SECTION THE THIRD.
OF THE LAWS OF
THE municipal law of England, or the rule of
civil conduct prescribed to the inhabitants of this kingdom, may with
sufficient propriety be divided into two kinds; the lex non scripta, the
unwritten or common law; and the lex scripta, the written or statute
The lex non scripta, or unwritten law, includes not only
general customs, or the common law properly so called; but also the
particular customs of certain parts of the kingdom; and likewise those
particular laws, that are by custom observed only in certain courts and
When I call these parts of our law leges non scriptae, I would
not be understood as if all those laws were at present merely oral, or
communicated from the former ages to the present solely by word of mouth. It is
true indeed that, in the profound ignorance of letters which formerly
overspread the whole western world, all laws were entirely traditional; for
this plain reason, because the nations among which they prevailed, had but
little idea of writing. Thus the British as well as the Gallic druids committed
all their laws as well as learning to memory; and it is said of
the primitive Saxons here, as well as their brethren on the continent, that
leges sola memoria et usu retinebant. But, with us at
present, the monuments and evidences of our legal customs are contained in the
records of the several courts of justice, in books of reports and judicial
decisions, and in the treatises of learned sages of the profession, preserved
and handed down to us from the times of highest antiquity. However I therefore
stile these parts of our law leges non scriptae, because their original
institution and authority are not set down in writing, as acts of parliament
are, but they receive their binding power, and the force of laws, by long and
immemorial usage, and by their universal reception throughout the kingdom. In
like manner as Aulus Gellius defines the jus non scriptum to be that,
which is "tacito et illiterato hominum consensu et moribus expressum."
Our antient lawyers, and particularly Fortescue, insist
with abundance of warmth, that these customs are as old as the primitive
Britons; and continued down, through the several mutations of government and
inhabitants, to the present time, unchanged and unadulterated. This may be the
case as to some: but in general, as Mr. Selden in his notes observes, this
assertion must be understood with many grains of allowance; and ought only to
signify, as the truth seems to be, that there never was any formal exchange of
one system of laws for another: though doubtless by the intermixture of
adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the
Normans, they must have insensibly introduced and incorporated many of their
own customs with those that were before established; thereby in all probability
improving the texture and wisdom of the whole, by the accumulated wisdom of
divers particular countries. Our laws, saith lord Bacon, are
mixed as our language: and, as our language is so much the richer, the laws are
the more complete.
And indeed our antiquaries and early historians do all positively assure
us, that our body of laws is of this compounded nature. For they tell us, that
in the time of Alfred, the local customs of the several provinces of the
kingdom were grown so various, that he found it expedient to compile his
dome-book, or liber judicialis, for the general use of the whole
kingdom. This book is said to have been extant so late as the reign of king
Edward the fourth, but is now unfortunately lost. It contained, we may probably
suppose, the principal maxims of the common law, the penalties for
misdemesnors, and the forms of judicial proceedings. Thus much may at least be
collected from that injunction to observe it, which we find in the laws of king
Edward the elder, the son of Alfred. "Omnibus qui reipublicae
praesunt etiam atque etiam mando, ut omnibus aequos se praebeant judices,
perinde ac in judiciali libro (Saxonice, Som-bec) scriptum habeter: nec
quicquam formident quin jus commune (Saxonice, polepihee) audacter
But the irruption and establishment of the Danes in England, which
followed soon after, introduced new customs, and caused this code of Alfred in
many provinces to fall into disuse; or at least to be mixed and debased with
other laws of a coarser alloy. So that about the beginning of the eleventh
century there were three principal systems of laws, prevailing in different
districts. 1. The Mercen-Lage, or Mercian laws which were observed in
many of the midland counties, and those bordering on the principality of Wales,
the retreat of the antient Britons; and therefore very probably intermixed with
the British or Druidical customs. 2. The West-Saxon-Lage, or laws of the
west Saxons, which obtained in the counties to the south and west of the
island, from Kent to Devonshire. These were probably much the same with the
laws of Alfred above-mentioned, being the municipal law of the far most
considerable part of his dominions, and particularly including Berkshire, the
seat of his peculiar residence. 3. The Dane-Lage, or Danish law, the
very name of which speaks it's original and composition. This was principally.
maintained in the rest of the midland counties, and also on the eastern coast,
the part most exposed to the visits of that piratical people. As for the very
northern provinces, they were at that time under a distinct
Out of these three laws, Roger Hoveden and Ranulphus
Cestrensis inform us, king Edward the confessor extracted one
uniform law or digest of laws, to be observed throughout the whole kingdom;
though Hoveden and the author of an old manuscript chronicle
assure us likewise, that this work was projected and begun by his grandfather
king Edgar. And indeed a general digest of the same nature has been constantly
found expedient, and therefore put in practice by other great nations, which
were formed from an assemblage of little provinces, governed by peculiar
customs. As in Portugal, under king Edward, about the beginning of the
fifteenth century: in Spain, under Alonzo X, who about the year
1250 executed the plan of his father St. Ferdinand, and collected all the
provincial customs into one uniform law, in the celebrated code entitled las
partidas: and in Sweden, about the same aera; when a
universal body of common law was compiled out of the particular customs
established by the laghmen of every province, and entitled the land's
lagh, being analogous to the common law of
Both these undertakings, of king Edgar and Edward the confessor, seem to
have been no more than a new edition, or fresh promulgation, of Alfred's code
or dome-book with such additions and improvements as the experience of a
century and an half had suggested. For Alfred is generally stiled by the same
historians the legum Anglicanarum conditor, as Edward the confessor is
the restitutor. These however are the laws which our histories so often
mention under the name of the laws of Edward the confessor; which our ancestors
struggled so hardly to maintain, under the first princes of the Norman line;
and which subsequent princes so frequently promised to keep and restore, as the
most popular act they could do, when pressed by foreign emergencies or domestic
discontents. These are the laws, that so vigorously withstood the repeated
attacks of the civil law; which established in the twelfth century a new Roman
empire over most of the states of the continent: states that have lost, and
perhaps upon that account, their political liberties; while the free
constitution of England, perhaps upon the same account, has been rather
improved than debased. These, in short, are the laws which gave rise and
original to that collection of maxims and customs, which is now known by the
name of the common law. A name either given to it, in contradistinction to
other laws, as the statute law, the civil law, the law merchant, and the like;
or, more probably, as a law common to all the realm, the jus commune or
folk-right mentioned by king Edward the elder, after the abolition of
the several provincial customs and particular laws before-mentioned.
But though this is the most likely foundation of this collection of
maxims and customs, yet the maxims and customs, so collected, are of higher
antiquity than memory or history can reach: nothing being more difficult than
to ascertain the precise beginning and first spring of an antient and long
established custom. Whence it is, that in our law, the goodness of a custom
depends upon it's having been used time out of mind; or, in the solemnity of
our legal phrase, time whereof the memory of man runneth not to the
contrary. This it is that gives it it's weight and authority:
and of this nature are the maxims and customs which compose the common law, or
lex non scripta, of this kingdom.
This unwritten, or common, law is properly distinguishable into three
kinds: 1. General customs; which are the universal rule of the whole kingdom,
and form the common law, in its stricter and more usual signification. 2.
