution is in the highest degree tyrannical; 
 
 (d) 2 Rep. 48. Co. Litt. 132. 
 
 \e) Co. Litt. 132. (/) 1 Salk. 162. 
 
3i6 HOW TO STUDY LAW. 
 
 and that,, whenever any laws direct such de- 
 struction for light and trivial causes, such laws 
 are likewise tyrannical, though in an inferior 
 degree ; because here the subject is aware of 
 the danger he is exposed to, and may, by pru- 
 dent caution, provide against it. The statute 
 law of England does therefore very seldom, 
 and the common law does never, inflict any 
 punishment extending to life or limb, unless 
 upon the highest necessity; and the constitu- 
 tion is an utter stranger to any arbitrary power 
 of killing or maiming the subject without the 
 express warrant of law. "Nullus liber homo," 
 says the great charter, (g) "aliquo modo 
 destruatur, nisi per legale judicum parium 
 suorum aut per legem terrce. ' ' Which words, 
 "aliquo modo destruatur," according to Sir 
 Edward Coke, (Ji) include a prohibition, not 
 only of killing and maiming, but also of tortur- 
 ing, (to which our laws are strangers,) and of 
 every oppression by colour of an illegal 
 authority. And it is enacted by the statute 
 5. Edw. Ill, c. 9, that no man shall be fore- 
 judged of life or limb contrary to the great 
 r# , charter and the *law of the land : and 
 *■ I34 ^ again, by statute 28 Edw. Ill, c. 3, 
 that no man shall be put to death, without 
 being brought to answer by due process of law. 
 3. Besides those limbs and members that 
 may be necessary to a man, in order to defend 
 
 (g) c. 29. (h) 2 Inst. 48. 
 
HOW TO STUDY LAW. 217 
 
 himself or annoy his enemy, the rest of his 
 person or body is also entitled, by the same 
 natural right, to security from the corporal 
 insults of menaces, assaults, beating, and 
 wounding; though such insults amount not to 
 destruction of life or member. 
 
 4. The preservation of a man's health from 
 such practices as may prejudice or annoy it; 
 and 
 
 5. The security of his reputation or good 
 name from the arts of detraction and slander, 
 are rights to which every man is entitled, by 
 reason and natural justice; since, without 
 these, it is impossible to have the perfect 
 enjoyment of any other advantage or right. 
 But these three last articles (being of much 
 less importance than those which have gone 
 before, and those which are yet to come,) it 
 will suffice to have barely mentioned among 
 the rights of persons: referring the more 
 minute discussion of their several branches to 
 those parts of our commentaries which treat 
 of the infringement of these rights, under the 
 head of personal wrongs. 
 
 II. Next to personal security, the law of 
 England regards, asserts, and preserves, the 
 personal liberty of individuals. This personal 
 liberty consists in the power of locomotion, of 
 changing situation, or moving one's person to 
 whatsoever place one's own inclination may 
 direct, without imprisonment or restraint, 
 
2i8 HOW TO STUDY LAW. 
 
 unless by due course of law. Concerning 
 which we may make the same observations as 
 upon the preceding article, that it is a right 
 strictly natural; that the laws of England 
 have never abridged it without sufficient 
 cause; and that, in this kingdom, it cannot 
 ever he abridged at the mere discretion of the 
 magistrate, without the explicit permission of 
 the laws. Here again the language of the 
 great *charter (z) is, that no freeman shall be 
 rsi! , taken or imprisoned but by the lawful 
 *- J judgment of his equals, or by the law 
 of the land. And many subsequent old 
 statutes (/) expressly direct, that no man shall 
 be taken or imprisoned by suggestion or peti- 
 tion to the king or his council, unless it be by 
 legal indictment, or the process of the com- 
 mon law. By the petition of right, 3 Car. I, it 
 is enacted, that no freeman shall be impris- 
 oned or detained without cause shown, to 
 which he may make answer according to law. 
 By 16, Car. I, c. 10, if any person be restrained 
 of his liberty by order or decree of any illegal 
 court, or by command of the king's majesty in 
 person, or by warrant of the council board, or 
 of any of the privy council, he shall, upon 
 demand of his counsel, have a writ of habeas 
 corpus, to bring his body before the court of 
 
 (*') c. 29. 
 
 (J) 5 Edw. Ill, c. 9. 25 Edw. Ill, St. 5. c. 4. 28 
 Edw. Ill, c. 3. 
 
