with Notes of Reference (1803)
St. George Tucker
Of the Laws of England1
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, or 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.2
When I call these parts of our law leges non scriptae, 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;3 and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant .4 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 reports 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 stile these parts of our law leges non scriptae, 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,5 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 diverse particular countries. Our laws, says lord Bacon,6 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. This book is said to have been extant so late as the reign of king Edward the fourth, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, 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.7 “Omnibus qui reipublicae praesunt etiam atque etiam mando, ut omnibus aequos se praebeant judices, perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habeter: nec quicquam formident quin jus commune (Saxonice, folcnihte) 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.8
Out of these three laws, Roger Hoveden9 and Ranulphus Cestrensis10 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 chronicle11 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:12 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:13 and in Sweden, about the same era; when a universal body of common law was compiled out of the particular customs established by the laghmen of every province, and entitled the land’s lagh, being analogous to the common law of England.14
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 an half had suggested. For Alfred is generally styled by the same historians the legum Anglicanarum conditor, as Edward the confessor is the restitutor. 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 the 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 folk-right mentioned by king Edward the elder, after the abolition of the several provincial customs and particular laws before-mentioned.
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: 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 runs not to the contrary.15 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.
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.
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 offenses, 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 favorably, and deeds more strictly that money lent upon bond is recoverable by action of debt that breaking the public peace is an offense, 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 has been always the custom to observe it.
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 depositories 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. Their knowledge of that law is derived from experience and study; from the “viginti annorum lucubrationes“, which Fortescue16 mentions; and from being long personally 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 “praeteritorum memoria eventorum” reckoned up as one of the chief qualifications of those, who were held to be “legibus patriae optime instituti“17. 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 judgment, 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; much more if it be dearly 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, 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.18 And it has 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, has been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule has 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: 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 the law. For herein there is nothing repugnant to natural justice;19 though the artificial reason of it, drawn from the feudal law, may not be quite obvious to every body. 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.20
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 his time to that of Henry the 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 reporters21 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.22 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.23
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, 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 old authors, is the same learned judge we have just mentioned, sir Edward Coke; who has 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.24 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.25
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 practiced 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 digest26 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 every body. For where is the difference, whether the people declare their assent 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 placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatum conferat”, says Ulpian.27 “Imperator solus et conditor et interpres legis existimatur“, says the code:28 and again, “sacrilegii instar est rescripto principis obviari“29. 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.30
II. The second branch of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts.31
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,32 cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament.33
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, 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 diverse 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 diverse 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.34
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 engrafted into it, and made a part of it;35 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.”36
The rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.
As to gavelkind, and borough-english, the law takes particular notice of them,37 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,38 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.39
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 alderman by the mouth of their recorder,40 unless it be such a custom as the corporation is itself interested in, as a right of taking toll, etc. for then the law permits them not to certify on their own behalf.41
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.42 To make a particular custom good, the following are necessary requisites.
1. That it have been used so long, that the memory of man runs not to the contrary.43 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 parliament; since the statute itself is a proof of a time when such a custom did not exist.44
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.45 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.46 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;47 or rather, taken negatively, they must not be unreasonable. Which is not always, as sir Edward Coke says,48 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 suffices, 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.49
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.50 A custom to pay two pence an acre in lieu of tithes, is good; but to pay sometimes two pence 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.
6. Customs, though established by consent, must be (when established) 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 abridge, 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.51, 52
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 empower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued.53 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.54 And thus much for the second part of the leges non scriptae, or those particular customs which affect particular persons or districts only.
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,55 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 does 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 its 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 laws: 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.56 This is expressly declared in those remarkable words of the statute 25 Henry VIII. c. 21, addressed to the king’s royal majesty. “This your grace’s realm, recognizing no superior under God but only your grace, has 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 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 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 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,57 “tam immensus aliarum super alias acervatarum legum cumulus“, that they were computed to be many camels’ load by an author who preceded Justinian.58 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.
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,59 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.
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.60 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 extravagance 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 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 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 diverse 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,61 in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliament62 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.63
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;64 whatever regard the clergy may think proper to pay them.
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, curiae Christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty.65 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 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.66
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,67 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.68 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-modeled, 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 consent of the lords spiritual and temporal and commons in parliament assembled.69 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.70
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 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:71 and of these (which are not promulgated with the same notoriety as the former) the judges are not to take notice, unless they be formally shown and pleaded.72 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.
Statutes are also 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 has been. Thus the statute of treasons, 25 Edw. III. cap. 2, does not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offense, 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 where it was too lax and luxuriant, 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 offense 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. before-mentioned: this was therefore a restraining statute.73
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 has 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.74 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.75 The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the grantors; 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. 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.76
3. Penal statutes must be construed strictly.77 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 did not extend to him that should steal but one horse, and therefore procured a new act for that purpose in the following year.78 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 offense, 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.79
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 offense, by setting aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5.80 which avoids all gifts of goods, etc. 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.81, 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.83
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“:84 consonant to which it was laid down by a law of the twelve tables of Rome, that “quod populus postremum jussit, id jus ratum esto.” But this is to be understood, only when the latter 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.85 But if both acts be merely affirmative, and 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 offense be indictable at the quarter-sessions, and a latter law makes the same offense 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 offense shall be indictable at the assizes, and not elsewhere.86
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.87, 88
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.89 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 endeavor to tie up the hands of succeeding legislatures. “When you repeal the law itself, says he, you at the same time repeal the prohibitory clause, which guards against such repeal.”90
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. 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.91 But if the parliament will positively enact a thing to he 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.92 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.
These are the several grounds of the laws of England: over and above which, equity is also frequently called in to assist, to moderate, and to explain them. What equity is, and how impossible in its very essence to be reduced to stated rules, has 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.
1. Before we proceed with the Commentator to consider the subject of the ensuing Section, it will be proper to bestow some attention on those Acts of the PEOPLE OF THIS COMMONWEALTH, in particular, and of the UNITED STATES, in general, to which nothing similar occurs in the Constitution and Government of England, or of Great Britain; being Laws, not only to the individual, and to the other departments of the Government, but to the Legislature, also. These are, the CONSTITUTION of the State of VIRGINIA, for which we must refer the Student to the Appendix to this part, Note C; and the CONSTITUTION of the UNITED STATES, which will be treated of in the Appendix, Note D. T.
2. From what circumstance the general customs, or common law of England, properly so called, obtains authority in these states will be the subject of future enquiry: but, with respect to particular customs, these, with the single exception of the Custom of Merchants, being merely local, could not be translated by our Ancestors to their new settlements in this Western World; and consequently have no authority, or existence here: as to the third branch of the lex non scripta, or particular Laws observed by custom in particular courts, a very small portion of them, indeed, will be found in the civil establishments of Virginia, even before the revolution. T.
3. Caes. de b. G. lib. 6. c. 13.
4. Spelm. Gl. 362.
5. c. 17.
6. See his proposals of a digest.
7. c. 2.
8. Hal. Hist. 55.
9. in Hen. II.
10. in Edw. Confessor.
11. in Seld. ad Eadmer. 6
12. Mod. Un. Hist. xxii 135.
13. Ibid xx. 211.
14. Ibid xxxiii. 21. 58.
15. That is from the reign of Richard the first …. See Black. Com. Vol. 2. p. 31. T.
16. cap. 8.
17. Seld. review of Tith c. 8.
18. Herein agreeing with the civil law, Ff. 1. 3. 20, 21. “Non omnium, quae a majoribus nostris constituta sunt, ratio reddi potest; et ideo rationes eorum, quae constituuntur, inquiri non oportet: alioquin multa ex his, quae certa sunt, subvertuntur.”
19. 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 landed property, this law will then probably appear so absurd and unreasonable, that it will not be suffered to remain long afterwards a reproach to our system of jurisprudence. See vol. iii. p. 231. Christian. T.
20. “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 causae pro qua producta est, sed et in omnibus similibus.” C. 1. 14. 12.
21. Pat. 15 Jac. I. p. 18, 17 Rym. 26.
22. The only Reports that have hitherto been published in Virginia, are those of Mr. Wythe, the present Chancellor of the State, of such Cases, as have been decided in the High Court of Chancery, since he hath been the sole Judge of it; and those of Mr. Washington, and Mr. Call, of cases determined in the Court of Appeals. A continuance of such publications is most devoutly to be wished especially by those Judges, whose Judgments are subject to the revision and correction of the Court of Appeals. The Reports of Mr. Dallas, of Cases determined in the supreme Court of the United States, and in the Federal Courts held in Pennsylvania, are also extremely valuable, both in respect to the matter of which they treat, and the manner in which they are executed. See Dallas’s reports vol. 2. and 3. The first volume comprehends only cases decided in the State Court of Pennsylvania. T.
23. His reports, for instance, are styled kat exochn the reports, and in quoting them we usually say, 1 or 2 Kep. 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 name 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.
24. It is usually cited either by the name of Co. Litt. or as 1 Inst.
25. 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.
26. Ff. 1. 3. 32.
27. Ff. 1. 4. 1.
28. C. 1. 14. 12.
29. C. 1. 23. 5.
30. See Appendix, Note E. T.
31. See the note, p. 63. T.
32. In Virginia, the Counties, and even parishes, were formerly authorized to make bye laws. This would in time have proved an abundant source of local usages and customs. But the act authorising them, 1662 c. 15. was repealed about seventeen years after it passed. 1679. c. 3. They may be found in Parvis’s collection, 112. 237. T.
33. Mag. Chart. 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.
34. 8 Rep 126. Cro. Car. 347.
35. Winch. 24.
36. The lex mercatoria, or general law and custom among Merchants, stands I presume upon the same authority in Virginia; what that law is, is to be ascertained and determined by judicial decisions and not by any local usages amongst Merchants and Traders; for these form no part of the common law of England, as the general law of Merchants doth. See Lord Mansfield’s report, in the case of Edie and another against the East India Company; and Justice Foster’s opinion in the same case …. 2 Burrow, 1222. and 1226.But where the law is not settled, it would seem that evidence of local usages, which are so settled and established among merchants and traders, as to be clear and plain beyond a doubt is proper for the consideration of a Jury. Lord Mansfield …. Ibid, 1221. 1222.
See the case of Branch v. Burnley, 1st. Calls Reports, 147. and the arguments and opinions of the Judges of the Court of Appeals therein. T.
37. Co. Litt. 175.
38. Litt. §. 265.
39. Dr. & St. 1. 10.
40. Cro. Car. 516.
41. Hob. 85.
42. Litt. §. 212. 4 Inst. 274.
43. It may be therefore doubted whether any custom can be established in the United States of America. For, Time of memory hath been ascertained by the Law to commence from the reign of Richard I. and any custom, in England, may be destroyed by evidence of its non-existence, at any subsequent period. Now, the settlement of North America by the English did not take place ’till the reign of Queen Elizabeth, near four hundred years afterwards …. See 2. Vol. Black. Com. p. 31. T.
44. Co. Litt. 113.
45. Ibid. 114.
47. Litt. § 212.
48. 1 Inst. 62.
49. Co. Copyh. § 33.
50. 1 Roll Abr 565
51. 9 Rep 58
52. See the case of Wiglesworth against Dallison and another, reported in Douglas, 190. T.
53. Co. Cop. §. 33.
54. Co. Litt. 15.
55. Hist. C. L. c. 2.
56. The authority of the common law of England, and of certain particular Statutes made in aid of the common law, may now be considered as resting upon a nearly similar foundation in Virginia; and perhaps in most of the United States …. See Edo. 1794. c. 147. T.
57. l. 3. c. 34.
58. Taylor’s elements of civil law 17.
59. See §. 1. p. 18.
60. The authority of the Canon-law, in Virginia (except perhaps in some matrimonial causes) since the passing the act for establishing religious Freedom. 1785. c. 34. maybe considered as either utterly abolished, or, at least highly questionable. T.