Particular customs; which for the most part affect only the inhabitants of
particular districts. 3. Certain particular laws; which by custom are adopted
and used by some particular courts, of pretty general and extensive
I. As to general customs, or the common law, properly so called; this is
that law, by which proceedings and determinations in the king's ordinary courts
of justice are guided and directed. This, for the most part, settles the course
in which lands descend by inheritance; the manner and form of acquiring and
transferring property; the solemnities and obligation of contracts; the rules
of expounding wills, deeds, and acts of parliament; the respective remedies of
civil injuries; the several species of temporal offences, with the manner and
degree of punishment; and an infinite number of minuter particulars, which
diffuse themselves as extensively as the ordinary distribution of common
justice requires. Thus, for example, that there shall be four superior courts
of record; the chancery, the king's bench, the common pleas, and the exchequer
.... that the eldest son alone is heir to his ancestor .... that property may
be acquired and transferred by writing .... that a deed is of no validity
unless sealed and delivered .... that wills shall be construed more favourably,
and deeds more strictly .... that money lent upon bond is recoverable by action
of debt .... that breaking the public peace is an offence, and punishable by
fine and imprisonment .... all these are doctrines that are not set down in any
written statute or ordinance, but depend merely upon immemorial usage, that is,
upon common law, for their support.
Some have divided the common law into two principal grounds or
foundations: 1. Established customs; such as that, where there are three
brothers, the eldest brother shall be heir to the second, in exclusion of the
youngest: and 2. Established rules and maxims; as, "that the king can do no
wrong, that no man shall be bound to accuse himself," and the like. But I take
these to be one and the same thing. For the authority of these maxims rests
entirely upon general reception and usage: and the only method of proving, that
this or that maxim is a rule of the common law, is by shewing that it hath been
always the custom to observe it.
But here a very natural, and very material, question arises: how are
these customs or maxims to be known, and by whom is their validity to be
determined? The answer is, by the judges in the several courts of justice. They
are the depositaries of the laws; the living oracles, who must decide in all
cases of doubt, and who are bound by an oath to decide according to the law of
the land. Their knowledge of that law is derived from experience and study;
from the "viginti annorum lucubrationes," which Fortescue
mentions; and from being long personally accustomed to the judicial decisions
of their predecessors. And indeed these judicial decisions are the principal
and most authoritative evidence, that can be given, of the existence of such a
custom as shall form a part of the common law. The judgment itself, and all the
proceedings previous thereto, are carefully registered and preserved, under the
name of records, in public repositories set apart for that particular
purpose; and to them frequent recourse is had, when any critical question
arises, in the determination of which former precedents may give light or
assistance. And therefore, even so early as the conquest, we find the
"praeteritorum memoria eventorum" reckoned up as one of the chief
qualifications of those, who were held to be "legibus patriae optime
instituti." For it is an established rule to abide by former
precedents, where the same points come again in litigation; as well to keep the
scale of justice even and steady, and not liable to waver with every new
judge's opinion; as also because the law in that case being solemnly declared
and determined, what before was uncertain, and perhaps indifferent, is now
become a permanent rule, which it is not in the breast of any subsequent judge
to alter or vary from, according to his private sentiments: he being sworn to
determine, not according to his own private judgment, but according to the
known laws and customs of the land; not delegated to pronounce a new law, but
to maintain and expound the old one. Yet this rule admits of exception, where
the former determination is most evidently contrary to reason; much more if it
be dearly contrary to the divine law. But even in such cases the subsequent
judges do not pretend to make a new law, but to vindicate the old one from
misrepresentation. For if it be found that the former decision is manifestly
absurd or unjust, it is declared, not that such a sentence was bad law,
but that it was not law; that is, that it is not the established custom
of the realm, as has been erroneously determined. And hence it is that our
lawyers are with justice so copious in their encomiums on the reason of the
common law, that they tell us, that the law is the perfection of reason, that
it always intends to conform thereto, and that what is not reason is not law.
Not that the particular reason of every rule in the law can at this distance of
time be always precisely assigned; but it is sufficient that there be nothing
in the rule flatly contradictory to reason, and then the law will presume it to
be well founded. And it hath been an antient observation in the
laws of England, that whenever a standing rule of law, of which the reason
perhaps could not be remembered or discerned, hath been wantonly broken in upon
by statutes or new resolutions, the wisdom of the rule hath in the end appeared
from the inconveniences that have followed the innovation.
The doctrine of the law then is this: that precedents and rules must be
followed, unless flatly absurd or unjust: for though their reason be not
obvious at first view, yet we owe such a deference to former times, as not to
suppose that they acted wholly without consideration. To illustrate this
doctrine by examples. It has been determined, time out of mind, that a brother
of the half blood shall never succeed as heir to the estate of his half
brother, but it shall rather escheat to the king, or other superior lord. Now
this is a positive law, fixed and established by custom, which custom is
evidenced by judicial decisions; and therefore can never be departed from by
any modern judge without a breach of his oath and the law. For herein there is
nothing repugnant to natural justice; though the artificial
reason of it, drawn from the feodal law, may not be quite obvious to every
body. And therefore, though a modern judge, on account of a supposed hardship
upon the half brother, might wish it had been otherwise settled, yet it is not
in his power to alter it. But if any court were now to determine, that an elder
brother of the half blood might enter upon and seise any lands that were
purchased by his younger brother, no subsequent judges would scruple to declare
that such prior determination was unjust, was unreasonable, and therefore was
not law. So that the law, and the opinion of the judge,
are not always convertible terms, or one and the same thing; since it sometimes
may happen, that the judge may mistake the law. Upon the whole, however,
we may take it as a general rule, "that the decisions of courts of justice are
the evidence of what is common law:" in the same manner as, in the civil law,
what the emperor had once determined, was to serve for a guide for the
The decisions therefore of courts are held in the highest regard, and
are not only preserved as authentic records in the treasuries of the several
courts, but are handed out to public view in the numerous volumes of
reports which furnish the lawyer's library. These reports are histories
of the several cases, with a short summary of the proceedings which are
preserved at large in the record, the arguments on both sides, and the reasons
the court gave for it's judgment; taken down in short notes by persons present
at the determination. And these serve as indexes to, and also to explain, the
records; which always, in matters of consequence and nicety, the judges direct
to be searched. The reports are extant in a regular series from the reign of
king Edward the second inclusive; and from his time to that of Henry the eighth
were taken by the prothonotaries, or chief scribes of the court, at the expense
of the crown, and published annually, whence they are known under the
denomination of the year books. And it is much to be wished that this
beneficial custom had, under proper regulations, been continued to this day:
for, though king James the first at the instance of lord Bacon appointed two
reporters with a handsome stipend for this purpose, yet that
wise institution was soon neglected; and, from the reign of Henry the eighth to
the present time, this task has been executed by many private and contemporary
hands; who sometimes through haste and inaccuracy, sometimes through mistake
and want of skill, have published very crude and imperfect (perhaps
contradictory) accounts of one and the same determination. Some
of the most valuable of the antient reports are those published by lord chief
justice Coke; a man of infinite learning in his profession, though not a little
infected with the pedantry and quaintness of the times he lived in, which
appear strongly in all his works. However his writings are so highly esteemed,
that they are generally cited without the author's name.
Besides these reporters, there are also other authors, to whom great
veneration and respect is paid by the students of the common law. Such are
Glanvil and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke,
Fitzherbert, and Staundforde, with some others of antient date; whose treatises
are cited as authority, and are evidence that cases have formerly happened, in
which such and such points were determined, which are now become settled and
first principles. One of the last of these methodical writers in point of time,
whose works are of any intrinsic authority in the courts of justice, and do not
entirely depend on the strength of their quotations from old authors, is the
same learned judge we have just mentioned, sir Edward Coke; who hath written
four volumes of institutes, as he is pleased to call them, though they have
little of the institutional method to warrant such a title. The first volume is
a very extensive comment upon a little excellent treatise of tenures, compiled
by judge Littleton in the reign of Edward the fourth. This comment is a rich
mine of valuable common law learning, collected and heaped together from the
antient reports and year books, but greatly defective in method.
The second volume is a comment upon many old acts of parliament, without any
systematical order; the third a more methodical treatise of the pleas of the
crown; and the fourth an account of the several species of
And thus much for the first ground and chief corner stone of the laws of
England, which is general immemorial custom, or common law, from time to time
declared in the decisions of the courts of justice: which decisions are
preserved among our public records, explained in our reports, and digested for
general use in the authoritative writings of the venerable sages of the
The Roman law, as practiced in the times of it's liberty, paid also a
great regard to custom; but not so much as our law: it only then adopting it,
when the written law was deficient .... Though the reasons alledged in the
digest will fully justify our practice, in making it of equal
authority with, when it is not contradicted by, the written law. "For since,
says Julianus, the written law binds us for no other reason but because it is
approved by the judgment of the people, therefore those laws which the people
have approved without writing ought also to bind every body. For where is the
difference, whether the people declare their assent to a law by suffrage, or by
a uniform course of acting accordingly?" Thus did they reason while Rome had
some remains of her freedom: but, when the imperial tyranny came to be fully
established, the civil laws speak a very different language. "Quod principi
placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et
potestatum conferat," says Ulpian. "Imperator solus et
conditor et interpres legis existimatur," says the code: and
again, sacrilegii instar est rescripto principis
obviari." And indeed 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 probably was introduced by
the voluntary consent of the people.
II. The second branch of the unwritten laws of England are particular
customs, or laws which affect only the inhabitants of particular districts.
These particular customs, or some of them, are without doubt the remains
of that multitude of local customs before-mentioned, out of which the common
law, as it now stands, was collected at first by king Alfred, and afterwards by
king Edgar and Edward the confessor: each district mutually sacrificing some of
it's own special usages, in order that the whole kingdom might enjoy the
benefit of one uniform and universal system of laws. But, for reasons that have
been now long forgotten, particular counties, cities, towns,
manors, and lordships, were very early indulged with the privilege of abiding
by their customs, in contradistinction to the rest of the nation at large:
which privilege is confirmed to them by several acts of
Such is the custom of gavelkind in Kent and some other parts of the
kingdom (though perhaps it was also general till the Norman conquest) which
ordains, among other things, that not the eldest son only of the father shall
succeed to his inheritance, but all the sons alike: and that, though the
ancestor be attainted and hanged, yet the heir shall succeed to his estate,
without any escheat to the lord .... Such is the custom that prevails in divers
antient boroughs, and therefore called borough-english, that the youngest son
shall inherit the estate, in preference to all his elder brothers .... Such is
the custom in other boroughs that a widow shall be entitled, for her dower, to
all her husband's lands; whereas at the common law she shall be endowed of one
third part only. Such also are the special and particular customs of manors, of
which every one has more or less, and which bind all the copyhold and customary
tenants that hold of the said manors .... Such likewise is the custom of
holding divers inferior courts, with power of trying causes, in cities and
trading towns; the right of holding which, when no royal grant can be shewn,
depends entirely upon immemorial and established usage .... Such, lastly, are
many particular customs within the city of London, with regard to trade,
apprentices, widows, orphans, and a variety of other matters. All these are
contrary to the general law of the land, and are good only by special usage;
though the customs of London are also confirmed by act of
To this head may most properly be referred a particular system of
customs used only among one set of the king's subjects, called the custom of
merchants or lex mercatoria: which, however different from the general
rules of the common law, is yet ingrafted into it, and made a part of
it; being allowed, for the benefit of trade, to be of the utmost
validity in all commercial transactions: for it is a maxim of law, that
"cuilibet in sua arte credendum est."
The rules relating to particular customs regard either the proof
of their existence; their legality when proved; or their usual method of
allowance. And first we will consider the rules of proof.
As to gavelkind, and borough-english, the law takes particular notice of
them, and there is no occasion to prove that such customs
actually exist, but only that the lands in question are subject thereto. All
other private customs must be particularly pleaded, and as well
the existence of such customs must be shewn, as that the thing in dispute is
within the custom alleged. The trial in both cases (both to shew the existence
of the custom, as, "that in the manor of Dale lands shall descend only to the
heirs male, and never to the heirs female;" and also to shew "that the lands in
question are within that manor") is by a jury of twelve men, and not by the
judges; except the same particular custom has been before tried, determined,
and recorded in the same court.
The customs of London differ from all others in point of trial: for, if
the existence of the custom be brought in question, it shall not be tried by a
jury, but by certificate from the lord mayor and alderman by the mouth of their
recorder, unless it be such a custom as the corporation is
itself interested in, as a right of taking toll, &c. for then the law
permits them not to certify on their own behalf.
When a custom is actually proved to exist, the next enquiry is into the
legality of it; for, if it is not a good custom, it ought to be no
longer used. "Malus usus abolendus est" is an established maxim of the
law. To make a particular custom good, the following are
1. That it have been used so long, that the memory of man runneth not to
the contrary. So that, if any one can shew the beginning of it,
it is no good custom. For which reason no custom can prevail against an express
act of parliament; since the statute itself is a proof of a time when such a
custom did not exist.
2. It must have been continued. Any interruption would cause a
temporary ceasing: the revival gives it a new beginning, which will be within
time of memory, and thereupon the custom will be void. But this must be
understood with regard to an interruption of the right; for an
interruption of the possession only, for ten or twenty years, will not
destroy the custom. As if the inhabitants of a parish have a
customary right of watering their cattle at a certain pool, the custom is not
destroyed, though they do not use it for ten years; it only becomes more
difficult to prove: but if the right be any how discontinued for a day,
the custom is quite at an end.
3. It must have been peaceable, and acquiesced in; not subject to
contention and dispute. For as customs owe their original to
common consent, their being immemorially disputed, either at law or otherwise,
is a proof that such consent was wanting.
4. Customs must be reasonable; or rather, taken
negatively, they must not be unreasonable. Which is not always, as sir Edward
Coke says, to be understood of every unlearned man's reason, but
of artificial and legal reason, warranted by authority of law. Upon which
account a custom may be good, though, the particular reason of it cannot be
assigned; for it sufficeth, if no good legal reason can be assigned against it.
Thus a custom in a parish, that no man shall put his beasts into the common
till the third of October, would be good; and yet it would be hard to shew the
reason why that day in particular is fixed upon, rather than the day before or
after. But a custom, that no cattle shall be put in till the lord of the manor
has first put in his, is unreasonable, and therefore bad: for peradventure the
lord will never put in his; and then the tenants will lose all their
5. Customs ought to be certain. A custom, that lands shall
descend to the most worthy of the owner's blood, is void; for how shall this
worth be determined? but a custom to descend to the next male of the blood,
exclusive of females, is certain, and therefore good. A custom
to pay two pence an acre in lieu of tithes, is good; but to pay sometimes two
pence and sometimes three pence, as the occupier of the land pleases, is bad
for it's uncertainty. Yet a custom to pay a year's improved value for a fine on
a copyhold estate, is good; though the value is a thing uncertain: for the
value may at any time be ascertained; and the maxim of law is, id certum
est, quod certum reddi potest.
