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SECTION III.: OF THE LAWS OF ENGLAND. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF THE LAWS OF ENGLAND.
The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.
The lex non scripta, or unwritten law, includes not only general customs, on the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.
When I call these parts of our law leges non scriptæ, I would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed that, in the profound ignorance of letters, which formerly overspread the whole western world, all laws were entirely traditional, for this plain reason, because the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic Druids committed all their laws as well as learning to memory;(a) and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant.(b) But, with us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice in books of *[*64reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However, I therefore style these parts of our law leges non scriptæ, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. In like manner as Aulus Gellius defines the jus non scriptum to be that, which is “tacito et illiterato hominum consensu et moribus expressum.”
Our ancient lawyers, and particularly Fortescue,(c) insist with abundance of warmth that these customs are as old as the primitive Britons, and continued down through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some; but in general, as Mr. Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another; though doubtless, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established; thereby, in all probability, improving the texture and wisdom of the whole by the accumulated wisdom of divers particular countries. Our laws, saith Lord Bacon,(d) are mixed as our language; and, as our language is so much the richer, the laws are the more complete.
And indeed our antiquaries and early historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his Dome-Book, or Liber Judicialis, for the general use of the whole kingdom. *[*65This book is said to have been extant so late as the reign of King Edward the Fourth, but is now unfortunately lost.1 It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemesnors, and the forms of judicial proceedings. Thus much may at least be collected from that injunction to observe it, which we find in the laws of king Edward the elder, the son of Alfred.(e) “Omnibus qui reipublicæ præsunt etiam atque etiam mando, ut omnibus æquos se præbeant judices, perinde ac in judiciali libro (Saxonice,) scriptum habetur: nec quicquam formident quin jus commune (Saxonice,) audacter libereque dicant.”
But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse, or at least to be mixed and debased with other laws of a coarser alloy; so that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts: 1. The Mercen-Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the principality of Wales, the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs. 2. The West-Saxon Lage, or laws of the West Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government.(f)
**66]Out of these three laws, Roger Hoveden(g) and Ranulphus Cestrensis(h) inform us, king Edward the confessor extracted one uniform law, or digest of laws, to be observed throughout the whole kingdom; though Hoveden, and the author of an old manuscript chronicle,(i) assure us likewise that this work was projected and begun by his grandfather king Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, which were formed from an assemblage of little provinces, governed by peculiar customs, as in Portugal, under king Edward, about the beginning of the fifteenth century:(k) in Spain under Alonzo X., who, about the year 1250, executed the plan of his father St. Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled Las Partidas:(l) and in Sweden, about the same æra, when a universal body of common law was compiled out of the particular customs established by the laghman of every province, and entitled the land’s lagh, being analogous to the common law of England.(m)2
Both these undertakings of king Edgar and Edward the confessor seem to have been no more than a new edition, or fresh promulgation, of Alfred’s code or dome-book, with such additions and improvements as the experience of a century and a half had suggested; for Alfred is generally styled by the same historians the legum Anglicanarum conditor, as Edward the confessor is the restitutor.3 These, however, are the laws which our histories so often mention under the name of the laws of Edward the confessor, which our ancestors struggled so hardly to maintain, under the first princes of the Norman line; and which subsequent princes so frequently promised to keep and restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. These are the laws that so vigorously withstood *[*67the repeated attacks of the civil law, which established in the twelfth century a new Roman empire over most of the states of the continent; states that have lost, and perhaps upon that account, their political liberties: while the free constitution of England, perhaps upon the same account, has been rather improved than debased. These, in short, are the laws which gave rise and original to that collection of maxims and customs which is now known by the name of the common law; a name either given to it in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jus commune, or folcright, mentioned by king Edward the elder, after the abolition of the several provincial customs and particular laws before mentioned.4
But though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach.5 nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Whence it is that in our law the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority: and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.6
This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 2. Particular customs; which, for the most part, affect only the inhabitants of particular districts. 3. Certain particular laws; which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction.
*68*]I. As to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king’s ordinary courts of justice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the Chancery, the King’s Bench, the Common Pleas, and the Exchequer;—that the eldest son alone is heir to his ancestor;—that property may be acquired and transferred by writing;—that a deed is of no validity unless sealed and delivered;—that wills shall be construed more favourably, and deeds more strictly;—that money lent upon bond is recoverable by action of debt;—that breaking the public peace is an offence, and punishable by fine and imprisonment:—all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support.
Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and 2. Established rules and maxims; as, “that the king can do no wrong, that no man shall be bound to accuse himself,” and the like. But I take these to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage: and the only method of proving, that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it.
*69*]But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. The knowledge of that law is derived from experience and study; from the “viginti annorum lucubrationes,” which Fortescue(n) mentions; and from being long persoually accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. And therefore, even so early as the conquest, we find the “præteritorum memoria eventorum” reckoned up as one of the chief qualifications of those, who were held to be “legibus patriæ optime instituti.”(o) For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; *[*70much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust,7 it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded.(p) And it hath been an ancient observation in the laws of England, that whenever a standing rule of law of which the reason perhaps could not be remembered or discerned, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.
The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust;8 for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions, and therefore can never be departed from by any modern judge without a breach of his oath and *[*71the law. For herein there is nothing repugnant to natural justice;9 though the artificial reason of it, drawn from the feodal law, may not be quite obvious to everybody.10 And therefore, though a modern judge, on account of a supposed hardship upon the half brother, might wish it had been otherwise settled, yet it is not in his power to alter it. But if any court were now to determine, that an elder brother of the half blood might enter upon and seize any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law. Upon the whole, however, we may take it as a general rule, “that the decisions of courts of justice are the evidence of what is common law:” in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future.(q)11
The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyer’s library. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides, and the reasons the court gave for its judgment; taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain the records, which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of king Edward the Second inclusive; and from this time to that of Henry the **72]Eighth, were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day; for, though king James the First, at the instance of Lord Bacon, appointed two reporters(r) with a handsome stipend for this purpose, yet that wise institution was soon neglected, and from the reign of Henry the Eighth to the present time this task has been executed by many private and contemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. Some of the most valuable of the ancient reports are those published by Lord Chief-Justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However, his writings are so highly esteemed, that they are generally cited without the author’s name.(s)
Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert, and Staundforde,12 with some others of ancient date; whose treatises are cited as authority, and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the **73]same learned judge we have just mentioned, Sir Edward Coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by Judge Littleton in the reign of Edward the Fourth. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and year books, but greatly defective in method.(t) The second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts.(u)
And thus much for the first ground and chief corner-stone of the laws of England, which is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.
The Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it, when the written law was deficient. Though the reasons alleged in the digest(v) will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. “For since, (says Julianus,) the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind everybody. For where is the difference, whether the people declare their *[*74assent to a law by suffrage, or by a uniform course of acting accordingly?” Thus did they reason while Rome had some remains of her freedom; but, when the imperial tyranny came to be fully established, the civil laws speak a very different language. “Quod principi placuit13legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem conferat,” says Ulpian.(w) “Imperator solus et conditor et interpres legis existimatur,” says the code.(x) And again, “sacrilegii instar est rescripto principis obviari.”(y) And indeed it is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people.14
II. The second branch of the unwritten laws of England are particular customs, or laws, which affect only the inhabitants of particular districts.
These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament.(z)
Such is the custom of gavelkind in Kent, and some other parts of the kingdom, (though perhaps it was also general till the Norman conquest,) which ordains, among other things, **75]that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike; and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord.—Such is the custom that prevails in divers ancient boroughs, and therefore called borough-English, that the youngest son shall inherit the estate, in preference to all his elder brothers.—Such is the custom in other boroughs, that a widow shall be entitled, for her dower, to all her husband’s lands; whereas, at the common law, she shall be endowed of one-third part only.—Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors.—Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns, the right of holding which, when no royal grant can be shown, depends entirely upon immemorial and established usage.—Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage; though the customs of London are also confirmed by act of parliament.(a)
To this head may most properly be referred a particular system of customs used only among one set of the king’s subjects, called the custom of merchants or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it;(b) being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it is a maxim of law, that “cuilibet in sua arte credendum est.”15
The rules relating to particular customs regard either the proof of their exist ence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.