61. Burn’s eccl. law, pref. viii.
62. Statute 25 Hen. VIII, c. 19, revived and confirmed by 1 Eliz. c. 1.
63. This Statute of 25. H. 8. c. 19. (as also that of 1. Eliza. c. 1.) is repealed, by the general repeal of all British Statutes, Edo. of 1794. c. 147. T.
64. Stra. 1057.
65. Courts of admiralty are authorized by the C. U. S. art: 3. The District Courts of the U. S. are invested with their powers, in general: for which see L. U. S. 1. Cong: 1. Sess: c. 20. s. 9.11. …. 3. Cong: c. 50. The other Courts here mentioned are obsolete; at least in Virginia. T.
66. Hale Hist. c. 2.
67. The supreme Court of the United States hath power to issue writs of prohibition to the District Courts, when proceeding as Courts of Admiralty and Maritime Jurisdiction. L. U. S. 1. Cong: 1. Sess: c. 20. s. 13. T.
68. Vide L. U. S. 1. Cong: 1. Sess: c. 20. s. 25. in what cases the Federal Government may grant a writ of error to a State Court. T.
69. 8 Rep. 20.
70. 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 Marlbridge, of Westminster, Gloucester, 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 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.
71. Gravin. Orig. 1. §. 24.
72. Private acts of Assembly may be given in evidence without pleading them specially. L. V. 1789. c. 28. (Edo. of 1794; 76. s. 30.) T.
73. Although these Statutes are mentioned here by way of illustration only, it may not be improper to apprize the Student that neither the Statute of 5. Eliza: c. 11. to prevent the clipping of the current Coin; nor the Stat: of 13. Eliza: c. 10. to restrain spiritual persons from making certain Leases, are in force in Virg. the first being virtually repealed by the act declaring what shall be Treason Octo: 1776. c. 3. (Edo. of 1794, c. 136.) and the latter by the act repealing all British Statutes, under certain restrictions. (Edo. 1794, c. 147.) And here it may not be improper to offer to the Student a view of the written laws of Virginia: for which see Appendix, note F. T.
74. 3 Rep. 7. Co. Litt. 11. 42.
75. Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.
76. 2 Rep. 46.
77. A curious instance may be mentioned, where this rule was either not attended to, or the words of a penal statute were unknown in the highest Court of Judicature in Great Britain; viz. the House of Lords. The Statute of 1. Ja. 1. c. 11. upon which the Dutchess of Kingston was indicted, tried, found guilty, and received judgment in that court, (if we may credit the authority of the editors of the Statutes at large, and particularly Bill and Newcomb’s, Lond. 1684, said to have been carefully examined with the Rolls of parliament) does not extend to the case of a woman marrying a second husband, during the life of a former. The words of the enacting clause are, “If any person or persona being married, or which shall hereafter marry, do at any time marry any person or persons the former wife being alive etc.” It is true that Sir Edward Coke, 3. Inst. p. 88. and after him, Sir Mathew Hale 1. H. P. C. 692. quote it in these words, “the former Husband or Wife being alive” …. But not only Bill and Newcomb’s but one or two other Editions of the Statutes which I have seen, omit the words “Husband or,” from whence I am inclined to believe that the Error crept into the parliament roll itself; for it was evidently the intention of the Statute to take in both cases …. I have supposed it probable that Sir Edward Coke, who was (perhaps about that time) Attorney General, might have prepared the draught of the Statute, and that he inserted the extract from it which is given in his Institutes from that draught, without consulting the Roll, or a printed copy of the Statute.
“It is a fundamental rule of construction, that all penal Statutes shall be construed strictly, and remedial Statutes “shall be construed liberally. It was one of the laws of the twelve tables at Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle the law of England 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 the principles of liberty, that the judge should acquit whom the legislature intended to punish, than that he should punish whom the legislature 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 extention of national right, and Justice, the Judge may safely go beyond even that which existed in the minds of those who framed the law.” …. Christian.
“And therefore it hath 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 in the Statute against gaming, which is held to be remedial where the action is brought by the party losing at play, to recover back his money lost; but penal where it is brought by a common informer, who hath sustained no injury ….Christian …. See the Case of Bones vs. Booth. 2. Black. rep. 1226. T.
