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dals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.
As for the canons enacted by the clergy under James I. in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upor: he 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,(2)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, curiæ Christianitatis, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded *84]
entirely upon custom, corroborated in the latter instance by act of *par
liament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them.(a)
1. And, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and, in case of contumacy, to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.
2. The common law has reserved to itself the exposition of all such acts of parliament as concern either the extent of these courts, or the matters depending before them. And therefore, if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain and control them.
3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own.And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate, and leges sub graviori lege; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king's ecclesiastical, the king's military, the king's maritime, or the king's academical laws. *85]
*Let us next proceed to the leges scriptæ, the written laws of the king
dom, 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.(6) 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
22 Lord Hardwicke cites the opinion of Lord Holt, and declares it is not denied by any one, that it is very plain all the clergy are bound by the canons confirmed by the king only, but they must be confirmed by the parliament to bind the laity.. (2 Atk. 605.) Hence, if the archbishop of Canterbury grants a dispensation to hold two livings distant from each other more than thirty miles, no advantage can be taken of it by lapse or otherwise in the temporal courts, for the restriction to thirty miles was introduced by a canon made since the 25 Han. VIII. 2 Bl. Rep. 968.-CHRISTIAN.
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 tako notice of the different kinds of statutes, and of some general rules with regard to their construction.(c)
First, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an *universal rule, that regards the
[*86 whole community; and of this the courts of law are bound to take notice judicially and ex officio; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns; such as the Romans entitled senatus decreta, in contradistinction to the senatus consulta, which regarded the whole community ;(d) and of these (which are not promulgated with the same notoriety as the former) the judges are not bound to take notice, unless they be formally shown and pleaded. Thus, to show the distinction, the statute 13 Eliz. c. 10, to prevent spiritual persons from making leases for longer terms than twenty-one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation : but an act to enable the bishop of Chester to make a lease to A.B. for sixty years is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act.**
(9) The method of citing these acts of parliament is tutes by their initial words, as the statute of quia emptores, Various. Many of our ancient statutes are called after the and that of circumspecte agatis. But the most usual method name of the place where the parliament was held that of citing them, especially since the time of Edward the made them; as the statutes of Merton and Marleberge, of Second, is by naming the year of the king's reign in which Westminster, Gloucester, and Winchester. Others are de the statute was made, together with the chapter, or particunominated entirely from their subject, as the statutes of lar act, according to its numeral order, as 9 Geo. II. C. 4, for Wales and Ireland, the articuli cleri, and the prærogativ all the acts of one session of parliament taken together regis. Some are distinguished by their initial words, a make properly but one statute; and therefore, when two method of citing very ancient, being used by the Jews in sessions have been held in one year, we usually mention denominating the books of the Pentateuch; by the Chris stat. 1 or 2. Thus the bill of rights is cited as 1 W. and M. tian church in distinguishing their hymns and divine offices; st. 2. c. 2, signifying that it is the second chapter or act of by the Romanists in describing their papal bulls; and, in the second statute, or the laws made in the second session short, by the whole body of ancient civilians and canonists, of parliament, in the first year of king William and queen among whom this method of citation generally prevailed, Mary. not only with regard to chapters, but inferior sections also; (d) Gravin. Orig. i. & 24. in imitation of all which we still call some of our old sta
23 See other cases upon the distinction between public and private acts. Bac. Ab. Statuto F. The distinction between public and private acts is marked with admirable precision by Mr. Abbot, (the present Lord Colchester,) in the following note, in the printed report from the committee for the promulgation of the statutes :-PUBLIC AND PRIVATE ACTS.1. IN LEGAL LANGUAGE,-1. Acts are deemed to be public and general acts which the judges will take notice of without pleading,—viz., acts concerning the king, the queen, and the princa; those concerning all prelates, nobles, and great officers; those concerning the whole spirituality, and those which concern all officers in general, such as all sheriffs, &c. Acts concerning trade in general, or any specific trade; acts concerning all persons generally, though it be a special or particular thing, such as a statute concerning assizes, or woods in forests, chases, &c. &c. Com. Dig. tit. Parliament, (R. 6.) Bac. Ab. Statute F. 2. Private acts are those which concern only a particular species, thing, or person, of which the judges will not take notice without pleading them,-viz., acts relating to the bishops only; acts for toleration of dissenters; acts relating to any particular place, or to divers particular towns, or to one or divers particular counties, or to the colleges only in the universities. Com. Dig. tit. Parliament, (R. 7.) 3. In a general act there may be a private clause, ibid. and a private act, if recognised by a public act, must afterwards be noticed by the courts as such. 2 Term Rep. 569. 2. IN PARLIAMENTARY LANGUAGE,-1. The distinction between public and private bills stands upon different grounds as to fees. All bills whatever from which private persons, corporations, &c. derive benefit, are subject to the payment of fees; and such bills are in this respect denominated private bills. 'Instances of bills within this description are enumerated in the second volume of Mr. Hatsel's Precedents of Proceedings in the House of Commons, edit. 1796, p. 267, &c. 2. In parliamentary language another sort of distinction is also used: and some acts are called public general acis, others public local acts,—viz., church acts, canal acts, &c. To this class may also be added some acts which, though public, are merely personal,-viz., acts of attainder, and patent acts, &c. Others are called private acts, of which latter class some
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. Reme. dial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever. And this being done, either by enlarging the common
law, where it was too narrow and circumscribed, or by restraining it *87]
*where it was too lax and luxuriant, hath occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason : clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law; therefore it was thought expedient, by statute 5 Eliz. c. 11, to make it high treason, which it was not at the common law: so that this was an enlarging statute.25 At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before mentioned: this was, therefore, a restraining statute.