*[*76As to gavelkind, and borough-English, the law takes particular notice of them,(c) and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded,(d) and as well the existence of such customs must be shown, as that the thing in dispute is within the custom alleged. The trial in both cases (both to show the existence of the custom, as, “that in the manor of Dale, lands shall descend only to the heirs male, and never to the heirs female;” and also to show “that the lands in question are within that manor”) is by a jury of twelve men, and not by the judges; except the same particular custom has been before tried, determined, and recorded in the same court.(e)
The customs of London differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder;(f) unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c.; for then the law permits them not to certify on their own behalf.(g)
When a custom is actually proved to exist, the next inquiry is into the legality of it; for, if it is not a good custom, it ought to be no longer used. “Malus usus abolendus est” is an established maxim of the law.(h) To make a particular custom good, the following are necessary requisites.
1. That it have been used so long, that the memory of man runneth not to the contrary.16 So that, if any one can show the beginning of it, it is no good custom. For which reason no custom can prevail against an express act of **77]parliament,17 since the statute itself is a proof of a time when such a custom did not exist.(i)
2. It must have been continued. Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only, for ten or twenty years, will not destroy the custom.(j) As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for ten years; it only becomes more difficult to prove: but if the right be any how discontinued for a day, the custom is quite at an end.
3. It must have been peaceable, and acquiesced in; not subject to contention and dispute.(k) For as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.
4. Customs must be reasonable;(l) or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke says,(m) to be understood of every unlearned man’s reason, but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to show the reason why that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his, and then the tenants will lose all their profits.(n)
**78]5. Customs ought to be certain. A custom, that lands shall descend to the most worthy of the owner’s blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good.(o) A custom to pay two-pence an acre in lieu of tithes, is good; but to pay sometimes two-pense, and sometimes three-pence, as the occupier of the land pleases, is bad for its uncertainty. Yet a custom, to pay a year’s improved value for a fine on a copyhold estate, is good; though the value is a thing uncertain: for the value may at any time be ascertained; and the maxim of law is, id certum est, quod certum reddi potest.18
6. Customs, though established by consent, must be (when established) comulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all.
7. Lastly, customs must be consistent with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent; which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another’s garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom.(p)
Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly.19 Thus, by the custom of gavelkind, an infant of fifteen years *[*79may, by one species of conveyance, (called a deed of feoffment,) convey away his lands in fee-simple, or forever Yet this custom does not empower him to use any other conveyance, or even to lease them for seven years; for the custom must be strictly pursued.(q)20 And, moreover, all special customs must submit to the king’s prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king’s demise, his eldest son shall succeed to those lands alone.(r) And thus much for the second part of the leges non scriptæ, or those particular customs which affect particular persons or districts only.21
III. The third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws.(s)
It may seem a little improper at first view to rank these laws under the head of leges non scriptæ, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions and treatises of the learned in both branches of the law. But I do this, after the example of Sir Matthew Hale,(t) because it is most plain, that it is not on account of their being written laws that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority, which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors, were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here; for the legislature of England doth not, nor ever did, recognise any foreign power as superior or equal to it in this kingdom, or as having the right to give law to any, the meanest, of its subjects. But all the **80]strength that either the papal or imperial laws have obtained in this realm, or indeed in any other kingdom in Europe, is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the leges non scriptæ, or customary laws; or else because they are in some other cases introduced by consent of parliament; and then they owe their validity to the leges scriptæ, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21, addressed to the king’s royal majesty:—“This your grace’s realm, recognising no superior under God but only your grace, hath been and is free from subjection to any man’s laws, but only to such as have been devised, made, and ordained within this realm, for the wealth of the same; or to such other as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same; not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise.”
By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprised in the institute, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account.
The Roman law (founded first upon the regal constitutions of their ancient kings, next upon the twelve tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the prætor, and the responsa prudentum, or opinions of learned lawyers, and **81]lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or, as Livy expresses it,(u) “tam immensus aliarum super alias acervatarum legum cumulus,” that they were computed to be many camels’ load by an author who preceded Justinian.(v) This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compiled ad 438, being a methodical collection of all the imperial constitutions then in force: which Theodosian code was the only book of civil law received as authentic in the western part of Europe till many centuries after; and to this it is probable that the Franks and Goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms: for Justinian commanded only in the eastern remains of the empire; and it was under his auspices that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.
This consists of, 1. The institutes, which contain the elements or first principles of the Roman law, in four books. 2. The digests, or pandects, in fifty books; containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions, in twelve books; the lapse of a whole century having rendered the former code of Theodosius imperfect. 4. The novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Justinian; which, however, fell soon into neglect and oblivion, till about the year 1130, when a copy of the digests was found at Amalfi, in Italy; which accident, concurring with the policy of the Roman ecclesiastics,(w) suddenly gave new vogue and authority to the civil law, introduced it into several nations, and *[*82occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded.
The canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy see; all which lay in the same disorder and confusion as the Roman civil law, till, about the year 1151, one Gratian, an Italian monk, animated by the discovery of Justinian’s pandects, reduced the ecclesiastical constitutions also into some method, in three books, which he entitled Concordia Discordantium Canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX., were published in much the same method, under the auspices of that pope, about the year 1230, in five books, entitled Decretalia Gregorii Noni. A sixth book was added by Boniface VIII. about the year 1298, which is called Sextus Decretalium. The Clementine constitutions, or decrees of Clement V., were in like manner authenticated in 1317, by his successor John XXII., who also published twenty constitutions of his own, called the Extravagantes Joannis, all which in some measure answer to the novels of the civil law. To these have been since added some decrees of later popes, in five books, called Extravagantes Communes: and all these together, Gratian’s decree, Gregory’s decretals, the sixth decretal, the Clementine constitutions, and the extravagants of John and his successors, form the corpus juris canonici, or body of the Roman canon law.
Besides these pontifical collections, which, during the times of popery, were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of natural canon law, composed of legatine and provincial constitutions, and adapted only to the exigencies of this church *[*83and kingdom. The legatine constitutions were ecclesiastical laws, enacted in national synods held under the cardinals Otho and Othobon, legates from pope Gregory IX. and pope Clement IV. in the reign of king Henry III., about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial synods, held under divers archbishops of Canterbury, from Stephen Langton, in the reign of Henry III., to Henry Chichele, in the reign of Henry V.; and adopted also by the province of York(x) in the reign of Henry VI. At the dawn of the Reformation, in the reign of king Henry VIII., it was enacted in parliament(y) that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king’s prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.
As for the canons enacted by the clergy under James I. in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity,(z) whatever regard the clergy may think proper to pay them.22
There are four species of courts in which the civil and canon laws are permitted, under different restrictions, to be used: 1. The courts of the archbishops and bishops, and their derivative officers, usually called in our law courts Christian, curiæ Christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom, corroborated in the latter instance by act of **84]parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them.(a)
1. And, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and, in case of contumacy, to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.
2. The common law has reserved to itself the exposition of all such acts of parliament as concern either the extent of these courts, or the matters depending before them. And therefore, if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king’s courts at Westminster will grant prohibitions to restrain and control them.
3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own.—And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate, and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king’s ecclesiastical, the king’s military, the king’s maritime, or the king’s academical laws.
**85]Let us next proceed to the leges scriptæ, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king’s majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in parliament assembled.(b) The oldest of these now extant, and printed in our statute books, is the famous magna charta, as confirmed in parliament 9 Hen. III., though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.
The manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. At present we will only take notice of the different kinds of statutes, and of some general rules with regard to their construction.(c)
First, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an *[*86universal rule, that regards the whole community; and of this the courts of law are bound to take notice judicially and ex officio; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns; such as the Romans entitled senatus decreta, in contradistinction to the senatus consulta, which regarded the whole community;(d) and of these (which are not promulgated with the same notoriety as the former) the judges are not bound to take notice, unless they be formally shown and pleaded. Thus, to show the distinction, the statute 13 Eliz. c. 10, to prevent spiritual persons from making leases for longer terms than twenty-one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of Chester to make a lease to A.B. for sixty years is an exception to this rule; it concerns only the parties and the bishop’s successors; and is therefore a private act.23
Statutes also are either declaratory of the common law, or remedial of some defects therein.24 Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2, doth not make any new species of treasons, but only, for the benefit of the subject, declares and enumerates those several kinds of offence which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever. And this being done, either by enlarging the common law, where it was too narrow and circumscribed, or by restraining it **87]where it was too lax and luxuriant, hath occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason: clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law; therefore it was thought expedient, by statute 5 Eliz. c. 11, to make it high treason, which it was not at the common law: so that this was an enlarging statute.25 At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before mentioned: this was, therefore, a restraining statute.
Secondly, the rules to be observed with regard to the construction of statutes are principally these which follow.26
1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy.(e) Let us instance again in the same restraining statute of 13 Eliz. c. 10: By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors; the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives, or twenty-one years. Now, in the construction of this statute, it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop’s continuance in his see; or, if made by a dean and chapter, they are not void during the continuance of the dean; for the act was made for the benefit and protection of the successor.(f) The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the *[*88grantors; but the leases, during their continuance, being not within the mischief, are not within the remedy.
2. A statute, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior.27 So a statute, treating of “deans, prebendaries, parsons, vicars, and others having spiritual promotion,” is held not to extend to bishops, though they have spiritual promotion, deans being the highest persons named, and bishops being of a still higher order.(g)
3. Penal statutes must be construed strictly. Thus the statute 1 Edw. VI. c. 12, having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this should not extend to him that should steal but one horse,28 and therefore procured a new act for that purpose in the following year.(h) And, to come nearer our own times, by the statute 14 Geo II. c. 6, stealing sheep, or other cattle, was made felony, without benefit of clergy. But these general words, “or other cattle,” being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found necessary to make another statute, 15 Geo. II. c. 34, extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.29
4. Statutes against frauds30 are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fire, it is then to be taken strictly; but when the statute acts upon the offence, by setting aside the fraudulent transaction,31 here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5, which avoids all gifts of goods, &c. made to defraud creditors and others, was **89]held to extend by the general words to a gift made to defraud the queen of a forfeiture.(i)32
5. One part of a statute must be so construed by another, that the whole may (if possible) stand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A and A. has at that time a lease of it for three years: here A. shall hold it for his term of three years, and afterwards it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work and operate upon. But,
6. A saving, totally repugnant to the body of the act, is void. If, therefore, an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A. in the king, saving the right of A.; in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king.(k)33
7. Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon a general principle of universal law, that “leges posteriores priores contrarias abrogant:” consonant to which it was laid down by a law of the twelve tables at Rome, that “quod populus postremum jussit, id jus ratum esto.” But this is to be understood only when the letter statute is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards enacts, that he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end.(l) But if both acts be merely affirmative, *[*90and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter-sessions, and a latter law makes the same offence indictable at the assizes, here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assizes, and not elsewhere.(m)34
8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII., declaring the king to be the supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in Queen Elizabeth’s statute, but these acts of King Henry were impliedly and virtually revived.(n)35
9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1, which directs that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder.(o) Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. “When you repeal the **91]law itself, (says he,) you at the same time repeal the prohibitory clause, which guards against such repeal.”(p)
10. Lastly, acts of parliament that are impossible to be performed are of no validity: and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void.36 I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel.(q) But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.37
These are the several grounds of the laws of England: over and above which, equity is also frequently called in to *[*92assist, to moderate, and to explain them. What equity is, and how impossible in its very essence to be reduced to stated rules, hath been shown in the preceding section. I shall therefore only add, that (besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind) there are also peculiar courts of equity established for the benefit of the subject: to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of our courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.
[(a) ] Cæs. de B. G. lib. 6, c. 13.
[(b) ] Spelm. Gl. 362.
[(c) ] C. 17.
[(d) ] See his proposals for a digest.
[1 ] Both Hallam and Turner doubted the fact that such a work ever existed. It has, however, recently been brought to light, and may be seen, in both Saxon and English in “The Ancient Laws and Institutes of England,” published by the Record Commissioners, vol. i. pp. 45-101. At the head of it stand the Ten Commandments, followed by many of the Mosaic precepts, with the express and solemn sanction given them by our Saviour in the Gospel:—“Think not that I am come to destroy the law or the prophets: I am not come to destroy, but to fulfil.” After quoting the canons of the apostolical council at Jerusalem, Alfred refers to the divine commandment, “As ye would that men should do to you, do ye also to them,” adding, “from this one doom, a man may remember that he judge every one righteously: he need heed no other doom-book.” A noble and affecting incident this in the history of our laws,—which, though since swollen into an enormous bulk and complexity and fed from many sources, still bear the same relations to religion, which we observe in the rude and simple elements of these laws in the days of our illustrious Alfred. The work, however, is little more than a collection of punishments for offences, and has no pretensions to be regarded as a general system of municipal law.—Warren. Spence says there is no trace of it. 1 Spence, 61 n.
[(e) ] C. 1.
[(f) ] Hal. Hist. 55.
[(g) ]In Hen. II.
[(h) ]In Edw. Confessor.
[(i) ]In Seld. ad Eadmer, 6.
[(k) ] Mod. Un. Hist. xxii. 135.
[(l) ]Ibid. xx. 211.
[(m) ]Ibid. xxxiii. 21, 58.
[2 ] The commentators on the old French law cite Littleton for illustration; and, for the same reason, the antiquarian lawyer will cite Les Coutumes de Beavoisis, collected by Beaumanoir, first printed at Bourges, 1690, for the purpose of illustrating Littleton. Beaumanoir’s compilation was made long antecedent to our venerable author, or, as he has been called, father of our law.—Lee.
[3 ] To assign, however, to the common law no other original than this, would be to take an imperfect and erroneous view of the subject. Our system of tenures was chiefly constructed, if not first founded, by the Norman conqueror; our judicial forms and pleadings, while they have nothing in common with the Anglo-Saxon style, are in striking conformity with the Norman; and it has been remarked with great truth that the general language of our jurisprudence and its terms of art are exclusively of French extraction. (Crag. Jus. Feud. l. 1, d. 7.) We cannot hesitate, therefore, to recognise in the ancient law of Normandy another parent of the common law, and one from which it has inherited some of its most remarkable features.—Stephen.
[4 ] The student who may be desirous of pursuing this investigation further may add to his own conjectures those of Dr. Wilkins, in his code of ancient laws; Selden, in his Notes on Eadmer; and of Garberon, editor of the works of Anselm.—Lee.
[5 ] What Lord Hale says is undoubtedly true, that “the original of the common law is as undiscoverable as the head of the Nile.” Hist. Com. Law, 55.—Christian.
[6 ] There is no common law of the country designated geographically as the United States. The Union is composed of sovereign and independent States, each of which may have its local usages, customs, and common law. There is no principle which per vades the Union and has the authority of law that is not embodied in the constitutior and acts of Congress. As the federal government has no powers not specially delegated, and no jurisdiction over the regulation of real and personal property, nor over crimes, except such as relate to federal subjects, the common law neither is, nor could it by legislative adoption be made, a part of the federal system.
It is true that the common law was the substratum of the jurisprudence of the thirteen States by whom the constitution of the United States was at first adopted. The men by whom it was framed had been educated under that system, and many of them lawyers. No doubt, upon the commonly-received principles of interpretation, the language of that instrument, and the technical terms employed in it, are to be construed by the common law. Of the remaining States, Vermont was formed out of territory originally belonging to New Hampshire, and Maine from Massachusetts. Of the States which have since acceded to the Union, Kentucky, Tennessee, Ohio, Indiana, Mississippi, Illinois, Alabama, Michigan, Wisconsin, Iowa, comprise territory which originally belonged to one or more of the thirteen States and was ceded by them to the United States. Louisiana, Missouri, and Arkansas were formed out of territory ceded to the United States by France by the treaty of April 30, 1803. Florida was formed out of territory ceded by Spain by the treaty of February 22, 1819. Texas, an independent republic, but originally one of the United States of Mexico, was received into the Union by a joint resolution of Congress, approved March 1, 1845. California was formed of part of the territory ceded to the United States by the Mexican Republic by the treaty of Guadaloupe Hidalgo, February 2, 1848.