6. Customs, though established by consent, must be (when established)
compulsory; and not left to the option of every man, whether he will use
them or no. Therefore a custom, that all the inhabitants shall be rated toward
the maintenance of abridge, will be good; but a custom, that every man is to
contribute thereto at his own pleasure, is idle and absurd, and indeed no
custom at all.
7. Lastly, customs must be consistent with each other: one custom
cannot be set up in opposition to another. For if both are really customs, then
both are of equal antiquity, and both established by mutual consent: which to
say of contradictory customs is absurd. Therefore, if one man prescribes that
by custom he has a right to have windows looking into another's garden; the
other cannot claim a right by custom to stop up or obstruct those windows: for
these two contradictory customs cannot both be good, nor both stand together.
He ought rather to deny the existence of the former
Next, as to the allowance of special customs. Customs, in
derogation of the common law, must be construed strictly. Thus, by the custom
of gavelkind, an infant of fifteen years may by one species of conveyance
(called a deed of feoffment) convey away his lands in fee simple, or for ever.
Yet this custom does not empower him to use any other conveyance, or even to
lease them for seven years: for the custom must be strictly
pursued. And, moreover, all special customs must submit to the
king's prerogative. Therefore, if the king purchases lands of the nature of
gavelkind, where all the sons inherit equally; yet, upon the king's demise, his
eldest son shall succeed to those lands alone. And thus much for
the second part of the leges non scriptae, or those particular customs
which affect particular persons or districts only.
III. The third branch of them are those peculiar laws, which by custom
are adopted and used only in certain peculiar courts and jurisdictions. And by
these I understand the civil and canon laws.
It may seem a little improper at first view to rank these laws under the
head of leges non scriptae, or unwritten laws, seeing they are set forth
by authority in their pandects, their codes, and their institutions; their
councils, decrees, and decretals; and enforced by an immense number of
expositions, decisions, and treatises of the learned in both branches of the
law. But I do this, after the example of sir Matthew Hale,
because it is most plain, that it is not on account of their being
written laws, that either the canon law, or the civil law, have any
obligation within this kingdom: neither do their force and efficacy depend upon
their own intrinsic authority, which is the case of our written laws, or acts
of parliament. They bind not the subjects of England, because their materials
were collected from popes or emperors; were digested by Justinian, or declared
to be authentic by Gregory. These considerations give them no authority here:
for the legislature of England doth not, nor ever did, recognize any foreign
power, as superior or equal to it in this kingdom; or as having the right to
give law to any, the meanest, of it's subjects. But all the strength that
either the papal or imperial laws have obtained in this realm (or indeed in any
other kingdom in Europe) is only because they have been admitted and received
by immemorial usage and custom in some particular cases, and some particular
courts; and then they form a branch of the leges non scriptae, or
customary laws: or else, because they are in some other cases introduced by
consent of parliament, and then they owe their validity to the leges
scriptae, or statute law. This is expressly declared in
those remarkable words of the statute 25 Henry VIII. c. 21, addressed to the
king's royal majesty .... "This your grace's realm, recognizing no superior
under God but only your grace, hath been and is free from subjection to any
man's laws, but only to such as have been devised, made, and ordained
within this realm for the wealth of the same; or to such other as, by
sufferance of your grace and your progenitors, the people of this your realm
have taken at their free liberty, by their own consent, to be used among them:
and have bound themselves by long use and custom to the observance of the same:
not as to the observance of the laws of any foreign prince, potentate, or
prelate; but as to the customed and antient laws of this realm,
originally established as laws of the same, by the said sufferance, consents,
and custom; and none otherwise."
By the civil law, absolutely taken, is generally understood the civil or
municipal law of the Roman empire, as comprized in the institutes, the code,
and the digest of the emperor Justinian, and the novel constitutions of himself
and some of his successors. Of which, as there will frequently be occasion to
cite them, by way of illustrating our own laws, it may not be amiss to give a
short and general account.
The Roman law (founded first upon the regal constitutions of their
antient 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, and the responsa prudentum or opinions of learned lawyers, and
lastly upon the imperial decrees, or constitutions of successive emperors) had
grown to so great a bulk, or, as Livy expresses it, "tam
immensus aliarum super alias acervatarum legum cumulus," that they were
computed to be many camels' load by an author who preceded
Justinian. This was in part remedied by the collections of three
private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor
Theodosius the younger, by whose orders a code was compiled, A. D. 438,
being a methodical collection of all the imperial constitutions then in force:
which Theodosian code was the only book of civil law received as authentic in
the western part of Europe, till many centuries after; and to this it is
probable that the Franks and Goths might frequently pay some regard, in framing
legal constitutions for their newly erected kingdoms. For Justinian commanded
only in the eastern remains of the empire; and it was under his auspices, that
the present body of civil law was compiled and finished by Tribonian and other
lawyers, about the year 533.
This consists of, 1. The institutes; which contain the elements or first
principles of the Roman law, in four books. 2. The digests, or pandects, in
fifty books; containing the opinions and writings of eminent lawyers, digested
in a systematical method. 3. A new code, or collection of imperial
constitutions, in twelve books; the lapse of a whole century having rendered
the former code, of Theodosius, imperfect. 4. The novels, or new constitutions,
posterior in time to the other books, and amounting to a supplement to the
code; containing new decrees of successive emperors, as new questions happened
to arise. These form the body of Roman law, or corpus juris civilis, as
published about the time of Justinian; which however fell soon into neglect and
oblivion, till about the year 1130, when a copy of the digests was found at
Amalfi in Italy: which accident, concurring with the policy of the Roman
ecclesiastics, suddenly gave new vogue and authority to the
civil law, introduced it into several nations, and occasioned that mighty
inundation of voluminous comments, with which this system of law, more than any
other, is now loaded.
The canon law is a body of Roman ecclesiastical law, relative to such
matters as that church either has, or pretends to have, the proper jurisdiction
over. This is compiled from the opinions of the antient Latin
fathers, the decrees of general councils, and the decretal epistles and bulles
of the holy see. All which lay in the same disorder and confusion as the Roman
civil law: till, about the year 1151, one Gratian an Italian monk, animated by
the discovery of Justinian's pandects, reduced the ecclesiastical constitutions
also into some method, in three books; which he entitled concordia
discordantium canonum, but which are generally known by the name of
decretum Gratiani. These reached as low as the time of pope Alexander
III. The subsequent papal decrees, to the pontificate of Gregory IX, were
published in much the same method under the auspices of that pope, about the
year 1230, in five books; entitled decretalia Gregorii noni. A sixth
book was added by Boniface VIII, about the year 1298, which is called sextus
decretalium. The Clementine constitutions, or decrees of Clement V, were in
like manner authenticated in 1317 by his successor John XXII; who also
published twenty constitutions of his own, called the extravagantes
Joannis: all which in some measure answer to the novels of the civil law.
To these have been since added some decrees of later popes in five books,
called extravagantes communes. And all these together, Gratian's decree,
Gregory's decretals, the sixth decretal, the Clementine constitutions, and the
extravagants of John and his successors, form the corpus juris canonici,
or body of the Roman canon law.
