serted to be one "impossible to be executed." The court must have adopted this doctrine. Although there was no united written opinion of the court, the whole bench spoke by deeds as strong as words in the memorable judgment rendered. In the brief remarks of the judges individually in voting upon the judgment, one of them expressly said that the statute was impossible to be executed and voted accordingly.*

According to Coke's view of the convent seals case and of the 4th chapter of the statute of Carlisle, "impertinent to "be observed," and, "impossible to be performed," are words of the same meaning. According to Trevett v. Weeden, "impossible to be performed," and, "impossible to be executed," are words of the same meaning. There are thus links connecting these two historic cases. The possibility that the English case has a connection with the Canon law doctrine of temporal statutes being null for ecclesiastical cause, thus becomes of additional interest to American lawyers.

CHAPTER XVII.

Results of the foregoing examination of the history of the English law in England.

The present doctrine of the English law is that judges are bound by all statutes in all cases according to the clear and clearly expressed intention of the legislature. The foregoing investigation, it is contended, shows that the following distinctions as to different periods in the life of the English constitution must be made, in order to under

* See post Chapter 25, which contains a review of the case of Trevett v Weeden.

stand the place which that doctrine occupies in English legal history.

First. Before the Reformation a real partition of power between church and state and a real division into temporal and spiritual powers existed. That "the English church "shall be free," quod Anglicana ecclesia libera sit, was written in the very first article of Magna Charta. This was no novel legislation. It was a declaration of the ancient law. In consequence of the then constitution of England, the legislative power of parliament was essentially different from what it was after the Reformation. Parliament could not then destroy the rights and liberty of the church in two classes of matters. The first class included all purely spiritual matters. The second class included some but not all spiritual matters that were mixed with the temporalty. If the parliament made a statute so extending, it was ipso facto and ipso jure void ex defectu potestatis. Such temporal legislation in such ecclesiastical matters did not bind either the subjects, the officials or the judges of the king.

Second. Before the revolution of 1688, there were the first developments of a doctrine that courts were competent to decide upon the rightfulness or wrongfulness, and ascertain the validity or invalidity, of statutes, when it was necessary to defend the royal prerogative against the encroachments of parliamentary power.

Third. Subsequently to the revolution of 1688, the doctrine became generally accepted that the judiciary are bound by all acts of parliament in all cases in which the intention of the legislature is clear and clearly expressed. Neither ecclesiastical rights, nor royal prerogative, can resist the vigour of any contrary act of parliament. Any relaxation of this doctrine, relating to statutes impossible to be performed, must be laid down in the terms of Blackstone's tenth rule.

Fourth. Coke's larger doctrine as to the invalidity of statutes, from which Blackstone dissents, is not accepted as law. Some further consideration of this negative result should be made.

It may, perhaps, be true that the rejection of Coke's rule

was necessary merely because it could not have been accepted without changing the form of government. If this be so, the acceptance of Blackstone's rule was not due to its internal excellence as a rule of interpretation but to its harmony with the form of government. This view of Blackstone's rule is to a certain extent encouraged by the prevailing doctrine concerning the interpretation of statutes conflicting with the law of nations, which is a relaxation of Blackstone's rule, if it be not an exception to it. This doctrine is laid down by Lord Stowell as follows in the case of the Le Louis, on page 239 of 2 Dodson's Admiralty Reports: "Neither this British act of parliament, nor any commis"sion founded on it, can affect any right or interest of "foreigners, unless they are founded upon principles and "impose regulations that are consistent with the law of "nations. That is the only law which Great Britain can "apply to them; and the generality of any terms em"ployed in an act of parliament must be narrowed in con"struction by a religious adherence thereto.*

So

Thus, to avoid a conflict between the law of nations and an act of parliament, an English judge will strain so hard that he will resort to a forced construction of the statute. doing does not affect the form of government, for it does not affect the power of parliament to derogate to the law of nations. But if parliament wishes to derogate to that law, it is compelled to say expressly that it proceeds in derogation thereof, for if it do not do so, the judges will certainly presume that it proceeds otherwise and will interpret its act according to such presumption. Such interpretation is not an application of Blackstone's tenth rule, but a relaxation of it, or an exception to it. Without affecting the form of government, Stowell's doctrine occupies really an intermediate place between Blackstone's and Coke's.

* Compare Murray v. the Charming Betsey, 2 Cranch, page 118.

CHAPTER XVIII.

Of the relation of acts of parliament to the colonies before 1776.

No. 1. Of the extension of acts of parliament to the colonies and their trade.

No. 2. Of the statute of 7 and 8 William III., cap. 22. No. 3. Of the statutes relating to stranded ships.

No. 4. Of the case of the Canary wine trade and the statute of 15 Charles II., cap. 7.

No. 5. Of the law of statutes extending to the colonies before 1776.

No. 6. Of the modern English law of statutes extending to the colonies.

In the foregoing pages the law concerning acts of parliament in England has been discussed. The present chapter will consider the relation of acts of parliament to the colonies and the trade thereof before 1776.

No. 1.

Of the extension of acts of parliament to the colonies and their trade.

Parliament maintained that it could bind the colonists in America as much as the inhabitants of England, whenever it saw fit to pass an act extending to the colonies or any of them. Thus arose an important branch of English law comprehending questions whether particular acts of parliament

did or did not extend to the American colonies and their trade. In the administration of the government the practice was to settle such questions by reference to crown counsel. While a crown counsel could not hold an act of parliament to be void because contrary to constitutional right, he did say that an act was void of effect in the colonies when he decided that it did not extend to them or their trade. While the importance of this legal conception should not be exaggerated, it must not be ignored. The colonists claimed as a great constitutional right to which they were entitled, that acts of parliament should not extend to the government of the colonies except in certain exceptional constitutional cases.* As a matter of fact, the acts of parliament expressly mentioning the colonies, though of grave importance, were few in number. Other acts were not deemed to extend to the government of the colonies, if trained lawyers did not professionally so decide. These considerations have their place in the development of those constitutional ideas, which were carried out in written constitutions establishing judiciaries competent to criticise legislation under such constitutions.

On this, as on other heads of constitutional law concerning the English Colonies, Chalmers's collection of opinions of crown counsel is the most familiar book of reference. Forsyth's more recent collection, entitled: Cases and Opinions on Constitutional Law (London, 1869), contains also valuable matter relating to colonies.

No. 2.

Of the statute of 7 and 8 William III., cap. 22.

The statute of 7 and 8 William III., cap. 22, contained provisions of fundamental importance relating to the colonies. Its eighth section reads thus:

"And it is further enacted and declared by the authority "aforesaid, that all laws, by-laws, usages or customs at

*See Declaration of Rights of 14 October, 1774, in Journals of Congress, I. 26, last edition.