Page:Cyclopaedia, Chambers - Volume 2.djvu/80

 LAW

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LAW

who violate the Laws are determined. The Dlftributive and Vindicative are not two Species of Laws, but two Parts of the fame Law. For if a Law fay no more than Whatever you catch in your Net in the Seajhall be yours, 'tis in vain j for tho another take from you what you have caught, 'tis {till yours j in regard in the State of Na- ture, where all things are common, yours and another's are the fame thing. So that what the Lew defines to be yours, was yours before that Law, and will be yours after it, tho poffefs'd by another. A Law therefore is but an empty Sound, unlels it determine the thing to be yours in fuch a fenfe, as to forbid every body elfe from difturbing you in the poffeffion of it. But fuch Prohibition will be vain, unlefs there be a Penalty annex'd to it. A Law therefore muft contain both thofe Parts, that which pro- hibits, and that which punifh.es. The firft whereof, which is call'd Distributive, is prohibitory, and fpcaks to all. The latter, call'd Vindicative or Fcenary, is Mandatory, and fpeaks only to the public Officers. Whence it fol- lows, that to all Civil Laws there is annex'd a Penalty, either implicitly or explicitly : and where that Funifti- ment is not afcertain'd, cither by Writing or by Example, 'tis fuppofed to be Arbitrary, and to depend on the Plea- fure of the Legislator j for that is no Law, which may be violated immune.

Moreover, Civil Laws confidered with regard to the different Manners of promulging them are of two kinds j Script* and Non-Scripts, thofe written, and thofe not writ- ten. By written, 1 mean thufe which require either the Voice or fome other Sign of the Legislator's Will to be- come Laws. Thofe unwritten, are fuch as need no other Promulgation befides the Voice of Nature, or Natural Reafon j of which kind are all Natural Laws. Hence it appears, that tho the Natural Laws be defcribed in the Writings of Philofophers, they are not therefore to be call'd, Written Laws. Nor are the Writings of Lawyers Laws, for want of the Supreme Authority : nor the Re- ffonfa Frudentum, or Opinions of Judges Laws, excepting fo far as they are allow'd by the Supreme Power to pafs into Ufe j and then they are call'd Leges feriptte, written Laws j not becaufe of their Ufe, but becaufe of the Will of the Supreme Power, which is argued from their pafling into Ufe.

The firft Principle, or Law of Nature, according to Hobbes, is Self-prefervation. Thomaffus will have it to be our own Happinefs, which falls in at laft with the Senti- ment of Hobbes. Pttjfettdorf maintains it to be Sociality. Valentine Albert!, the Belief that we are the Image of God. Henry and Samuel Cocceius, the Will of God. Gro- tius, Right Reafon. Velthenius, the intrinfic Decency or Turpitude of Actions. Strimejius and Janus, that we are to love God, Ourfelves, and our Neighbour. M. Regis fays, that the Laws of Nature are the Dictates of Right Reafon, which teach every Man how he is to ufe his na- tural Right 5 and the Laws of Nations, the Dictates in like manner of Right Reafon, which teach every State how to aft and behave themfelves towards others.

Law is alfo ufed for the feveral Policies of States and People, or the Maxims and Rules they have agreed upon or receiv'd from their Magiftrates, to live in Peace and mutual Society. The Laws of the Twelve Tables were the antient Laws of the Romans, for which the Decemviri were fent into Greece, and which ferv'd them for the Ground-work of all their Jurifprudence. The celebrated Laws of the more modern Days are thofe of the Ajigli, Vermes, or Thuringi, of the Boil or Bavarians, thofe of the Burgundi, of the Rymarii, Germans, Danes, and Norwe- gians, of the Franks, the Frifons, the Lombards, the Gothic Laws, the Martiane or Mercian Law ; the Laws of the Saxons, Scots, Sicilians, Vijigoths, the Laws of Oleron, the Molmutin Law, the Salic Law, the Law Gombette. See Salic, Sumptuary, cVc.

Among the firft Romans, the word Law properly digni- fied an Ordonnance of the People made at the Requeft of a Magiftrate, particularly a Conful. Thefe Ordonnances differ'd from the Plebifcita and Senatus-Confulta, and even from other Ordonnances made at the Requeft of any other Magiftrate befides a Conful, tho thofe too bore the name of Law. Thus tho Aqmlius and Falcidhis were only Tribunes when they made their Requefl, yet we ftill fay the Aquilian Law, the Falcidian Law. The Laws of the Romans are diftinguifhed, i/?, By the Name of him at whofe Requeft they were pafs'd ; as the Cornelian Law, the Julian Law, &c. zdly, By the Matter or Subject of the Law ; and hence came the Terms Teflamentary Laws, Judiciary Laws, Agrarian Laws, &c. idly, Sometimes by the Crimes againft which they were made j for inftance, the Laws touching Poifonings, Parricides, &c. the Laws of Concuffion, Peculate, ££c. The Codex and Authentic* are the Laws and Conftitution of the Roman Emperors : The Digeji a Compilation made by the Emperor 3*/K- nian\ Order of the feveral Opinions and Judgments of

the moil Learned in the Roman Law ; to which he gave the Sanction of Laws, as appears by the Epiftle prerix'd to the Work : And 'tis this that confitures the Roman Law,

Theiex TaUonis, or Law of Like for Like, is the moft antient and equitable Law in the World. It was obferv'd by the Hebrews.

