Imágenes de páginas
PDF
EPUB

itself free, if so inclined, to elect between them. For instance, in ascertaining the next of kin of an intestate who are to have the benefit of the statute of distributions(c), the *mode of computation used by civilians, which [*87] differs from that of the canon law, has been by us adopted; whereas in computing the degrees of collateral consanguinity our law follows the canonists, and not the civilians(d).

receive the pe

culiar laws.

There are three existing species of courts, in which the civil or canon laws are permitted (under different restrictions) to be used. 1. The courts of the The courts which archbishops and bishops, and their derivative officers, called, in our law, courts christian, curia christianitatis, or the ecclesiastical courts. 2. The courts of admiralty. 3. The chancellor's court of the university of Cambridge(e). In these courts the reception of the civil and canon law 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 university. The more minute consideration of these tribunals will fall properly under that part of our 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 (ƒ).

1. And, first, the courts of common law have the superintendency over these courts; to keep them within their respective jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess(g), 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.(h).

are controlled.

[*88]

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 dependand guided by ing 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 (i).

the courts of common law,

3. An appeal(k) lies from all these courts(7), whence it appears that the civil and canon laws, though admitted in some cases by custom in some courts, are and an appeal only subordinate laws, leges sub graviori lege; and thus admitted, lies from them. restrained, altered, new-modelled, and amended, they are by no

ecclesiastical law is for the decision of such questions, and must be taken notice of by the judges of the courts of common law in deciding them. Tithes are a spiritual right, and as such they were originally recoverable only in the ecclesiastical courts. Actions may now be brought for subtraction of tithes in the courts of common law, but those courts, in deciding what tithes are due, and how they ought to be set out, consult the ecclesiastical law."

(c) Which is mainly founded on the 118th Novel of Justinian.

[blocks in formation]
[blocks in formation]

(g) In The King v. Eyre, Str. 1067, Lord Talbot said that the Court of Chancery could not trust the ecclesiastical courts to determine what is a matter merely spiritual. See Ex parte Jenkins, 1 B. & C. 655.

(h) 2 Inst. 623; Broom's Constitut. L., p. 776, et seq.

(i) See Hall v. Maule, 7 Ad. & E. 721 . (k) From the court of the Chancellor of Cambridge University an appeal lies to the Senate. Report Univ. Cambridge, p. 5. (1) Post, vol. iii.

means with us a distinct independent species of laws, but are under the control of the customary or unwritten laws of England.

II. Leges scriptæ or statute law.

II. Let us next proceed to the leges scripta, the written laws of the kingdom; which are acts or statutes, made by the sovereign, by and with the advice and consent of the lords spiritual and temporal, and commons, in parliament assembled. The oldest of these now extant, and printed in our statute-book, is the famous magna carta of king John, as confirmed in parliament 9 Henry III.: though doubtless there were many acts(m) before that time, the records of which are now lost, and the determinations of which are at present perhaps currently received as maxims of our common law.

[*89]

The manner of making these statutes will be considered hereafter, when we examine the constitution of *parliament. At present we will only take notice of the different kinds of statutes; and of some general rules of policy and construction with regard to them (n).

First, as to their several kinds. Statutes are either public or private(o). A public act is, strictly speaking, an universal rule, that regards the whole community.(26) Private acts are rather exceptions than rules, being those which only operate upon particular persons, and private

Public acts.

Special or
Private.

(m) Ante, p. 56. () The method of citing 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 Marleberge, of Westminster, Gloucester, and Winchester. Others are denominated from their subject; as the statutes of Wales and Ireland, the articuli cleri, and the prærogativa regis. Some are distinguished by their initial words, as the statutes of quia emptores, and that of circumspecte agatis. But the most usual method of citing a statute is by naming the year of the king's reign in which it was

made, together with the chapter or particular act, according to its numeral order, as 9 Geo. 2, c. 4. 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 session of parliament in the first year of king William and queen Mary.

(0) On the origin of private acts, see Reeves, History of the English Law, iii. 379; iv. 129; Dwarr. Stats. 2nd ed. 462.

