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 entirely upon custom; corroborated in the latter inftance by act of parlia [84]ment, ratifying those charters which confirm the customary law of the univerfities. The more minute confideration of thefe will fall properly under that part of these commentaries which treats of the jurifdiction of courts. It will fuffice at present to remark a few particulars relative to them all, which may serve to inculcate more ftrongly the doctrine laid down concerning them 2. 1. AND, first, the courts of common law have the superintendency over thefe courts; to keep them within their jurifdictions, to determine wherein they exceed them, to restrain and prohibit fuch excefs, and (in cafe of contumacy) to punifh the officer who executes, and in fome cafes the judge who enforces, the fentence fo declared to be illegal. 2. THE common law has referved to itself the expofition of all fuch acts of parliament, as concern either the extent of these courts, or the matters depending before them. And therefore, if thefe 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 reftrain and control them. 3. AN appeal lies from all these courts to the king, in the laft refort; which proves that the jurifdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinfic authority of their own.And, from these three ftrong marks and enfigns of fuperiority, it appears beyond a doubt, that the civil and canon laws, though admitted in fome cafes by cuftom in fome courts, are only fubordinate, and leges fub graviori lege; and that, thus admitted, restrained, altered, new-modelled, and amended, a Hale Hift. c. 2. they they are by no means with us a diftinct independent fpecies of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king's ecclefiaftical, the king's military, the king's maritime, or the king's academical laws. LET us next proceed to the leges fcriptae, the written laws [ 85 1 of the kingdom; which are statutes, acts, or edics, made by the king's majesty, by and with the advice and confent of the lords fpiritual and temporal and commons in parliament affembled. 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 loft, and the determinations of them perhaps at prefent currently received for the maxims of the old common law. THE manner of making these ftatutes will be better confidered hereafter, when we examine the constitution of parliaments. At prefent we will only take notice of the different kinds of statutes; and of fome general rules with regard to their conftruction . b 8 Rep. 20. The method of citing these acts of parliament is various. Many of our antient ftatutes are called after the name of the place where the parliament was held that made them; as the statutesof Merton and Marleberge, of Westminster, Gloucester, and Winchefter. Others are denominated entirely from their fubject; as the ftatutes of Wales and Ireland, the articuli cleri, and the praerogativa regis. Some are diftinguished by their initial words, a method of citing very antient being used by the Jews in denominating the books of the pentateuch; by the chriftian church in diftinguishing their hymns and divine offaces; by the Romanifts in defcribing their papal bulles; and in short by the whole body of antient civilians and ca-, nonifts, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior fections alfo; in imitation of all which we still call fome of our old ftatutes by their initial words, as the ftatute of quia emptores, and that of circumfpe&te agatis. But the moft ufual method of citing them, especially fince the time of Ed. ward the fecond, is by naming the year of the king's reign in which the ftatute 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 feffion of parlia ment taken together make properly but H 2 one [86] FIRST, as to their feveral kinds. Statutes are either general or Special, public or private. A general or public act is an univerfal rule, that regards the whole community: and of this the courts of law are bound to take notice judicially and ex officio; without the ftatute being particularly pleaded, or formally fet 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 perfons, and private concerns: such as the Romans entitled fenatus-decreta, in contradiftinction to the fenatus confulta, which regarded the whole community: and of these (which are not promulgated with the fame notoriety as the former) the judges are not bound to take notice, unless they be formally shewn and pleaded. Thus, to fhew the diftinction, the ftatute 13 Eliz. c. 10. to prevent spiritual perfons 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 fpiritual perfons in the nation: but an act to enable the bishop of Chefter to make a leafe to A. B. for fixty years, is an exception to this rule; it concerns only the parties and the bishop's fucceffors; and is therefore a private act. STATUTES alfo are either declaratory of the common law, or remedial of fome defects therein (15). Declaratory, where the old cuftom of the kingdom is almost fallen into disuse, or become difputable; in which cafe the parliament has thought proper, in perpetuum rei teftimonium, and for avoiding all one ftatute: and therefore when two cond chapter or act, of the second sta- (15) This divifion is generally expreffed by declaratory ftatutes, and statutes introductory of a new law. Remedial ftatutes are generally mentioned in contradistinction to penal ftatutes. See note 19. p. 38. doubts doubts and difficulties, to declare what the common law is and ever hath been. Thus the ftatute of treafons, 25 Edw. III. cap. 2. doth not make any new fpecies of treafons; but only, for the benefit of the fubject, declares and enumerates thofe feveral kinds of offence, which before were treason at the common law. Remedial ftatutes are those which are made to supply such defects, and abridge fuch fuperfluities, in the common law, as arife 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 circumfcribed, or by reftraining it where it was too lax and luxuriant, hath occa fioned another fubordinate divifion of remedial acts of parliament into enlarging and restraining statutes. To instance again in the cafe of treason. Clipping the current coin of the king. dom was an offence not fufficiently 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 fo that 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 refraining ftatute. SECONDLY, the rules to be observed with regard to the construction of statutes are principally thefe which follow. (16) This ftatute against clipping the coin hardly corresponds with the general notion either of a remedial or an enlarging statute. In ordinary legal language remedial ftatutes are contradiftinguished to penal ftatutes. An enlarging or an enabling ftatute is one which increases, not reftrains the power of action; as the 32 Hen. VIII. c. 28, which gave bishops and all other fole ecclefiaftical corporations, except parsons and vicars, a power of making leafes, which they did not poffefs before, is always called an enabling ftatute. The 13 Eliz. c. 10. which afterwards limited that power, is on the contrary stiled a reftraining or difabling ftatute. See this fully explained by the learned Commentator. 2 Vol. p. 319. 1. THERE are three points to be confidered in the con. ftruction of all remedial ftatutes; 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 mifchief. And it is the bufinefs of the judges fo to conftrue the act, as to fuppress the mischief and advance the remedy. Let us inftance again in the fame restraining ftatute of 13 Eliz. c. 10. By the common law, ecclefiaftical corporations might let as long leases as they thought proper: the mifchief was, that they let long and unreasonable leafes, to the impoverishment of their fucceffors: the remedy applied by the ftatute was by making void all leafes by ecclefiaftical bodies for longer terms than three lives or twenty-one years. Now in the conftruction of this ftatute it is held, that leafes, though for a longer term, if made by a bishop, are not void during the bishop's continuance in his fee; 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 fucceffor f. The mischief is therefore fufficiently fuppreffed by vacating them after the determination of the intereft of the grantors; [88] but the leafes, during their continuance, being not within the mischief, are not within the remedy. 2. A STATUTE, which treats of things or perfons of an inferior rank, cannot by any general words be extended to thofe of a fuperior. So a ftatute, treating of "deans, pre"bendaries, parfons, vicars, and others having fpiritual pro"motion," is held not to extend to bishops, though they have fpiritual promotion; deans being the highest perfons named (17), and bishops being of a still higher order 8, (17) This conftruction must be prefumed to be most conformable to the intention of the legislature, 3. PENAL |