In Texas, Missouri, Arkansas, and California, the common law has been adopted by express legislative enactment, so that Louisiana is the only State in which any other law prevails. In that State the law of France, which is the Roman civil law with such modifications as obtained at the time of her purchase, is the foundation of her jurisprudence; for it is a well-settled principle of international law, that whenever a country is conquered by or ceded to another, the law of that country as it was at the time of its cession or conquest remains until it is changed by its new master.—Sharswood.
[(n) ]Cup. 8.
[(o) ] Seld. Review of Tith. c. 8.
[7 ] But it cannot be dissembled, that both in our law, and in all other laws, there are decisions drawn from established principles and maxims, which are good law, though such decisions may be both manifestly absurd and unjust. But notwithstanding this, they must be rigorously adhered to by the judges in all courts, who are not to assume the characters of legislators. It is their province jus dicere, and not jus dare. Lord Coke, in his enthusiastic fondness for the common law, goes farther than the learned commentator: he lays down, that argumentum ab inconvenienti plurimum valet in lege, because nihil quod est inconveniens est licitum. Mr. Hargrave’s note upon this is well conceived and expressed:—“Arguments from inconvenience certainly deserve the greatest attention, and, where the weight of other reasoning is nearly on an equipoise, ought to turn the scale. But if the rule of law is clear and explicit, it is in vain to insist upon inconveniences; nor can it be true that nothing which is inconvenient is lawful, for that supposes in those who make laws a perfection which the most exalted human wisdom is incapable of attaining, and would be an invincible argument against ever changing the law.”—Harg. Co. Lit. 66—Christian.
[(p) ] Herein agreeing with the civil law, Ff. 1, 3, 20, 21. “Non omnium, quæ a majoribus nostris constituta sunt, ratio reddi potest. Et ideo rationes eorum, quæ constituuntur, inquiri non oportet: alioquin multa ex his, quæ certa sunt, subvertuntur.”
[8 ] Precedents and rules must be followed even when they are flatly absurd and unjust, if they are agreeable to ancient principles. If an act of parliament had been brought in at the close of a session, and passed on the last day, which made an innocent act criminal or even a capital crime; and if no day was fixed for the commencement of its operation, it had the same efficacy as if it had been passed on the first day of the session, and all who, during a long session, had been doing an act which at the time was legal and inoffensive, were liable to suffer the punishment prescribed by the statute. (4 Inst. 25; 4 Term. Rep. 660.) This was both flatly absurd and unjust; but it was the clear law of England, and could only be abrogated by the united authority of the king, Lords, and Commons in parliament assembled, who, by the 33 Geo. III, c. 13, enacted that when the operation of an act of parliament is not directed to commence from any time specified within it, the clerk of the parliament shall endorse upon it the day upon which it receives the royal assent, and that day shall be the date of its commencement. Many other similar instances might be adduced.
It is therefore justly said in the civil law, that non omnium, quæ a majoribus constituta sunt, ratio reddi potest; et ideo rationes eorum quæ constituuntur, inquiri non oportet: alioquin multa ex his, quæ certa sunt, subvertuntur. Domat, 8.—Christian.
Professor Christian maintains that precedents and rules must be followed, even when they are flatly absurd and unjust, if they are agreeable to ancient principles; a condition which, it is apprehended, extracts the whole negation with which he would reverse the maxim in the text. Mr. Sedgwick contends, on the other hand, that Sir William Blackstone urges the doctrine too far, and sets up a distinction between legal precedents and laws, which, however sound in itself, does not aid the argument it is intended to enforce. “A law,” he says, “is a public statute, solemnly framed by the legislative, and confirmed by the executive, power. The decrees and determinations of the magistrates are not, rigorously speaking, laws: legal precedents ought therefore not despotically to govern, but discreetly to guide. With laws it is otherwise: to them the judge in his adjudications must conform,” &c. Now, it is evident that our author is speaking of the common law, and his commentators must so understand him; which common law is as absolute as the parliamentary statutes, and must be as rigidly observed by the judicature. Assuming that the legal precedent, or the statute, is absurd and unjust, the only question is, by what authority shall it be abrogated? Mr. Sedgwick points to the judges on the bench; and Professor Christian maintains the sole and supreme right of the legislature to exercise this function. The spirit and practice of the constitution is with him, and it is well for the interests of public justice that they are so. In the multitude of counsels there is wisdom; and the business of legislation, even upon the substitution of a wholesome law in the place of an absurd or unjust precedent, may well employ the highest wisdom in the state. There may be a difference of opinion as to what is absurd and unjust. For instance, the law of primogeniture has fallen under that censure from the lips of men whose station in society recommend even their hasty notions to the respect of their contemporaries. It would be difficult to reconcile the preference of the first-born to the exclusion of all the other offspring of the same family, with the law of nature, or the law of God; yet no judge would dare to treat this rule of law as absurd or unjust, and substitute an equal division of the patrimony among all the children, upon the question being brought before him. Had he such power given him by the constitution, his fellows might exercise it also; and it is no overstrained conjecture to say that fluctuating and conflicting adjudications would be the consequence, producing much more mischief than can ensue from the enforcement of any precedent or rule of law, however absurd or unjust, till the legislature provides the proper remedy.
So, it being a rule of law, that a person born in England owes a natural allegiance, from which he cannot release himself, it was held, that a person born in England, of French parents, but removed out of England immediately after his birth, and educated in France, was guilty of treason in joining the French in war against England. Foster, Co. L. 59—Chitty.
[9 ] But it is certainly repugnant to natural reason, where a father leaves two sons by two different mothers, and dies intestate, and a large estate descends to his eldest son, who dies a minor or intestate, that this estate should go to the lord of the manor, or to the king, rather than to the younger son. When such a case happens in the family of a nobleman or a man of great property, this law will then appear so absurd and unreasonable that it will not be suffered to remain long afterwards to disgrace our books. See book ii. p. 231.—Christian.
[10 ] The more advanced student may consult Mr. Humphrey’s “Observations on the Actual State of the English Laws of Real Property, with the Outline of a Code;” a production indicative of great mental vigour. He states the evil with perspicuity; whether it be fundamental, or whether it be one merely of inconvenient anomaly; and, with equal clearness, and, to many, with irresistible reason on his side, suggests the antidote.—Chitty.
[(q) ] “Si imperialis majestas causam cognitionaliter examinaverit, et partibus, cominus constitutis, sententiam dixerit, omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causæ pro qua producta est, sed et in omnibus similibus.” C. 1, 14, 12.
[11 ] It is not possible to lay down, with mathematical precision, any rule in regard to the authority of precedents. Every judge and every court must consider that their function is jus aïcere and not jus dare. How far previous determinations ought to be regarded as definitely settling any point or principle of law, will depend very much upon circumstances. The character of the court, and of the times in which such decision took place, will have its weight; and not a little, after all, will depend upon the tone and tendency of prevailing opinions. No constitutional lawyer would now think of citing precedents in State trials during the Tudors. The rule anciently applied in actions of slander with ridiculous particularity—verba sunt accipienda in mitiori sensu—has been exploded, and a large class of solemn adjudications, made while it prevailed, are of no authority. Thus: “You have poisoned your husband.” “Sir Thomas Holt struck his cook on the head with a cleaver, and cleaved her head: the one part lay on one shoulder, and the other on the other:” in both cases held not actionable. 1 Roll. Abr. 71. Cro. Jac. 184. For, though she poisoned her husband, he might not have died: Though he cleaved the cook’s head into two parts, the wound might not have been mortal. So in regard to the bar of the statute of limitations. Almost any admission or acknowledgment was greedily caught at to take the case out of the statute. “Prove your debt, and I will pay you: I am ready to account; but nothing is due.” Cowp. 548. “As to the matters between you and me, they will be rectified.” 2 T. R. 760. “What an extravagant bill you have sent me!” Peake, 93. “I do not consider myself to owe a farthing, it being more than six years since I contracted.” 4 East. 599. These are some of the acknowledgements held sufficient. These cases are not now considered as authority. Many other changes of the judicial current might be cited illustrative of the position that the declaration of what the law is rests in the sound, conscientious judgment of the court; the weight to be allowed to prior determinations depending altogether upon the circumstances of the case. A recent decision, which has not been frequently recognised nor grown into a landmark, is not entitled to so much respect as one of older date, of which such a remark may be predicated. Hardly a modern report-book appears in which some prior case is not found in express terms overruled. A court or judge ought to be very cautious even in regard to recent cases, much more in regard to older ones, especially such as have been subsequently recognised and acted on. It is best to err on the safe side; and the safe side is stare decisis.—Sharswood.
