« PreviousContinue »
A SUMMARY OF THE CONSTITUTION
Particularly those relative to
MASTER AND SERVANT,
PARENT AND CHILD,
WILLS, &c. &c. &e.
The Criminal Law of England,
COMPRISING EVERY SPECIES OF PUBLIC OFFENCES WITH THEIR PUNISHMENTS.
TO WHICH IS ADDED AN APPENDIX,
THE INSURANCE LAWS,
THE ASSESSED TAXES,
THE STAMP DUTIES, &c.
the 6lh Geo. IV.
BY JOHN GIFFORD, Esq.
The Eleventh Edition.
AND SOLD BY ALL THE BOOKSELLERS EN TAF UNITED KINGDOM.
us, that to know what the laws of our country have forbidden, and the deplorable consequences to which a wilful disobedience may expose us, is matter of universal concern." The observations here quoted, of this learned Commentator, apply with equal force to our civil rights, the preservation of which greatly depends upon a due and competent knowledge of the laws.
Having thus briefly endeavoured to shew how necessary to our safety, as well as important to our interests it is, that we should obtain a knowledge of the laws of our country, we shall proceed to state the plan of this Work. We have to observe, that its object is not, neither does it pretend, to make us complete masters of the science of the law, for that would be utterly impossible in a work of this compass: but its principal aim is, to furnish the reader, in a concise form, and in a familiar style, with a knowledge of those laws and statutes which more particularly concern him in his ordinary affairs. It has attempted to sketch an outline of the constitution, and has endeavoured to shew the supremacy of the law, its functions, and the form and practice of the courts established for its administration. In the arrangement and distribution of materials for the Work, the principal object has been to collect and compress under each subject, all the laws and statutes relative to it: by which means the scattered information, which is only to be found by constant reference to books, and at a great ex, pence in their purchase, is exhibited under one view, and under its proper head and title ; and, in order to render the Work still more useful, the laws which concern some of the principal branches of trade, manufactures, and commerce, which may not be found embodied in it, are given under distinct heads. By this means we have endeavoured to comprise within its pages all the legal information which its varied and multifarious contents would seem to require. .
To this Edition is now added a SUPPLEMENT, containing the Insurance Laws, the Laws of Excise and Customs, the Assessed Taxes, and the Stamp Duties; besides such acts of parliament as have passed since the first appearance of the Work, and which cannot well be incorporated in it. This addition to its contents, we hope, will render the Work still more acceptable to the reader.
EVERY MAN HIS OWN LAWYER.
of the Laws of England. REFORE we enter upon the subject of the following Work, it
may be necessary to take a short and concise view of the LAW OF ENGLAND, in which we shall endeavour, from the learned Commentaries of Blackstone, to shew the principles out of which it has sprung. This information will, we trust, clear up the obscurity in which many of our laws and early customs are involved, and will better enable the reader to understand the reason upon which they are founded, and without which information the subject would appear dark and obscure to him.
The law of England is, according to Blackstone, divided into two kinds: the lex non scripta, the unwritten, or common law ; and the lex scripta, the written, or statule law.
When we speak of the leges non scriplæ, or unwritten laws, says this learned author, we would not be understood as if all those laws were at present merely oral, or communicated from former ages to the present solely by word of mouth. But they are so styled, 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.
The lex non scripta, 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. Parlicular customs, which for the most part affect only the inhabitants of particular districts. 3. Certain particular customs, which by custom are adopted and used by particular courts.
1. As to gennal customs, or the common law properly so called; this is that law, by which proceedings and determinations in the courts of justice are guided. By it also is setiled 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; and an infinite number of minute particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, by the common law, the eldest son alone is heir to his ancestor; property is acquired and transferred by writing; a deed is of no validity, unless sealed and delivered ; wills are construed more favourably, and deeds more strictly; money lent upon bond is recoverable by action of debt; the breaking the public peace is an offence, and punishable by fine and imprisonment: all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, or upon the common law, for their support.
But here a question arises, How are these customs to be known? and by whom is their validity to be determined? The answer is, By the judges in the several courts of law. They are to decide in all cases of doubt, and are bound by an oath to decide according to the law of the land. And 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.
II. The second branch of the unwritten, or common law of England, are particular customs, or laws which affect the inhabitants of particular districts. Such is the custom of guveikind in Kent and some other parts of the kingdom, 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 divers ancient boroughs, and therefore called borough english, that the youngest son shall inherit the estate in preference to all his elder brothers.* Such is the custom in other boroughs, that a widow shall be entitled, for her dower, to all her husband's lands; whereas at the common law, she shall be endowed of one third part only. Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants that hold of the said manors. Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns; the right of holding which, when no royal grant can be shewn, 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. To this head may be referred the custom of mer
* The reason of this is said to be, that, during the feudal times, the lord claimed the privilege of sleeping the first night with his vassal's bride ; so that the lands descended to the youngest, from the supposed illegitimacy of the eldest.
chants, or lex mercatoria; which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it. .
With regard to the establishment of customs; before a custom can be pleaded in court, it must be proved; we will therefore consider the rules of proof.
As to gavelkind and borough english, the law takes particular notice of them; 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 ; and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. - The customs of London differ from all others in point of trial ; for if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen, by the mouth of the recorder; unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c. for then the law permits them not to certify on their own behalf.
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. To make a particular custom good, the following are necessary requisites :
1. That it hath been used so long, that the memory of man runneth not to the contrary. So that if any one can shew the beginning of it within legal memory, that is, within any time since the first year of the reign of Richard I. it is not a good custom.
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. 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. 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 ; or rather, taken negatively, they must not be unreasonable. Upon which account a custom may be good, though the particular reason of it cannot be assigned. Thus, a custom in a parish, that no man shall put his beasts into the common till the 3d of October, would be good; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. But a