1. 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, Note D. — T.
2. 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. — T.
3. Caes. de b. G. lib. 6. c. 13.
4. Spelm. Gl. 362.
5. c. 17.
6. See his proposals of a digest.
7. c. 2.
8. Hal. Hist. 55.
9. in Hen. II.
10. in Edw. Confessor.
11. in Seld. ad Eadmer. 6
12. Mod. Un. Hist. xxii 135.
13. Ibid xx. 211.
14. Ibid xxxiii. 21. 58.
15. That is from the reign of Richard the first .... See Black. Com. Vol. 2. p. 31. — T.
16. cap. 8.
17. Seld. review of Tith c. 8.
18. 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 his, quae certa sunt, subvertuntur."
19. 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. — T.
20. "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.
21. Pat. 15 Jac. I. p. 18, 17 Rym. 26.
22. 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. — T.
23. His reports, for instance, are styled kat exochn 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.
24. It is usually cited either by the name of Co. Litt. or as 1 Inst.
25. 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.
26. Ff. 1. 3. 32.
27. Ff. 1. 4. 1.
28. C. 1. 14. 12.
29. C. 1. 23. 5.
30. See Appendix, Note E. — T.
31. See the note, p. 63. — T.
32. 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. — T.
33. 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.
34. 8 Rep 126. Cro. Car. 347.
35. Winch. 24.
36. 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 1226.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. — T.
37. Co. Litt. 175.
38. Litt. §. 265.
39. Dr. & St. 1. 10.
40. Cro. Car. 516.
41. Hob. 85.
42. Litt. §. 212. 4 Inst. 274.
43. 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. — T.
44. Co. Litt. 113.
45. Ibid. 114.
46. Ibid.
47. Litt. § 212.
48. 1 Inst. 62.
49. Co. Copyh. § 33.
50. 1 Roll Abr 565
51. 9 Rep 58
52. See the case of Wiglesworth against Dallison and another, reported in Douglas, 190. — T.
53. Co. Cop. §. 33.
54. Co. Litt. 15.
55. Hist. C. L. c. 2.
56. 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.
57. l. 3. c. 34.
58. Taylor's elements of civil law 17.
59. See §. 1. p. 18.
60. 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. maybe considered as either utterly abolished, or, at least highly questionable. — T.
61. Burn's eccl. law, pref. viii.
62. Statute 25 Hen. VIII, c. 19, revived and confirmed by 1 Eliz. c. 1.
63. 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. c. 147. — T.
64. Stra. 1057.
65. 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. — T.
66. Hale Hist. c. 2.
67. 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. 13. — T.
68. 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. — T.
69. 8 Rep. 20.
70. The method of citing these acts of parliament is various. Many of our ancient statutes are called after the name of the place where the parliament was held that made them; as the statutes of Merton and Marlbridge, of Westminster, Gloucester, 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 ancient: 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 bulls; and in short by the whole body of ancient 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 its 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.
71. Gravin. Orig. 1. §. 24.
72. Private acts of Assembly may be given in evidence without pleading them specially. L. V. 1789. c. 28. (Edo. of 1794; 76. s. 30.) — T.
73. 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 F. — T.
74. 3 Rep. 7. Co. Litt. 11. 42.
75. Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.
76. 2 Rep. 46.
77. 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 etc." 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 "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, "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." .... Christian. "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. — T.
78. 2 & 3 Edw. VI. c. 33 Bac. Elem. c. 12.
79. 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. — T.
80. See L. V. 1785. c. 64. accordant. — T.
81. 3 Rep. 83.
82. 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 etc. void, only as against such persons, etc .... 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. — T.
83. 1 Rep. 47.
84. 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, though without any such repeal, the act being contrary to the constitution would be void of itself. But should 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. — T.
85. Jenk. Cent. 2. 73.
86. 11 Rep. 63.
87. 4 Inst. 325.
88. 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 passed." 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 Pendleton, president:
"An act passed November 12, 1792, relative to protested Bills of Exchange, repealing all former acts on the subject; and to commence from the passing.
"The 28th of December 1792, an act passed, declaring the operation of this and many other alike circumstanced, to be suspended until October 1st, 1793.
"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 1789.
"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. — T.
89. 4 Inst. 43.
90.Cum lex abrogatur, illad ipsum abrogatur, quo non eam abrogari oporteut. l ep. 23.
91. 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 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. — T.
92. 8. Rep. 118.