[(r) ]Pat. 15, Jac. I. p. 18, 17 Rym. 26.
[(s) ] His reports, for instance, are styled κατ’ εξοχην, the reports; and, in quoting them, we usually say, 1 or 2 Rep., not 1 or 2 Coke’s Rep. as in citing other authors. The reports of Judge Croke are also cited in a peculiar manner, by the names of those princes in whose reigns the cases reported in his three volumes were determined; viz. Queen Elizabeth, King James, and King Charles the First; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. but more commonly Cro. Eliz., Cro. Jac., and Cro. Car.
[12 ] The works of these authors are distinguished by the following titles:—“Glanvil’s Treatise of the Laws and Customs of England,” written in the time of Henry II., edit. 1780; “Bracton’s Treatise of the Laws and Customs of England,” written in the reign of Henry III., edit. 1569; “Britton, corrected by Wingate,” edit. 1640; “Fleta, or a Commentary upon the English Law,” written by an anonymous author (a prisoner in the Fleet) in the time of Edw. I., with a small Treatise, called “Fet Assavoir,” annexed, and Mr. Selden’s “Dissertations,” edit. 1685; “Hengham, [Chief-Justice of the King’s Bench in the time of Edw. I.] Summa Magna and Parva, treating of Essoigns and Defaults in Writs of Right, Writs of Assize and Dower, &c.,” which is printed with “Fortescue de Laudibus Legum Angliæ,” edit. 1775; “Littleton’s Tenures,” various edits. “Statham’s Abridgment, containing the Cases down to the End of Henry VI.:” only one edit., without date; “Brooke’s Grand Abridgment of the Law,” 1573; “Fitzherbert’s Grand Abridgment of the Law,” 1665; “Staundforde’s Pleas of the Crown,” to which is added an “Exposition of the King’s Prerogative,” 1607.—Chitty.
[(t) ] It is usually cited either by the name of Co. Litt. or as 1 Inst.
[(u) ] These are cited as 2, 3, or 4 Inst. without any author’s name. An honorary distinction, which, we observed, is paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler as 2 Ventris, 4 Leonard, 1 Siderfin, and the like.
[(v) ]Ff. 1, 3, 32.
[13 ] This is the first sentence of the definition of a constitution in the beginning of the Institutes. It ought to be cited at length, that it may receive the execration it deserves. It is no wonder, from this specimen, that the civil law should have experienced such protection and patronage from all the despotic governments of Europe, and such opposition and detestation from the sturdy English barons.
Constitutio.—Sed et quod principi placuit, legis habet vigorem: quum lege regia, quæ de ejus imperio lata est, populus ei, et in eum omne imperium suum et potestatem concedat. Quodcunqus ergo imperator per epistolam constituit; vel cognoscens decrevit, vel edicto præcepit, legem esse constat; hæc sunt, quæ constitutiones appellantur. Planè ex his quædam sunt personales, quæ nec ad exemplum trahuntur quoniam non hoc princeps vult, nam quod alicui ob meritum indulsit, vel si quam pænam irrogavit, ve si cui sine exemplo subvenit, personam non transgreditur. Aliæ autem, quum generales sint, omnes procul dubio tenent. Inst. 1, 2, 6.—Christian.
[(w) ]Ff. 1, 4, 1.
[(x) ]C. 1, 14, 12.
[(y) ]C. 1, 23, 5.
[14 ] Lord Chief-Justice Wilmot has said that “the statute law is the will of the legislature in writing; the common law is nothing else but statutes worn out by time. All our law began by consent of the legislature, and whether it is now law by usage or writing is the same thing. (2 Wils. 348.) And statute law, and common law, both originally flowed from the same fountain.” (Ib. 350.) And to the same effect Lord Hale declares “that many of those things that we now take for common law, were undoubtedly acts of parliament, though now not to be found of record.” (Hist. Com. Law, 66.) Though this is the probable origin of the greatest part of the common law, yet much of it certainly has been introduced by usage, even of modern date, which general convenience has adopted. As in the civil law, sine scripto jus venit, quod usus approbavit, nam diuturni mores consensu utentium comprobati legem imitantur. (Inst. 1, 2, 9.) Of this nature in this country is the law of the road, viz.: that horses and carriages should pass each other on the whip-hand. This law has not been enacted by statute, and is so modern, that perhaps this is the first time that it has been noticed in a book of law. But general convenience discovered the necessity of it, and our judges have so far confirmed it, as to declare frequently, at nisi prius, that he who disregards this salutary rule is answerable in damages for all the consequences.
The action in which this rule is applied, viz.: for negligently driving a carriage, by which any one is injured, is as ancient as the common law; but the uniform determination of the judges that the non-observance of this rule is negligence is of modern date.
It is now decided, that, where an injury is done by a man’s driving his carriage on the wrong side of the road, the action must be trespass, vi et armis. Lord Ellenborough and the court laid down generally, that, where there is an immediate injury from an immediate act of force, the proper remedy is trespass, and wilfulness is not necessary to constitute trespass. 3 East, 593.
When two carriages meet, the impact is a reciprocal act of force; but the force of that only is wrongful which is on the wrong side of the way.—Christian.
It should be remembered, however, that, when the carriage is driven by a servant, the action against the master must always be trespass on the case, unless, indeed, the wrong was committed by the immediate command of the master.—Sharswood.
[(z) ]Mag. Cart. 9 Hen. III. c. 9.—1 Edw. III. st. 2. c. 9.—14 Edw. III. st. 1. c. 1.—and 2 Hen. IV. c. 1.
[(a) ] 8 Rep. 126; Cro. Car. 347.
[(b) ] Winch. 24.
[15 ] The lex mercatoria, or the custom of merchants, like the lex et consuetudo parliamenti. describes only a great division of the law of England. The laws relating to bills of exchange, insurance, and all mercantile contracts, are as much the general law of the land as the laws relating to marriage or murder. But the expression has very unfortunately led merchants to suppose, that all their crude and new-fangled fashions and devices immediately become the law of the land; a notion which, perhaps, has been too much encouraged by our courts. Merchants ought to take their law from the courts, and not the courts from merchants; and when the law is found inconvenient for the purposes of extended commerce, application ought to be made to parliament for redress. Merchants ought to be considered in no higher degree their own legislators or judges upon subjects of commerce, than farmers or sportsmen in questions upon leases or the gamelaws. For the position of Lord Coke ought never to be forgotten:—“That the common law has no controller in any part of it, but the high court of parliament; and if it be not abrogated or altered by parliament, it remains still, as Littleton saith.” (Co. Litt. 115.) This is agreeable to the opinion of Mr. Justice Foster, who maintains that “the custom of merchants is the general law of the kingdom, and therefore ought not to be left to a jury after it has been settled by judicial determinations.” 2 Bur. 1226.—Christian.
