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public acts, of which the records cannot now be discovered, and which are only handed down to us in mutilated fragments, were passed by the parliaments of the preceding century. The erudition and industry of our modern juridical antiquaries has probably now brought forth all that the world is likely ever to know of these vestiges of our early statute law; and however little of it may be living in our practice, we certainly have at this day an opportunity of being better acquainted than our ancestors during the reigns of the Stuarts, with the laws passed under the preceding dynasties of kings. To the student who examines the laws of his country from their source downwards, these fragments, now so well arranged and so fully explained by introductions and comments, are matter of great interest. The legal practitioner may even in some cases be able to reflect light from them on disputed interpretations of the older subsisting statutes or the peculiar feudal usages of the kingdom, but they are not, in the modern practical sense of the term, Acts of parliament, having authority as laws of the realm simply because they are the declared will of the supreme legislative power.
The older editions of the Scottish statutes in use among lawyers, and the second volume of the large edition published by the Record Commission, commence with the reign of James I., the period to which the representation of the small freeholders in parliament owes its origin. That king had spent great part of his life in England; the laws and customs of our southern neighbours began to be studied ; and it is likely that the advantage of making the acts of parliament an enunciation of distinct directory propositions, guarded by punishment for transgression, was then substituted for the looser method of the old proceedings, which were a mixture of the legislative, the judicial, and the executive. The oldest act now in practical force is the eleventh of the parliament 1424, “ Of Cruives Zaires and Satterdaies Slop," as continued and interpreted by the act 1477, c. 73. In 1449, the important act by which the rights of lease granted to agricultural tenants are made effectual against the successors of the granter was passed, and the act establishing the long prescription is twenty-five years later in date. Thus we find enacted at this early period some of those statutes which are still in force as essential elements in our law. But it must be kept in view that another circumstance besides their mere enactment has given them this position. They have been, according to the tech
nicality of the law, in viridi observantiâ. They derive their authority as law, not only from the circumstance of their having been passed by the legislature, but from that of their having been brought down to our time by an uninterrupted train of practice. From this double sanction which is required for our old statute law, we have thus in Scotland the peculiarity that our acts of parliament may be repealed by desuetude. It might seem at first sight that the acts of parliament have thus no better position than that of consuetudinary laws, whose terms are not to be found in their first promulgation, but in the form in which they are delivered to us by the decisions of the courts, and the commentaries of the jurists : but this is not strictly the case, for whenever a statute is appealed to, the words of the statute must be the foundation of the law, and the comments or decisions can only be taken as interpretations of its meaning. It has certainly, however, in some cases happened that a meaning has been attributed by the courts to a statute, which has at a later date been discovered to be a false one; and if a long practice has established the misinterpretation as rooted and established law, the court has seldom thought fit to vitiate the old established practice by sanctioning the new interpretation.
These principles will be seen to be very distinct from those of the practice of the statute law of England, where an act which has once become part of the statute book, however long it may have been neglected, is at any time liable to be enforced if it have not been expressly repealed by some later statute. The lax manner in which the Scottish statutes were carried through parliament may have been partly the cause of their not having been strictly interpreted by the courts. When a British act of the present day is passed, it is presented to parliament in the form of a Bill word for word as it is to stand when passed into an Act. If there should be differences of opinion as to the precise wording of particular clauses, these are all settled in committee; and being adjusted and written out, the whole document is laid before the house, who either pass or reject it. The act when passed thus contains the very words in which it received the assent of parliament. But in Scotland the acts were drawn up, after the substance of them had been passed, by the Lord Clerk Register, and thus it was open to
i See in Gibson v. Forbes, 9th July 1833, Lord Fullerton's opinion, showing that the meaning of the act 1696, c. 5, had been misunderstood during a long series of practice.
doubt whether they correctly expressed the will of parliament on the matter on which they intended to legislate.
British Acts. The statutes of the British parliament are of three classes, Public General, Public Local, and Private Acts: In their quality as laws there is no difference between the first and second class, and they are only distinguished by being separately printed and separately numbered during each session. This separation is a matter of comparatively late arrangement, and is found on looking back to the statute book to have been first practised in the 38th Geo. III. (1798). Before that time, the chapters were consecutively numbered as they were passed, without distinction between general and local. To prevent confusion, it is usual to refer to the public general statutes by the Arabic numerals (as 2 Vict. c. 88); and to the public local statutes by Roman numerals (as 2 Vict. c. LXXXVIII). The public local statutes of a session now occupy about four times the bulk of the general acts, and constitute a branch of our law increasing with such rapidity, that each session gives birth to an amount of legislation scarcely smaller than the whole extent of the statute law at the time when Bacon complained of its unwieldy bulk. The chief
? There is no doubt that at a very early period a similar defect characterized the English statute law. During the reigns of the earlier Edwards, the practice in passing laws was for the parliament to petition and the king to assent, and the substance of the petitions and assents was at the end of a session rendered into a statute of so
apters by the judges. The Commons occasionally complained that laws thus made their appearance on the statute book to which they had never consented. Thus the act 5 Rich. II. st. ii. c. 5, was the object of a declaration by the Commons to the effect that they had not given their consent to it. So early, however, as the reign of Henry VI., the plan of having the bill previously written out, and then passing it into a law-the only means by which it can be known whether every sentence and word is adopted by the legislature-came in practice. As appropriate to this matter, it may be observed that the notions regarding the royal assent were very different in the two countries. In England it has always been viewed as that sanction by the third estate in the legislature which is necessary to convert the bill into a law; and though there has been for upwards of a century no instance where it was withheld, and no such incident is likely ever to occur, a bill without the Assent is not law according to the British constitution. In Scotland the king performed the formality of touching each act with the sceptre; but this appears rather to have been an acknowledgment on his part that the statutes were laws of the realm, than an act of assent converting them from mere unauthorized drafts into binding laws. In Scotland the royal influence on the legislation of parliament was exercised in the earlier stages of measures, through the Lords of the Articles ; and it has been held, that even if the king failed to touch with his sceptre an act which had passed the estates, it would still be law.