The Law of England confifts of three Parts, r. The Common Law, which is the moft antient and general Law of the Realm. 2. Statutes, or Acts of Parliament. 3. Particular Cuftoms. The Common Laws of England are derived from the Englift, Saxons, and Danes, and were antiently divided into three Parts, viz. the Mercian Laws % the Weft-Saxon Laws, and the Damjb Laws. Thofe call'd Mercian were compofed by Mania Queen of the Britons, from whom there was a Province call'd Frov'mcia Mercio- rum. Many Laws were published by Ethelred King of Kent, by King Ina and Offa: But Alfred, who fubdued the whole Kingdom, having revifed all the Laws of his Predeceffors, retain'd thofe which he thought proper, and aboliih'd the reft ; whence he was call'd Anglicarum Legum Conditor, and thefe Laws were call'd Wejifenelagan. But the Kingdom being afterwards fubdued by the Danes, they introduced another Law call'd Danalag, by which their People were governed : And they being afterwards deflroy'd, Edward the Confe.ffbr out of the former Laws compofed that which we now call the Common Law j {of which reafon he is call'd by our Hiftorians, Anglicarum Legum Rejiittttor. Thefe Laws were only general Cuiloms obferved thro the Nation, and for that reafon were call'd Common : And perhaps alfo becaufe Leges omnibus in com- mune reddidit, to be obferv'd by all with fuch Amendments as were made by his Father. William the Conqueror did not enacl many new Laws, butconfirm'd the old 5 viz. St. Ed- ward's Laws, and abrogated none that any way concern 'd Compositions or Mulcts of Delinquents.

The Common Law is alfo call'd Lex non fcripta, (not but that we have moft of 'em written in the old Norman DialecYj but becaufe it cannot be made by Charter or Parliament 5 for thofe are always Matters of Record, whereas Cuftoms are only Matters of Fact, and are no where but in the Memory of the People, and of all Laws muft be the beft for the Englifi ; for the Written Laws made by King and Parliament, are impofed upon the Subjects before any Probation or Trial whether they are beneficial to the Nation, or agreeable to the Nature of the People, except where they are firft made temporary, and for their experiene'd Ufefulnefs afterwards made per- petual j but Cuftoms bind not till they have been tried and approved Time out of Mind.

Befides the Common Law of England in general, there are in feveral Parts of it certain Cuftoms and Common Ufages, which have the force of Common Lazv among thofe People to whofe Property they belongs as Borough- EngHJh, a Cuftom fo call'd as not being in ufe out of Eng- land, where the youngeft Son, or for want of Sons the youngeft Brother, is to inherit, the eldeft being fuppofed to have learnt the Father's Trade, and the youngeft the leaft able to ftiift for himfelf. See Gavelkind.

Where the Common Law is iilent, there we have Sta- tute Laws made by the feveral Kings of England, with the Advice and Confent of both Houfes of Parliament.

Befides thefe, we make ufe of the Civil and Canon Laws in Ecclefiaftical Courts. See Civil and Canon. We have alfo Military or Martial Law, in ufe amon<* the Soldiery in time of War 5 and Forefi Law, for the Regu- lation of Forefts. See Military, Forefts, &c.

Law has alfo a fpecial Signification, wherein it is taken for that which is lawful with us, and not clfewhere, as Tenant by the Courtefy of England. Thus we alfo fay, to wage Law (vadiare Legem) and to make or do Law (facere Legem.) When an Action of Debt is brought again!! one upon fome fecret Agreement or Contract, the Defendant may wage his Law if he pleafes j that is, fwear, and cer- tain Perfons with him, that he owes the Plaintiff nothing ; But this is only allow'd in cafe of the Plaintiff's want of Evidence, and when he cannot prove his Surmife bv anv Deed or open A6t. When one wages his Lazv, he' /hall bring with him fo many of his Neighbour-; as the Court ihall affign (Sir Ed. Coke fays, eleven) to fwear with him that they believe in their Confciences he hath fworn truly 5 and thefe in the Civil Law are call'd Compurgators. The Offer to make Oath is call'd the Wager of Law, and when it is accomplifh'd, it is call'd the making or doing of Law. This Cuftom is faid to have obtained, formerly, among the Egyptians.

The Word Lazv is alfo ufed figuratively, in fpeaking of the Rules or Order according to which any thing is per- form'd. Thus we fay, the Laws of Motion, the Laws of Mechanics, the Laws of Fluids, the Laws of a Game, &c. See Motion, &c.

LAW