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honor, or too jealously guarded and preserved, as the safeguard of all peace and security.
It is certain that no human authority can rightfully infringe or abrogate the smallest particle of natural or divine law; and yet we cannot expect that all acts of legislators will, or can be, entirely good, or ethically perfect; but if their goodness and binding quality in this respect, is to be determined by the subjects upon whom they are intended to operate, government, and subordination would cease; there must, therefore, be magistrates clothed with the power to enjoin their authority.
When therefore, the supreme power of a community decrees anything which may even be injurious to one, or to a few of its subjects, it is their duty to acquiesce, and not to disturb the peace of society; attempt to subvert the constitution of their country, or to diminish the veneration for its laws, which would be bringing a greater evil upon the whole community.
This expresses what is generally understood to be the signification of law, to wit: "A rule of action dictated by some superior being."a It will therefore be our duty in this work to consider only human laws so dictated. Justinian, the great law-giver, reduced the principles of law to three general precepts. First, that we should live honestly. Second, that we should hurt nobody. And third, that we should render to every one his due. b This includes the whole doctrine of the law.
Statute law, is sometimes by law writers included in the more general term, "Municipal Law," though this extends it to states or nations. But it is well defined by Blackstone, under the head of municipal law, as being "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." c Municipal law, in its technical meaning, also rests for its authority upon judicial decisions. d
But Chancellor Kent has given a more accurate definition of municipal law. He says: "It is composed of written, and unwritten, or of statute and common law. Statute law being the express written will of the legislature, rendered authentic by certain prescribed forms and solemnities."e Statute law becomes
a 1 Black, Com. 39. b2 Just. 1, 13.
c 1 Com. 44.
d 2 Kent's Com. 456.
municipal, when its force is confined to a particular community, district or State.
It may be said, that a nations progress in morality, philosophy, letters, arts, science, trade and commerce, civilization and refinement, may be pretty accurately ascertained from their written, or statute laws. Their spirit, should, and doubtless does, enter into the language in which they are drawn. Just in proportion as these laws are grounded in natural justice, and speak a language, evincing moral and intellectual progress, they exalt and adorn the character of her people.
In our own, as in every system of jurisprudence, the statute law forms but a part of the law of the system; and it may be safely asserted, that no system of jurisprudence would be perfect, that should be confined to legislative enactments. It is not within the power of the human mind, or in any combination of minds, to foresee and provide rules beforehand, to regulate the conduct of men in every change and variety of circumstances and conditions, so that when individuals neglect, or violate rules thus prescribed, the departure from right, finds its exact description, and finds a recognized rule to be applied to it, which shall restore the legal relations of the parties.
Therefore it follows, that the laws of every community, consists of two elements. First, those rules of conduct which are introduced by the law making power in an express and positive form; which control the particular cases and circumstances to which they relate or describe, and which are called statutes, made by legislation; and Second, those precepts of natural right which are not superceded by statute law, and which, therefore, remain in full force as to all other circumstances and cases, and which forever continue in force as the measure of justice until superceded or changed by legislation; and while ir force, controlled by the rudiments of legal science and the profoundest of human wisdom and experience, remain at all times the highest security and protection of the citizen.
Perhaps in no feature of a nation's character, more than in her written laws, is her moral and industrial character made maniifest. They indicate the progress of her civilized development by their relative fitness and simplicity; and they afford materials
for forming a judgment as to her lettered skill and intellective wisdom. Next to inspired revelation, the book which contains a nations laws, is most important. From this, the citizen learns the extent of his rights, and the nature of his political and social duties. In a country which has adopted it as one of its maxims, that "ignorance of law excuses nobody," it should be the aim of the lawmaker, that its statutes should be drawn in language clear and simple; that their meaning should be plain and unmistakable; and if ambiguity or doubt do seem to appear; its maxims and rules of interpretation should be formed in the soundest wisdom.
Of all the degrees of authority which man exercises over man, that of legislation is the most august and supreme. Statutes, generally, are made in affirmance of natural rights and duties, and are declarative of them. Sometimes, they are positive regulations for political reasons, for matters otherwise in themselves indifferent.a In an early stage of civil society, when laws were few and defective, and the execution of them feeble and precarious, much was necessarily left to the authority of the sovereign power; and this sovereign power was the king, who not only interpreted and administered the law, but explained and adopted it as a remedy to an existing case. Sometimes lords and prelates were called in, to aid in deliberation, when the king was overtasked, but all petitions for relief were then usually addressed to the king.
It was soon felt to be too much, "that the king should make, or even alter laws of his own mere pleasure, to suit his own private purposes."b It began first to be disputed, when the laws, or the alterations thereof, affected unfavorably the persons, or estates of the great barons, but it now excites no surprise, that in this rude age, the limits of executive, legislative and judicial authority were left undefined, as they were all alike combined in the person of the sovereign; and it is believed that it was the love of pomp and parade; a desire to increase his supports in this display; and to gratify this pride, that induced the sovereign to call these great chief barons into a council, or parliament. But the origin of parliaments is not a part of this work.
a 1 Smith's Com. Cha. 1 & 5.
b 1 Reeve's History of English Law, 85,
In an American treatise upon statutes, it will not be practically useful to devote much space in giving the origin, or in tracing the history and progress of the statute laws of England, though it is from that country that many of our statutes are borrowed; and it may indeed be conceded, that many of our wisest enactments are found to be nearly accurate transcripts of English statutes.
Though modern English writers now concur in defining their statutes to be "the written will of Parliament, composed of King, (Queen) Lords and Commons," it has been a question greatly mooted in history, as to the period of time when statutes, that are now expressly held to be such, were first passed in that country. The earliest statutes extant in printed books, are those of Henry III. a. During those of this reign, are Magna Charta, and Charta de Foresta.
Before that period, what was sometimes called statutes, but more commonly known by the name of "assisa," or "constitutiones," were mere ordinances of the king, who usually provided and ordained them. This was sometimes done by the advice of his council; sometimes the advice and consent of barons and dignified ecclesiastics were added; and in some instances, the consent of the whole commonalty was expressed. b
There is great diversity of opinion among English authors, and of course, much uncertainty as to the fact, as to the extent of the powers that were exercised at an early day by the Kings of England, with, or without the aid of parliament. Whether the lords, spiritual and temporal aided in framing statutes and ordinances, or were merely called in as councillors of the sovereign, is not quite certain. Ruffhead, in his preface to the English statutes, asserts, that down to the 23d of Edward the First, so little regard was paid to the authority of the commons, that their assent was not deemed essential to the passage of a law; and that Peers were considered merely counsellors; that the high authority of passing laws or ordinances was exercissd by the king, or by the king and his justices. Sir Edward Coke, is of opinion, that provisions made by two branches only, of the legislature, were ordinances, and not statutes; that statutes were designed for perma
a Dwarris ch vii. b Id.
nent law, and ordinances were merely temporary experiments, framed with a view to future and occasional amendment. a But it appears, that in the second year of Henry the Fifth, the com. mons being dissatisfied with the limited influence allowed to them by the king, presented to him a strong memorial, then claiming, that it had ever been their freedom, that no statute or law should be made without their assent. To this, it was answered by the king, "that the king, of his grace, especially granteth, that from henceforth, nothing be enacted to the petitions of his commons, contrary to their asking, whereby they should be bound without their assent; saving alway, our liege lord his prerogative, to grant and deny as he should please, such petitions." b
This petition of the commons, and the response of the king, was regarded as a complete change; and was claimed to be the first victory on the part of the commons. Their power from thence, became an integral and indispensable part of the legislature, which they had long been laboring to establish, and which they now regarded as firmly consolidated and effectually secured against any future violations of their legislative rights.
When these councils became characterized by the name of parliament, it then became necessary to devise a plan for authenticating, preserving, and transmitting their decisions, or acts. This was done by entering them upon what was called the rolls of parliament, which contained an account of all proceedings, legislative and judicial. It was not until the reign of Edward III, that the constitutional principle was established, that the king and two houses of parliament in conjunction, were required in the enactment of statutes, and that they in conjunction, possessed exclusively the power of legislation.
After the commencement of the reign of Henry III, statutes began to be published in solemn form, with captions, which began: "Our Lord the King, etc., at his Parliament holden at, etc., by the advice and assent of the Lords, Spiritual and Temporal, and at the special request of the Commons of the realm being in the same Parliament, hath caused to be made divers statutes and ordinances," etc.
A reference, to this extent, to these English statutes and ordib Dwarris, 37.
a 4 Inst. 26.