In what manner does the Law ascertain the Boundaries of Right and Wrong? Explain the method it takes to command the one and prohibit the other.

Every law consists of several parts; one Declaratory, whereby the rights to be observed and the wrongs to be avoided are clearly defined and laid down; another Directory, whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs; a third Remedial, whereby a method is pointed out to recover a man's private rights or redress his private wrongs; to which may be added a fourth, usually termed the sanction, or vindicatory branch of the law; whereby it is signified what punishment or penalty shall be incurred by such persons as commit public wrongs by transgressing or neglecting their duty.

With regard to the first of these—the Declaratory part of the municipal law-this depends upon the wisdom and will of the Legislature; for those rights which God and nature have established, called natural rights, such as life and liberty, need not the aid of human laws to be more effectually possessed by man. 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. The case is the same as to crimes and misdemeanors that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury, which contract no additional turpitude from being declared unlawful by the inferior legislature. But with regard to things which are said to be in themselves indifferent, the case is otherwise. These become either right or wrong, just or unjust, duties or misdemeanors, according as the Legislature enacts for promoting the welfare of society, and more effectually carrying on the purposes of civil life. Thus by our own common law, as at present interpreted, the goods of the wife do instantly upon marriage become the property and right of the husband, and our statute law has declared all monopolies a public offence; yet that right and this offence have no foundation in nature, but are merely created by the law for the purpose of civil society.

Thus much for the declaratory part of the municipal law;

BOUNDARIES OF RIGHT AND WRONG.

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and the directory stands upon the same footing; for this virtually includes the former. The law that says "Thou shalt not steal" implies a declaration that stealing is a crime. And we have seen that, in things naturally indifferent, the very essence of RIGHT and WRONG depends upon the direction of the laws to do or to omit them.

The remedial part of a law is so necessary a consequence of the former two, that a law must be very vague and imperfect without it; for in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. This is the PROTECTION of the law. When, for instance, the declaratory part of the law has said "that the field or inheritance which belonged to a man is vested by his death in his son ;" and the directory part has "forbidden any one to enter on another's property, without the leave of the owner;" if a stranger, after this, will presume to take possession of the land, the remedial part of the law will then interpose its office, and make the stranger not only restore possession to the son, but also make him pay damages for the invasion.

With regard to the sanction of laws, or the evil that may attend the breach of public duties, it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindicatory than remuneratory, or to consist rather in punishments than in rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards; and farther, because the dread of evil is a much more forcible principle of human action than the prospect of good. For which reasons, though a prudent bestowing of rewards is sometimes beneficial, yet we find that those civil laws which enjoin and enforce our duty do seldom, if ever, propose any privilege or gift to such as obey the law, but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution. Unquestionably of all parts of a law, the most effectual is the vin

dicatory; 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." Therefore 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.

CHAPTER III.

THE LAWS OF ENGLAND.

Next under our consideration is the Municipal Law of England, defined as the "rule of civil conduct prescribed to the inhabitants of this kingdom," which comprises in its highest and widest sense all those rules, written or customary, which have been laid down for the guidance of the community, and to which its members must, if they would avoid penal consequences or civil liabilities, necessarily conform. It is divided into two classes-the Lex non Scripta, the unwritten or Common Law; and the Lex Scripta, the written or Statute Law.

Explain the "Lex non Scripta."

The lex non scripta, or unwritten law, is not literally unwritten, but is contained in the records of our courts of justice, in books of reports, and in the treatises of learned lawyers handed down from times of great antiquity.

The lex non scripta includes not only general customs, called the Common Law, but also the particular customs of certain parts of the kingdom; and likewise those particular laws that are by custom observed only in certain courts and jurisdictions.

Our ancient lawyers, and particularly Fortescue, insist that these customs are as old as the primitive Britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some; but in general, as Mr. Selden observes,* "this assertion must be un

*See "Selden's Notes."

derstood with many grains of allowance, and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though, doubtless, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established; thereby, in all probability, improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries.”

However that may be, it is certain that these laws and customs are of higher antiquity than memory or history can reach, nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long-established custom; whence it is that in our law the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, "time whereof the memory of man runneth not to the contrary." This it is that gives it its weight and authority, and of this nature are the maxims and customs which compose the common law, or lex non scripta of this kingdom.

Explain these General Customs of the Common Law.

The unwritten or Common Law is distinguishable into two kinds:-1. GENERAL CUSTOMS; which are the universal rule of the whole kingdom, and form the COMMON LAW in its stricter and more usual signification. -2. PARTICULAR CUSTOMS; which, for the most part, affect only the inhabitants of particular districts.

First, as to general customs, by which proceedings and determinations in the Queen's ordinary courts of justice are guided and directed. These, for the most part, settle the course in which lands descend by inheritance- -the manner and form of acquiring and transferring property-the solemnities and obligations of contracts- -the rules for expounding wills, deeds, and Acts of Parliament- -the respective remedies for civil injuries the several species of temporal offences, and an infinite number of more minute particulars which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior