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. Written, or statute law. *Let us next proceed to the leges scriptæ, the written laws of [ *85 ] 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 (b). The oldest of these now extant, and printed in our statute books, is the famous magna charta, as confirmed in Magna charta. 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 parlia kinds of statutes. ments. At present we will only take notice of the different of the different kinds of statutes, and of some general rules with regard to their construction (c). (b) 8 Rep. 20. (c) 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 prærogativa regis. Some are distinguished by their initial words, a method of citing very ancient, being used by the Jews in denominating the books of the Pentateuch; by the Christian church in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulles; and, in short, by the whole Public or private. [ *86 ] Private acts, must be pleaded. Declaratory. 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 (29), 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 community (d); 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 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 (30). Declaratory where the two sessions have been held in one (29) A learned annotator upon 1 Hale's Com. Law, p. 19, observes, that "all acts which concern the king, who is the head of the commonwealth, are general laws, of which the judges will take notice, without pleading. So, if they concern the king's wife, or the heir apparent to the crown, the statute 2 R. II. c. 5, de scandalis magnatum, is a general law; for it touches those who are of the king's council. So a statute which concerns all officers in general, or which concerns trade in general, or which concerns all persons generally, though it be but with reference to a special thing, is a general law." The principal authorities cited in support of statute, or the laws made in the second 66 this statement, and which perfectly establish its accuracy, are 4 Rep. 13, 76, 78, and 8 Rep. 28. The writer referred to, however, properly adds, that, now, when any particular law passes which the legislature mean should operate as a public act, it is generally enacted that the act shall be deemed a public act, and be judicially taken notice of as such, without specially pleading the same." (30) 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.-CH. 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 Remedial. 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 circumscribed, 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 (31), which it was not at the common law; so that this was an enlarging statute (32). At common law also spiritual corporations might lease out [ *67 ] Enlarging and restraining sta tutes. (31) The statute of the 5th of Eliz. was repealed by the act of 2 Gul. IV. c. 34, which consolidates and amends all the laws against offences relating to the coin. By the 5th section of the last-mentioned act, clipping the current coin of the kingdom is no longer to be deemed high treason, but, if committed in England, felony; if committed in Scotland, a high crime and offence; and parties convicted under the act are liable, at the discretion of the court, to be transported for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years. (32) This statute against clipping the coin hardly corresponds with the general notion either of a remedial or tute. Construction of statutes. Three points to be considered, viz. the old law, the mischief, and the remedy. [ *88 ] General words. 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 remedy (e). 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 term, 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 successor (ƒ). 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, prebendaries, parsons, vicars, and others having spiritual promotion," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named (33), and bishops being of a still higher order (g). (e) 3 Rep. 7; Co Litt. 11, 42. (f) Co. Litt. 45; 3 Rep. 60; 10 Rep. 58. (g) 2 Rep. 46. (33) This construction must be presumed to be most conformable to the intention of the legislature.-CH. 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 should not extend to him that should steal but one horse (34), and therefore procured a new act for that purpose in the following year (h). And, to come nearer our own times, by the statute 14 Geo. II. c. 6, stealing sheep, or other cattle, was made felony, without benefit of clergy. But these general words, "or other cattle," being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found necessary to make another statute, 15 Geo. II. c. 34, extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name. Penal statutes to be construed strictly; frauds, liberally. 4. Statutes against frauds (35) are to be liberally and statutes against (h) 2 & 3 Edw. VI. c. 33; Bac. Elem. c. 12. (34) 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 Hen. VIII., it raised a doubt whether it were not intended by the legislature to restore clergy where only one horse was stolen. 2 H. P. C. 365. CH. [For the old learning relative to "benefit of clergy," see Vol. 4, cap. 28, p. 365. But now, by stat. 7 & 8 Geo. IV. c. 27, various statutes relative to the benefit of clergy are repealed. And by the 6th and 7th sec tions of the act of 7 & 8 Geo. IV. c. 28, (35) These are generally called re- |