regard either the proof of their existence, their legality when proved, or their method of allowance. As to gavelkind Co. Litt. 175. and borough English the law takes particular notice of them, and there is no occasion to prove that such customs exist, but

only that the lands in question are subject thereto. All other Litt. s. 265. private customs must be pleaded, and their existence shewn; but the customs of London differ from others in point of trial; for if the existence of the custom be questioned, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen, by the mouth of their recorder, unless it be such a Cro. Car. 516. custom as the corporation is interested in as the right of taking

1 Roll. Abr.

toll when the law does not permit them to certify in their own Hob. 85. behalf. To make a particular custom good, it must have been Requisites of. used immemorially (c); it must have been continued without Co. Litt. 113. interruption of the right; it must have been peaceable and Id. 114. acquiesced in, not subject to contention or dispute; it must be Ibid. reasonable; it ought to be certain, and not liable to change; it must be compulsory, and not optional in its observance. Litt. s. 212. Customs must be consistent with each other; one custom can- 565. not be set up in opposition to another. Special customs in dero- 9 Rep. 58. gation of the common law must be construed strictly. Thus, the custom of gavelkind that an infant of fifteen years may Construction convey away his lands for ever by feoffment does not authorize and allowance him to make any other kind of conveyance, or even to lease them for seven years. And all special customs must submit to Co. Cop. s. 33. the king's prerogative, as if the king purchase gavelkind lands

of.

(c) By 2 & 3 Wm. 4, c. 71, the time of prescription is shortened in certain cases. No claim, by custom, prescription, or grant, to any right of common, or other profit or benefit, except tithes, rent, and services, to be taken and enjoyed from any land, shall, where such right shall have been actually enjoyed by the person claiming it without interruption for thirty years, he defeated by showing only its commencement; and after sixty years' enjoyment, the right is absolute, unless had by agreement in writing. Claims to rights of way, or other easement, or to any watercourse, or to the use of water, cannot, after twenty years' uninterrupted enjoyment, be defeated, by showing only their commencement; and after forty years' enjoyment, they are indefeasible, unless had by consent in writing. A claim to the use of light enjoyed twenty years is indefeasible, unless shewn to have been by consent in writing. The before-mentioned periods are to be deemed those next before suits for claims to which such periods relate. In actions on the case, the plaintiff may allege his right generally; and in pleas to trespass, and other pleadings, where a party used to allege his claim from time immemorial, the periods mentioned in this act may be alleged, and exceptions, or other matters, must be replied to specially.

By 2 & 3 Wm. 4, c. 100, the time of prescription required in claims of modus decimandi, or exemption from, or discharge of tithes, is shortened in certain cases. See post, book 2, cap. 3.

Co Litt. 15. Particular laws.

where all the sons inherit equally, yet on his demise his eldest son alone shall succeed to them. Those particular laws which by custom are adopted, and used only in certain peculiar Hale Hist.C.L. courts and jurisdictions are the civil and canon laws, which,

c. 2.

Ibid. Whence in force.

Civil law.

Canon law,

though set forth by authority in pandects, codes, decrees, and decretals, may yet be classed under the head of the common law, because all the strength they have obtained in England has been owing to their having in some instances been admitted and received by immemorial usage in particular courts, or to their having in other cases been introduced by consent of parliament, and then they owe their validity to the leges scriptæ, or statute law. By the civil law absolutely taken is generally understood the civil or municipal law of the Roman empire, as comprised in the institutes, the code, and the digest of the emperor Justinian, and the novel constitutions of himself and some of his successors. The canon law is a body of Roman ecclesiastical law relative to such matters over which that church has, or claims to have, jurisdiction. 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 legates from the popes in the reign of Henry 3. The provincial constitutions are principally the decrees of provincial synods, held under the archbishops of Canterbury, from the reign of Henry 3, to the reign of Henry 5, and adopted by the province of York in the reign of Henry 6. At the dawn of the Reformation, it was enacted by 25 Henry 8, c. 19, that a review should be had of the canon law, and until such review should be made, all canons, constitutions, ordinances, and synods provincial then made, and not repugnant to the law and 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 Civil and canon England. There are four species of courts in which the civil and canon laws are permitted under different restrictions to be used. The courts of the archbishops and bishops, and their derivative officers called the ecclesiastical courts; the military courts; the courts of admiralty, and the courts of the two universities. The courts of common law have the superintendency over these courts, and the exposition of all acts of parliament which concern either their extent or the matters depending before them, and have the power to keep them

Burn's Eccl.
Law, pref.

viii.

law courts.

