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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 profits.
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 threepence, as the occupier of the land pleases, is bad, for its 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 the law is, Id certum est, quod cerium 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 a bridge, 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.
III. The third branch of the leges non scriptæ are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions, viz. the civil and canon laws.
There are four species of courts, in which the civil and canon laws are permitted (under different restrictions) to be used: 1. 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 courts of common law have the superintendency over these courts, to keep them within their jurisdictions. The common law has also 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 controul them. And, finally, 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.
Let us next proceed to the leges scriptæ, or WRITTEN LAWS of the kingdom. These consist in statutes, or acts of parliament, which are either general or special, public or private. Of a public act the courts of law are bound to take notice judicially and ex officio, without the statute being particularly pleaded. Special, or private acts, are rather exceptions than rules, being those which only operate upon particular persons and private concerns; and of these the judges are not bound to take notice, unless they be formally pleaded. Thus, to shew the distinction, the 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. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case 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. c. 2. doth not make any new species of treason; 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 of judges, or from any other cause. 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.
With regard to the construction of acts of parliament, there are three points to be considered-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. A statute which treats of things or persons of an inferior rank cannot, by any general words, be extended to those of a superior. Thus, 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. Penal statutes must be construed strictly: but statutes against frauds are to be liberally and beneficially ex
pounded. This may seem a contradiction; 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. One part of the statute must be so construed by another, that the whole may (if possible) stand: but a saving totally repugnant to the body of the act is void. 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. But if a statute that repeals another be itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. Acts of parliament derogatory from the power of subsequent parliaments bind not. Thus, the 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. 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. But when the words of a statute are of doubtful signification, general usage may be called in to explain them. 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. We shall therefore only add, that 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 the courts of equity, which, however, are only conversant in matters of property, for the freedom of the 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 protects the common liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The law 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.
OF CIVIL INJURIES, AND THEIR REMEDIES.
THE objects of the laws of England are defined by Blackstone to be, the enforcement of right, and the prohibition of wrong; and he treats of them under the following divisions: 1. The Rights of Persons; 2. The Rights of Things; 3. Private Wrongs; 4. Public Wrongs. We shall not, however, exactly follow the order he has laid down, but shall proceed to the consideration of PRIVATE WRONGS, or CIVIL INJURIES, with the means of redressing them; first premising, that all civil injuries are of two kinds: the one without force or violence, as slander, or breach of contract; the other with force and violence, as assaults, batteries, false imprisonment: which latter partake somewhat of the criminal kind, being attended with a violation of the peace; for which, in strictness of law, a fine ought to be paid to the king, as well as satisfaction made to the injured party.
Of Assault and Battery.
ALL injuries affecting the personal security of individuals are directed either against their lives, their limbs, their bodies, or their reputations. As to those injuries which affect the life of man, we shall reserve them for a distinct consideration, being one of the most atrocious species of crime. The two next, viz. those affecting the limbs and bodies of individuals, we shall consider in one and the same view, and make them the subject of the present chapter. These injuries may be committed
1. By threats and menaces of bodily hurt, through fear of which a man's business is interrupted. The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis; this being an inchoate, though not absolute violence.
2. By assault; which is an attempt or offer to beat another, without touching him; as by holding up one's fist at him in a menacing manner; striking at another with a cane or stick, though the party miss his aim; presenting a gun, when loaded, at a person; drawing a sword or bayonet; throwing a bottle or glass, with intent to wound or strike. All these denote at the time an intention of doing an injury, and are each considered as an inchoate violence, amounting considerably higher than bare threats; and therefore,
though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis, wherein he shall recover damages, as a compensation for the injury.
3. By battery; which is the unlawful beating of another. The least touching of another's person wilfully, or in anger, is a battery; every man's person being sacred, and no other having a right to meddle with it in any the slightest manner. But battery is in some cases justifiable, or lawful: as where one who hath authority, a parent or master, gives moderate correction to his child, his scholar, or his apprentice. So also, on the principle of self defence, if one strike me first, or even only assault me, I may strike in my own defence; and if sued for it, may plead son assault demesne, or that it was the plaintiff's own original assault that occasioned it. So likewise, in defence of my goods or possessions, if a man endeavour to deprive me of them, I may justify laying hands upon him to prevent him; and in case he persist with violence, I may proceed to beat him away. Thus, too, in the exercise of an office, as that of churchwarden or beadle, a man may lay hands upon another to turn him out of the church, and prevent his disturbing the congregation; and, if sued for this or the like battery, he may set forth the whole case, and plead that he laid hands upon him gently, molliter manus imposuit, for this purpose. On account of these causes of justification, battery is defined to be the unlawful beating of another; for which the remedy is, as for assault, by action of trespass vi et armis; wherein the jury will give adequate damages.
4. By wounding; which consists in giving another some dangerous hurt; and is only an aggravated species of battery.
5. By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is for ever disabled from making so good a defence against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a fore-tooth, and also some others. But the loss of one of the jaw-teeth, the ear, or the nose, is no mayhem at common law; as they can be of no use in fighting. The same remedial action of trespass vi et armis lies also to recover damages for this injury. If the ear be cut off, treble damages are given by 37 Hen. VIII. c. 6. though this is not mayhem at comLaon law.
Besides these remedies, the 43 Geo. III. c. 58. enacts, if any person shall wilfully and maliciously stab or cut any of his majesty's subjects, with intent to murder, maim, disfigure, or d sable him, or to do him some grievous bodily harm, or with inteat to resist or prevent the apprehension and detainer of the person so stabbing or cutting, or of any of his accomplices, for offences for which they might be lawfully apprehended, he, his counsellors, aiders, and abettors, shall be guilty of felony without