HOW TO STUDY LAW. 219 
 
 king's bench or common pleas, who shall 
 determine whether the cause of his commit- 
 ment be just, and thereupon do as to justice 
 shall appertain. And by 31 Car. II, c. 2, com- 
 monly called the habeas corpus act, the methods 
 of obtaining this writ are so plainly pointed 
 out and enforced, that, so long as this statute 
 remains unimpeached, no subject of England 
 can be long detained in prison, except in those 
 cases in which the law requires and justifies 
 such detainer. And, lest this act should be 
 evaded by demanding unreasonable bail, or 
 sureties for the prisoner's appearance, it is 
 declared by 1 W. and M. St. 2, c. 2, that ex- 
 cessive bail ought not to be required. 
 
 Of great importance to the public is the 
 preservation of this personal liberty; for if 
 once it were left in the power of any, the high- 
 est, magistrate to imprison arbitrarily whom- 
 ever he or his officers thought proper, (as in 
 France it is daily practiced by the crown,) (k) 
 there would soon be an end of all other rights 
 and immunities. Some have thought that 
 unjust attacks, even upon life or property, at 
 the arbitrary will of the magistrate, *are less 
 dangerous to the commonwealth than ^ - 
 such as are made upon the personal lib- 
 erty of the subject. To bereave a man of 
 
 (k) I have been assured, upon good authority ttiat, 
 during the mild administration of Cardinal Fleury, above 
 54,000 lettres de cachet were issued, upon the single 
 ground of the famous bull unigenitus. 
 
220 HOW TO STUDY LAW. 
 
 life, or by violence to confiscate his estate, 
 without accusation or trial, would be so gross 
 and notorious an act of despotism, as must at 
 once convey the alarm of tyranny throughout 
 the whole kingdom; but confinement of the 
 person, by secretly hurrying him to gaol, 
 where his sufferings are unknown or forgot- 
 ten, is a less public, a less striking, and there- 
 fore a more dangerous engine of arbitrary 
 government. And yet sometimes, when the 
 state is in real danger, even this may be a 
 necessary measure. But the happiness of our 
 constitution is, that it is not left to the execu- 
 tive power to determine when the danger of 
 the state is so great as to render this measure 
 expedient; for it is the parliament only, or 
 legislative power, that, whenever it sees 
 proper, can authorize the crown, by suspend- 
 ing the habeas corpus act for a short and limited 
 time, to imprison suspected persons without 
 giving any reason for so doing; as the senate 
 of Rome was wont to have recourse to a dic- 
 tator, a magistrate of absolute authority, when 
 they judged the republic in any imminent dan- 
 ger. The decree of the senate, which usually 
 preceded the nomination of this magistrate, 
 " dent operant consules, ne quid respublicd detri- 
 ment! capiat," was called the senatus consultmn 
 ultima necessitatis. In like manner this ex- 
 periment ought only to be tried in cases of 
 extreme emergency ; and in these the nation 
 
HOW TO STUDY LAW. 221 
 
 parts with its liberty for awhile, in order to 
 preserve it for ever. 
 
 The confinement of the person, in any wise, 
 is an imprisonment; so that the keeping a 
 man against his will in a private house, putting 
 him in the stocks, arresting or forcibly detain- 
 ing him in the street, is an imprisonment. (/) 
 And the law so much discourages unlawful 
 confinement; that if a man is under duress of 
 imprisonment, which we before explained to 
 mean a compulsion by an illegal restraint of 
 liberty, until he seals a bond or the like ; he 
 may allege this duress, and avoid the _.„ 1 
 extorted bond. But if a man be law- L ^ 
 fully imprisoned, *and, either to procure his 
 discharge, or on any other fair account, seals, 
 a bond or a deed, this is not by duress of im- 
 prisonment, and he is not at liberty to avoid 
 it. (m) To make imprisonment lawful, it must 
 either be by process from the courts of judica- 
 ture, or by warrant from some legal officer 
 having authority to commit to prison; which 
 warrant must be in writing, under the hand 
 and seal of the magistrate, and express the 
 causes of the commitment, in order to be ex- 
 amined into, if necessary, upon a habeas 
 corpus. If there be no cause expressed, the 
 gaoler is not bound to detain the prisoner: 
 («) for the law judges, in this respect, saith Sir 
 
 (/) 2 Inst. 589. (m) 2 Inst. 482. 
 
 (#) Ibid. 52. 53. 
 
