1911 Encyclopædia Britannica/Statute

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STATUTE, a law made by the "sovereign power" in the state (see Act of Parliament). It forms a part of the lex scripta, or written law, which by English legal authorities is used solely for statutory law, a sense much narrower than it bore in Roman law. To make a statute the concurrence of the Crown and the three estates of the realm is necessary. Thus a so-called statute of 5 Ric. II. c. 5, directed against the Lollards, was afterwards repudiated by the Commons as passed without their assent. The validity of a statute was indeed at times claimed for ordinances such as that just mentioned, not framed in accordance with constitutional rule, and was actually given to royal proclamations by 31 Hen. VIII. c. 8 (1539). But this act was repealed by Edw. VI. c. 12, and since that time nothing but a statute has possessed the force of a statute, unless indeed certain rules or orders depending ultimately for their sanction upon a statute may be said to have such force. Examples of what may be called indirect legislation of this kind are orders in council (see Privy Council), by-laws made under the powers of the Public Health Acts, Municipal Corporation Acts and other Acts, and rules of court such as those made under the powers of the Judicature Acts and Acts of Sederunt of the Court of Session.

The list of English statutes as at present existing begins with the Statute of Merton, 1235.[1] Many of the earlier statutes are known by the names of the places at which they were passed, e.g. the Statutes of Merton, Marlbridge, Gloucester, Westminster, or by their initial words, e.g. Quia Emptores, Circumspecte Agatis. The earliest existing statute roll is 6 Edw. I. (the Statute of Gloucester). After 4 Hen. VII. the statute roll ceased to be made up, and enrolments in chancery (first made in 1485) take its place. Some of the acts prior to the Statute of Gloucester are of questionable authority, but have gained recognition by a kind of prescription.

All statutes were originally public, irrespective of their subjectmatter. The division into public and private dates from the reign of Richard III. At present statutes are of four kinds, public general acts, public local and personal acts, private acts printed by the king's printers and private acts not so printed. The division into public general and public local and personal rests upon a resolution of both Houses of Parliament in 1798. In 1815 a resolution was passed in accordance with which private acts are printed, with the exception of name, estate, naturalization and divorce acts. The last two are now practically superseded by the provisions of the Divorce Act 1857 (except as to Ireland and India), and the Naturalization Act 1870. Since 1815 it has been usual to refer to public general acts by Arabic numerals, e.g. 3 Edw. VII. c. 21, public local and personal acts by small Roman numerals, e.g. 3 Edw. VII. c. xxi. Each act is strictly but a chapter of the legislation of the session, which is regarded as composing a single act divided into chapters for convenience, the chapters themselves being also called acts. The citation of previous acts is provided for by 13 and 14 Vict. c. 21, § 3. It is now usual for each chapter or act to contain a short title by which it may be cited, e.g. the Elementary Education Act 1870. The Short Titles Act 1892 created short titles for numerous single acts and groups of acts, and since then it has been usual to cite acts and groups by their short titles - where possible - rather than by the year of the reign. 8 & 9 Vict. c. 113, s. 3, makes evidence the king's printers' copies of private and local and personal acts. A private act not printed by the king's printers is proved by an examined copy of the parliament roll.

A public act binds all subjects of the realm, and need not be pleaded (except where the law from motives of policy specially provides for pleading certain acts, as in the defences of not guilty by statute, the Statute of Frauds and the Statute of Limitations). A private act must generally be pleaded, and does not as a rule bind strangers to its provisions. Formerly an act took effect from the first day of the session in which it was passed. The hardship caused by this technical rule has been obviated by 33 Geo. III. c. 13, by which an act takes effect from the day on which it receives the royal assent, where no other date is named. This has been held to mean the beginning of the day, so as to govern all matters occurring on that day. An act cannot in the strict theory of English law become obsolete by disuse. Nothing short of repeal can limit its operation. The law has, however, been interpreted in many cases with somewhat less rigour. In the case of a prosecution for blasphemy in 1883 (R. v. Ramsay) Lord Coleridge said, "though the principles of law remain unchanged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times."[2] This would be applicable as much to the interpretation of statutes as to other parts of the common law. The title, preamble and marginal notes are strictly no part of a statute, though they may at times aid its interpretation.

