« VorigeDoorgaan »
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 consent of the lords spiritual and temporal and commons in parliament assembled. 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.
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 communityd: 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 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
e 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 Marleberge, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the articuli cleri, and the prae rogativa regis. Some are distinguished by their initial words, a method of citing very ancient; being used by the Jews in denomi nating the books of the pentateuch; by the christian church in distinguishing their hymns and divine offices; by the Romanists in de scribing their papal bulles; 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 imita
tion 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 there fore 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.
d Gravin. Orig. 1. sec. 24.
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 also are either declaratory of the common law, or remedial of some defects therein (15). 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 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 circum
scribed, or by restraining it 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
(15) 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.
this was an enlarging statute (16). 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:
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 remedye. 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 time,
e Rep. 7. Co. Litt. 11. 42.
(16) 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 coporations, 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 the power of spiritual persons to make leases, is on the contrary styled a restraining or disabling statute. See this fully explained by the learned commentator, 2 Vol. p. 319:
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 successorf. 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, pre"bendaries, parsons, vicars, and others having spiritual pro"motion," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named (17), and bishops being of a still higher orders.
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 did not extend to him that should steal but one horse (18), and therefore procured a
f Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.
g 2 Rep. 46.
(17) This construction must be presumed to be most conformable to the intention of the legislature.
(18) 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 thus varying the number, and at the same time expressly repealing all other exclusions of clergy introduced since the beginning of the reign of Hen. VIII. it raised a doubt, whether it were not intended by the legislature to restore