That large branch of law which relates to the transactions of commerce is now a part of the municipal law of the country, whether it be found in statutes or codes, or adopted by general reasoning and the authority of the opinions of jurists and civilians. It is taken notice of judicially by the courts, and is not decided by the jury, as a mere custom would be. Mercantile usage is often appealed to in order to explain doubtful words in a contract, but never to contradict or vary any settled rule or principle of law. The sources of the mercantile law are, mainly, the Roman law, the various codes of modern European nations, and the writings of general jurists; but it is not to be denied that these questions were originally treated in England as matters of custom, and were referred to the decision of a jury of merchants. After one point of such custom was ascertained by the verdict of a jury, it was not considered proper to submit the same question to another jury, but it was thereafter judicially noticed and applied by the court. “Before the time of Lord Mansfield,” says Mr. J. Buller, “we find that, in courts of law, all the evidence in mercantile cases was thrown together: they were left generally to a jury, and they produced no established principle. From that time, we all know, the great study has been to find out some certain general principles, which shall be known to all mankind, not only to rule the particular case then under consideration, but to serve as a guide for the future. Most of us have heard those principles stated, reasoned upon, enlarged, and explained, till we have been lost in admiration of the strength and stretch of the human understanding. And I should be very sorry to find myself under a necessity of differing from any case, which has been decided by Lord Mansfield, who may be truly said to be the founder of the commercial law of this country.” (2 T. R. 73.) “The law merchant,” said Lord Denman, “forms a branch of the law of England; and those customs which have been universally and notoriously prevalent amongst merchants, and have been found by experience to be of public use, have been adopted as a part of it, upon a principle of convenience, and for the benefit of trade and commerce; and, when so adopted, it is unnecessary to plead and prove them. They are binding on all without proof. Accordingly, we find that usages affecting bills of exchange and bills of lading are taken notice of judicially.” 6 Man. & Gr. 665.—Sharswood.
[(c) ] Co. Litt. 175.
[(d) ] Litt. 265.
[(e) ] Dr. and St. 1, 10.
[(f) ] Cro. Car. 516.
[(g) ] Hob. 85.
[(h) ] Litt. 212; 4 Inst. 274.
[16 ] It seems that a custom beginning within any time after the first year of the reign of king Richard I. is bad.—Chitty.
[17 ] Therefore, a custom that every pound of butter sold in a certain market should weigh eighteen ounces is bad, because it is directly contrary to 13 and 14 Car. II. c. 26, which directs that every pound, throughout the kingdom, should contain sixteen ounces. (3 T. R. 271.) But there could be no doubt, I conceive, but it would be a good custom to sell lumps of butter containing eighteen ounces; for, if it is lawful to sell a pound, it must be so to sell a pound and any aliquot part of one. The inconvenience and deception arise from calling that a pound in one place which is not a pound in another.—Christian. Therefore, where a contract is made to sell specified goods by quantities of weight or measure, this must mean statute weight or measure. As, if a plaintiff declares for breach of contract, in not delivering “four hundred bushels of oats,” and it is proved the agreement was for four hundred bushels in some particular measure other than the Winchester bushel, which is the statute measure, this is a fatal variance, and the plaintiff would be nonsuited. See 4 T. R. 314. 6 T. R. 338. 4 Taunton, 102. 11 East, 300.—Chitty.
[(i) ] Co. Litt. 114.
[(j) ] Co. Litt. 114.
[(l) ] Litt. 212.
[(m) ] 1 Inst. 62.
[(n) ] Co. Copyh. 33.
[(o) ] 1 Roll. Abr. 565.
[18 ] A custom that poor housekeepers shall carry away rotten wood in a chase is bad, being too vague and uncertain. 2 T. R. 758. A right to glean in the harvest-field can not be claimed at common law; neither have the poor of a parish legally settled such right within the parish. 1 H. Bl. 51, 52. So, a custom for every inhabitant of an ancient messuage within a parish to take a profit a prendre in the land of an individual is bad. But such a right may be enjoyed by prescription or grant. 4 Term Rep. 717, 718. 2 H. Bl. 393. 1 Ld. Raym. 407. 1 Saund. 341, n. 3; 346, n. 3.—Christian.
[(p) ] 9 Rep. 58.
[19 ] This rule is founded upon the consideration that a variety of customs in different places upon the same subject is a general inconvenience. The courts, therefore, will not admit such customs but upon the clearest proof. So, where there is a custom that lands shall descend to the eldest sister, the courts will not extend this custom to the eldest niece, or to any other eldest female relation, but upon the same authority by which the custom between sisters is supported. 1 T. R. 466.—Christian.
[(q) ] Co. Cop. 33.
[20 ] There does not appear to be any authority for this; but, on the contrary, Sir Edward Coke, in the same section, says that a custom is not to be confined to literal Interpretation; for, if there be a custom within a manor that copyhold lands may be granted in fee-simple, by the same custom they may be granted in tail for life, for years, or any other extent whatever, because cui licet quod majus non debet quod minus est non licere.—Stewart.
[(r) ] Co. Litt. 15.
[21 ] In some of the States—as in Pennsylvania, for instance—general customs and usage on certain subjects prevailed to such an extent as to produce a distinctive common law. In very few of the States, however, do any mere local customs exist such as are treated of by the commentator in this section. They, however, are to be carefully distinguished from usages of trade or business. These are everywhere allowed their just influence and operation. A usage of trade and business clearly proved to exist, to be ancient, notorious, reasonable, and consistent with law, is permitted to explain the meaning of ambiguous words in written contracts, and to control the mode and extent of their rights where the parties have been silent. But it is never admitted against the expressed agreement of the parties, nor in violation of any statute or well-established rule of law. Perhaps in some cases the courts have gone further than is here indicated; but the current of judicial decisions of late years has been to restrain and limit the allowance and influence of special usages.—Sharswood.
[(s) ] Hist. C. L. c. 2.
[(t) ] Hist. C. L. c. 2.
[(u) ]l. 3, c. 34.
[(v) ] Taylor’s Elements of Civil Law, 17.
[(w) ] See 1, page 18.
[(x) ] Burn’s Eccl. Law, pref. viii.
[(y) ] Statute 25 Hen. VIII. c. 19, revised and confirmed by 1 Eliz. c. 1.
[(z) ] Stra. 1057.
[22 ] Lord Hardwicke cites the opinion of Lord Holt, and declares it is not denied by any one, that it is very plain all the clergy are bound by the canons confirmed by the king only, but they must be confirmed by the parliament to bind the laity. (2 Atk. 605.) Hence, if the archbishop of Canterbury grants a dispensation to hold two livings distant from each other more than thirty miles, no advantage can be taken of it by lapse or otherwise in the temporal courts, for the restriction to thirty miles was introduced by a canon made since the 25 Hen. VIII. 2 Bl. Rep. 968.—Christian.
[(a) ] Hale, Hist. c. 2.
[(b) ] 8 Rep. 20.
[(c) ] The method of citing these acts of parliament is various. Many of our ancient statutes are called after the name of the place where the parliament was held that made them; as the statutes of Merton and Marleberge, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject, as the statutes of Wales and Ireland, the articuli cleri, and the prærogativa regis. Some are distinguished by their initial words, a method of citing very ancient, being used by the Jews in denominating the books of the Pentateuch; by the Christian church in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulls; and, in short, by the whole body of ancient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also; in imitation of all which we still call some of our old statutes by their initial words, as the statute of quia emptores, and that of circumspecte agatis. But the most usual method of citing them, especially since the time of Edward the Second, is by naming the year of the king’s reign in which the statute was made, together with the chapter, or particular act, according to its numeral order, as 9 Geo. II. c. 4, for all the acts of one session of parliament taken together make properly but one statute; and therefore, when two sessions have been held in one year, we usually mention stat. 1 or 2. Thus the bill of rights is cited as 1 W. and M. st. 2. c. 2, signifying that it is the second chapter or act of the second statute, or the laws made in the second session of parliament, in the first year of king William and queen Mary.
[(d) ] Gravin. Orig. i. 24.
