Commentaries on the Laws of England Part 6

[Footnote h: Co. Litt. 113 _b._]

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[i]. As if I have a right of way by custom over another's field, the custom is not destroyed, though I do not pa.s.s over 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.

[Footnote i: Co. Litt. 114 _b._]

3. IT must have been _peaceable_, and acquiesced in; not subject to contention and dispute[k]. For as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent was wanting.

[Footnote k: Co. Litt. 114.]

4. CUSTOMS must be _reasonable_[l]; or rather, taken negatively, they must not be unreasonable. Which is not always, as sir Edward c.o.ke says[m], to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though the particular reason of it cannot be a.s.signed; for it sufficeth, if no good legal reason can be a.s.signed 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 shew the reason why that day in particular is fixed upon, rather than the day before or after. But a custom that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lose all their profits[n].

[Footnote l: Litt. --. 212.]

[Footnote m: 1 Inst. 62.]

[Footnote n: Co. Copyh. --. 33.]

5. CUSTOMS ought to be _certain_. A custom, that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? But a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good[o]. A custom, to pay two pence an acre in lieu of tythes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for it's 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_.

[Footnote o: 1 Roll. Abr. 565.]

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 a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and, indeed, no custom at all.

7. LASTLY, customs must be _consistent_ with each other: one custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd.

Therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom[p].

[Footnote p: 9 Rep. 58.]

NEXT, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly. Thus, by the custom of gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) convey away his lands in fee simple, or for ever. Yet this custom does not impower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued[q]. And, moreover, all special customs must submit to the king's prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone[r]. And thus much for the second part of the _leges non scriptae_, or those particular customs which affect particular persons or districts only.

[Footnote q: Co. Cop. --. 33.]

[Footnote r: Co. Litt. 15 _b._]

III. THE third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws.

IT may seem a little improper at first view to rank these laws under the head of _leges non scriptae_, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their inst.i.tutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But I do this, after the example of sir Matthew Hale[s], because it is most plain, that it is not on account of their being _written_ laws, that either the canon law, or the civil law, have any obligation within this kingdom; neither do their force and efficacy depend upon their own intrinsic authority; which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors; were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here: for the legislature of England doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom; or as having the right to give law to any, the meanest, of it's subjects. But all the strength that either the papal or imperial laws have obtained in this realm, or indeed in any other kingdom in Europe, is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the _leges non scriptae_, or customary law: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the _leges scriptae_, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21.

addressed to the king's royal majesty.--"This your grace's realm, recognizing no superior under G.o.d but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained _within_ this realm for the wealth of the same; or to such other, as by sufferance of your grace and your progenitors, the people of this your realm, have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same: not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the _customed_ and antient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise."

[Footnote s: Hist. C.L. c. 2.]

BY the civil law, absolutely taken, is generally understood the civil or munic.i.p.al law of the Roman empire, as comprized in the inst.i.tutes, the code, and the digest of the emperor Justinian, and the novel const.i.tutions of himself and some of his successors. Of which, as there will frequently be occasion to cite them, by way of ill.u.s.trating our own laws, it may not be amiss to give a short and general account.

THE Roman law (founded first upon the regal const.i.tutions of their antient kings, next upon the twelve tables of the _decemviri_, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the _responsa prudentum_ or opinions of learned lawyers, and lastly upon the imperial decrees, or const.i.tutions of successive emperors) had grown to so great a bulk, or as Livy expresses it[t], "_tam immensus aliarum super alias acervatarum legum c.u.mulus_," that they were computed to be many camels' load by an author who preceded Justinian[u]. This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger, by whose orders a code was compiled, _A.D._ 438, being a methodical collection of all the imperial const.i.tutions 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 const.i.tutions for their newly erected kingdoms. For Justinian commanded only in the eastern remains of the empire; and it was under his auspices, that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533.

[Footnote t: _l._ 3. _c._ 34.]

[Footnote u: Taylor's elements of civil law. 17.]

THIS consists of, 1. The inst.i.tutes, 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 const.i.tutions, the lapse of a whole century having rendered the former code, of Theodosius, imperfect. 4. The novels, or new const.i.tutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or _corpus juris civilis_, as published about the time of Justinian: which however fell soon into neglect and oblivion, till about the year 1130, when a copy of the digests was found at Amalfi in Italy; which accident, concurring with the policy of the Romish ecclesiastics[w], suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded.

[Footnote w: See --. 1. pag. 18.]

THE canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, the decretal epistles and bulles of the holy see. All which lay in the same disorder and confusion as the Roman civil law, till about the year 1151, one Gratian an Italian monk, animated by the discovery of Justinian's pandects at Amalfi, reduced them into some method in three books, which he ent.i.tled _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 ent.i.tled _decretalia Gregorii noni_. A sixth book was added by Boniface VIII, about the year 1298, which is called _s.e.xtus decretalium_. The Clementine const.i.tutions, or decrees of Clement V, were in like manner authenticated in 1317 by his successor John XXII; who also published twenty const.i.tutions 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 const.i.tutions, and the extravagants of John and his successors, form the _corpus juris canonici_, or body of the Roman canon law.