Besides the fourfold division above mentioned, statutes are often classed according to their subject-matter, as perpetual and temporary, penal and beneficial, imperative and directory, enabling and disabling. Temporary acts are those which expire at a date fixed in the act itself. Thus the Army Act is passed annually and continues for a year; the Ballot Act 1872 expired at the end of 1880, and the Regulation of Railways Act 1873 at the end of five years. By means of these temporary acts experimental legislation is rendered possible in many cases where the success of a new departure in legislation is doubtful. In every session an Expiring Laws Continuance Act is passed for the purpose of continuing (generally for a year) a considerable number of these temporary acts. By 48 Geo. III. c. 106 a continuing act is to take effect from the date of the expiration of a temporary act, where a bill for continuing the temporary act is in parliament, even though it be not actually passed before the date of the expiration. Penal acts are those which impose a new disability; beneficial, those which confer a new favour. An imperative statute (often negative or prohibitory in its terms) makes a certain act or omission absolutely necessary, and subjects a contravention of its provisions to a penalty. A directory statute (generally affirmative in its terms) recommends a certain act or omission, but imposes no penalty on nonobservance of its provisions. To determine whether an act is imperative or directory the act itself must be looked at, and many nice questions have arisen on the application of the rule of law to a particular case. Enabling statutes are those which enlarge the common law, while disabling statutes restrict it. This division is to some extent coincident with that into beneficial and penal. Declaratory statutes, or those simply in affirmance of the common law, were at one period not uncommon, but they are now practically unknown. The Treason Act 1351 is an example of such a statute. Statutes are sometimes passed in order to overrule specific decisions of the courts. Examples are the Factors Act 1877, the Territorial Waters Jurisdiction Act 1878, the Married Women's Property Act 1893, the Trade Disputes Act 1906.

The construction or interpretation of statutes depends partly on the common law, partly on statute. The main rules of the common law, as gathered from the best authorities, are these: (1) Statutes are to be construed, not according to their mere letter; but according to the intent and object with which they were made. (2) The relation of the statute to the common law is to be considered. In the words of the resolution of the Court of Exchequer in Heydon's case, 3 Coke's Rep. 7, the points for consideration are: "(a) What was the common law before the making of the act ? (b) What was the mischief and defect against which the common law did not provide? (c) What remedy the parliament hath resolved and appointed to cure the disease of the Commonwealth? (d) The true reason of the remedy." (3) Beneficial or remedial statutes are to be liberally, penal more strictly, construed. (4) Other statutes in pari materia are to be taken into consideration. (5) A statute which treats of persons of inferior rank cannot by general words be extended to those of superior rank. (6) A statute does not bind the Crown, unless it be named therein. (7) Where the provision of a statute is general, everything necessary to make such provision effectual is implied. (8) A later statute repeals an earlier, as far as the two are repugnant, but if they may stand together repeal will not be presumed. (9) There is a presumption against creation of new or ousting of existing jurisdictions, against impairing obligations, against retrospective effect, against violation of international law, against monopolies, and in general against what is inconvenient or unreasonable. (to) If a statute inflicts a penalty, the penalty implies a prohibition of the act or omission to which the penalty is imposed. Whether the remedy given by statute is the only one depends on the words of the particular act. In some cases an action or an indictment will lie; in others the statutory remedy, generally summary, takes the place of the common law remedy. In some instances the courts have construed the imposition of a penalty as operating not to invalidate a contract but to create a tax upon non-compliance with the terms of the statute. The Interpretation Act 1889 provides an authentic interpretation for numerous words and phrases of frequent occurrence in statutes. In addition to these general provisions most statutes contain an interpretation clause or interpretation clauses dealing with special words or phrases. A very detailed example is s. 742 of the Merchant Shipping Act 1894.

The earlier acts are generally simple in character and language, and comparatively few in number. At present the number passed every session is enormous; in the session of 1906 it was 58 general and 212 local and personal acts, the former being under the average. Without going as far as to concede with an eminent legal authority that of such legislation three-fourths is unnecessary and the other fourth mischievous, it may be admitted that the immense library of the statutes would be but a trackless desert without trustworthy guides. Revision of the statutes was evidently regarded by the legislature as desirable as early as 1563 (see the preamble to 5 Eliz. c. 4). It was demanded by a petition of the Commons in 1610. Both Coke and Bacon were employed for some time on a commission for revision. In 1861 was passed the first of a long series of Statute Law Revision Acts. The most important action, however, was the nomination of a revision committee by Lord Chancellor Cairns in 1868, the practical result of which has been the issue of an edition of the Revised Statutes in eighteen volumes, bringing the revision of statute law down to 1886. This edition is of course subject to the disadvantage that it becomes less accurate every year as new legislation appears. A Chronological Table and Index of the Statutes which are still law is published from time to time by the council of law reporting.