(26) The definition in the text serves the general purpose of a definition. And to that may be added a few illustrations from the reported cases. The general rule is, that public statutes need not be pleaded or proved, as the courts will take judicial notice of them. Shaw v. Tobias, 3 N. Y. (3 Comst.) 188, 190; Brown v. Harmon, 21 Barb. 508; Methodist Episcopal Church v. Pickett, 19 N. Y. (5 Smith) 482, 486; 2 Wait's Law & Pr. 303, 304; Ecans v. Browne, 30 Ind. 514. To this rule, however, there are exceptions, as the party must plead the statute of limitations. N. Y. Code, § 74; Clinton v. Eddy, 37 How. 23; 54 Barb. 54; Bucklin v. Chapin, 1 Lans. 443. A demurrer is not sufficient, even when the complaint shows on its face that the action is barred by the statute. Sands v. St. John, 36 Barb. 628; 23 How. 140; 29 id. 574; Voorhies v. Voorhies, 24 Barb. 150; Fellers v. Lee, 2 id. 488. Usury must be pleaded, or the defense will not be available. Morford v. Davis, 28 N. Y. (1 Tiff.) 481; Fay v. Grimsteed, 10 Barb. 321; Gould v. Segee, 5 Duer, 260; Young v. Rummell, 2 Hill, 478. Special provisions of a statute in regard to a particular subject will provisions in the same or other statutes, so far as there is a conflict. Wis. 363; Brown v. County Commissioners, 21 Penn. St. (9 Harris) 37. visions of a general law, applicable to the whole state, are repugnant to the provisions of a previously enacted special law, applicable in a particular locality only, the passage of such general law does not operate to modify or repeal the special law, either in whole or in part, unless such modification or repeal is provided for by express words, or arises by necessary implication. State v. Mills, 34 N. J. L. 177.

prevail over general State v. Gotze, 22 But where the pro

concerns: such as the Romans entitled senatus-decreta, in contradiction to the senatús-consulta, which regarded the whole community (p). 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, concerns only the parties and the bishop's successors; and is therefore a private act.(27) Every act, however, is now to be deemed public, and is to be judicially noticed unless otherwise declared (q).

*In parliamentary language, statutes are further subdivided as follows: [*90] Public acts are subdivided into general, as the Reform Act, the annual Mutiny Act, &c.; local, as church building acts, canal and railway acts, parish acts, county acts, &c.; and personal, as patent acts, attainder acts, &c. Private acts are subdivided into local, as enclosure acts, &c.; and personal, as estate acts, naturalisation acts, &c.(r). The printed statutes are also, for convenience of reference and citation, classed under four heads, viz.: public general acts; local (p) Gravin, Orig. 1, s. (q) 13 & 14 Vict. c. 21, s. 7. (r) Whether an act is public or private (meaning thereby local and personal, as opposed to general), does not depend upon any technical considerations (such as having a

66

24.

clause or declaration that the act shall be deemed a public act), but upon the nature and substance of the case." Per Wigram, V., C., Dawson v. Paver, 5 Hare, 434; Cock v. Gent, 12 M. & W. 234.

To constitute an act a public statute it is not necessary that it should extend to all parts of the state; if it extends to all persons who do or omit specified acts within described limits this is sufficient. People v. Davis, 61 Barb. 456; Pierce v. Kimball, 9 Greenl. 54; Burnham v. Webster, 5 Mass. 266.

Acts for the establishment of towns and counties, and fixing their boundaries, and providing for the erection of public buildings, and for public highways and fences, are public acts. Stephenson v. Doe, 8 Blackf. 508; Gorham v. Springfield, 8 Shep. 58; East Hartford v. Hartford Bridge, 10 How. (U. S.) 511; Mills v. St. Clair, 8 id. 569; Commonwealth v. Springfield, 7 Mass. 9. An act chartering a bank has been considered a public act. Bank of Utica v. Smedes, 3 Cow. 662; Smith v. Strong, 2 Hill, 241; Crawford v. Planters and Merchants' Bank, 6 Ala. 289.

