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but not so much as our law does, it only then adopting it, when the written law was deficient.
English Adherence to Custom. It is one of the characteristic marks of English liberty, that our common law depends upon custom, which carries this internal evidence of freedom along with it, that it was probably introduced by the voluntary consent of the people.
Second. Particular Customs. These affect only the inhabitants of particular districts. They are the remains of those numerous local customs, out of which the common law, as it now stands, was collected by Alfred, and afterwards by Edgar and Edward the Confessor; each district sacrificing some of its own special usages, in order to effect an uniform and universal system of laws. Particular counties, cities, towns and manors were indulged in the privilege of abiding by their own customs, in contradistinction to the rest of the nation, which privileges were confirmed to them by parliament.
Gavelkind. Such is the custom of gavelkind in Kent and some other parts of the kingdom, which was general until the Norman conquest. This custom ordains, that all the sons alike shall succeed to a father's inheritance, and that though the ancestor be attainted, the heir shall succeed to his estate, without any escheat to the lord.
Borough English. Such also is the custom that prevails in certain ancient boroughs, and therefore called borough-English, that the youngest son shall inherit the estate in preference to all his elder brothers.
Other Customs. There are other less important particular customs, as the lex mercatoria, the custom of merchants for the benefit of trade, the customs of manors, and the particular customs of the city of London.
Rules Relating thereto. The laws relating to particular customs regard either the proof of their existence, their legality when proved, or their usual method of allowance. As to the proof, except as to gavelkind and borough-English, they must be specially pleaded. The customs of London differ from all others in point of trial, which is never before a jury. To make a particular custom good, the following requisites are necessary:
Requisites of every Custom. 1. It must have been used 80 long, that the memory of man runneth not tu the contrary.
2. It must have been continued. There must have been no interruption of the right, though there may have been of the possession.
3. It must have been peaceable and acquiesced in.
4. It must be reasonable, or at least no good reason can be assigned against it.
5. It ought to be certain.
6. It ought to be compulsory, although originally established by consent. It ought to be left to the option of every man, whether he will use it or not.
7. Customs must be consistent with each other, and must be construed strictly and submit to the king's prerogative.
Third. Peculiar Laws. By custom, these are used only in certain peculiar courts and jurisdictions. These are the civil and canon laws. It may seem somewhat improper to apply the term non scriptae to these, as the yare set forth in pandects, codes and institutions, also by councils, decrees and decretals, and enforced by expositions, decisions and treatises of the learned. But their force in this kingdom is not because they were written, nor upon their intrinsic authority. They have no authority in England, but are admitted in certain particular cases, by universal usage in some particular courts, and they form a branch of the leges non scriptae.
Civil Law. By this is understood the municipal law of the Roman empire, as comprised in the institutes, the code and the digests of the emperor Justinian, and the novel constitutions of himself and some of his successors. The Roman law was founded upon the regal constitutions of their ancient 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, the opinions of learned lawyers, and lastly upon the imperial decrees or constitutions of successive emperors. These were codified by the emperor Theodosius the Younger, A. D. 438, and for many centuries it was used as the only book of civil law in western Europe. In the eastern empire, the emperor Justinian compiled the present body of civil law, with the aid of Tribonian and other lawyers, completing it about 533 A. D.
Justinian Code. This contains: 1. The Institutes or first principles of Roman law, in four books. 2. The Digests or Pandects in fifty books, containing the opinions of eminent lawyers. 3. A new code or collection of imperial constitutions, in twelve books. 4. The Novels, or new constitutions, being a supplement to the code, containing new decrees. These form the body of Roman law, or corpus juris civilis. They soon fell into neglect and oblivion, till about the year 1130, when a copy of the digests was found at Amalfi in Italy, which suddenly gave new authority to the civil law, and introduced it into several nations.
Canon Law. This is a body of Roman ecclesiastical law, relative to such matters, over which that church professed to have proper jurisdiction. It is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the Holy See. It remained in confusion until the year 1151, when Gratian, an Italian monk, animated by the discovery of Justinian's pandects, reduced the ecclesiastical constitutions into some method, in three books, known as the Decretum Gratiani. The subsequent decrees were published in the same method by Gregory IX in 1230 in five books, to which a sixth book was added by Boniface VIII. The Clementine constitutions or decrees of Clement V were subsequently annexed by his successor John XXII, who also published twenty constitutions of his own, called the Extravagantes, in the fourteenth century. Five books were appended by subsequent pontiffs.
Jurisdiction of Civil and Canon Laws. There are four courts, in which the civil and canon laws are permitted, under different restrictions, to be used : 1. Ecclesiastical courts. 2. Military courts. 3. Courts of admiralty. 4. Courts of the two universities. Their reception in these courts is grounded entirely on custom. The courts of common law have the superintendency over such courts, to keep them within their jurisdiction, to restrain and prohibit any excess of power, and in case of contumacy, to punish the officer who executes, or the judge who enforces an illegal sentence. The common law expounds such acts of parliament, as concern the extent of these courts, or the matters to be tried therein. The king's courts at Westminster will grant prohibitions to restrain them. 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. The civil and canon laws at present in England are inferior branches of the customary or unwritten laws of the country. LEGES SCRIPTÆ.
Defined. These are the written laws of the kingdom, and are statutes, acts or edicts, made by the king, with the consent of the lords spiritual and temporal, and the commons, in parliament assembled. The oldest of these is the famous magna carta ; the records of acts before that time being now lost.
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 must take notice judicially and ex officio, without the statute being particularly pleaded. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns. The Romans entitled them senatus decreta, in contradistinction to the senatus consulta, which regarded the whole community. These have to be formally shown and pleaded.
Declaratory Statutes. 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, for the purpose of avoiding doubts and difficulties, declares what the common law is, and ever has been.
Remedial Statutes. 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 of judges, or from any other cause. This being done, either by enlarging the common law, where it was too circumscribed, or by restraining it, where it was too lax, has occasioned a division of remedial statutes into enlarging and restraining statutes. RULES IN CONSTRUING STATUTES.
1. Old Law, Mischief and Remedy. Three points are to be considered in the construction of all remedial statutes: The old law, the mischief and the remedy. That is, how the old 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 has provided to cure this mischief. And it is the business of the judge, so to construe the act, as to suppress the mischief and advance the remedy.
2. Questions of Rank. A statute, which treats of things or persons of an inferior rank, cannot, by any general words, be extended to those of a superior.
3. Penal Statutes. Penal statutes must be construed strictly.
4. Statutes against Frauds. Statutes against frauds are to be liberally and beneficially expounded. Where the statute acts upon the offender and inflicts a penalty, it is to be taken strictly, but when the statute acts upon the offence, by setting aside the fraudulent transaction, it is to be construed liberally.
5. Clauses must be in Accord. One part of a statute must be so construed by another, that the whole may, if possible, stand.
6. A Saving Clause. A saving, totally repugnant to the body of the act, is void.
7. Questions of Precedence. Where the common law and a statute differ, the common law gives place to the statute, and an old law gives place to a new one. But this is to be understood, only when the latter statute is couched in negative terms, or where its matter is so clearly repugnant, that it necessarily implies a negative. But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy.
8. Repealing Statute. If a statute that repeals another is itself afterwards repealed, the first statute is hereby revived, without any formal words to that purpose.
9. Acts of Parliament. Acts of parliament, derogatory from the power of subsequent parliaments, have no binding effect. The legislature, being the sovereign power, is always of absolute authority. It acknowledges no superior power, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. Cicero declared, that when you repeal the law itself, you repeal the prohibitory clause, which guards against such repeal.