L A W. 
his Confidence will be clear whichever fide of the alterna¬ 
tive he thinks proper to embrace. Thus, by the ftatutes 
for prefer ving the game, a penalty is denounced againft every 
unqualified perl'on that kills a hare, and againft every perfon 
who pofleftes a partridge in Auguft. And fo alfo, by 
other ftatutes, pecuniary penalties are infiifted for exer- 
cifing trades without ferving an apprenticeship thereto, 
for erefting cottages without annexing four acres of land 
to each, for not burying the dead in woollen, for not per¬ 
forming ftatute-work on the public roads, and for innu¬ 
merable other pofitive mifdetneanors. Now thefe prohi¬ 
bitory laws do not make the tranfgreffion a moral offence, 
or fin ; the only obligation in confeience is to fnbmit to 
the penalty, if levied. It muft, however, be obferved, 
that vve are here fpeaking of laws that are limply and 
purely penal, where the thing forbidden or enjoined is 
wholly a matter of indifference, and where the penalty 
infiifted is an adequate punifhrnent for the civil inconve¬ 
nience fuppofed to rife from the offence. But where dif- 
obedience to the law involves in it alfo any degree of pub¬ 
lic mifehief or private injury, there it falls within our 
former diftinftion, and is alfo an offence againft confeience. 
We have now' gone through the definition laid down of 
a municipal law; and have fhown that it is “A rule—of 
civil conduft—preferibed—by the fupreme power in a ftate 
—commanding what is right, and prohibiting what is 
wrong:” in the explication of which we have endeavour¬ 
ed to interweave a Few ufeful principles, concerning the 
nature of civil government, and the obligation of human 
laws. Before we conclude this part, it may not be amifs 
to add a few obfervations concerning the interpretation of 
laws. 
When any doubt arofe upon the conftruftion of the 
Roman laws, the ufage was to ftate the cafe to the empe¬ 
ror in writing, and take his opinion upon it. This was 
certainly a bad method of interpretation. To interrogate 
the legiflature to decide particular difputes, is not only 
endlels, but affords great room for partiality and oppref- 
lion. The anfwers of the emperor were called his referipts, 
and thefe had in fucceeding cafes the force of perpetual 
laws; though they ought to be carefully diltinguifhed, by 
every national civilian, from thole general conftitutions 
which had only the nature of things for their guide. 
The emperor Macrinus, as his hiftorian Capitolinus in¬ 
forms us, had once refolved to abolifh thefe referipts, and 
retain only the general edifts : he could not bear that the 
liafty and crude anfwers of fuch princes as Commodus 
and Caracalla flrould be reverenced as laws. But Jufti- 
niau thought otherwife; and he has preferved them all. 
In like manner the canon-laws, or decretal epiftles of the 
popes, are ail of them referipts in the ftrifteft fenfe. 
Contrary to all true forms of reafoning, they argue from 
particulars to generals. 
The faireft and moft rational method of interpreting the 
will of the legiflator, is by exploring his intentions at the 
time when the law was made, by figns the moft natural 
and probable. And thefe figns are either, i. the word ; 
2. the context; 3. the fubjeft-matter; 4. the effefts and 
confequence; or, 5. the fpirit and reafon of the law. Let 
us take a fhort view of them all. 
1. Words are generally to be underftood in their ufual 
and moft known fignification ; not fo much regarding the 
propriety of grammar, as their general and popular ufe. 
Thus the law mentioned by Puffendorf, which forbade a 
layman to lay hands on a prieft, was adjudged to extend 
to him who had hurt a prieft with a weapon. Again : 
Terms of art, or technical terms, muft be taken accord¬ 
ing to the acceptation of the learned in each art, trade, 
and fcience. So in the aft of fettlement, where the crown 
oi England is limited “ to the princefs Sophia, and the 
heirs of her body being proteftants,” it becomes neceflary 
to call in the afliftance of lawyers, to afeertain the precife 
idea of the words “heirs of her body;” which in a legal 
fenfe comprife only certain of her lineal defendants. 
Laftly, Where words are dearly repugnant in two laws, 
Vou.XII. No. 83a. 
