Volume 2: 1771 Edition of the Encyclopedia Britannica!
Law may be defined, "The command of the sovereign power, containing a common rule of life for the subjects." It is divided into the law of nature, the law of nations, and civil or municipal law.
1. The law of nature is that which God has prescribed to all men, by the internal dictate of reason alone. It is discovered by a just consideration of the agreeableness or disagreeableness of human actions to the nature of man and comprehends all the duties we owe either to the Supreme Being, to ourselves, or to our neighbour; as reverence to God, self defence, temperance, honour to our parents, benevolence to all, a strict adherence to our engagements, gratitude, etc. The law of nature, where it either commands or forbids, is immutable, and cannot be controlled by any human authority; but where that law does no more than confer a right, without obliging us to use it, the Supreme Power may divest us thereof, in whole or in part.
2. The law of nations is also the result of reason, and has God for its author; but it supposes mankind formed into several bodies politic, or states; and comprises all the duties which one state owes to another. These must of necessity be similar to the duuties arising between individuals, since both are dictated by reason; so that what is the law of nature when applied to men considered simply as such, is indeed the law of nations when applied to kingdoms or states. From this source proceed the rights of war, the security of ambassadors, the obligations arising from treaties, etc. The particular usages of nations in their mutual correspondence which are not necessarily founded in reason, are no part of the law of nations in its proper sense: for they are arbitrary, and derive their sole authority from compact, either express or presumed; and may therefore, without violating the law of nature, be altered. For this reason, they ought to thrown into the class of positive laws, whose obligation lasts no longer than the agreement upon which it is founded. Of this sort, are the ceremonial used in receiving and entertaining ambassadors, the privileges indulged to some of their servants, the rules observed in cartels for exchanging prisoners of war, etc.
3. Civil or municipal law, is that which every sovereign kingdom or state has appropriated to itself. The appellation of municipal was originally confined to the laws of municipia, or dependent states; but it came by degrees to signify all civil laws without distinction. No sovereign state can subsist without a Supreme Power, or a right of commanding in the last resort; the Supreme Power of one age cannot therefore be fettered by any enactment of a former age, otherwise it would cease to be Supreme. Hence the law last in date derogates from prior laws.
PRINCIPLES OF THE LAW OF SCOTLAND.
Title I. General Observations.
1. The municipal law of Scotland, as of most other countries, consists partly of statutory or written law, which has the express authority of the legislative power; partly of customary or unwritten law, which derives force from its presumed or tacit consent.
2. Under our statutory or written law is comprehended, (1.) Our acts of parliament: not only those which were made in the reign of James I. of Scotland, and from thence down to our union with England in 1707, but such of the British statutes enacted since the unionas concern this part of the united kingdom.
3. The remains of our ancient written law were published by Sir John Skene clerk-register, in the beginning of the last century, by license of parliament. The books of Regiam Majestatem, to which the whole collection owes its title, seem to be a system of Scots law, written by a private lawyer at the command of David I.; and though no express confirmation of that treatise by the legislature appears, yet it is admitted to have been the ancient law of our kingdom by express statutes. The borough-laws, which were also enacted by the same king David, and the statutes of William, Alexander II. David II. and the three Roberts, are universally allowed to be genuine. Our parliaments have once and again appointed commissions to revise and amend the Regiam Majestatem, and the other ancient books of our law, and to make their report: but; as no report appears to have been made, nor consequently any ratification by parliament, none of these remains are received, as of proper authority, in our courts; yet they are of excellent use in proving and illustrating our most ancient customs.
4. Our written law comprehends, (2.) The acts of sederunt, which are ordinances for regulating the forms of proceeding before the court of session in the administration of justice, made by the judges, who have a delegated power from the legislature for that purpose. Some of these acts dip upon matter of right, which declare what the judges apprehend to be the law of Scotland, and what they are to observe afterwards as a rule of judgment.
5. The civil or Roman and canon laws, though they are not perhaps to be deemed proper parts of our written law, have undoubtedly had the greatest influence in Scotland. The powers exercised by our sovereigns and judges have been justified upon no other ground, than that they were conformable to the civil or canon laws; and a special statute was judged necessary, upon the reformation, to rescind such of their constitutions as were repugnant to the Protestant doctrine. From that period, the canon law has been little respected, except in questions of tithes, patronages, and some few more articles of ecclesiastical right: But the Roman continues to have great authority in all cases where it is not derogated from by statute or custom, and where the genius of our law suffers us to apply it.
6. Our unwritten or customary law, is that which, without being expressly enacted by statute, derives its force from the tacit consent of king and people; which consent is presumed from the ancient custom of the community. Custom, as it is equally founded in the will of the lawgiver with written law, has therefore the same effects: Hence, as one statute may be explained by another, so a statute may be explained or repealed by the uniform practice of the community, and even go into disuse by a posterior contrary custom. But this power of custom to derogate from prior statutes, is generally confined by lawyers to statutes concerning private right, and does not extend to those which regard public policy.