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. An appeal lies from all these courts to the king in the last resort.

The written laws of the kingdom comprise the second kind Statute law. of municipal law, and consist of statutes, acts, or edicts made by the king by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled. The oldest of these now extant is the famous magna charta 8 Rep. 20. as confirmed in parliament, 9 Henry 3. This law is distinguished into statutes general or special, public or private.

A general or public act is an universal rule that regards the Public acts. whole community, and of which the courts of law are bound

to take notice judicially and ex officio, without being pleaded

by the party who claims an advantage under it. Special or Private acts. private acts are rather exceptions than rules, and operate only upon particular persons and private concerns, and of these the judges are not bound to take notice, unless they are formally shown and pleaded. Thus the statute 13 Eliz. c. 10, to prevent spiritual persons from making leases for more than twenty-one years, or three lives, is a public act. But an act to enable a certain bishop to make a lease to A. B. for sixty years, is a private act. Statutes are either declaratory of the Statutes are common law, or remedial of some defects therein. Declara- declaratory or tory in declaring what the common law is where an old custom of the kingdom has almost fallen into disuse or is disputed; remedial, in curing such defects therein as arise from change of time or circumstances, or from unadvised determinations of judges, or other causes.

remedial.

In the construction of remedial statutes the old law, the Construction of mischief, and the remedy must be considered; that is, how statutes. the common law stood at the making of the act; what the mischief was for which the common law did not provide; and the remedy provided by parliament. 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. So a statute treating of deans, parsons, and others having spiritual promotion, is held not to extend to bishops,

Co. Litt. 11,42. 3 Rep. 7.

2 Rep. 46.

Penal statutes.

though they have spiritual promotion, deans being the highest persons named.

Penal statutes must be construed strictly. Statutes against frauds are to be liberally and beneficially expounded; the distinction between these and penal statutes being that the former acting upon the offender by inflicting a penalty, are to be taken strictly; but these acting upon the offence by setting aside the fraudulent transaction, are to be construed liberally.

One part of a statute must be construed by another, that the whole subject matter may rather operate than be annulled. A saving totally repugnant to the body of the act is void. When the common law and a statute differ, the former gives gives place to place to the latter, and an old statute gives place to a new one. If a statute that repeals another is itself afterwards repealed, the old statute is revived without any formal words for that

Common law

statute.

4 Inst. 325.

4 Inst. 43.

Of equity.

purpose.

Acts of parliament derogatory from the power of subsequent parliaments are not binding.

Acts of parliament which are impossible to be performed are of no validity.

These are the several grounds of the laws of England over and above which equity is frequently called in to assist to moderate and to explain them, and 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 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 of construing the law otherwise than according to the letter.

SECTION III

OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

What included by the common law within the

realm of England.

Wales-first

the laws of

THE kingdom of England, by the common law, includes the territory of England only, and does not comprehend either Wales, (a) Scotland, Ireland, or any of the Colonies. Wales had continued independent of England, unconquered and uncultivated in the primitive and pastoral state which introduction of Cæsar and Tacitus ascribe to Britain in general for many England into. centuries. Very early in our history we find their princes doing homage to the crown of England, till in the reign of Edward 1, the line of their ancient princes being abolished, the eldest son of the King of England became their titular prince, and the territory of Wales was annexed to the crown of Vaugh. 400. England.

By 27 Hen. 8, c. 26, and 34 & 35 Hen. 8, c. 26, Wales was united to England, all lands in Wales being made inheritable according to the English tenures and rules of descent, and the laws of England extended to that country. By the latter statute Wales was divided into twelve counties, and the privilege was reserved of having courts of justice within itself, independent of the process of Westminster Hall. (b) Scotland, notwithstanding the union of the two crowns, on the accession of James 1, in 1603, continued a distinct kingdom till 1707, when (6 Ann.) England and Scotland were united into one kingdom by the name of Great Britain, the succession to the monarchy being declared to be the same as that of England, and it being enacted that the United Kingdom should be represented by one parliament. Sixteen Scotch peers to represent the peerage of Scotland in Parliament, and forty-five members to sit in the House of Commons. (c)

The articles of the act of union provide for the preservation of the two churches of England and Scotland in the state they

Scotland

union of with

England.

Preservation churches,

of the two

(a) The distinct jurisdiction of the principality of Wales was abolished in 1830, by 11 Geo. 4, and 1 Wm. 4, c. 70.

(b) See the last note. The process of the courts of Westminster-hall is now of the same force in Wales as in England.

(e) By 2 & 3 Wm. 4, c. 65, the number of members for Scotland was increased to fifty-three.