(27) By the common law, it is required that all private statutes should be pleaded. 1 Bla. Com. 86; Steph. Plead. 347; Dwarris on Stat. 53, Potter's ed. A special or private act has been defined to be one that the courts will not notice unless pleaded and proved like any other fact. Hingle v. State, 24 Ind. 29, 34; Toledo, etc., Railway Co. v. Nordyke, 27 id. 95. A private act which directs the sale of the property of a person by the attorney-general, without warranty, and to pay the money received thereon to certain creditors, does not take away the rights of third persons. Jackson ex dem. Gratz v. Catlin, 2 Johns. 248; 8 id. 520. By the constitution of New York, bills for local or private purposes must receive the assent of two-thirds of the members of both branches of the legislature. An appropriation for the improvement of a particular river is a local act, although the public might be incidentally benefited, if such money is to be expended in a particular locality, and the people of that locality are to be directly and mainly benefitted. People v. Allen, 42 N. Y. (3 Hand) 378; reversing S. C., 1 Lans. 248. So of an appropriation for the construction of a bridge at a particular locality. People v. Supervisors of Chautauqua, 43 N. Y. (4 Hand) 10, 20. An act is local within the meaning of the constitution, which, in its subject, relates to but a portion of the people of the state or their property; and may not, either in its subject, operation, or immediate and necessary results, affect the people of the state or their property in general. Id.

An act relating to the fees of the sheriff of a particular county is also local. Gaskin v. Meek, 8 Abb. N. S. 312; 42 N. Y. (3 Hand) 186. So of an act amending the charter of a particular city, and authorizing the raising and expenditure of money. People v. O'Brien, 38 N. Y. (11 Tiff.) 193; S. C., 6 Trans. App. 90; People v. Hills, 35 N. Y. (8 Tiff.) 449.

acts declared public; private acts, printed by the queen's printer, and whereof the printed copies may be given in evidence; and private acts not printed.

Declaratory.

A statute is sometimes designated as declaratory, or remedial, or penal, or repealing. Declaratory, where the old custom of the kingdom having almost fallen into disuse, or become disputable, 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(s).(28) Thus the statute of Treasons, 25 Edw. 3, c. 2, does 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 deRemedial. fects, 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.(29) *And [*91] 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 a subdivision of remedial acts of parliament into enlarging and

Penal.
Repealing.

restraining, or enabling and disabling statutes. A penal statute is one by which a forfeiture is inflicted for transgressing the provision contained therein (t). A repealing act revokes and cancels a former statutory law(u).

Such being the mode of classifying and designating statutes, it may not be amiss to add a few observations concerning the construction and interpretation of them.

When any doubt arose upon the construction of the Roman laws, the usage

(8) As to the assumption that the customary law is always existing unchanged, ante, p. 59. (t) Dwarr. Stat. 2nd ed. 479.

(u) Many obsolete statutes have recently

been repealed by the 19 & 20 Vict. c. 64; 24 & 25 Vict. c. 101; and 26 & 27 Vict. c. 125. See also the 24 & 25 Vict. c. 95.

(28) A statute is sometimes enacted for the purpose of declaring what was the intention or meaning of a prior statute. Such a statute may establish what the future rule of law shall be, but it cannot affect vested rights, nor control the courts in their construction of the prior statute. Greenough v. Greenough, 11 Penn. St. 489, 494; Reiser v. Tell Association, 39 id. 137; Post Master General v. Early, 12 Wheat. 148; Bassett v. United States, Mott & Hunt, 448; Salters v. Tobias, 3 Paige, 338; Muin v. Green, 32 Barb. 448, 457. A declaratory statute which introduces a new rule, while professing to express the intention of the legislature as to a prior act, will not be permitted to have any influence with the court as to the proper construction of the prior statute; as that will be construed upon its face, and as though no declaratory statute had been passed. People v. Board of Supervisors of New York, 16 N. Y. (2 Smith) 425, 431, 432; Dash v. Van Kleeck, 7 Johns. 477; Ogden v. Blackledge, 2 Cranch, 272; Young v. Beardsley, 11 Paige, 93; Bingham v. Supervisors, 8 Minn. 441.

(29) A remedial statute ought to be liberally construed so as to meet and secure the end in view; and so as to prevent a failure of the remedy. Hudler v. Golden, 36 N. Y. (9 Tiff.) 446; 2 Trans. App. 316; Jackson v. Warren, 32 III. 331; Cullerton v. Mead, 22 Cal. 95; Wol cott v. Pond, 19 Conn. 597; Pearson v. Lovejoy, 53 Barb. 407; 35 How. 193.

