Page images





[ocr errors]

"And it (law) is that rule of action, which is prescribed by ❝ some superior, and which the inferior is bound to obey." 1 BI. Com. 38.

Judge Wilson, attacks this definition in his lectures on law;* and considers it of great moment to show that it is incorrect, as being anti-republican. "A superior! let us "make a solemn pause; can there be no law without a su66 perior? Is it essential to law that inferiority should be in"volved in the obligation to obey it? Are these distinc❝tions at the root of all obligation? There are laws that are "human; does it follow that in these a character of supe"riority is inseparably attached to him who makes them? "And that a character of inferiority, is in the same man

ner, inseparably attached to him for whom they are made? "What is this superiority; who is this superior? by whom ❝is he constituted; whence is his superiority deduced? "Does it flow from a source that is human; or does it flow "from a source that is divine? From a human source it "cannot flow; for no stream issuing thence, can rise higher "than the fountain." Judge Wilson tells us that he hesi tates himself to give a definition of law, but takes a view of

* Lectures, part 1. chap. II. 61.


a number of those which have been given from Aristotle down; finds fault with most; but considers this of Blackstone as the most exceptionable, as leading to the most pernicious principles of arbitrary government. On the contrary, I am not able to find any fault with it, or to see any germ of despotism in it; and I answer his question, by saying that the community is the superior who prescribes the law, and the individual the inferior to whom it is prescribed. The whole is greater than a part. Judge Wilson lays it down as a position which he conceives overthrows the definition, that, ❝ consent alone in a free government can make a law binding;" but is not this consent given by every individual at the framing of the constitution, that the laws made under it shall be obeyed? The whole body of the people is superior to a single one. "It is better that one man should die than the whole people perish." The salus reipublicæ, which was the Roman phrase; or the salus populi, which is that of our law, evinces the source and the obligation of our laws. We the people, the superior, frame the law; and you the individual, the inferior, must be governed by it. In the same manner as an individual member of the natural body is of less consideration; in other words of an inferior consideration to the whole; so is an individual member of the body politic, to the members collectively. It would seem to be but an affectation of republicanism, to carp at a definition so expressed, while the part is considered relatively to the whole as in subjection. Jus, justitia, juro, juramentum, injustitia, injuria, are all of the root Jubeo, which signifies to command. Lex est ratio summa insita in natura quæ ea quæ facienda sunt, jubet, prohibetque contraria. Cic. "In the same manner our English word just is the past participle of the verb jubere. Right is no other than rectum, the past participle of the latin verb regere. Thus when a man demands his right, he asks for that which he is ordered to have. A just man is such as he is commanded to be; qui leges juraque servat. Every thing that is ordered or commanded is right

and just."* The etymology of every word in the language Diver. of Purley.

that respects law, is from a root that implies the act of a superior; and it seems to me impossible to have any idea of a law but of that which is imposed. To reject these terms therefore, or a definition which retains them, would seem to me to savour of the French reform, when terms were rejected because the things were obnoxious.

The carrying a law into effect, in other words, the execution of the law shows a superior. A man does not ipso facto consent to be hanged. He may be said to consent constructively from having given, in contemplation of law, a previous consent to the law and the effect of it. But eo instante; in the act of inflicting the penalty, to suppose an assent would be absurd. It is enforced by a superior.

None ever felt the halter draw

With good opinion of the law.*

The correct idea is that quoad the law, or with relation to the making, the legislature is a superior power; but with relation to the constitution, which is the act of the convention which framed the society, it is not superior. It is diverso intuito, that superiority or inferiority is affirmed. But if any principle was to be deduced from these terms, such as the divine right of the magistrate, it would be of importance.


Every law may be said to consist of several parts; onc "declaratory, &c. another directory, &c." 1 Bl. Com. 53.

By an act of assembly for the gradual abolition of slavery, March 1, 1780, § 5. "The owner of any negro or mulatto slave, or servant for life, or years, now within this state, shall deliver in writing to the court of record of the county or city, in which he shall inhabit, the name and surname, and occupation of such owner, and the name of the county and township wherein he resideth; and also the name or names of any such slave, &c. with the age and sex, in order

* Hudibras.

to ascertain and distinguish, &c. which particulars shall be entered in books, &c. and that no negro or mulatto now within this state, shall, from and after, &c. be deemed a slave or servant for life, or for years, unless his or her name shall be entered as aforesaid on such record." This law has been holden directory as to all particulars, except the name; and this by reason of the negative in the latter clause of the sentence; and even parol proof has been admitted to establish the identity where the slave or servant was recorded by a wrong name or colour; the object of the act being declared to be, to ascertain and distinguish; and this on the ground that this act was in derogation of the right of property in the master, taken from him, without an adequate compensation, and to be construed favourably for his claim of service. This also on the ground of general inconvenience, as from the ignorance of owners, or error of clerks, every requisite of the law had been, in few instances complied with.

It is a maxim of law, that an affirmative statute does not take away the common law. And if a statute, without any negative words, declare that deeds shall have in evidence a certain effect, provided particular requisites are complied with, this does not prevent their being used as evidence, though the requisites are not complied with, in the same manner as they might have been before the statute passed. Though, it is in the general true, that if an affirmative statute which is introductive of a new law direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner. The power of construing a statute is in the judges; who have authority over all laws, and more especially over statutes to mould them according to reason and convenience, to the best and truest use. 6 Wil. Bac. 378.

By an act of 8th Ap. 1785, Sec. 9. it is provided "that every survey upon any warrant, shall be made by actual going upon and measuring off the land, and marking the lines to be returned upon such warrant, after the warrant authorising such survey shall come to the hands of the deputy surveyor, to whom the same shall be directed; and every survey made

theretofore shall be accounted clandestine, and shall be void and of no effect whatever. The first part of this sentence has been held directory to the officer, and the survey being void, to refer only to the making it before the warrant comes to hand. This, because there could be no authority, to make the survey without the warrant ; but the going on the ground, &c. refers to the mode and manner of making it.

This construction as to what was considered directory, was also applied, nobis dissentientibus, to surveys made under the act of April 3d, 1792. I dissented, because a main object of the survey being the designation of boundary, that settlers might know what was left out by the warrant holders in order to enter to settle, it was a substantial requisite under this act, to have the lines marked. It may be said that it is hard, that, from the neglect of the surveyor, a party should suffer; but it may be considered his own act, where he had the superintendance of seeing the survey executed.

It may be seen from these examples, that, in what is called the directory part of a statute, a distinction may be taken as to what is merely directory; and the not complying strictly with which, will not avoid the act done under it. The act pursuing the statute strictly as to such requisites, must be construed subject to the consideration of these not being matter of substance and contravening the whole policy of the act; but as having a reference to the mode or manner of doing a thing. For it is not in human vigilance, or the prac tical power of officers or party to observe all formalities.

By an act of 24th February, 1770, establishing the mode by which husband and wife shall convey the estate of the wife, a judge or justice is authorised to take the acknowledgment of such conveyance, in doing which he shall examine the wife separate and apart from her husband, and shall read or otherwise make known the full contents of such deed and conveyance to the said wife; and if, upon such separate examination, she shall declare that she did voluntarily, and of her own free will and accord, seal, and as her act and deed deliver, the said deed or conveyance, without any coercion or compulsion of her said husband, every such deed or

« PreviousContinue »