_compulsory_; 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].
[Footnote p: 9 Rep. 58.]
NEXT, as to the allowance of special customs. Customs, in derogation
of the common law, must be construed strictly. Thus, by the custom of
gavelkind, an infant of fifteen years may by one species of
conveyance (called a deed of feoffment) convey away his lands in fee
simple, or for ever. Yet this custom does not impower him to use any
other conveyance, or even to lease them for seven years: for the
custom must be strictly pursued[q]. 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 scriptae_, or those particular customs which affect particular
persons or districts only.
[Footnote q: Co. Cop. Sec. 33.]
[Footnote r: Co. Litt. 15 _b._]
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.
IT may seem a little improper at first view to rank these laws under
the head of _leges non scriptae_, 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[s], 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,
recognize 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
it's subjects. But all the 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
scriptae_, or customary law: or else, because they are in some other
cases introduced by consent of parliament, and then they owe their
validity to the _leges scriptae_, 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,
recognizing 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 antient laws of this realm,
originally established as laws of the same, by the said sufferance,
consents, and custom; and none otherwise."
[Footnote s: Hist. C.L. c. 2.]
BY the civil law, absolutely taken, is generally understood the civil
or municipal law of the Roman empire, as comprized in the institutes,
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
antient 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 praetor, and the _responsa prudentum_ or opinions of learned
lawyers, and lastly upon the imperial decrees, or constitutions of
successive emperors) had grown to so great a bulk, or as Livy
expresses it[t], "_tam immensus aliarum super alias acervatarum legum
cumulus_," that they were computed to be many camels' load by an
author who preceded Justinian[u]. 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, _A.D._ 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.
[Footnote t: _l._ 3. _c._ 34.]
[Footnote u: Taylor's elements of civil law. 17.]
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, 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 Romish ecclesiastics[w], suddenly gave new vogue and authority
to the civil law, introduced it into several nations, and occasioned
that mighty inundation of voluminous comments, with which this system
of law, more than any other, is now loaded.
[Footnote w: See Sec. 1. pag. 18.]
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 antient
Latin fathers, the decrees of general councils, the decretal epistles
and bulles 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 at Amalfi, reduced them 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 pontificial 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 national canon law,
composed of _legatine_ and _provincial_ constitutions, and adapted
only to the exigencies of this church and 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 Adrian 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 arch-bishops 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.
[Footnote x: Burn's eccl. law, pref. viii.]
[Footnote y: Statute 25 Hen. VIII. c. 19; revived and confirmed by 1
Eliz. c. 1.]
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 antient 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.
[Footnote z: Stra. 1057.]
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 arch-bishops and bishops and their derivative officers, usually
called in our law courts christian, _curiae 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 intirely upon custom; corroborated in the latter instance by
act of 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].
[Footnote a: Hale Hist. c. 2.]
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.
LET us next proceed to the _leges scriptae_, the written laws of the
kingdom, which are statutes, acts, or edicts, made by the king's
majesty by and with the advice and content 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
carta_, 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.
[Footnote b: 8 Rep. 20.]
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].
[Footnote c: The method of citing these acts of parliament is various.
Many of our antient statutes are called after the name of the place,
where the parliament was held that made them: as the statutes of
Merton and Marlbridge, of Westminster, Glocester, and Winchester.
Others are denominated entirely from their subject; as the statutes of
Wales and Ireland, the _articuli cleri_, and the _praerogativa regis_.
Some are distinguished by their initial words, a method of citing very
antient; 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 bulles; and
in short by the whole body of antient 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 it's 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. & 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 sessions of
parliament, held in the first year of king William and queen Mary.]
FIRST, as to their several kinds. Statutes are either _general_ or
_special_, _public_ or _private_. A general or public act is an
universal rule, that regards the whole community; and of these 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 intitled
_senatus-decreta_, in contradistinction to the _senatus-consulta_,
which regarded the whole community[d]: and of these the judges are not
bound to take notice, unless they be formally shewn and pleaded. Thus,
to shew 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.
[Footnote d: Gravin. _Orig._ 1. Sec. 24.]
STATUTES also are either _declaratory_ of the common law, or
_remedial_ of some defects therein. 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 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 where
it was too lax and luxuriant, this has 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. At common law also spiritual corporations might lease out
their estates for any term of years, till prevented by the statute 13
Eliz. beforementioned: this was therefore a _restraining_ statute.
SECONDLY, the rules to be observed with regard to the construction of
statutes are principally these which follow.
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 the 13 Eliz. 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 life; or, if made by a dean with
concurrence of his chapter, they are not void during the life 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 death of the grantor; but the leases, during
their lives, being not within the mischief, are not within the remedy.
[Footnote e: 3 Rep. 7 _b._ Co. Litt. 11 _b._ 42.]
[Footnote f: Co. Litt. 45. 3 Rep. 60.]
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. 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].
[Footnote g: 2 Rep. 46.]
3. PENAL statutes must be construed strictly. Thus a statute 1 Edw.
VI. having enacted that those who are convicted of stealing _horses_
should not have the benefit of clergy, the judges conceived that this
did not extend to him that should steal but _one horse_, 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.
[Footnote h: Bac. Elem. c. 12.]
4. STATUTES against frauds 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 fine, it is then
to be taken strictly: but when the statute acts upon the offence, by
setting aside the fraudulent transaction, 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 held to extend by the general words to a gift made to
defraud the queen of a forfeiture[i].
[Footnote i: 3 Rep. 82.]
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].
[Footnote k: 1 Rep. 47.]