<!><* 1 
U -J i 
the later law takes place of tbs elder; leges pojleriores 
priores contrarias abrogant, is a maxim of univerfal law, as 
well as of our own conftitutions. And accordingly it 
was laid down by a law of the twelve tables at Rome, 
Quod populus pojiremum jvjjit, id jus ratum ejlo. 
2. If words happen to be ftill dubious, we may efta- 
blilh their meaning from ihe context ■, with which it may¬ 
be of fingular ufe to compare a word or a fentence, when¬ 
ever they are ambiguous, equivocal, or intricate. Thus 
the proeme, or preamble, is often called in to help the 
conftruftion of an aft of parliament. Of the fame na¬ 
ture and ufe is the comparifon of a law with other laws 
that are made by the fame legiflator, that have Lome affi¬ 
nity with the fubjeft, or that exprefsly relate to the fame 
point; for it is an eftablilheu rule of conflruftion, that 
ftatutes in pari materia, or upon the fame fubjeft, mull be 
conftrued with reference to each other; that is, that what 
is clear in one ftatute fliall be called in aid, to explain 
what is obfeure and ambiguous in another. Thus, when 
the law of England declares murder to be felony without 
benefit of clergy, we muft refort to the fame law of Eng¬ 
land to learn what the benefit of clergy is ; and, when 
the common law cenfures fimoniacal contrails, it affords 
great light to the fubjeft to confider what the canon law 
has adjudged to be fimony. 
3. As to the J'ubjeft-mattcr, words are always to be im- 
derftood as having a regard thereto; for that is always 
fuppofed to be in the eye of the legiflator, and all his ex- 
preilions direfted to that end. Thus, when a law of Ed¬ 
ward III. forbids all ecclefiallical perfons to nurchal’e pro- 
vilions at Rome, it might feem to prohibit the buying of 
grain and other victual; but, when we-confider that the 
ftatute was made to reprefs the ufurpations of the papal 
fee, and that the nominations to benefices by the pope 
were called provijions, we fliall fee that the reftraint is in¬ 
tended to be laid upon fuch provifions only. 
4. As to the effects and confequence, the rule is, That, 
where words bear either none or a very abfurd fignifica¬ 
tion, if literally underftood, we muft a little deviate from 
the received fenfe of them. Therefore the Bolognian law, 
mentioned by Puffendorf, which enadted “that whoever 
drew blood in the ftreets fhould be puniflied with the ut- 
moft feverity,” was held, after long debate, not to extend 
to the furgeon who opened the vein of a perfon who fell 
down in the ftreet with a fit. 
5. But laftly. The molt univerial and efteftual way of 
difcovering the true meaning of a law, when the words 
are dubious, is by confidering the reafon and fpirit of it, 
or the caufe which moved the legiflator to enact it; for, 
when this reafon ceafes, the law itfelf ought likewife to 
ceafe with it. An inltance of this is given in a cafe put 
by Cicero, or whoever was the aulhoij of the rhetorical 
treatife inferibed to Herennius. There was a law, That 
thofe who in a ftorm forfook the fliip fliould forfeit all 
property therein, and the fliip and lading fliould belong 
entirely to thofe who ftaid in it. In a dangerous tempelt, 
ail the mariners forfook the (hip, except only one lick paf- 
fenger, who by reafon of his difeafe was unable to get out 
and elcape. By chance the fliip came fafe to port. The 
lick man kept poffeffion, and claimed the benefit of the 
law. Now here all the learned agree, that the fick man 
is not within the reafon of the law; for the reafon of 
making it was, to give encouragement to fuch as fliould 
venture their lives to lave the veil'd; but this is a merit 
which he could never pretend to, who neither ftaid in the 
fliip upon that account, nor contributed any thing to its 
preferyation. 
From this method of interpreting laws by the reafon of 
them, arifes what we call equity : which is thus defined 
byGrotius; “' The correction of that, wherein the law 
(by reafon of its univerfality) is deficient.” For, fince in 
laws all cafes cannot be forefeen or expreffed, it is necef- 
fary, that, when the general decrees of the law come to 
be applied to particular cafes, there fliould be lornewhere 
a power veiled of defining thole circumftances, which 
4 jN' (had 