[23 ] See other cases upon the distinction between public and private acts. Bac. Ab. Statute F. The distinction between public and private acts is marked with admirable precision by Mr. Abbot, (the present Lord Colchester,) in the following note, in the printed report from the committee for the promulgation of the statutes:—public and private acts.—1. In legal language,—1. Acts are deemed to be public and general acts which the judges will take notice of without pleading,—viz., acts concerning the king, the queen, and the prince; those concerning all prelates, nobles, and great officers; those concerning the whole spirituality, and those which concern all officers in general, such as all sheriffs, &c. Acts concerning trade in general, or any specific trade; acts concerning all persons generally, though it be a special or particular thing, such as a statute concerning assizes, or woods in forests, chases, &c. &c. Com. Dig. tit. Parliament, (R. 6.) Bac. Ab. Statute F. 2. Private acts are those which concern only a particular species, thing, or person, of which the judges will not take notice without pleading them,—viz., acts relating to the bishops only; acts for toleration of dissenters; acts relating to any particular place, or to divers particular towns, or to one or divers particular counties, or to the colleges only in the universities. Com. Dig. tit. Parliament, (R. 7.) 3. In a general act there may be a private clause, ibid. and a private act, if recognised by a public act, must afterwards be noticed by the courts as such. 2 Term Rep. 569. 2. In parliamentary language,—1. The distinction between public and private bills stands upon different grounds as to fees. All bills whatever from which private persons, corporations, &c. derive benefit, are subject to the payment of fees; and such bills are in this respect denominated private bills. Instances of bills within this description are enumerated in the second volume of Mr. Hatsel’s Precedents of Proceedings in the House of Commons, edit. 1796, p. 267, &c. 2. In parliamentary language another sort of distinction is also used: and some acts are called public general acts, others public local acts,—viz., church acts, canal acts, &c. To this class may also be added some acts which, though public, are merely personal,—viz., acts of attainder, and patent acts. &c. Others are called private acts. of which latter class some are local,—viz., enclosure acts, &c.; and some personal,—viz., such as relate to names, estates, divorces, &c.
In many statutes which would otherwise have been private, there are clauses by which they are declared to be public statutes. Bac. Ab. Statutes F.—Chitty.
[24 ] This division is generally expressed by declaratory statutes and statutes introductory of a new law. Remedial statutes are generally mentioned in contradistinction to penal statutes. See note 19, p. 88.—Christian.
[25 ] This statute against clipping the coin hardly corresponds with the general notion either of a remedial or an enlarging statute. In ordinary legal language remedial statutes are contradistinguished to penal statutes. An enlarging or an enabling statute is one which increases, not restrains, the power of action, as the 32 Hen. VIII. c. 28, which gave bishops and all other sole ecclesiastical corporations, except parsons and vicars, a power of making leases, which they did not possess before, is always called an enabling statute. The 13 Eliz. c. 10, which afterwards limited that power, is, on the contrary, styled a restraining or disabling statute. See this fully explained by the learned commentator, 2 Book, p. 319.—Christian.
[26 ] Where there are conflicting decisions upon the construction of a statute, the court must refer to that which ought to be the source of all such decisions,—that is, the words of the statute itself, per Lord Ellenborough. 16 East, 122.
The power of construing a statute is in the judges of the temporal courts, who, in cases of doubtful construction, are to mould them according to reason and convenience, to the best use. Hob. 346. Plowd. 109. 3 Co. 7.—Chitty.
[(e) ] 3 Rep. 7; Co. Litt. 11, 42.
[(f) ] Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.
[27 ] Modern statutes of importance have what is commonly called a “dictionary clause,” the object of which is to define what persons, things, places, &c. shall be included in every general word used in the act. For example, the first section of the Limitation of Actions, act 3 and 4 Wm. IV. c. 27, defines what shall be included in the words “land,” “rent,” and “person.”—Hargrave.
[(g) ] 2 Rep. 46.
[28 ] Lord Hale thinks that the scruple of the judges did not merely depend upon the words being in the plural number, because no doubt had ever occurred respecting former statutes in the plural number; as, for instance, it was enacted by the 32 Hen. VIII. c. 1 that no person convicted of burning any dwelling-houses should be admitted to clergy. But the reason of the difficulty in this case was, because the statute of 37 Hen. VIII. c. 8 was expressly penned in the singular number,—If any man do steal any horse, mare, or filly; and then this statute, varying the number, and at the same time expressly repealing all other exclusions of clergy introduced since the beginning of Hen. VIII., it raised a doubt whether it were not intended by the legislature to restore clergy where only one horse was stolen. 2 H. P. C. 365.
It has since been decided, that where statutes use the plural number, a single instance will be comprehended. The 2 Geo. II. c. 25 enacts, that it shall be felony to steal any bank-notes; and it has been determined that the offence is complete by stealing one bank-note. Hassel’s Case, Leach, Cr. L. 1.—Christian.
[(h) ] 2 and 3 Edw. VI. c. 33. Bav. Elem. c. 12.
[29 ] There are some kinds of statutes in the construction of which the courts have considered themselves bound to adhere more closely to the words than in other cases. This is termed strict construction. The text confines it to penal statutes; but there are others also of this class. As to penal statutes, however, it is to be observed that such laws are not to be construed so strictly as to defeat the obvious intention of the legislature. The United States vs. Wiltberger, 5 Wheat. 76. They are to be construed strictly in that sense that the case in hand must be brought within the definition of the law, but not so strictly as to exclude a case which is within its words taken in their ordinary acceptation: that is to say, there is no peculiar technical meaning given to language in penal any more than in remedial laws. U.S. vs. Wilson, Baldw. C. C. Rep. 78. Hall vs. The State, 20 Ohio, 7. But, besides penal statutes, laws made in derogation of common right are to be construed strictly; as, for instance, statutes for any cause disabling any person of full age and sound mind to make contracts. Smith vs. Spooner, 3 Pick. 229. So statutes conferring exclusive privileges on corporations or individuals fall under this rule Sprague vs. Birdsall, 2 Cowen, 419. Young vs. McKensie, 3 Kelly, 31. Charters of incorporation are to be construed most strongly against those corporations or persons who claim rights or powers under them, and most favourably for the public. Mayor vs. Railroad Co., 7 Georgia, 221. Railroad Co. vs. Briggs, 2 N. Jersey, 623. In the same class are statutes which impose restrictions on trade or common occupations, or which levy a tax upon them. Sewall vs. Jones, 9 Pick. 412. So a statute conferring authority to impose taxes. Moseley vs. Tift, 4 Florida, 402. So laws exempting property from taxation. Cincinnati College vs. Ohio, 19 Ohio, 110. So when the liberty of the citizen is involved. Pierce’s Case, 4 Shipley, 255. The power invested in public bodies to take the lands of private persons for public uses is in derogation of the common law, and ought therefore to receive a rigid interpretation. Sharp vs. Speir, 4 Hill, 76. Sharp vs. Johnson, ibid. 92. Enough has been specified to illustrate the general bearing and application of the principle of strict construction.
By far the most important question, which has ever been agitated, has been in regard to the constitution of the United States. Two schools of constitutional law—the National and State-Rights school—maintain different doctrines upon this subject. The former have always contended that the delegations of power to the federal government ought to receive a large and liberal interpretation; and that at all events, wherever a general object was within the scope of the powers specified, Congress ought to be considered as invested with a large discretion as to the means to be employed for the purpose of giving effect to the power, and especially that there existed no limitation upon their right to appropriate the public money but their own judgment of what would conduce to the “general welfare.” On the other hand, the State-Rights school zealously contend that, the government being conceded to be one of special limited powers, such a principle of construction as that assumed on the other side in effect destroys all limitation; that any thing and every thing can be reached under the power of appropriating money for the “general welfare;” that Congress can employ no means except such as are necessary as well as proper to the end, and have no right to assume a substantive power, not granted, as incidental. Non nobis tantas componcre lites.—Sharswood.
[30 ] These are generally called remedial statutes; and it is a fundamental rule of construction that penal statutes shall be construed strictly, and remedial statutes shall be construed liberally. It was one of the laws of the twelve tables of Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle our law has adopted in the construction of penal statutes; for whenever any ambiguity arises in a statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or in favour of natural right and liberty; or, in other words, the decision shall be according to the strict letter in favour of the subject. And though the judges in such cases may frequently raise and solve difficulties contrary to the intention of the legislature, yet no further inconvenience can result than that the law remains as it was before the statute. And it is more consonant to principles of liberty that the judge should acquit whom the legislator intended to punish, than that he should punish whom the legislator intended to discharge with impunity. But remedial statutes must be construed according to the spirit; for, in giving relief against fraud, or in the furtherance and extension of natural right and justice, the judge may safely go beyond even that which existed in the minds of those who framed the law.—Christian.
