Abbildungen der Seite
PDF
EPUB

of the church, as to the ability or non-ability of the clerk presented or his being criminal. And it was said by Ashton, that if the bishop should refuse the clerk on account of alleged inability, and a quare impedit was brought, and the bishop excused himself on that account, and the parties were at issue upon the fact of ability, another judge should decide that, viz. the metropolitan. But that was denied by Danby, who said it should be tried by the jury. Ashton, however, persisted in his opinion, arguing that the right of advowson must be tried by both laws, and that before judgment was given, knowledge ought to be had of the ecclesiastical law. Prisot then said: “A tiels leys, que eux de sainte Esglise ont en auncien Scripture convenit pur nous a doner credence, quia ceo est comen ley, sur quel toutes maners leys sont fondues; et, auxi, sir, nous sumus obliges de conustre leur ley de sainte Esglise; et semble, ils sount obliges de conustre notre ley.' The literal translation is, “ As to those laws, which those of holy church have in ancient scripture, it behoves us to give them credence, for this is common law, upon which all manner of laws are founded ; and thus, sir, we are obliged to take notice of their law of holy church; and it seems they are obliged to take notice of our law.

Mr. Jefferson supposes that the words 'auncien scripture' do not refer to the Holy Scriptures or Bible, but to ancient writings, or the written code of the church.

But if this be so, how could Prisot have said that they were common law, upon which all manner of laws are founded ? Do not these words suppose that he was speaking of some superior law, having a foundation in nature or the Divine appointment, and not merely a positive ancient code of the church?

Mr. Jefferson asserts, that in subsequent cases, which he refers to, the expression has been constantly understood as referring to the Holy Scriptures; but he thinks it a mistake of Prisot's meaning. Now it is some argument in favor of the common interpretation, that it has always been cited as clear - Mr. J.'s interpretation is novel.

This case is cited in Brook’s Abridg. Title Quare Impedit pl. 12, and in Fitzherbert's Abridg. s. t. 89; but no notice is taken of Prisot's saying.

Mr. Jefferson quotes sundry cases where this saying has been relied on in proof of the maxim that Christianity is a part of the common law.

Thus in Taylor's case, 1 Vent. 293, indictment for blasphemous words, Hale, C. J. said, Such blasphemous words are not only an offence against God and religion, but a crime against the laws and government, and therefore punishable in this court, &c.; and Christianity is a part of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law. In the same case in 3 Keble, 607, Hale, C. J. is reported to have said, Religion is a part of the law itself, therefore injuries to God are as punishable as to the King or any common power. The case of 34 Hen. 6, 38, 40, is not here cited by the court as a foundation of their opinion. But it proceeds upon a general principle.

So in Rex v. Woolston, 2 Strange R. 834, S. C. Fitzgibb. 64, the court said they could not suffer it to be debated whether to write against Christianity in general was not an offence punishable in the temporal courts, at common law, it having been settled so to be in Taylor's case, 1 Vent. 293, and Rex r. Hall, 1 Strange R. 416. No reference was here made to the case in 34 Hen. 6.

A reference is made by Mr. J. to Sheppard's Abridgment, title Religion ; but the only position there found is, that to such laws as have warrant in holy Scripture our law giveth credence;' and laws made against the known law of God are void : and for these positions he cites, among others, the case of 34 Hen. 6, 40.

But independently of any weight in any of these authorities, can any man seriously doubt, that Christianity is recognised as true, as a revelation, by the law of England, that is, by the common law? What becomes of her whole ecclesiastical establishment and the legal rights growing out of it on any other supposition? What of her test acts, and acts perpetually referring to it, as a divine system, obligatory upon all? Is not the reviling of any establishment, created and supported by the public law, held a libel by the common law?

1824.

See Rex v. Williams, Holt's Law of Libel, p. 69, note (e). Smith v. Sparrow, 4 Bing. R. 84, and particularly what is said by Mr. Justice Park in page 88. Omichand v. Barker, Willes R.

J. S.

ART. VI.-WHETHER LAW IS À SCIENCE ?

An Introductory Lecture, delivered to the Law Class of Tran

sylrania University, on the 8th of November, 1832. By DANIEL MAYES, Professor of Law.

Is law a science, or is it something less dignified ? is the eternal question which is discussed, and decided affirmatively in the opening of this Introductory. The professor contends that, not only in its most comprehensive sense, but considered as municipal, law ought to be ranked as a science.

The dispute upon this point, like many others that engage the inquisitive, is a war of words; and it might be amicably adjusted by settling the meaning of expressions before becoming heated by the contest. Of one thing there can be no doubt, that whether it is a science or not, it is that which, for the most part, determines our sublunary fortunes. And the decision of the question seems not otherwise important, than as influencing the spirit in which we are likely to teach, to learn or remember, and apply the law.