Besides these pontifical collections, which during the times of popery
were received as authentic in this island, as well as in other parts of
Christendom, there is also a kind of national canon law, composed of
legatine and provincial constitutions, and adapted only to the
exigencies of this church and kingdom. The legatine constitutions were
ecclesiastical laws, enacted in national synods, held under the cardinals Otho
and Othobon, legates from pope Gregory IX, and pope Clement IV, in the reign of
king Henry III, about the years 1220 and 1268. The provincial
constitutions are principally the decrees of provincial synods, held under
divers archbishops of Canterbury, from Stephen Langton in the reign of Henry
III, to Henry Chichele in the reign of Henry V; and adopted also by the
province of York, in the reign of Henry VI. At the dawn of the
reformation, in the reign of king Henry VIII, it was enacted in
parliament that a review should be had of the canon law; and,
till such review should be made, all canons, constitutions, ordinances, and
synodals provincial, being then already made, and not repugnant to the law of
the land or the king's prerogative, should still be used and executed. And, as
no such review has yet been perfected, upon this statute now depends the
authority of the canon law in England.
As for the canons enacted by the clergy under James I, in the year 1603,
and never confirmed in parliament, it has been solemnly adjudged upon the
principles of law and the constitution, that where they are not merely
declaratory of the antient canon law, but are introductory of new regulations,
they do not bind the laity; whatever regard the clergy may think
proper to pay them.
There are four species of courts, in which the civil and canon laws are
permitted (under different restrictions) to be used. 1. The courts of the
archbishops and bishops, and their derivative officers, usually called in our
law courts christian, curiae christianitatis, or the ecclesiastical
courts. 2. The military 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 instance by act of parliament, ratifying those
charters which confirm the customary law of the universities. The more minute
consideration of these will fall properly under that part of these 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.
1. And, first, the courts of common law have the superintendency over
these courts; to keep them within their jurisdictions, to determine wherein
they exceed them, to restrain and prohibit such excess, 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.
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
depending 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.
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
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 community: and
of these (which are not promulgated with the same notoriety as the former) the
judges are not 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 are also 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 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 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, which it was not
at the common law: so that this was an enlarging statute. 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 remedy. 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. 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, and bishops
being of a still higher order.
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, and therefore procured a new act for that purpose in the
following year. 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
4. Statutes against frauds are to be liberally and beneficially
expounded. This may seem a contradiction to the last rule, most statutes
against frauds being in their consequences penal. But this difference is here
to be taken: where the statute acts Upon the offender, and inflicts a penalty,
as the pillory or a fine, it is then to be taken strictly: but when the statute
acts upon the offence, by setting aside the fraudulent transaction, here it is
to be construed liberally. Upon this footing the statute of 13 Eliz. c.
5. which avoids all gifts of goods, &c. made to defraud
creditors and others, was held to extend by the general words to a gift
made to defraud the queen of a forfeiture.
5. One part of a statute must be so construed by another, that the whole
may (if possible) stand: ut res magis valeat, quam pereat. As if land be
vested in the king and his heirs by act of parliament, saving the right of A;
and A has at that time a lease of it for three years: here A shall hold it for
his term of three years, and afterwards it shall go to the king. For this
interpretation furnishes matter for every clause of the statute to work and
operate upon. But,
6. A saving, totally repugnant to the body of the act, is void. If
therefore an act of parliament vests land in the king and his heirs, saving the
right of all persons whatsoever; or vests the land of A in the king, saving the
right of A: in either of these cases the saving is totally repugnant to the
body of the statute, and (if good) would render the statute of no effect or
operation; and therefore the saving is void, and the land vests absolutely in
7. Where the common law and a statute, differ, the common law gives
place to the statute, and an old statute gives place to a new one. And this
upon a general principle of universal law, that "leges posteriores priores
contrarias abrogant": consonant to which it was laid down by
a law of the twelve tables of Rome, that "quod populus postremum jussit, id
jus ratum esto." But this is to be understood, only when the latter statute
is couched in negative terms, or where it's matter is so clearly repugnant,
that it necessarily implies a negative .... As if a former act says, that a
juror upon such a trial shall have twenty pounds a year; and a new statute
afterwards enacts that he shall have twenty marks: here the latter statute,
though it does not express, yet necessarily implies a negative, and, virtually
repeals the former. For if twenty marks be made qualification sufficient, the
former statute which requires twenty pounds is at an end. 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. If by a former law an offence be indictable at the
quarter-sessions, and a latter law makes the same offence indictable at the
assises; here the jurisdiction of the sessions is not taken away, but both have
a concurrent jurisdiction, and the offender may be prosecuted at either: unless
the new statute subjoins express negative words, as, that the offence shall be
indictable at the assises, and not elsewhere.
8. If a statute, that repeals another, is itself repealed afterwards,
the first statute is hereby revived, without any formal words for that purpose.
So when the statutes of 26 and 35 Hen. VIII, declaring the king to be the
supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary,
and this latter statute was afterwards repealed by an act of 1 Eliz. there
needed not any express words of revival in queen Elizabeth's statute, but these
acts of king Henry were impliedly and virtually revived.
9. Acts of parliament derogatory from the power of subsequent
parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs, that no
person for assisting a king de facto shall be attainted of treason by
act of parliament or otherwise, is held to be good only as to common
prosecutions for high treason; but will not restrain or clog any parliamentary
attainder. Because the legislature, being in truth the sovereign
power, is always of equal, always of absolute authority: it acknowledges no
superior upon earth, which the prior legislature must have been, if it's
ordinances could bind a subsequent parliament. And upon the same principle
Cicero, in his letters to Atticus, treats with a proper contempt these
restraining clauses, which endeavour to tie up the hands of succeeding
legislatures. "When you repeal the law itself, says he, you at the same time
repeal the prohibitory clause, which guards against such
10. Lastly, acts of parliament that are impossible to be performed are
of no validity: and if there arise out of them collaterally any absurd
consequences, manifestly contradictory to common reason, they are, with regard
to those collateral consequences, void. I lay down the rule with these
restrictions; though I know it is generally laid down more largely, that acts
of parliament contrary to reason are void. But if the paraliment
will positively enact a thing to he done which is unreasonable, I know of no
power in the ordinary forms of the constitution, that is vested with authority
to control it: and the examples usually alleged in support of this sense of the
rule do none of them prove, that, where the main object of a statute is
unreasonable, the judges are at liberty to reject it; for that were to set the
judicial power above that of the legislature, which would be subversive of all
government. But where some collateral matter arises out of the general words,
and happens to be unreasonable; there the judges are in decency to conclude
that this consequence was not foreseen by the parliament, and therefore they
are at liberty to expound the statute by equity, and only quoad hoc
disregard it. Thus if an act of parliament gives a man power to try all causes,
that arise within his manor of Dale; yet, if a cause should arise in which he
himself is party, the act is construed not to extend to that, because it is
unreasonable that any man should determine his own quarrel. But,
if we could conceive it possible for the parliament to enact, that he should
try as well his own causes as those of other persons, there is no court that
has power to defeat the intent of the legislature, when couched in such evident
and express words, as leave no doubt whether it was the intent of the
legislature or no.