Secondly, the rules to be observed with regard to the construction of statutes are principally these which follow.28
1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy.(e) Let us instance again in the same restraining statute of 13 Eliz. c. 10: By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors; the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives, or twenty-one years. Now, in the construction of this statute, it is held, that leases, though for a longer
(9) 3 Rep. 7; Co. Litt. 11, 42.
are local,-viz., enclosure acts, &c.; and some personal,-viz., such as relate to names, estates, divorces, &c.
In many statutes which would otherwise have been private, there are clauses by which they are declared to be public statutes. Bac. Ab. Statutes F.-Chitty.
24 This division is generally expressed by declaratory statutes and statutes introductory of a new law. Remedial statutes are generally mentioned in contradistinction to penal statutes. See note 19, p. 88.-CHRISTIAN.
* This statute against clipping the coin hardly corresponds with the general notion either of a remedial or an enlarging statute. In ordinary legal language remedial statutes are contradistinguished to penal statutes. An enlarging or an enabling statute is one which increases, not restrains, the power of action, as the 32 Hen. VIII. c. 28, which gave bishops and all other sole ecclesiastical corporations, except parsons and vicars, a power of making leases, which they did not possess before, is always called an enabling statute. The 13 Eliz. c. 10, which afterwards limited that power, is, on the contrary, styled a restraining or disabling statute. See this fully explained by the learned commentator, 2 Book, p. 319.-CHRISTIAN.
26 Where there are conflicting decisions upon the construction of a statute, the court must refer to that which ought to be the source of all such decisions,—that is, the words of the statute itself, per Lord Ellenborough. 16 East, 122.
The power of construing a statute is in the judges of the temporal courts, who, in cases of doubtful construction, are to mould them according to reason and convenience, to the bost use. Hob. 346. Plowd. 109. 3 Co. 7.-Cutty.
term, if made by a bishop, are not void during the bishop's continuance in his see; or, if made by a dean and chapter, they are not void during the continuance of the dean; for the act was made for the benefit and protection of the successor.(f) The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the *grantors; but the leases, during their continuance, being not within the mischief, are not within
[*88 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, deang being the highest persons named, and bishops being of a still higher order.(9)
3. Penal statutes must be construed strictly. Thus the statute 1 Edw. VI. c. 12, having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this should not extend to him that should steal but one horse, 28 and therefore procured a new act for that purpose in the following year.(h). And, to come nearer our own times, by the statute 14 Geo II. c. 6, stealing sheep, or other cattle, was made felony, without benefit of clergy. But these general words," or other cattle,” being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found necessary to make another statute, 15 Geo. II. c. 34, extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.29
(1) Co. Litt. 45. 3 Rep. 60. 10 Rep. 58. () 2 Rep. 46.
(*) 2 and 3 Edw. VI. c. 33. Ba. Elem. c. 12.
27 Modern statutes of importance have what is commonly called a "dictionary clause,” the object of which is to define what persons, things, places, &c. shall be included in every general word used in the act. For example, the first section of the Limitation of Actions, act 3 and 4 Wm. IV. c. 27, defines what shall be included in the words "land,” "rent,” and “person.”-HARGRAVE.
* Lord Hale thinks that the scruple of the judges did not merely depend upon the words being in the plural number, because no doubt had ever occurred respecting former statutes in the plural number; as, for instance, it was enacted by the 32 Hen. VIII. c. 1 that no person convicted of burning any dwelling-houses should be admitted to clergy. But the reason of the difficulty in this case was, because the statute of 37 Hen. VIII. C. 8 was expressly penned in the singular number,- If any man do steal any horse, mare, or filly; and then this statute, varying the number, and at the same time expressly repealing all other exclusions of clergy introduced since the beginning of Hen. VIII., it raised a doubt whether it were not intended by the legislature to restore clergy where only one horse was stolen. 2 H. P. C. 365.
It has since been decided, that where statutes use the plural number, a single instanca will be comprehended. The 2 Geo. II. c. 25 enacts, that it shall be felony to steal any bank-notes; and it has been determined that the offence is complete by stealing one bank-nota. Hassel's Case, Leach, Cr. L. 1.-CHRISTIAN.