222 HOW TO STUDY LAW. 
 
 Edward Coke, like Festus the Roman gov- 
 ernor, that it is unreasonable to send a pris- 
 oner, and not to signify withal the crimes 
 alleged against him. 
 
 A natural and regular consequence of this 
 personal liberty is, that every Englishman may 
 claim a right to abide in his own country so 
 long as he pleases; and not to be driven from 
 it unless by the sentence of the law. The 
 king, indeed, by his royal prerogative, may 
 issue oxit his writ ne exeat regnum, and pro- 
 hibit any of his subjects from going into 
 foreign parts without license, (p) This may be 
 necessary for the public service and safeguard 
 of the commonwealth. But no power on 
 earth, except the authority of parliament, can 
 send any subject of England out of the land 
 against his will ; no, not even a criminal. For 
 exile and transportation are punishments at 
 present unknown to the common law; and, 
 whenever the latter is now 'inflicted, it is 
 either by the choice of the criminal himself to 
 escape a capital punishment, or else by the 
 express direction of some modern act of parlia- 
 ment. To this purpose the great charter (/) 
 declares, that no freeman shall be banished, 
 unless by the judgment of his peers, or by the 
 law of the land. And by the habeas corpus 
 act, 31 Car. II, c. 2, (that second magna carta, 
 and stable bulwark of our liberties,) it is 
 
 (0) F. N. B. 85. (p) C. 29. 
 
HOW TO STUDY LAW. 223 
 
 enacted, that no subject of this realm, who is 
 an inhabitant of England, Wales, or Berwick, 
 shall be sent prisoner into Scotland, Ireland, 
 Jersey, Guernsey, or places beyond the seas, 
 (where *they cannot have the full benefit and 
 protection of the common law) ; but p,. 
 that all such imprisonments shall be *- 3 J 
 illegal ; that the person who shall dare to com- 
 mit another contrary to this law, shall be dis- 
 abled from bearing any office, shall incur the 
 penalty of a prcemunire, and be incapable of 
 receiving the King's pardon: and the party 
 suffering shall also have his private action 
 against the person committing, and all his 
 aiders, advisers and abettors; and shall recover 
 treble costs; besides his damages, which no jury 
 shall assess at less than five hundred pounds. 
 
 The law in this respect is so benignly and 
 liberally construed for the benefit of the sub- 
 ject, that, though within the realm the king 
 may command the attendance and service of 
 all his liegemen, yet he cannot send any man 
 out of the realm, even upon the public ser- 
 vice ; excepting sailors and soldiers, the nature 
 of whose employment necessarily implies an ex- 
 ception: he cannot even constitute a man lord 
 deputy or lieutenant of Ireland against his 
 will, nor make him a foreign ambassador, (q) 
 For this might, in reality, be no more than an 
 honourable exile. 
 
 (g) 2 Inst. 46. 
 
»24 HOW TO STUDY LAW. 
 
 III. The third absolute right, inherent in 
 every Englishman, is that of property : which 
 consists in the free use, enjoyment, and dis- 
 posal of all his acquisitions, without any con- 
 trol or diminution, save only by the laws of 
 the land. The origin of private property is 
 probably founded in nature, as will be more 
 fully explained in the second book of the ensu- 
 ing commentaries : but certainly, the modifica- 
 tions under which we at present find it, the 
 method of conserving it in the present owner, 
 and of translating it from man to man, are 
 entirely derived from society; and are some 
 of those civil advantages, in exchange for 
 which every individual has resigned a part of 
 his natural liberty. The laws of England are 
 therefore, in point of honour and justice, 
 extremely watchful in ascertaining and pro- 
 tecting this right. Upon this principle the 
 great charter (r) has declared that no freeman 
 shall be disseised, or divested, of his freehold, 
 or of his liberties, or free *customs but by the 
 T1s , judgment of his peers, or by the law of 
 "■ -* the land. And by a variety of ancient 
 statutes (s) it is enacted that no man's lands 
 or goods, shall be seized into the king's hands, 
 against the great charter, and the law of the 
 land; and that no man shall be disinherited, 
 
 (r) C. 29. 
 
 (s) 5 Edw. Ill, c. 9. 25 Edw. Ill, St. 5. c. 4. 28 Edw. 
 III.c. 3. 
 
HOW TO STUDY LAW. 225 
 
 nor put out of his franchises or freehold, unless 
 he be duly brought to answer, and be fore- 
 judged by course of law ; and if anything be 
 done to the contrary it shall be redressed and 
 holden for none. 
 