78. 2 & 3 Edw. VI. c. 33 Bac. Elem. c. 12.
79. The Statutes of 14. Geo. 2. c. 6. and 15. Geo: 2. c. 34. cited in this paragraph were never considered as in force in Virginia. T.
80. See L. V. 1785. c. 64. accordant. T.
81. 3 Rep. 83.
82. There being some variation between the words of the Statute 13. Eliza: c. 5. and the corresponding clause of our Act, to prevent frauds and perjuries, Edo. 1794. c. 10. s. 2. it may be questioned whether that act would extend to the case of a Gift or Conveyance made to defraud the commonwealth of a forfeiture or penalty, neither of which words although found in the British Statute, are inserted in that part of our Laws, which declares the Gift etc. void, only as against such persons, etc …. But according to sir Edward Coke’s opinion it would seem that the British Statute was declaratory of what the common Law was before; ideo Quaere. T.
83. 1 Rep. 47.
84. But this maxim is to be understood as relating only to Laws made by a Legislature possessing equal, or superior powers, to that by which the first law was made. Thus Congress may alter, repeal or annul any of its own acts: and in some few cases they may even annul the acts of the state legislatures should they attempt to legislate upon any subjects which the constitution of the United States prohibits; if, for example, the legislature of a State should declare all contracts made before, or after a certain day to be void; Congress (should they deem it necessary) might I presume, pass a subsequent act repealing such unconstitutional act, though without any such repeal, the act being contrary to the constitution would be void of itself. But should Congress attempt to pass a law contrary to the constitution of the United States, or should the state legislature make a similar attempt against it, or against the State Constitution; such acts, though cloathed with all the forms of Law, would not be law, nor repeal in any measure what was established by a higher authority, to wit, that of the people. Yet the People whenever they sec fit may make any alterations in the Constitution which they may deem necessary to their happiness, and the prosperity of the nation. T.
85. Jenk. Cent. 2. 73.
86. 11 Rep. 63.
87. 4 Inst. 325.
88. This rule of construction was altered in Virginia, by the act of 1789. c. 9. by which it is declared, “That whensoever one law, which shall have repealed another, shall be itself repealed, the former law shall not be revived without express words to that effect.”
A second rule of construction prescribed by that act, is, “that every act passed during any stated annual session, shall commence in force on the first day of March, then next ensuing, unless in the act itself, another day be particularly mentioned for the commencement thereof.”
A third rule of construction prescribed by the same act, is, “that as often as a question shall arise, whether a law passed during any session, changes or repeals a former law, passed during the same session, the same construction shall be made, as would have been made, if the act entitled an act concerning elections of members of General Assembly, had never been passed.”
This act commenced on the fifteenth day of January 1790. It was casually omitted in the Edition of 1794, being consolidated in a bill which did not pass. It is however still in force …. The act referred to in the latter rule above mentioned, (passed in October 1785) contains this clause …. “that all acts shall commence from their passage, unless in the act itself another day is appointed for its commencement.”
In the case of Proudfit vs. Maury, this act received an exposition in the Court of Appeals, which I presume settles the much agitated question relative to those laws passed in the session of 1792, which were suspended by an act of the same session, ch. 150. The case is thus stated by Pendleton, president:
- “An act passed November 12, 1792, relative to protested Bills of Exchange, repealing all former acts on the subject; and to commence from the passing.
- “The 28th of December 1792, an act passed, declaring the operation of this and many other alike circumstanced, to be suspended until October 1st, 1793.
- “During this suspension, to wit, in February 1793, the Bill on which the suit was brought was drawn; and would within the saving of the new act of 1792, be considered as commencing in October 1793.
- “But it is relied on, that the act of November was in force from its passage, ’till December the 28th. and therefore, that under the act of 1789. c. 9. the law of 1748, was effectually repealed, dead, and gone, for a month and sixteen days; and could only be revived by an express declaration of the Legislature. Because, since the act of 1789, c. 9. the repeal of a repealing law does not revive the repealed law, without a direction to that effect.