The chief editions of the British statutes are the Statutes of the Realm printed by the king's printers, Ruff head's and the fine folio edition issued from 1810 to 1824 in pursuance of an address from the House of Commons to George III.

Authorities. - The safest authority is of course the Revised Statutes. Chitty's collection of Statutes of Practical Utility is a useful compilation. Among the earlier works on statute law may be mentioned the readings and commentaries on statutes by great lawyers, such as the second volume of Coke's Institutes, Bacon's Reading on the Statute of Uses, Barrington's Observations on the more ancient Statutes from Magna Carta to the 21 Jac. I. c. 27 (5th ed., 1796), and the Introduction to Blackstone's Commentaries. Among the later works are the treatises of Dwarris (2nd ed., 1848) and Sir P. B. Maxwell (3rd ed., 1905) and Hardcastle (3rd ed., 1901). On the interpretation of statutes, see Lord Farnborough, The Machinery of Parliamentary Legislation (1881); Sir C. P. Ilbert, Legislative Methods and Forms (1901); Sir H. Thring, Practical Legislation, or the Composition and Language of Acts of Parliament (1902).

Scotland.

The statutes of the Scottish parliament before the union differed from the English statutes in two important respects: they were passed by the estates of the kingdom sitting together and not in separate houses, and from 1367 to 1690 they were discussed only after preliminary consideration by the lords of the articles.[3] An act of the Scottish parliament may in certain cases cease to be binding by desuetude. "To bring an act of parliament like those we are dealing with" (i.e. the Sabbath Profanation Acts) "into what is called in Scots law the condition of desuetude, it must be shown that the offence prohibited is not only practised without being checked but is no longer considered or dealt with in this country as an offence against law" (Lord Justice General Inglis in Bute's case, i Couper's Rep., 495). Acts of the imperial parliament passed since the union extend in general to Scotland, unless that country be excluded from their operation by express terms or necessary implication. Scottish acts are cited thus, 1678, c. io. The best edition is that issued by order of the Treasury, 1844-1875. An edition of the revised statutes has been facilitated by the repeal of obsolete statutes by the Statute Law Revision (Scotland) Act 1906.

Ireland.

Originally the lord deputy appears to have held parliaments at his option, and their acts were the only statutory law which applied to Ireland, except as far as judicial decisions had from motives of policy extended to that country the obligation of English statutes. In 1495 the act of the Irish parliament known as Poynings' Law or the Statute of Drogheda enacted that all statutes lately made in England be deemed good and effectual in Ireland. This was construed to mean that all statutes made in England prior to the 18 Hen. VII. were valid in Ireland, but none of later date were to have any operation unless Ireland were specially named therein or unless adopted by the Irish parliament (as was done, for instance, by Yelverton's Act, 21 & 22 Geo. III. c. 48 (I.). Another article of Poynings' Law secured an initiative of legislation to the English privy council, the Irish parliament having simply a power of acceptance or rejection of proposed legislation. The power of the parliament of Great Britain to make laws to bind the people of Ireland was declared by 6 Geo. I. c. 5. This act and the article of Poynings' Law were repealed in 1782, and the short-lived independence of the parliament of Ireland was recognized by 23 Geo. III. c. 28. The application of acts passed since the union is the same as in the case of Scotland. Divorce acts are still passed for Ireland (see DlvoRcE). Irish acts are cited thus, 26 Geo. III. c. 15 (I.) or (Ir.). The best edition is that issued in twenty volumes pursuant to an order of the earl of Halifax, lord-lieutenant in 1762. A volume of revised statutes was published in 1885. The earliest that is still law is one of 1459.

British Colonies and Dependencies.