These are the several grounds of the laws of England: over and above
which, equity is also frequently called in to assist, to moderate, and to
explain them. What equity is, and how impossible in it's very essence to be
reduced to stated rules, hath been shewn in the preceding section. I shall
therefore only add, that (besides the liberality of sentiment with which our
common law judges interpret acts of parliament, and such rules of the unwritten
law as are not of a positive kind) there are also peculiar courts of equity
established for the benefit of the subject; to detect latent frauds and
concealments, which the process of the courts of law is not adapted to reach;
to enforce the execution of such matters of trust and confidence, as are
binding in conscience, though not cognizable in a court of law; to deliver from
such dangers as are owing to misfortune or oversight; and to give a more
specific relief, and more adapted to the circumstances of the case, than can
always be obtained by the generality of the rules of the positive or common
law. This is the business of our courts of equity, which however are only
conversant in matters of property. For the freedom of our constitution will not
permit, that in criminal cases a power should be lodged in any judge, to
construe the law otherwise than according to the letter. This caution, while it
admirably protects the public liberty, can never bear hard upon individuals. A
man cannot suffer more punishment than the law assigns, but he may
suffer less. The laws cannot be strained by partiality to inflict a
penalty beyond what the letter will warrant; but, in cases where the letter
induces any apparent hardship, the crown has the power to pardon.
 * Before we proceed with the Commentator to consider the subject of
the ensuing Section, it will be proper to bestow some attention on those Acts
of the PEOPLE OF THIS COMMONWEALTH, in particular, and
of the UNITED STATES, in general,
to which nothing similar occurs in the Constitution and Government of England,
or of Great Britain; being Laws, not only to the individual, and to the other
departments of the Government, but to the Legislature, also. These are, the
CONSTITUTION of the State of VIRGINIA, for which we must refer the Student to the Appendix
to this part, Note C; and the CONSTITUTION of the UNITED STATES, which will be treated of in the Appendix,
 1 From what circumstance the general customs, or common
law of England, properly so called, obtains authority in these states will
be the subject of future enquiry: but, with respect to particular customs,
these, with the single exception of the Custom of Merchants, being merely
local, could not be translated by our Ancestors to their new settlements in
this Western World; and consequently have no authority, or existence here: as
to the third branch of the lex non scripta, or particular Laws observed
by custom in particular courts, a very small portion of them, indeed, will be
found in the civil establishments of Virginia, even before the revolution.
 a Caes. de b. G. lib. 6. c. 13.
 b Spelm. Gl. 362.
 c c. 17.
 d See his proposals of a digest.
 e c. 2.
 f Hal. Hist. 55.
 g in Hen. II.
 h in Edw. Confessor.
 i in Seld. ad Eadmer. 6
 k Mod. Un. Hist. xxii 135.
 l Ibid xx. 211.
 m Ibid xxxiii. 21. 58.
 2. That is from the reign of Richard the first .... See Black. Com.
Vol. 2. p. 31.
 n cap. 8.
 o Seld. review of Tith c. 8.
 p Herein agreeing with the civil law, Ff. 1. 3. 20, 21.
"Non omnium, quae a majoribus nostris constituta sunt, ratio reddi potest.
Et ideo rationes eorum, quae constituuntur, inquiri non oportet: alioquin multa
ex bis, quae certa sunt, subvertuntur."
 * But it is certainly repugnant to natural reason, where a father
leaves two sons by two different mothers, and dies intestate, and a large
estate descends to his eldest son, who dies a minor or intestate, that this
estate should go to the lord of the manor or to the king, rather than to the
younger son. When such a case happens in the family of a nobleman, or a man of
great landed property, this law will then probably appear so absurd and
unreasonable, that it will not be suffered to remain long afterwards a reproach
to our system of jurisprudence. See vol. iii. p. 231. CHRISTIAN.
 q "Si imperialis majestas causam cognitionaliter examinaverit,
et partibus, cominus constitutis sententiam dixerit, omnes omnino judices, qui
sub nostro imperio sunt, sciant hanc esse legem, non solum illi causae pro qua
producta est, sed et in omnibus similibus." C. 1. 14. 12.
 r Pat. 15 Jac. I. p. 18, 17 Rym. 26.
 3. The only Reports that have hitherto been published in Virginia,
are those of Mr. Wythe, the present Chancellor of the State, of such Cases, as
have been decided in the High Court of Chancery, since he hath been the sole
Judge of it; and those of Mr. Washington, and Mr. Call, of cases determined in
the Court of Appeals. A continuance of such publications is most devoutly to be
wished especially by those Judges, whose Judgments are subject to the revision
and correction of the Court of Appeals. The Reports of Mr. Dallas, of Cases
determined in the supreme Court of the United States, and in the Federal Courts
held in Pennsylvania, are also extremely valuable, both in respect to the
matter of which they treat, and the manner in which they are executed. See
Dallas's reports vol. 2. and 3. The first volume comprehends only cases decided
in the State Court of Pennsylvania.
 s His reports, for instance, are stiled kat
exocen the reports, and in quoting them we usually say, 1 or 2
Kep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of judge
Croke are also cited in a peculiar manner, by the name of those princes, in
whose reigns the cases reported in his three volumes were determined;
viz. queen Elizabeth, king James, and king Charles the first; as well as
by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. but
more commonly Cro. Eliz. Cro. Jac. and Cro. Car.
 s It is usually cited either by the name of Co. Litt. or as 1
 t These are cited as 2, 3, or 4 Inst. without any author's name. An
honorary distinction, which, we observed, is paid to the works of no other
writer; the generality of reports and other tracts being quoted in the name of
the compiler, as 2 Ventris, 4 Leonard, 1 Siderfin, and the like.
 u Ff. 1. 3. 32.
 w Ff. 1. 4. 1.
 x. C. 1. 14. 12.
 y C. 1. 23. 5.
 4. See Appendix, Note E.
 (4.) See the note, p. 63.
 5. In Virginia, the Counties, and even parishes, were formerly
authorized to make bye laws. This would in time have proved an abundant
source of local usages and customs. But the act authorising them, 1662 c. 15.
was repealed about seventeen years after it passed. 1679. c. 3. They may be
found in Parvis's collection, 112. 237.
 z Mag. Chart. 9 Hen. III. c. 9 .... 1 Edw. III. st. 2. c. 9
.... 14 Edw. III. st. 1. c. 1 .... and 2 Hen. IV. c. 1.
 a 8 Rep 126. Cro. Car. 347.
 b Winch. 24.
 6. The lex mercatoria, or general law and custom among
Merchants, stands I presume upon the same authority in Virginia; what that law
is, is to be ascertained and determined by judicial decisions and not by any
local usages amongst Merchants and Traders; for these form no part of the
common law of England, as the general law of Merchants doth. See Lord
Mansfield's report, in the case of Edie and another against the East India
Company; and Justice Foster's opinion in the same case .... 2 Burrow, 1222. and
But where the law is not settled, it would seem that evidence of local
usages, which are so settled and established among merchants and traders, as to
be clear and plain beyond a doubt is proper for the consideration of a Jury.
Lord Mansfield .... Ibid, 1221. 1222.
See the case of Branch v. Burnley, 1st. Calls Reports, 147. and the
arguments and opinions of the Judges of the Court of Appeals therein.
 c Co. Litt. 175.
 d Litt. §. 265.
 e Dr. & St. 1. 10.
 f Cro. Car. 516.
 g Hob. 85.
 h Litt. §. 212. 4 Inst. 274.