 So great moreover is the regard of the law 
 for private property, that it will not authorize 
 the least violation of it ; no, not even for the 
 general good of the whole community. If a 
 new road, for instance, were to be made 
 through the grounds of a private person, it 
 might perhaps be extensively beneficial to the 
 public ; but the law permits no man, or set of 
 men to do this without consent of the owner 
 of the land. In vain may it be urged, that the 
 good of the individual ought to yield to that 
 of the community; for it would be dangerous 
 to allow any private man, or even any public 
 tribunal, to be the judge of this common good, 
 and to decide whether it be expedient or no. 
 Besides the public good is in nothing more 
 essentially interested, than in the protection of 
 every individual's private rights, as modelled 
 by the municipal law. In this and similar 
 cases the legislature alone can, and indeed 
 frequently does interpose, and compel the 
 individual to acquiesce. But how does it inter- 
 pose and compel? Not by absolutely stripping 
 the subject of his property in an arbitrary 
 manner; but by giving him a full indemnifica- 
 tion and equivalent for the injury thereby sus- 
 
226 HOW TO STUDY LAW. 
 
 tained. The public is now considered as an 
 individual, treating with an individual for an 
 exchange. All that the legislature does is to 
 oblige the owner to alienate his possessions for 
 a reasonable price; and even this is an exer- 
 tion of power, which the legislature indulges 
 with caution, and which nothing but the legis- 
 lature can perform. 
 
 ^ , *Nor is this the only instance in 
 *- -* which the law of the land has post- 
 poned even public necessity to the sacred and 
 inviolable rights of private property. For no 
 subject of England can be constrained to pay 
 any aids or taxes, even for the defence of the 
 realm or the support of government, but such 
 as are imposed by his own consent, or that of 
 his representatives in parliament. By the 
 statute 25 Edw. I, c. 5 and 6, it is provided 
 that the king shall not take any aids or tasks, 
 but by the common assent of the realm. And 
 what that common assent is, is more fully ex- 
 plained by 34 Edw. I., St. 4. c. 1, which (t) en- 
 acts, that no talliage or aid shall be taken 
 without the assent of the archbishops, bishops 
 earls, barons, knights, burgesses, and other 
 freemen of the land: and again by 14 Edw. 
 
 (t) See the introduction to the great charter (edit. Ox- 
 ori) sub anno 1297 ; wherein it is shewn that this statute 
 de talliagio non concedendo, supposed to have been 
 made in 34 Edw. I, is in reality, nothing more than a 
 sort of translation into Latin of the confirmatio carta- 
 rum, 25 Edw. I, which was originally published in the 
 Norman language. 
 
HOW TO STUDY LAW 1 . 227 
 
 III, St. 2, c. 1, the prelates, earls, barons and 
 commons, citizens, burgesses and merchants, 
 shall not be charged to make any aid, if it be 
 not by the common assent of the great men 
 and commons in parliament. And as this 
 fundamental law had been shamefully evaded 
 under many succeeding princes, by compul- 
 sive loans, and benevolences extorted without a 
 real and voluntary consent, it was made an 
 article in the petition of right, 3 Car. I, that 
 no man shall be compelled to yield any gift, 
 loan, or benevolence, tax, or such like charge, 
 without common consent by act of parliament. 
 And, lastly, by the statute 1 W. and M. St. 
 2, c. 2, it is declared, that levying money for 
 or to the use of the crown, by pretence or 
 prerogative, without grant of parliament, or 
 for longer time, or in other manner, than the 
 same is or shall be granted; is illegal. 
 
 In the three preceding articles we have 
 taken a short view of the principal absolute 
 rights which appertain to every Englishman. 
 But in vain would these rights be declared, 
 ascertained, and protected by the dead letter 
 of the laws, if the *constitution had provided 
 no other method to secure their actual 
 enjoyment. It has therefore estab- *■ ^ 
 lished certain other auxiliary subordinate 
 rights of the subject, which serve principally 
 as outworks or barriers to protect and maintain 
 inviolate the three great and primary right 
 
 V 
 
aa8 HOW TO STUDY LAW. 
 
 of personal security, personal liberty, and 
 private property. These are, 
 
 i. The constitution, powers, and privileges 
 of parliament; of which I shall treat at large 
 in the ensuing chapter. 
 