Acts of the imperial parliament do not extend to the Isle of Man, the Channel Islands or the colonies, unless they are specially named therein. By the Colonial Laws Validity Act 1865 ("the charter of colonial legislative independence") any colonial law repugnant to the provisions of any act of parliament extending to the colony is void to the extent of such repugnancy, and no colonial law is to be void by repugnancy to the law of England unless it be repugnant to such an act of parliament. For colonies without representative legislatures the Crown usually legislates, subject to the consent of parliament in particular cases. Examples of imperial legislation for the colonies in general are the Colonial Stock Act 1877, and the Colonial Courts of Admiralty Act 1890. For imperial acts dealing with particular colonies may be cited the British North America Act 1867, and the Commonwealth of Australia Constitution Act 1900. A colony is defined for the purposes of imperial legislation by the Interpretation Act 1889, s. 18. In many of the colonies, as in Canada, the constitutionality of an act of the colonial legislature is, as in the United States, a matter for the determination of the local court or of the judicial committee of the privy council on appeal.

United States.

By the constitutions of many states English statute law, as it existed at the time of the separation from England, and as far as it is applicable, has been adopted as part of the law of the states. The United States and the state are not bound by an act of Congress or a state law unless specially named. The states legislate for themselves within the limits of their own constitution and that of the United States. Here appears the striking difference between the binding force of a statute of the United Kingdom and an act passed by Congress or a state legislature. In the United Kingdom parliament is supreme; in the United States an act is only of authority if it is in accordance with the constitution. The courts may declare an act void if it contravene the constitution of the United States or of a state, so that practically the Supreme Court of the United States is the ultimate legislative authority. The restrictions upon Federal legislation in the constitution of the United States provide against the suspension of the writ of habeas corpus except in case of rebellion or invasion, the passing of a bill of attainder or ex post facto law, the imposition of capitation or other direct tax, unless in proportion to the several states, or of a tax or duty on exports, the preference of the ports of one state over those of another, the drawing of money from the treasury except by appropriations made by law, and the grant of a title of nobility. Constitutional amendments contain further limitations, e.g. the taking of private property for public use without just compensation, and the abridging of the right of citizens on account of race, colour or previous condition of servitude. State legislation is limited by s. 10: "No state shall. .. make anything but gold and silver coin a tender in payment of debts, pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility." The section further forbids. imposition of duties on imports or exports or any duty of tonnage without consent of Congress. State constitutions often contain further restrictions; among the more usual are provisions against laws with a retrospective operation, or impairing the obligation of contracts, or dealing with more than one subject to be expressed in the title. The time when a statute is to take effect after its passing is often fixed by state constitutions. The statutes of the United States were revised under the powers of an act of Congress passed in 1874 (sess. i. c. 333), and the volume of Revised Statutes was issued in 1875. There was a second edition in 1878 and several supplements have appeared since that date. Many of the states have also issued revised editions of their statutes. The rules of construction are in general agreement with those adopted in England. In some states the referendum has been introduced in certain cases.

Continental European Countries.

In most European countries there is a code, the existence of which. makes the system of legislation hardly comparable to ours. The assent of two chambers and of the monarch, or president, is generally necessary. Greece is an exception; it is the only state in Europe with one chamber.

International Law.

The term "statute" is used by international jurists and civilians. mostly on the continent of Europe to denote the whole body of the municipal law of the state. In this sense statutes are either real, personal or mixed. A real statute is that part of the law which deals directly with property, whether movable or immovable. A personal statute has for its object a person, and deals with questions of status, such as marriage, legitimacy or infancy. A mixed statute affects both property and person, or, according to some authorities, it deals with acts and obligations. Personal statutes are of universal validity; real statutes have no extra-territorial authority. The determination of the class under which a particular law ought to fall is one of great difficulty, and one in which there is often a conflict of legal opinion. On the whole the division appears to have created more difficulties than it has solved, and it is rejected by Savigny as unsatisfactory.

See Story, Conflict of Laws, §§ 12-16; Phillimore, International Law, vol. iv. ch. xvi.; Pillet, Principes de droit international privi,. chs. xi. and xii. (J. W.)

  1. Ruffhead's edition of the statutes begins with the Magna Carta of 1225. But in the Revised Statutes that form of Magna Carta which is now law appears as a statute of the year 1297. It is often known as Confirmatio cartarum, and is a recital and confirmation by Edward I. of the chief provisions of John's charter.
  2. This opinion carries out to a certain extent the view of Locke, who in article 79 of his Carolina Code recommended the determination of acts of the legislature by effluxion of time after a hundred years from their enactment.
  3. The Scottish parliament from an early date discharged its functions by the aid of two committees known as the legislative and judicial committees. The legislative committee were termed lords of the articles and existed until 1688. The judicial committee were called lords auditors.