** There are some kinds of statutes in the construction of which the courts have con. sidered themselves bound to adhere more closely to the words than in other cases. This is termed strict construction. The text confines to penal statutes; but there are others also of this class. As to penal statutes, however, it is to be observed that such laws are not to be construed so strictly as to defeat the obvious intention of the legislature. The United States vs. Wiltberger, 5 Wheat. 76. They are to be construed strictly in that sense that the case in hand must be bro within the definition of the law, but not so strictly as to exclude a case which is within its words taken in their ordinary acceptation: that is to say, there is no peculiar technical meaning, given to language in penal any more than in remedial laws. U.S. vs. Wilson, Baldw. C. C. Rep. 78. Hall vs. The State, 20 Ohio, 7. But, besides penal statutes, laws made in derogation of common sight are to be construed strictly; as, for instance, statutes for any cause disabling any person of full age and sound mind to make contracts. Smith vs. Spooner, 3 Pick. 229. So statutes conferring exclusive privileges on corporations or individuals fall under this rule. Sprague vs. Birdsall, 2 Cowen, 419. Young vs. McKensie, 3 Kelly, 31. Charters of incorporation are to be construed most strongly against those corporations or persons who claim rights or powers under them, and most favourably for the public. Mayor vs. Railroad Co., 7 Georgia, 221. Railroad Co. vs. Briggs, 2 N. Jersey, 623. In the same class are VOL. I.-5
4. Statutes against fraudsso are to be liberally and beneficially expounded. This may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fire, it is then to be taken strictly; but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5, which avoids all gifts of goods, *89]
&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.(os
() 3 Rep. 82. statutes which impose restrictions on trade or common occupations, or which levy a tax upon them. Sewall vs. Jones, 9 Pick. 412. So a statute conferring authority to impose taxes. Moseley vs. Tift, 4 Florida, 402. So laws exempting property from taxation. Cincinnati College vs. Chio, 19 Ohio, 110. So when the liberty of the citizen is involved. Pierce's Case, 4 Shipley, 255. The power invested in public bodies to take the lands of private persons for public uses is in derogation of the common law, and ought therefore to receive a rigid interpretation. Sharp vs. Speir, 4 Hill, 76. Sharp vs. Johnson, ibid. 92. Enough has been specified to illustrate the general bearing and application of the principle of strict construction.
By far the most important question, which has ever been agitated, has been in regard to the constitution of the United States. Two schools of constitutional law—the National and State-Rights school-maintain different doctrines upon this subject. The former have always contended that the delegations of power to the federal government ought to receive a large and liberal interpretation; and that at all events, wherever a general object was within the scope of the powers specified, Congress ought to be considered as invested with a large discretion as to the means to be employed for the purpose of giving effect to the power, and especially that there existed no limitation upon their right to appropriate the public money but their own judgment of what would conduce to the “general welfare. On the other hand, the State-Rights school zealously contend that, the government being conceded to be one of special limited powers, such a principle of construction as that assumed on the other side in effect destroys all limitation; that any thing and every thing can be reached under the power of appropriating money for the "general welfare;” that Congress can employ no means except such as are necessary as well as proper to the end, and have no right to assume a substantive power, not granted, as incidental. Non nobis tantas componere lites.-SHARSWOOD.
30 These are generally called remedial statutes; and it is a fundamental rule of construction that penal statutes shall be construed strictly, and remedial statutes shall be construed liberally. It was one of the laws of the twelve tables of Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle our law has adopted in the construction of penal statutes; for whenever any ambiguity arises in a statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or in favour of natural right and liberty; or, in other words, the decision shall be according to the strict letter in favour of the subject. And though the judges in such cases may frequently raise and solve difficulties contrary to the intention of the legislature, yet no further inconvenience can result than that the law remains as it was before the statute. And it is more consonant to principles of liberty that the judge should acquit whom the legislator intended to punish, than that he should punish whom the legislator intended to discharge with impunity.. But remedial statutes must be construed according to the spirit; for, in giving relief against fraud, or in the furtherance and extension of natural right and justice, the judge may safely go beyond even that which existed in the minds of those who framed the law.-CHRISTIAN.
31 And, therefore, it has been held that the same words in a statute will bear different interpretations, according to the nature of the suit or prosecution instituted upon them. As by the 9 Ann. c. 14, the statute against gaming, if any person shall lose at any time or sitting 101. and shall pay it to the winner, he may recover it back within three months; and if the loser does not within that time, any other person may sue for it and treble the value besides. So where an action was brought to recover back fourteen guineas, which had been won and paid after a continuance at play, except an interruption during dinner, the court held the statute was remedial, as far as it prevented the effects of gaming. without inflicting a penalty, and, therefore, in this action, they considered it one time or sitting; but they said if an action had been brought by a common informer for the penalty, they would have construed it strictly in favour of the defendant, and would have held that the money had been lost at two sittings. 2 BI. Rep. 1226.-Christian.
* Some kinds of statutes are held entitled to receive a liberal or favourable interpro