7. An uniform tract of the judgements or decisions of the court of session, is commonly considered as part of our customary law; and without doubt, where a particular custom is thereby fixed or proved, such custom of itself constitutes law: But decisions, though they bind the parties litigating, have not, in their own nature, the authority of law in similar cases; yet, where they continue uniform, great weight is justly laid on them. Neither can the judgments of the house of peers of Great Bitain reach farther than to the parties in the appeal, since in these the peers act as judges, not as lawgivers.
8. Though the laws of nature are sufficiently published by the internal suggestion of natural light, civil laws cannot be considered as a rule for the conduct of life, till they are notified to those whose conduct they are to regulate. The Scots acts of parliament were, by our most ancient custom, proclaimed in all the different shires, boroughs, and baron-courts of the kingdom. But after our statutes came to be printed, that custom was gradually neglected; and at last, the publication of our laws, at the market-cross of Edinburgh, was declared sufficient; and they became obligatory forty days thereafter. British statutes are deemed sufficiently notified, without formal promulgation; either because the printing is truly a publication, or because every subject is, by a maxim of the English law, party to them, as being present in parliament, either by himself or his representative. After a law is published, no pretence of ignorance can excuse the breach of it.
9. As laws are given for the rule of our conduct, they can regulate future cases only; for past actions, being out of our power, can admit of no rule. Declaratory laws form no exception to this; for a statute, where it is declaratory of a former law, does no more than interpret its meaning; and it is included in the notion of interpretation, that it must draw back to the date of the law interpreted.
10. By the rules of interpreting statute-law received in Scotland, an argument may be used from the title to the act itself, a rubro ad nigrum; at least, where the rubric has been either originally framed, or afterwards adopted by the legislature. The preamble or narrative, which recites the inconveniences that had arisen from the former law, and the causes inducing enactment, may also lead a judge to the general meaning of the statute. But the chief weight is to be laid on the statutory words.
11. Laws, being directed to the unlearned as well as the learned, ought to be construed in their most obvious meaning, and not explained away by subtle distinctions; and no law is to suffer a figurative interpretation, where the proper sense of the words is as commodious, and equally fitted to the subject of the statute. Laws ought to be explained so as to exclude absurdities, and in the sense which appears most agreeable to former laws, to the intention of the lawgiver, and to tthe general frame and structure of the constitution. In prohibitory laws, where the right of acting is taken from a person, solely for the private advantage of another, the consent of him, in whose behalf the law was made, shall support the act done in breach of it; but the consent of parties immediately interested has no effect in matters which regard the public utility of a state. Where the words of a statute are capable but of one meaning, the statute must be observed, however hard it may bear on particular persons. Nevertheless, as no human system of laws can comprehend all possible cases, more may be sometimes meant by the lawgiver than is expressed; and hence certain statutes, where extension is not plainly excluded, may be extended beyond the letter, to similar and omitted cases: others are to be confined to the statutory words.
12. A strict interpretation is to be applied, 1. To correctory statutes, which repeal or restrict former laws, and to statutes which enact heavy penalties, or restrain the natural liberties of mankind. 2. Laws, made on ccasion of prsent exigencies in a state, ought not to be drawn to similar cases, after the pressure is over. 3. Where statutes establish certain solemnities as requisite to deeds, such solemnities are not suppliable by equivalents; for solemnities losse their nature, when they are not performed specifically. 4. A statute, which enumerates special cases, is, with difficulty, to be extended to cases not expressed; but, where a law does not descend to particulars, there is greater reason to extend it to similar cases. 5. Statutes, which carry a dispensation or privilege to particular persons or societies, suffer a strict interpretation; because they derogate from the general law, and imply a burden upon the rest of the community. But at no rate can a privilege be explained to the prejudice of those in whose behalf it was granted. As the only foundation of customary law is usage, which consists in fact, such law can go no farther than the particular usage has gone.
13. All statutes, concerning matters specially favoured by law, receive an ample interpretation; as laws for the encouragement of commerce, or of any useful public undertaking, for making effectual the wills of dying persons, for restraining fraud, for the security of creditors, etc. A statute, though its subject-matter should not be a favourite of the law, may be extended to similar cases, which did not exist when the statute was made; and for which, therefore, it was not in the lawgiver's power to provide.
14. Every statute, however unfavourable, must receive the interpretation necessary to give it effect: And, on the other hand, in the extension of favourable laws, scope must not be given to the imagination, in discovering remote resemblances; the extension must be limited to the cases immediately similar. Where there is ground to conclude that the legislature has omitted a case out of the statute purposely, the statute cannot be extended to that case, let it be ever so similar to the cases expressed.
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