 2. The limitation of the king's prerogative, 
 by bounds so certain and notorious, that it is 
 impossible he should either mistake or legally 
 exceed them without the consent of the 
 people. Of this, also, I shall treat in its 
 proper place. The former of these keeps the 
 legislative power in due health and vigor, so 
 as to make it improbable that laws should be 
 enacted destructive of general liberty: the 
 latter is a guard upon the executive power by 
 restraining it from acting either beyond or in 
 contradiction to the laws, that are framed and 
 established by the other. 
 
 3. A third subordinate right of every Eng- 
 lishman is that of applying to the courts of 
 justice for redress of injuries. Since the law 
 is in England the supreme arbiter of every 
 man's life, liberty, and property, courts of 
 justice must at all times be open, to the sub- 
 ject, and the law be duly administered therein. 
 The emphatical words of magna carta (u) 
 spoken in the person of the king, who in judg- 
 ment of law (says Sir Edward Coke, (w) is 
 ever present and repeating them in all his 
 courts, are these; nulli vendemus, nulli nega- 
 
 (u) C. 29. (zv) 2 Inst. 55. 
 
HOW TO STUDY LAW. 229 
 
 bimus, aut differemus rectum vel justitiam: 
 "and therefore every subject," continues the 
 same learned author, "for injury done to him 
 in bonis, in terris, vel persona, by any other 
 subject, be he ecclesiastical or temporal, with- 
 out any exception, may take his remedy by the 
 course of the law, and have justice and right 
 for the injury done to him, freely without sale, 
 fully without any denial, and speedily without 
 delay." It were endless to enumerate all the 
 affirmative acts of parliament, *wherein justice 
 is directed to be done according to the „ 
 law of the land ; and what that law is *■ J 
 every subject knows, or may know, if he 
 pleases ; for it depends not upon the arbitrary 
 will of any judge, but is permanent, fixed, and 
 unchangeable, unless by authority of parlia- 
 ment. I shall, however, just mention a few 
 negative statutes, whereby abuses, perversions, 
 or delays of justice, especially by the preroga- 
 tive, are restrained. It is ordained by magna 
 carta (x) that no freeman shall be outlawed, 
 that is, put out of the protection and benefit of 
 the laws, but according to the law of the land. 
 By 2 Edw. Ill, c. 8, and 11 Ric. II, c. 10, it is 
 enacted that no commands or letters shall be 
 sent under the great seal or the little seal, the 
 signet, or privy seal, in disturbance of the 
 law; or to disturb or delay common right: 
 and, though such commandments should 
 
 (x) C. 2 9s 
 
230 HOW TO STUDY LAW 
 
 come, the judges shall not cease to do right; 
 which is also made a part of their oath by 
 statute 18 Edw. Ill, St. 4. And by 1 W. and 
 M. St. 2, c. 2, it is declared, that the pre- 
 tended power of suspending, or dispensing 
 with laws, or the execution of laws, by legal 
 authority, without consent of parliament, is 
 illegal. 
 
 Not only the substantial part, or judicial 
 decision, of the law, but also the formal part, 
 or method of proceeding, cannot be altered but 
 by parliament; for, if once those outworks 
 were demolished, there would be an inlet to all 
 manner of innovation in the body of the law 
 itself.- The king, it is true, may erect new 
 courts of justice ; but then they must proceed 
 according to the old- established forms of the 
 common law. For which reason it is declared, 
 in the statute 16 Car. I, c. 10, upon the disso- 
 lution of the court of starchamber, that neither 
 his majesty, nor his privy council have any 
 jurisdiction, power, or authority, by English 
 bill, petition, articles, libel, (which were the 
 course of proceeding in the starchamber, bor- 
 rowed from the civil law,) or by any other 
 arbitrary way whatsoever, to examine, or 
 draw into question, determine, or dispose of 
 the lands or goods of any subjects of this king- 
 dom ; but that the same ought to be tried and 
 determined in the ordinary courts of justice, 
 and by course of law. 
 