- “The rule in England is the reverse; a repealed law is revived, by the repeal of that which has stopped its force. A rule certainly inconvenient; since old acts, long since forgotten, might be revived upon the community; affecting their persons and property upon a legal fiction without notice that such was the case; which inconvenience was properly removed by the Act of 1789.
- “But, as the inconvenience could not happen in the case of the repeal of an Act passed the same session (not gone forth among the citizens, but known only to the Legislature) I was struck with an impression, that to such Laws, the Legislature never meant their rule should extend; and doubted, whether this being a repealing Law, never repealed, but suspended, only, for a time, and yet in force, came within the letter or spirit of the act of 1789. However, we were relieved from all difficulty by recurring to the act itself, where the doubt is stated and solved. The president then proceeds to state the third rule of construction prescribed by the act of 1789, as above cited; as also that part of the act of October 1785. which is before mentioned, and then proceeds thus: This latter law being declared to have no operation on the question, what was the rule of construction before? Why, that all laws were considered as passed on the first day of the session. According to this rule then, the original act and that for it’s suspension, commenced together.” Call’s rep. vol. 1. 401.
This very important decision may be considered as settling the law in an infinite number of cases of difficulty, arising under the various laws, enacted, suspended, and repealed, during the session of 1792. T.
89. 4 Inst. 43.
90. Cum lex abrogatur, illad ipsum abrogatur, quo non eam abrogari oporteut. l ep. 23.
91. One would imagine that it could not be deemed any great stretch of the freedom of opinion, to pronounce that any legislative act which prescribes a thing contrary to reason, is void; yet the caution of the learned commentator on this occasion is certainly conformable to the principles of the British government; in which, it seems to be agreed by all their Jurists, the authority of parliament is absolute and uncontrollable; insomuch that it may alter or change the Constitution itself. But, in America, the Constitutions, both of the individual States, and of the federal Government, being the acts of the people, and not of the Government, and the powers of Government being by those Constitutions, respectively, distributed into three distinct, and co-ordinate, branches; viz: the legislature, the executive, and the judiciary; all which are equally bound by Duty to their Constituents, the people; and by Oath, also, to support the Constitution; it follows, as has been already shewn that the legislature can possess, no power, or obligation over the other Branches of Government, in any case, where the principles of the Constitution, may be in any degree infringed by an acquiescence under the authority of the legislative department. The examples supposed, and the authority cited in that note, sufficiently evince the Justice of the position here contended for; and will warrant us in extending the rule here laid down by the learned commentator, by adding thereto, That all acts of the Congress of the United States, impairing, infringing or violating the principles of the federal Constitution; and all acts of the legislature of this Commonwealth, which violate, infringe or impair the same, or any law of the United States made pursuant to the powers granted to the Congress by the federal Constitution, or any Treaty made under the authority of the United States, or the Bill of Rights, and Constitution of this Commonwealth, are not binding upon any other branch of the federal or State-government: and any Citizen of the Commonwealth,
who may be aggrieved by any such unconstitutional Act, hath an undoubted right to redress, by application to the judicial Courts of the State, or of the United States according to the nature of the case. “The constitution and its laws,” as Vattel justly observes, “are the basis of the public tranquility, the firmest support of the public authority, and pledge of the liberty of the citizens. But this Constitution is a vain phantom, and the best Laws are useless, if they are not religiously observed. The nation ought then to watch very attentively, in order to render them equally respected by those who govern, and by the people destined to obey. To attack the Constitution of the State, and to violate its laws is a capital crime against the society, and if those guilty of it are invested with authority, they add to this crime a perfidious abuse of the power with which they are entrusted. The nation ought constantly to suppress these abuses, with its utmost vigor, and vigilance, as the importance of the case requires. It is very uncommon to see the Laws and Constitution of the State, openly and boldly opposed; it is against silent and slow attacks that a nation ought to be particularly on its guard.” Vattel’s Law of nations B: 1. 3. act: 30. See also, the Federalist; vol: 2, no: 78. T.
92. 8. Rep. 118.