When we say that a branch of human knowledge is a science, we mean, in general, that it is founded on principles inherent in the subjects to which it relates. We mean also that those principles serve as a basis whereon we may classify the subjects of that particular branch of knowledge. We mean, further, that such branch of knowledge may be taught by commencing with generals and descending to particulars; and that in practice we do not grope in the dark, but each particular case, as soon as it arises, is illustrated, to the eye of the skilful observer, by the clear and steady light of general principles. Such a branch of knowledge is taught by developing the relation that particulars bear to generals; and in doing this, we have time for reflection, for reiteration, and for correcting a misapplication of principles. It is learned by considering particulars in detail, and referring them to the principles to which they belong; and this again is the work of time, and of patiently revolving each object of consideration in the mind, till it becomes familiar; not familiar as an isolated object may become, but as one of a group, where each constituent may afterwards help to suggest all the rest. But in practice, principles must be applied at a single operation, and errors are irrevocable. Therefore the judge, if not more skilful and masterly, should, at least, be more ready and dexterous than a teacher of law.

The objects of knowledge are things, attributes, and relations. The law considers man, bis corporeal and mental frame, and his connexion with other beings. When we teach and learn the law, if we teach and learn it aright, we investigate the rights of man as they are manifested in the nature which has been impressed upon him, and his state of being. Municipal institutions seldom effect either the one or the other, but those institutions are truly the result of man's nature and state of being. His nature is ever the same, and therefore the rights which belong to him by nature are unchangeable, and the laws which secure those rights are unalterable. Without any Roman statute against rape, the insult and violence offered to Lucretia, would have been an offence against that eternal and immutable law which must apply to every intelligence. Those rules which are of universal application, eternal and unchangeable, and which arise out of the very nature of the being which they govern, are surely entitled to the most dignified name that language can supply. The sublunary state of man, however, whatever may be said of his nature, depends upon the circumstances which surround him, or rather his state is but a compendious expression for all those circumstances. The country of the globe that he inhabits, the air that he breathes, the sky that bends over him, the neighbors that are around him, the degree of civilization or enlightenment to which he has reached, all conspire together to make up his present state.

state. Nor ought we to forget the influence exerted by the institutions to which he has been already subjected, in coloring the features of his present state. The municipal laws by which he must be governed at any given time, must vary with this state, however compounded, and be suitable to it. But even this group of the laws, let it be remembered, are not arbitrary. Those which suit one people or age are not fit for another people or age. Far otherwise. The actually governing institutions of any people must conform to the nature of man, as it is modified by the accidental state of that people. Nor even is it different with regard to what are usually considered the most artificial and arbitrary laws in human codes, we mean, the laws or rules of civil procedure. As well might it be said that the laws which govern the demonstrations of geometry are arbitrary — and even this has been said — as that the rules of pleading and evidence are so. The questions that engage us in the former, relate to the proportions of magnitudes, while our inquiry in the latter is — what is just — what is unjust? But the same immutable laws of intelligence, the same rules of ratiocination, the same desire to know the truth and consequent attention, the same involuntary sequence of propositions, distinguish the efforts of the mind, and form its method of action, in the one, as in the other field of exertion. Indeed if there are any invariable principles in human nature, the same may be affirmed as truly of the law. And even those positive institutions, that seem least indebted to principle for their construction, will be found, upon attentive examination, to correspond to the circumstances of the age and people, when and among whom they were enacted.

But our question, for the present is - whether law is a science or not? To solve this, two others may be propounded -- what is science and what is law? That is; what is the meaning of the words? For disguise it as we may, words are truly the result of all we know. Words are exact copies of the images with which our minds are furnished, and those copies are clear or obscure in proportion to the distinctness of the images themselves. When it is said a science has been improved, and the boundaries of knowledge extended, we only mean, when we analyze our meaning, that our language has been rendered more comprehensive. “Ideas,' says Lavoisier, are preserved and communicated by means of words; whence it necessarily follows, that we cannot improve the language of any science, without, at the same time, improving the science itself; neither can we, on the other hand, improve a science, without improving the nomenclature that belongs to it.' In attempting to answer the question, therefore,- is law a science? - we may be indulged in trying to fix, if we can, what we mean by the principal words in the query — law and science.

It is said, in the Introductory Treatise to the Library of Useful Knowledge, that "Science in its most comprehensive sense only means knowledge, and in its ordinary sense, means knowledge

« ZurückWeiter »