BESIDES these pontificial collections, which during the times of popery were received as authentic in this island, as well as in other parts of christendom, there is also a kind of national canon law, composed of _legatine_ and _provincial_ const.i.tutions, and adapted only to the exigencies of this church and kingdom. The _legatine_ const.i.tutions were ecclesiastical laws, enacted in national synods, held under the cardinals Otho and Othobon, legates from pope Gregory IX and pope Adrian IV, in the reign of king Henry III about the years 1220 and 1268. The _provincial_ const.i.tutions are princ.i.p.ally the decrees of provincial synods, held under divers arch-bishops of Canterbury, from Stephen Langton in the reign of Henry III to Henry Chichele in the reign of Henry V; and adopted also by the province of York[x] in the reign of Henry VI. At the dawn of the reformation, in the reign of king Henry VIII, it was enacted in parliament[y] that a review should be had of the canon law; and, till such review should be made, all canons, const.i.tutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.

[Footnote x: Burn's eccl. law, pref. viii.]

[Footnote y: Statute 25 Hen. VIII. c. 19; revived and confirmed by 1 Eliz. c. 1.]

AS for the canons enacted by the clergy under James I, in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the const.i.tution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity[z]; whatever regard the clergy may think proper to pay them.

[Footnote z: Stra. 1057.]

THERE are four species of courts in which the civil and canon laws are permitted under different restrictions to be used. 1. The courts of the arch-bishops and bishops and their derivative officers, usually called in our law courts christian, _curiae christianitatis_, or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded intirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them[a].

[Footnote a: Hale Hist. c. 2.]

1. AND, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.

2. THE common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts or the matters depending before them. And therefore if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain and control them.

3. AN appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own.--And, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and _leges sub graviori lege_; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called, the king's ecclesiastical, the king's military, the king's maritime, or the king's academical, laws.

LET us next proceed to the _leges scriptae_, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king's majesty by and with the advice and content of the lords spiritual and temporal and commons in parliament a.s.sembled[b]. The oldest of these now extant, and printed in our statute books, is the famous _magna carta_, as confirmed in parliament 9 Hen. III: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.

[Footnote b: 8 Rep. 20.]

THE manner of making these statutes will be better considered hereafter, when we examine the const.i.tution of parliaments. At present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction[c].

[Footnote c: The method of citing these acts of parliament is various.

Many of our antient statutes are called after the name of the place, where the parliament was held that made them: as the statutes of Merton and Marlbridge, of Westminster, Glocester, and Winchester.

Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the _articuli cleri_, and the _praerogativa regis_.

Some are distinguished by their initial words, a method of citing very antient; being used by the Jews in denominating the books of the pentateuch; by the christian church in distinguis.h.i.+ng their hymns and divine offices; by the Romanists in describing their papal bulles; and in short by the whole body of antient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also: in imitation of all which we still call some of our old statutes by their initial words, as the statute of _quia emptores_, and that of _circ.u.mspecte agatis_. But the most usual method of citing them, especially since the time of Edward the second, is by naming the year of the king's reign in which the statute was made, together with the chapter, or particular act, according to it's numeral order; as, 9 Geo. II. c. 4. For all the acts of one session of parliament taken together make properly but one statute; and therefore when two sessions have been held in one year, we usually mention stat. 1. or 2. Thus the bill of rights is cited, as 1 W. & M. st. 2. c. 2. signifying that it is the second chapter or act, of the second statute or the laws made in the second sessions of parliament, held in the first year of king William and queen Mary.]

FIRST, as to their several kinds. Statutes are either _general_ or _special_, _public_ or _private_. A general or public act is an universal rule, that regards the whole community; and of these the courts of law are bound to take notice judicially and _ex officio_; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns; such as the Romans int.i.tled _senatus-decreta_, in contradistinction to the _senatus-consulta_, which regarded the whole community[d]: and of these the judges are not bound to take notice, unless they be formally shewn and pleaded. Thus, to shew the distinction, the statute 13 Eliz. c. 10. to prevent spiritual persons from making leases for longer terms than twenty one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of Chester to make a lease to A.B. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act.

[Footnote d: Gravin. _Orig._ 1. --. 24.]

STATUTES also are either _declaratory_ of the common law, or _remedial_ of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, _in perpetuum rei testimonium_, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2. doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circ.u.mstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. And, this being done either by enlarging the common law where it was too narrow and circ.u.mscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into _enlarging_ and _restraining_ statutes. To instance again in the case of treason.

Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law: so that this was an _enlarging_ statute. At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. beforementioned: this was therefore a _restraining_ statute.

SECONDLY, the rules to be observed with regard to the construction of statutes are princ.i.p.ally these which follow.

1. THERE are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy[e]. Let us instance again in the same restraining statute of the 13 Eliz. By the common law ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years. Now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's life; or, if made by a dean with concurrence of his chapter, they are not void during the life of the dean: for the act was made for the benefit and protection of the successor[f]. The mischief is therefore sufficiently suppressed by vacating them after the death of the grantor; but the leases, during their lives, being not within the mischief, are not within the remedy.

[Footnote e: 3 Rep. 7 _b._ Co. Litt. 11 _b._ 42.]