 7. It may be therefore doubted whether any custom can be
established in the United States of America. For, Time of memory hath been
ascertained by the Law to commence from the reign of Richard I. and any custom,
in England, may be destroyed by evidence of its non-existence, at any
subsequent period. Now, the settlement of North America by the English did not
take place 'till the reign of Queen Elizabeth, near four hundred years
afterwards .... See 2. Vol. Black. Com. p. 31.
 j Co. Litt. 113.
 i Ibid. 114.
 k Ibid.
 l Litt. § 212.
 m 1 Inst. 62.
 n Co. Copyh. § 33.
 o 1 Roll Abr 565
 p 9 Rep 58
 (a) [See the case of Wiglesworth against Dallison and another,
reported in Douglas, 190.]
 q Co. Cop. §. 33.
 r Co. Litt. 15.
 s Hist. C. L. c. 2.
 8. The authority of the common law of England, and of certain
particular Statutes made in aid of the common law, may now be considered as
resting upon a nearly similar foundation in Virginia; and perhaps in most of
the United States .... See Edo. 1794. c. 147.
 t l. 3. c. 34.
 u Taylor's elements of civil law 17.
 w See §. 1. p. 18.
 9. The authority of the Canon-law, in Virginia (except perhaps in
some matrimonial causes) since the passing the act for establishing religious
Freedom. 1785. c. 34. [Edo. 1794. c. 20.] maybe considered as either utterly
abolished, or, at least highly questionable.
 x Burn's eccl. law, pref. viii.
 y Statute 25 Hen. VIII, c. 19, revived and confirmed by 1 Eliz. c.
 (9) This Statute of 25. H. 8. c. 19. (as also that of 1. Eliza. c.
1.) is repealed, by the general repeal of all British Statutes, Edo. of 1794.
 z Stra. 1057.
 10 Courts of admiralty are authorized by the C. U. S. art: 3. The
District Courts of the U. S. are invested with their powers, in general: for
which see L. U. S. 1. Cong: 1. Sess: c. 20. s. 9.11. .... 3. Cong: c. 50. The
other Courts here mentioned are obsolete; at least in Virginia.
 a Hale Hist. c. 2.
 11. The supreme Court of the United States hath power to issue
writs of prohibition to the District Courts, when proceeding as Courts of
Admiralty and Maritime Jurisdiction. L. U. S. 1. Cong: 1. Sess: c. 20. s.
 (11) Vide L. U. S. 1. Cong: 1. Sess: c. 20. s. 25. in what cases
the Federal Government may grant a writ of error to a State Court.
 b 8 Rep. 20.
 c The method of citing these acts of parliament is various. Many of
our antient statutes are called after the name of the place where the
parliament was held that made them; as the statutes of Merton and Marieberge,
of Westminster, Glocester, and Winchester. Others are denominated entirely from
their subject; as the statutes of Wales and Ireland, the articuli cleri,
and the praerogativa regis. Some are distinguished by their initial
words, a method of citing very antient: 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 body of antient civilians and canonists, among whom
this method of citation generally prevailed, not only with regard to chapters,
but inferior sections also; in imitation 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 it's 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 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. 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. §. 24.
 12. Private acts of Assembly may be given in evidence without
pleading them specially. L. V. 1789. c. 28. [Edo. of 1794; 76. s. 30.]
 13. Although these Statutes are mentioned here by way of
illustration only, it may not be improper to apprize the Student that neither
the Statute of 5. Eliza: c. 11. to prevent the clipping of the current Coin;
nor the Stat: of 13. Eliza: c. 10. to restrain spiritual persons from making
certain Leases, are in force in Virg. the first being virtually repealed by the
act declaring what shall be Treason Octo: 1776. c. 3. [Edo. of 1794, c. 136.]
and the latter by the act repealing all British Statutes, under certain
restrictions. [Edo. 1794, c. 147.]
And here it may not be improper to offer to the Student a view of the
written laws of Virginia: for which see Appendix, note
 e 3 Rep. 7. Co. Litt. 11. 42.
 f Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.
 g 2 Rep. 46.
 14. A curious instance may be mentioned, where this rule was either
not attended to, or the words of a penal statute were unknown in the highest
Court of Judicature in Great Britain; viz. the House of Lords. The Statute of
1. Ja. 1. c. 11. upon which the Dutchess of Kingston was indicted, tried, found
guilty, and received judgment in that court, (if we may credit the authority of
the editors of the Statutes at large, and particularly Bill and Newcomb's,
Lond. 1684, said to have been carefully examined with the Rolls of parliament)
does not extend to the case of a woman marrying a second husband, during the
life of a former. The words of the enacting clause are, "If any person or
persona being married, or which shall hereafter marry, do at any time marry any
person or persons the former wife being alive &c." It is true that
Sir Edward Coke, 3. Inst. p. 88. and after him, Sir Mathew Hale 1. H. P. C.
692. quote it in these words, "the former Husband or Wife being alive" .... But
not only Bill and Newcomb's but one or two other Editions of the Statutes which
I have seen, omit the words "Husband or," from whence I am inclined to believe
that the Error crept into the parliament roll itself; for it was evidently the
intention of the Statute to take in both cases .... I have supposed it probable
that Sir Edward Coke, who was (perhaps about that time) Attorney General, might
have prepared the draught of the Statute, and that he inserted the extract from
it which is given in his Institutes from that draught, without consulting the
Roll, or a printed copy of the Statute.
"It is a fundamental rule of construction, that all penal
Statutes shall be construed strictly, and remedial Statutes [such as are
mentioned in the next paragraph for prevention of frauds] "shall be construed
liberally. It was one of the laws of the twelve tables at Rome, that whenever
there was a question between liberty and slavery, the presumption should be on
the side of liberty. This excellent principle the law of England has adopted in
the construction of penal Statutes: for whenever any ambiguity arises in a
Statute introducing a new penalty or punishment, the decision shall be on the
side of lenity and mercy; or, in favour of natural right, and liberty: or, in
other words the decision shall be according to the strict letter in favour of
the subject. And though the Judges in such cases may frequently raise, and
solve difficulties, contrary to the intention of the legislature, yet no
further inconvenience can result, than that the law remains as it was, before
the Statute. And it is more consonant to the principles of liberty, that the
judge should acquit whom the legislature intended to punish, than that he
should punish whom the legislature intended to discharge with impunity. But
remedial Statutes, [or such as are made against Fraud] "must be construed
according to the Spirit: for in giving relief against fraud, or in the
furtherance and extention of national right, and Justice, the Judge may safely
go beyond even that which existed in the minds of those who framed the law."
"And therefore it hath been held, that the same words in a Statute will
bear different interpretations, according to the nature of the suit or
prosecution instituted upon them." As in the Statute against gaming, which is
held to be remedial where the action is brought by the party losing at play, to
recover back his money lost; but penal where it is brought by a common
informer, who hath sustained no injury ....Christian .... See the Case
of Bones vs. Booth. 2. Black. rep. 1226.
 h 2 & 3 Edw. VI. c. 33 Bac. Elem. c. 12.
 15. The Statutes of 14. Geo. 2. c. 6. and 15. Geo: 2. c. 34. cited
in this paragraph were never considered as in force in Virginia.
 16. See L. V. 1785. c. 64. [Edo. 1794. c. 10.] accordant.
 i 3 Rep. 83.
 17 There being some variation between the words of the Statute 13.
Eliza: c. 5. and the corresponding clause of our Act, to prevent frauds and
perjuries, Edo. 1794. c. 10. s. 2. it may be questioned whether that act would
extend to the case of a Gift or Conveyance made to defraud the commonwealth of
a forfeiture or penalty, neither of which words although found in the British
Statute, are inserted in that part of our Laws, which declares the Gift &c.
void, only as against such persons, &c .... But according to sir Edward
Coke's opinion it would seem that the British Statute was declaratory of what
the common Law was before; ideo Quaere.
 k 1 Rep. 47.