HOW TO STUDY LAW. 43* 
 
 4. *If there should happen any tm- .„, , 
 common injury, or infringement of the *■ J 
 rights before mentioned, which the ordinary 
 course of law is too defective to reach, there 
 still remains a fourth subordinate right, ap- 
 pertaining to every individual, namely, the 
 right of petitioning the king, or either house 
 of parliament, for the redress of grievances. 
 In Russia we are told {y) that the Czar Peter 
 established a law, that no subject might peti- 
 tion the throne till he had first petitioned two 
 different ministers of state. In case he 
 obtained justice from neither, he might then 
 present a third petition to the prince; but 
 upon pain of death, if found to be in the 
 wrong: the consequence of which was, that 
 no one dared to offer such third petition ; and 
 grievances seldom falling under the notice of 
 the sovereign, he had little opportunity to 
 redress them. The restrictions, for some 
 there are, which are laid upon petitioning in 
 England, are of a nature extremely different ; 
 and, while they promote the spirit of peace, 
 they are no check, upon that of liberty. Care 
 only must be taken, lest, under the pretence 
 of petitioning, the subject be guilty of any riot 
 or tumult, as happened in the opening of the 
 memorable parliament in 1640: and, to pre- 
 vent this, it is provided by the statute 13 Car. 
 II, St. 1, c. s, that no petition to the king, or 
 
 (y) Montesq. Sp. L. xii 26. 
 
2$2 HOW TO STUDY LAW. 
 
 either house of parliament, for any alteration 
 in church or state, shall be signed by above 
 twenty persons, unless the matter thereof be 
 approved by three justices of the peace, or the 
 major part of the grand jury in the country; 
 and in London by the lord mayor, aldermen, 
 and common council : nor shall any petition be 
 presented by more than ten persons at a time. 
 But under these regulations it is declared by 
 the statute i W. and M. St. 2, c. 2, that the 
 subject hath a right to petition ; and that all 
 commitments and prosecutions for such peti- 
 tioning are illegal. 
 
 5. The fifth and last auxiliary right of the 
 subject, that I shall at present mention, is that 
 of having arms for their defence, suitable to 
 their condition and degree, and such as are 
 r>|t , *allowed by law. Which is also de- 
 L J clared by the same statute, 1 W. and 
 M. St. 2, c. 2, and is indeed a public allow- 
 ance, under due restrictions, of the natural 
 right of resistance and self - preservation, 
 when the sanctions of society and laws are 
 found insufficient to restrain the violence of 
 oppression. 
 
 In these several articles consist the rights, 
 or, as they are frequently termed, the liberties 
 of Englishmen: liberties more generally 
 talked of than thoroughly understood; and 
 yet highly necessary to be perfectly known 
 and considered by every man of rank and 
 
HOW TO STUDY LAW. 233 
 
 property, lest his ignorance of the points 
 whereon they are founded should hurry him 
 into faction and licentiousness on the one 
 hand, or a pusillanimous indifference and 
 criminal submission on the other. And we 
 have seen that these rights consist, primarily, 
 in the free enjoyment of personal security, of 
 personal liberty, and of private property. So 
 long as these remain inviolate, the subject is 
 perfectly free; for every species of compulsive 
 tyranny and oppression must act in opposition 
 to one or other of these rights, having no 
 other object upon which it can possibly be 
 employed. To preserve these from violation, 
 it is necessary that the constitution of parlia- 
 ment be supported in its full vigour; and 
 limits, certainly known, be set to the royal 
 prerogative. And, lastly, to vindicate these 
 rights, when actually violated or attacked, the 
 subjects of England are entitled, in the first 
 placej to the regular administration and free 
 course of justice in the courts of law; next, to 
 the right of petitioning the king and parliament 
 for redress of grievances; and lastly, to the 
 right of having and using arms for self- 
 preservation and defence. And all these rights 
 and liberties it is our birthright to enjoy entire ; 
 unless where the laws of our country have laid 
 them under necessary restraints: restraints 
 in themselves so gentle and moderate, as will 
 appear, upon farther inquiry, that no man of 
 
«34 HOW TO STUDY LAW. 
 
 sense or probity would wish to see them slack- 
 ened. For all of us have it in our choice to do 
 everything that a good man would desire to 
 do ; and are restrained from nothing but what 
 would be pernicious either to ourselves or our 
 fellow citizens. So that this review *of our 
 situation may fully justify the observation of a 
 rJs , learned French author, who indeed 
 generally both thought and wrote in 
 the spirit of genuine freedom, (z) and who 
 hath not scrupled to profess, even in the very 
 bosom of his native country, that the English 
 is the only nation in the world where political 
 or civil liberty is the direct end of its constitu- 
 tion. Recommending, therefore, to the stu- 
 dents in our laws a farther and more accurate 
 search into this extensive and important title, 
 I shall close my remarks upon it with the 
 expiring wish of the famous Father Paul to 
 his country, "Esto perpetua!" 
 <z) Montesq. Spirit of Laws xi, 5.