2 It is sometimes of great importance to the practitioner to have the means of referring to local acts, and it is perhaps not generally known that in 1840 a very full index, according to the names of places, was
objects of Local legislation are the Police of towns, Turnpike and Commutation roads, Bridges, Harbours, Railways, Canals, Insurance companies, and other Joint-stock works and Public Companies. As they are presumed to affect private parties in their privileges and property, and not to be matter of general public interest, both houses of parliament have from time to time passed certain standing orders embodying preliminary rules as to advertisements and notices, which must be complied with before such acts can pass through the usual stages of parliamentary measures. From this circumstance, local acts cannot be passed with the same rapidity as public general statutes, and on one or two occasions, where important interests were at stake, measures properly of a local character have been passed as public general statutes for the sake of expedition. A plan has been lately adopted, which it has been supposed may in some measure curtail, or at least check, the accelerating increase of the future proportional amount of local legislation. All acts relating to certain specific matters, e.g. railways, turnpike roads, &c., have or ought to have a certain set of clauses to the same effect. Some public general statutes have been passed embracing these clauses; for instance, the 8th and 9th Vict. c. 33, is an act " for consolidating into one act certain Provisions usually inserted in acts authorizing the making of Railways in Scotland." During the same session, two other statutes of the same description were passed, called “ The Lands' Clause's Consolidation (Scotland) Act;" and "The Public Companies' Consolidation (Scotland) Act."
It is a rule derived from the long established practice in England, already alluded to, that a public act of the British parliament does not fall into desuetude, and that parties having an interest to do so may at all times insist on its literal fulfilment. As language, even that of an act of parliament, is not always a perfectly transparent medium, the real meaning of the terms of a statute is of course frequently a matter of dispute, and a long series of decisions, chiefly in the English courts, is held to have permanently fixed the force and effect of certain forms of expression when they are used in acts of parliament. It has occasionally occurred that statutes being drawn with reference to English practice
printed by order of the House of Commons, as applicable to all the local acts from 1798 to 1839 inclusive. The local acts of the earlier sessions will be found in the indexes to Ruffhead's edition of the Statutes at Large.
For an account of these, see Gael's Practical Treatise on the Analogy between Legal and General Composition.
are not easily applicable in Scotland without resorting to a very wide interpretation of their meaning; and on some occasions, where it is evident that a clause is intended to be enforced in Scotland, effect has been necessarily denied to it, because the terms employed were incapable of any practical application to our institutions. Thus, by 52 Geo. III. c. 93, it was enacted that an appeal might be had from the decisions of certain justices to “ the Justice Clerk, or any other officer of the Court of Justiciary, of the shire, stewartry, city, liberty, or place, in Scotland." These terms were found by the Court of Justiciary to be so inapplicable to our judicial tribunals, that the clause could not be enforced.
Private acts are in a different position from either the public general or public local statutes. They are mere obligatory documents, like contracts with clauses of registration, or the decisions of courts, which no judge is bound to interpret as the public known law of the land, but which must be specially pleaded by the party demanding benefit under them, before they can be enforced.
Sect. II.— Traditional, Judicial, and Institutional Law.
Old Customs.-It is usual for jurists to divide laws into Written and Unwritten, a distinction which is perhaps more fully expressed by the terms Legislative and Consuetudinary. The former consist of the rules laid down by one or more persons possessed of legislative power,—the latter are created by custom and general practice, and have their sanction as laws in being enforced by the established judicial tribunals. In the present day, the Statutes represent the written law, the legal Treatises and the Decisions of the courts the unwritten. In the early history of our legal system the distinction is not so complete. There are several venerable collections of laws which partake of the nature both of legislative acts, and consuetudinary laws growing out of systematic usage and collected together into a general digest by some compiler. Such collections of laws appear to have sometimes been acknowledged by parliamentary or other authority, and afterwards to have received additions and alterations from subsequent compilers; while some of them are general compilations, of such laws, whether passed by parliamentary authority or arising from custom, as have been in force at the date of their collection. Around the provincial customs in which our rude and early laws had their origin, the pro
Shanks v. Neilson, Swinton's R. i. 617.