 18. But this maxim is to be understood as relating only to Laws
made by a Legislature possessing equal, or superior powers, to that by which
the first law was made. Thus Congress may alter, repeal or annul any of its own
acts: and in some few cases they may even annul the acts of the state
legislatures should they attempt to legislate upon any subjects which the
constitution of the United States prohibits; if, for example, the legislature
of a State should declare all contracts made before, or after a certain day to
be void; Congress (should they deem it necessary) might I presume, pass a
subsequent act repealing such unconstitutional act,constitutionout any such
repeal, the act being contrary to the constitution would be void of itsconstitutionhould Congress attempt to pass a law contrary to the constitution of the
United States, or should the state legislature make a similar attempt against
it, or against the State Constitution; such acts, though cloathed with all the
forms of Law, would not be law, nor repeal in any measure what was established
by a higher authority, to wit, that of the people. Yet the People whenever they
sec fit may make any alterations in the Constitution which they may deem
necessary to their happiness, and the prosperity of the nation.
 l Jenk. Cent. 2. 73.
 m 11 Rep. 63.
 n 4 Inst. 325.
 19. This rule of construction was altered in Virginia, by the act
of 1789. c. 9. by which it is declared, "That whensoever one law, which shall
have repealed another, shall be itself repealed, the former law shall not be
revived without express words to that effect."
A second rule of construction prescribed by that act, is, "that every
act passed during any stated annual session, shall commence in force on the
first day of March, then next ensuing, unless in the act itself, another day be
particularly mentioned for the commencement thereof."
A third rule of construction prescribed by the same act, is, "that as
often as a question shall arise, whether a law passed during any session,
changes or repeals a former law, passed during the same session, the same
construction shall be made, as would have been made, if the act entitled an act
concerning elections of members of General Assembly, had never been
This act commenced on the fifteenth day of January 1790. It was
casually omitted in the Edition of 1794, being consolidated in a bill which did
not pass. It is however still in force .... The act referred to in the latter
rule above mentioned, (passed in October 1785) contains this clause .... "that
all acts shall commence from their passage, unless in the act itself another
day is appointed for its commencement."
In the case of Proudfit vs. Maury, this act received an exposition in
the Court of Appeals, which I presume settles the much agitated question
relative to those laws passed in the session of 1792, which were suspended by
an act of the same session, ch. 150. The case is thus stated by
"An act passed November 12, 1792, relative to protested Bills of
Exchange, repealing all former acts on the subject; and to commence from the
"The 28th of December 1792, an act passed, declaring the operation of
this and many other alike circumstanced, to be suspended until October 1st.
"During this suspension, to wit, in February 1793, the Bill on which the
suit was brought was drawn; and would within the saving of the new act of 1792,
be considered as commencing in October 1793.
"But it is relied on, that the act of November was in force from its
passage, 'till December the 28th. and therefore, that under the act of 1789. c.
9. the law of 1748, was effectually repealed, dead, and gone, for a month and
sixteen days; and could only be revived by an express declaration of the
Legislature. Because, since the act of 1789, c. 9. the repeal of a repealing
law does not revive the repealed law, without a direction to that effect.
"The rule in England is the reverse; a repealed law is revived, by the
repeal of that which has stopped its force. A rule certainly inconvenient;
since old acts, long since forgotten, might be revived upon the community;
affecting their persons and property upon a legal fiction without notice that
such was the case; which inconvenience was properly removed by the Act of
"But, as the inconvenience could not happen in the case of the repeal of
an Act passed the same session (not gone forth among the citizens, but known
only to the Legislature) I was struck with an impression, that to such Laws,
the Legislature never meant their rule should extend; and doubted, whether this
being a repealing Law, never repealed, but suspended, only, for a time, and yet
in force, came within the letter or spirit of the act of 1789. However, we were
relieved from all difficulty by recurring to the act itself, where the doubt is
stated and solved. The president then proceeds to state the third rule of
construction prescribed by the act of 1789, as above cited; as also that part
of the act of October 1785. which is before mentioned, and then proceeds thus:
This latter law being declared to have no operation on the question, what was
the rule of construction before? Why, that all laws were considered as passed
on the first day of the session. According to this rule then, the original act
and that for it's suspension, commenced together." Call's rep. vol. 1. 401.
This very important decision may be considered as settling the law in an
infinite number of cases of difficulty, arising under the various laws,
enacted, suspended, and repealed, during the session of 1792.
 o 4 Inst. 43.
 p Cum lex abrogatur, illad ipsum abrogatur, quo non eam abrogari
oporteut. l ep. 23.
 20. One would imagine that it could not be deemed any great stretch
of the freedom of opinion, to pronounce that any legislative act which
prescribes a thing contrary to reason, is void; yet the caution of the learned
commentator on this occasion is certainly conformable to the principles of the
British government; in which, it seems to be agreed by all their Jurists, the
authority of parliament is absolute and uncontrollable; insomuch that it may
alter or change the Constitution itself. But, in America, the Constitutions,
both of the individual States, and of the federal Government, being the acts of
the people, and not of the Government, and the powers of Government being by
those Constitutions, respectively, distributed into three distinct, and
co-ordinate, branches; viz: the legislature, the executive, and the judiciary;
all which are equally bound by Duty to their Constituents, the people; and by
Oath, also, to support the Constitution; it follows, as has been already shewn
[Appendix, Note A.] that the legislature can possess, no
power, or obligation over the other Branches of Government, in any case, where
the principles of the Constitution, may be in any degree infringed by an
acquiescence under the authority of the legislative department. The examples
supposed, and the authority cited in that note, sufficiently evince the Justice
of the position here contended for; and will warrant us in extending the rule
here laid down by the learned commentator, by adding thereto, That all acts of
the Congress of the United States, impairing, infringing or violating the
principles of the federal Constitution; and all acts of the legislature of this
Commonwealth, which violate, infringe or impair the same, or any law of the
United States made pursuant to the powers granted to the Congress by the
federal Constitution, or any Treaty made under the authority of the United
States, or the Bill of Rights, and Constitution of this Commonwealth, are not
binding upon any other branch of the federal or State-government: and any
Citizen of the Commonwealth, who may be aggrieved by any such unconstitutional
Act, hath an undoubted right to redress, by application to the judicial Courts
of the State, or of the United States according to the nature of the case. "The
constitution and its laws," as Vattel justly observes, "are the basis of the
public tranquility, the firmest support of the public authority, and pledge of
the liberty of the citizens. But this Constitution is a vain phantom, and the
best Laws are useless, if they are not religiously observed. The nation ought
then to watch very attentively, in order to render them equally respected by
those who govern, and by the people destined to obey. To attack the
Constitution of the State, and to violate its laws is a capital crime against
the society, and if those guilty of it are invested with authority, they add to
this crime a perfidious abuse of the power with which they are entrusted. The
nation ought constantly to suppress these abuses, with its utmost vigor, and
vigilance, as the importance of the case requires. It is very uncommon to see
the Laws and Constitution of the State, openly and boldly opposed; it is
against silent and slow attacks that a nation ought to be particularly on its
guard.'' Vattel's Law of nations B: 1. 3. act: 30. See also, the Federalist;
vol: 2, no: 78.
 q 8. Rep. 118.