1902 Encyclopedia > Statute


STATUTE, or Act of Parliament, is a law made by the sovereign power in the state, that is, the king, by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled. 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. But this Act was repealed by 1 Edw.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 Act, 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 history of statutory legislation and the modern procedure by which bills become statutes are sufficiently treated under ACT OF PARLIAMENT and PARLIAMENT. It is proposed in this place to deal with the legal rather than the political aspect of the subject, and to give a short list of some of the more important statutes which have been passed by the legislature.

The list of statutes as at present existing begins with the Statute of Merton, 1235. 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, irrespectively of their subject matter. 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 queen'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, and the Naturalization Act, 1870. Since 1815 it has been usual to refer to public general Acts by Arabic numerals, e.g., 5 and 6 Vict. c. 21, public local and personal Acts by small Roman numerals, e.g., 5 and 6 Vict, 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. Sometimes a series of Acts is grouped under a generic title, e.g., the Merchant Shipping Acts, 1854 to 1883. 8 and 9 Vict. c. 113, § 3, makes evidence the queen's printers' copies of private and local and personal Acts. A private Act not printed by the queen'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 some recent cases with somewhat less rigour. In the case of a prosecution for blasphemy in 1883 (Reg. 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 circum-stances of the times." 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 in 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 non-observance 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 Statute of Treasons of Edward III. 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 Sale of Food and Drugs Act, 1879.

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 accord-ing 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—"1, What was the common law before the, making of the Act 1 2, What was the mischief and defect against which the common law did not provide 1 3, What remedy the parliament hath resolved and appointed to cure the disease of the Commonwealth 1 4, 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 pro-vision 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. (10) If a statute inflicts a penalty, the penalty implies a prohibition of the act or omission for 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 few 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. What may be called the statutory rules of construction provide, inter alia, that any Act referring to England includes Wales and Berwick-upon-Tweed (20 Geo. II. c. 42), and that all words importing the masculine gender shall be taken to include females, and the singular to include the plural and the plural the singular (13 & 14 Vict. c. 21, § 4). The same Act further provides that, where any Act repealing in whole or in part any former Act is itself repealed, such last repeal shall not revive the Act or provisions before repealed unless words be added to that effect (§ 5), and that, wherever any Act shall be made repealing in whole or in part any former Act and substituting some provision or provisions instead of the provision or provisions repealed, such provision or provisions so repealed shall remain in force until the sub-stituted provision or provisions shall come into operation by force of the last Act (§ 6). Numerous interpretations of particular words are contained in Acts of Parliament, either general, as "month," "county," "land," and other words in 13 and 14 Vict. c. 21, § 4, or for the purposes of the Act, as "settlement" for the purposes of the Settled Land Act, 1882.

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 1885 it was 80 general and 190 local and personal Acts. 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. Eevision 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. At times Consolidation Acts in the nature of digests of law (generally amending as well as consolidating) were passed, such as the Merchant Shipping Act, 1854, and the Criminal Law Consolidation Acts of 1861. 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 1878. This edition is of course subject to the disadvantage that it becomes less accurate every year as new legislation appears. An index to the statutes which are still law is published about every three years by the Council of Law Reporting.

The principal statutes may be classified under various heads according to the matter with which they deal. It should be remembered at the same time that many of them—Magna Carta, for example—-might fall with equal correctness under more than one head. A division, convenient, if not exhaustive, would be into historical, con-stitutional, legal, and social.

Historical.—Under this head would come those Acts which to a greater or less extent mark important epochs in the national history, such as the Statute of Rhuddlan, the Acts of Union defining the relations of Wales, Scotland, and Ireland to England, the Act of Settlement, the Stamp Act of 1765—the proximate cause of the revolt of the American colonies,—the Acts abolishing the slave trade and the corn laws, and those defining the position of dependencies, such as the Act for the Better Government of India, 1858, and the British North America Act, 1867.

Constitutional.—The, principal Acts of this class would be Magna Carta, the statutes De Tallagio non Concedendo and De Praerogativa Regis and those dealing with mort-main and treason, the Petition of Bight, the Bill of Bights, the Septennial Act, the Royal Marriage Act, the Mutiny, Militia, Naval Discipline, and Foreign Enlistment Acts, and the Acts affecting the parliamentary franchise from the time of Henry VI. to the Redistribution of Seats Act, 1885. Under this head too might be placed the numerous Acts dealing with the question of religion. Some of the more interesting of these are the Articuli Cleri, the Statutes of Provisors, the Acts of Henry VIII. abolishing monasteries, the Acts of Supremacy and Uniformity of Henry VIII., Elizabeth, and Charles II., the Toleration, Catholic Emancipation, Tithe Commutation, Church Discipline, Public Worship Regulation, Irish Church, and Scottish Patronage Abolition Acts.

Legal.—The most important of this class are perhaps the Statutes of Quia Emptores and De Donis, the Statutes of Uses and of Wills, the Statutes of Limitation, the Statute of Frauds and its amendments, the Fines and Recoveries Act, the Conveyancing, Settled Land and Settled Estates, and Married Women's Property Acts, and the Acts for the amendment of procedure, e.g., the Chancery Amendment, Common Law Procedure, Judicature, and Appellate Jurisdiction Acts.

Social.—Social legislation (other than mere sumptuary laws) is of comparatively modern introduction. Among earlier instances are the Statute of Labourers of Edward III. and the Poor Law of Elizabeth. More modern examples are the Factory, Public Health, and Artisans' Dwellings Act, and, perhaps greatest of all, the Education Acts. Besides these there are the Acts dealing with patent, copyright, summary jurisdiction, friendly and building societies, trades unions, savings banks, theatres, commons preservation, and agricultural holdings. Acts which have trade for their special object are the Bank Charter, Merchant Shipping, Bills of Lading, Bills of Exchange, Crossed Cheques, Factors, Stamp, Licensing, Bankruptcy, and Trade Marks Acts.

The chief editions of the statutes are the Statutes of the Realm printed by the queen's printers, Bullhead's, and the fine edition issued from 1810 to 1824 in pursuance of an address from the House of Commons to George III. 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 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 (2d ed. 1848) and Sir P. B. Maxwell (2d ed. 1883) on the interpretation of statutes, and Sir H. Thring's Practical Legislation, or the Composition and Language of Acts of Parliament.

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 Articles. An Act of the Scottish parliament may in certain cases cease to be binding by desuetude. "To bring an Act of Parlia-ment like ,those we are dealing with" (i.e., the Sabbath Profana-tion Acts) "into what is called in Scotch 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, 1 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.

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 obliga-tion of English statutes. In 1495 the Act of the Irish parliament known as Poyning's 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 and 22 Geo. III. c. 48, i.). Another article of Poyning's 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 Poyning's 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.

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 28 and 29 Vict. c. 63 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. For instance, it was the opinion of the judicial committee of the privy council in 1876 that a cession of British territory in India to a native state would probably need the concurrence of the imperial parliament (Damodhar Gordhan v. Deoram Kanji, Law Rep., 1 Appeal Cases, 332).

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. Examples of recent cases where the constitutionality of an Act has been contested will be found under PAYMENT and PRIVILEGE. The restrictions upon legislation contained 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 accordance with a previous article of the constitution, 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. The amended constitution contains 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 § 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 (frequently amended since) was issued on February 22, 1875. 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. See Sedgwick, Statutory Law.

International Law.—The term statute is used by international jurists and civilians 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 extraterritorial 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. (J. W†.)

The above article was written by: James Williams.

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