[31 ] And, therefore, it has been held that the same words in a statute will bear different interpretations, according to the nature of the suit or prosecution instituted upon them. As by the 9 Ann. c. 14, the statute against gaming, if any person shall lose at any time or sitting 10l. and shall pay it to the winner, he may recover it back within three months; and if the loser does not within that time, any other person may sue for it and treble the value besides. So where an action was brought to recover back fourteen guineas, which had been won and paid after a continuance at play, except an interruption during dinner, the court held the statute was remedial, as far as it prevented the effects of gaming, without inflicting a penalty, and, therefore, in this action, they considered it one time or sitting; but they said if an action had been brought by a common informer for the penalty, they would have construed it strictly in favour of the defendant, and would have held that the money had been lost at two sittings. 2 Bl. Rep. 1226.—Christian.
[(i) ] 3 Rep. 82.
[32 ] Some kinds of statutes are held entitled to receive a liberal or favourable interpretation. Thus, remedial laws are to be so construed as to suppress the mischief and advance the remedy. Smith vs. Maffott, 1 Barb. 65. Franklin vs. Franklin, 1 Maryl. Ch. 342. Carey vs. Giles, 9 Geo. 253. So laws which have reference to the public welfare or the policy of the State, which are intended to encourage her staple productions, to maintain public peace and security, or to extend the blessings of education, Wolcott vs. Pond, 19 Conn. 597. Bryan vs. Dennis, 4 Florida, 445. In like manner, acts of the legislature relative to the general administration of justice. Mitchell vs. Mitchell, 1 Gill, 66.—Sharswood.
[(k) ] 1 Rep. 47.
[33 ] But a proviso, (that is, a clause ingrafted upon a preceding and complete enactment, 9 B. & C. 835,) though totally repugnant to the body or provision of the act, shall not be void, but shall stand, being held to be a repeal of the preceding enactment, by analogy to the well-known rule of construction applicable to testamentary instruments, that a later clause, if inconsistent with a former one, expresses the last intention and revokes the preceding expressions. Fitz. 195, Bac. Abr. Statute.—Hargrave.
[(l) ] Jenk. Cent. 2, 73.
[(m) ] 11 Rep. 63.
[34 ] Later statutes abrogate prior ones. In affirmative statutes, however, such parts of the prior as may be incorporated into the subsequent one, and are consistent with it, must be considered in force. Daviess vs. Fairbairn, 3 Howard U. S. 636. Where two statutes can be construed together so as to allow both to stand, the latter will not be construed a repeal of the former. Morris vs. Canal Co., 4 Watts & Serg. 461. Canal Co. vs. Railroad Co., 4 Gill & John. 1. Statutes which apparently conflict with each other are to be reconciled as far as may be, on any fair hypothesis, and effect given to each if it can be, and especially if it is necessary to preserve the titles to property undisturbed. Beals vs. Hale, 4 Howard U. S. 37. The law does not favour repeals by implication. Bowen vs. Lean, 5 Hill, 221. Wyman vs. Campbell, 6 Porter, 219. Strut vs. Commonwealth, 4 W. & S., 209. A subsequent statute, attaching milder and different punishments to offences than are attached to the same offence by a prior statute, is a repeal of such prior statute. The State vs. Whitworth, 8 Porter. 434. A general law however, does not operate a repeal of a special law upon the same subject passed previous to the general law. McFarland vs. The State Bank, 4 Pike, 410.—Sharswood.
[(n) ] 4 Inst. 325.
[35 ] Where a repealing statute is itself repealed, the first or original statute is thereby ipso facto revived. Commonwealth vs. Churchill, 2 Metc. 118. Directors vs. Railroad Co., 7 W. & S. 236. Harrison vs. Walker, 1 Kelly, 32. The repeal of a statute, however, will not be construed to divest rights which have vested under it. Davis vs. Minor, 1 Howard, (Miss.,) 183. James vs. Dubois, 1 Harr. 285. Mitchell vs. Doggett, 1 Branch, 356. The repeal of a prohibitory act does not make valid contracts prohibited by it which were made while it was in force. Milne vs. Huber, 3 McLean, 212. Where a statute, reviving a statute which had been repealed, is itself repealed, the statute which was revived stands as it did before the revival. Calvert vs. Makepeace, 1 Smith, 86. This rule has been altered in England by St. 12 & 13 Vict. c. 21, s. 5, which enacts that repealed statutes shall not be revived by the repeal of the act repealing them, unless express words be added reviving such repealed acts. The same enactment was made in Virginia in the year 1789.—Sharswood.
[(o) ] 4 Inst. 43.
[(p) ]Cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat. l. 3, ep. 23.
[36 ] If an act of parliament is clearly and unequivocally expressed, with all deference to the learned commentator, I conceive it is neither void in its direct nor collateral consequences, however absurd and unreasonable they may appear. If the expression will admit of doubt, it will not then be presumed that that construction can be agreeable to the intention of the legislature, the consequences of which are unreasonable; but where the signification of a statute is manifest, no authority less than that of parliament can restrain its operation.Christian.
[(q) ] 8 Rep. 118.
[37 ] The following canons of interpretation may be added to those stated in the text:-
11. A statute shall always be so construed as to operate prospectively, and not retrospectively, unless, indeed, the language is so clear as to preclude all question as to the intention of the legislature. Sayre vs. Wisner, 8 Wend. 661. Hastings vs. Lane, 3 Shep. 134. Brown vs. Wilcox, 14 S. & M. 127. Quackenbush vs. Danks, 1 Denio, 128. This is a very important rule and frequently called into exercise. The provision in the Federal and most of the State constitutions prohibiting the passage of ex post facto laws has been confined by construction to criminal or penal laws; and the power of the legislature to affect injuriously vested rights, when the obligation of contracts is not violated, is generally conceded. Hence the value and necessity of the rule in question.
12. Contemporaneous usage may be resorted to as evidence of the construction put upon a statute by those best acquainted with the mind and intention of the lawmakers. When a particular construction has thus been assumed and acted on at an early day, and especially if many titles depend upon it, the courts will not at a subsequent period disturb it, even if it should appear to be indefensible on principle. McKeer vs. Delancy, 5 Cranch, 22. Chesnut vs. Shane, 16 Ohio, 519. Kernion vs. Hills, 1 Louis. Ann. R. 419.
13. The judicial interpretation of the statute of a State as settled by its own courts is to be received and followed by the courts of other States and by the Federal Judiciary. Johnston vs. The Bank, 3 Strobh. Eq. 263. Hoyt vs. Thompson, 3 Sandf. Supreme Court, 416. So even the Supreme Court of the United States is held bound by the determination of the State courts upon the construction of their State constitutions, and the validity of State laws as dependent thereon. Elmendorf vs. Taylor, 10 Wheat. 152. Harpending vs. Dutch Church, 16 Peters, 439.
14. Where there has been a general revision of the statute code of a State, under the authority of the legislature, and the revision has been approved and adopted, a mere change of phraseology introduced by the revisers will not be held to have effected a change, unless such appear clearly to have been the intention. Chambers vs. Carson, 2 Whart. 9. Commonwealth vs. Rainey, 4 W. & S. 186. In re Brown, 21 Wendell, 316. It has been held in some States, however, that where a statute is revised and a provision contained in it is omitted in the new statute, the inference is that a change in the law is intended. If the omission is accidental, it belongs to the legislature to supply it. Back vs. Spofford, 31 Maine, 34. Ellis vs. Paige, 1 Pick. 43.
15. A statute cannot be repealed by usage or become obsolete by non-user. Wright vs. Crane, 13 Serg. & R. 447. Snowden vs. Snowden, 1 Bland. 550. When the circumstances or business of a community so materially change that the facts no longer can arise to which a statute was meant to apply, in that sense it may become obsolete. It may, however, so happen that the current of legislation shows that an old statute, never actually repealed, was regarded by the legislature as no longer in force; and in that case it may be regarded as repealed by implication. Hill vs. Smith, 1 Morris, 70.—Sharswood.