Where the common law gives a remedy, and another is provided by statute, the latter is cumulative, unless made exclusive by the statute. Candee v. Hayward, 37 N. Y. (10 Tiff.) 653; 5 Trans. App. 194.

VOL. I.-9

was to state the case to the emperor in writing, and take his opinion upon it.
This was certainly a bad method of interpretation. To interrogate the legis-
lature to decide particular disputes, is not only endless, but affords
Interpretation of
laws generally. great room for partiality and oppression. The answers of the em-
peror were called his rescripts, and these had in succeeding cases the force of
perpetual laws; though they ought to be carefully distinguished, by every
rational civilian, from those general constitutions which had only the nature of
things for their guide. The emperor Macrinus, as his historian Capitolinus
informs us, had once resolved to abolish these rescripts, and retain only the gen-
eral edicts: he could not bear that the hasty and crude answers of such princes
as Commodus and Caracalla should be reverenced as laws. But Justinian
thought otherwise (x), and he has preserved them all. In like manner the
canon laws, or decretal epistles of the popes, are all of them rescripts in the
strictest sense. Contrary to all true forms of reasoning, they argue from par-
ticulars to generals.

[blocks in formation]

*In construing statutes, certain rules of legislative policy, as well as the recognised canons of interpretation, should

I. Rules of legislative policy widely applicable, are as under:

1. Parliament will be presumed to legislate prospectively, not retrospectively; and statutes are, therefore, to be construed as prospective unless they are expressly made applicable to transactions past or pending. This

Statute to be construed as prospective.

66

rule is one of such obvious convenience and justice" that it must be adhered to, unless in cases where there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively " (y).(30)

2. Where the common law and a statute differ, the common law gives place

(x) Inst. i. 2, 6.

(y) Per Rolfe, B. Moon v. Durden, 2 Exch. 22, recognised Pettamberdass v. Thackoorsey

dass, 7 Moore P. C. C. 239; Williams v. Smith,
4 H. & N. 559; Jackson v. Woolley, 8 E. & B.
778.

(30) No principle of law, or rule of construction is better settled in this country than that which declares that every statute is to be deemed prospective in its operation; unless by the express language of the act, or by necessary implication a retroactive effect is to be given to it. People ex rel. Peak v. Supervisors of Columbia Co., 43 N. Y. (4 Hand) 130; Murray v. Gibson, 15 How. (U. S.) 421; Hastings v. Lane, 3 Shep. 134; Price v. Mott, 52 Penn. St. 315; Allbyer v. State, 10 Ohio St. 588; State v. Barbee, 3 Ind. 258; Dow v. Norris, 4 N. H. 16; Wires v. Farr, 25 Vt. 41; Plumb v. Sawyer, 21 Conn. 351; Davison v. Johonnot, 7 Metc. 389; Boyd v. Barrenger, 23 Miss. 220, 269.

Where a statute by its terms, or by necessary implication, operates so as to impair vested rights, it will be held invalid, and the courts will not enforce it. Ib. Morse v. Goold, 11 N. Y. (1 Kern.) 281; Westervelt v. Gregg, 12 id. (2 id.) 202.

But a retroactive statute which merely affects the remedy, but does not destroy or materially impair it, will be valid. And, therefore, an act which exempts certain property from levy and sale on execution is valid, even in reference to contracts made or debts incurred before the passage of the statute. Morse v. Goold, 11 N. Y. (1 Kern.) 281. See, also, Stocking v. Hunt, 3 Denio, 274; Conkey v. Hart, 14 N. Y. (4 Kern.) 22; Van Rensselaer v. Snyder, 13 N. Y. (3 id.) 299. A statute which suspends the remedy, but does not impair its ultimate validity or enforcement, is valid. Wolfkiel v. Mason, 16 Abb. 221; affirmed, 34 How. 629 n.

So a statute is valid although it limits or abridges the time within which the remedy must be enforced. Butler v. Palmer, 1 Hill. 324. See ante, note 9.

1

« AnteriorContinuar »