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ment held in the 25th year of Henry VIII., that the ecclesiastical law should be subjected to revision; and that in the meantime such canons, constitutions, ordinances, and synodals already made, which were not repugnant to the law of the land or the king's prerogative, should still be in force. No such review has, however, yet been made." In the reign of Edward VI. a commission was appointed to draw up a code of ecclesiastical laws. It was accordingly compiled, but never obtained the sanction of parliament nor of the convocation. A new code of canons was, however, established in convocation, with the assent of King James I., in the year 1603,” legally obligatory on the clergy; but not having the full force of temporal law, because it never received a parliamentary sanction. The civil and canon laws are permitted (under divers restrictions) to be used in four species of courts: 1st, the courts of the archbishops and bishops, and their officials, as well as those of the archdeacon and of some ecclesiastical bodies having district jurisdictions,—these are called curiae Christianitatis, courts Christian, or ecclesiastical courts; 2dly, the courts military; 3dly, the courts of admiralty; 4thly, the courts of the two Universities. Lord Chief Justice Hale,” treating of the ecclesiastical courts and judges, says, “Though these are judices ordinarii, and have ecclesiastical jurisdiction annexed to their ecclesiastical offices, yet this jurisdiction ecclesiastical in foro exteriori is derived from the crown of England; for there is no external jurisdiction, whether ecclesiastical or civil, within this realm, but what is derived from the crown.” With this doctrine the soundest canonists agree. Hallam, Const. Hist. vol. i. p. 138 m. p. 259.

* Ibid. vol. i. p. 413 n. p. 414. * Hale, Hist. of Com. L. c. ii p. 30.

The proper jurisdiction of the Church is purely spiritual.1 It is enforced by ecclesiastical censures, and is binding on the conscience of the members of the Church Bo far as it extends to spiritual matters, or to the duty of the children of the Church towards her. So far the Church enjoyed a jurisdiction even during the times of the pagan emperors, as history abundantly shews. But the Church has received from temporal princes an external tribunal, where she administers justice in those matters to which her interior or purely spiritual jurisdiction extends, together with the power of compelling to obedience by physical means those who would neglect decrees having no sanction but spiritual censures. Besides this, the civil power has granted or conceded to the Church a jurisdiction over certain purely temporal affairs; such, for instance, as the cognizance of testamentary matters.

This last jurisdiction the state, who granted it, may entirely take away. The state may, in like manner, refuse to enforce by civil sanctions the spiritual authority of the Church ; but the state cannot evidently abolish or diminish that authority. No one will say that in the time of the pagan emperors the Christians were not bound to obey the principles of their religion and the precepts of their ecclesiastical superiors in ecclesiastical matters, though those superiors were outlawed by the state, and they themselves were punishable by law for their obedience. It must follow, then, that the state cannot deprive the Church of that authority which is properly her own,— which she did not derive from any human power,—and which she exercised even while under the persecution of temporal princes.

We must now proceed to the second and last great division of this chapter, namely, the Written Law.

1 Hericourt, L. Eccles. de France, p. 304, 305.

The written law of England is composed of statutes, or acts of parliament, made by the king, by and with the assent and advice of the lords spiritual and temporal in parliament assembled.1 The oldest of these now in the statute-book is the magna charta, enacted and confirmed by parliament in the reign of Henry HI.2 The statutes are divided into two classes, namely, ancient statutes, which are those that were enacted from magna charta to the end of Edward II.'s reign, and new statutes, which were promulgated since that time.3 Some, the exact date of which is doubtful, are called statiita incerti temporu. The most important division of the statutes is that by which they are classed a& general or special, public or private.*

A general or public act is an universal rule that regards the whole community, and of this the judges are bound to take notice ex officio, that is to say, without any party bringing it to their notice and claiming the benefit thereof. But special or private acts are rather exceptions than rules, being those which only operate on particular persons and prirate concerns. The judges are not bound to take notice of the statutes, unless they are pleaded or alleged to the court.

1 8 Rep. 20.

! Reeves, Hist . of Eng. Law, vol . i. p. 233. 3 Dwarris on Statutes, 626. Reeves, Hist, of Eng. Law, vol. ii. p. 85, 354.

1 Blackst . Com. introd. p. 85.

C

CHAPTER II.

ON EQUITY.

The law of England has in the preceding chapter been divided into two portions,—Common Law and Equity. The Common Law has been subdivided into common law strictly so called, or unwritten law, and statute or written law. The different species of unwritten law prevailing in England, and the nature of statute-law, have been briefly explained. The nature of Equity will be considered in this chapter, so far as it is possible to take a general view of that difficult and extensive subject without entering into historical deductions or details of cases, and confining ourselves strictly to the leading features which distinguish equity from law, as they are both now administered in this country.

Some preliminary observations are requisite, before we come to consider the peculiar kind of equity technically so called in England, and by which the tribunals called courts of equity, that is to say, the high Court of Chancery, the equity-court, Exchequer, and some inferior courts, regulate their decisions.

In its most ordinary acceptation the word equity is synonymous with justice. It, however, has a more strict and technical signification. Thus equity is sometimes mentioned as contradistinguished from strict law.1 Laws cannot be so framed as to comprehend and provide for

1 Voet ad Pand. L. 1.1. i. § 5, 6; and the laws there cited from the Code and Pandects.

every possible case within their scope or object.1 Thus the words of the law, according to their strict and literal meaning, may in particular instances lead to a subversion of the intention and principle of the law, and produce manifest injustice, either by comprehending some case to which the principle of the law does not extend, or by not embracing a case where the intention of the law was to give relief.2 Grotius adopts Aristotle's definition of the equity required in these cases: "Equity is an accurate interpretation, by means of which that which is defective in the law, by reason of the too general terms wherein it is conceived, is rectified."

The meaning of this definition, as explained by Pufendorf, is, that a true equitable interpretation consists in shewing, by principles of natural good sense, that a certain particular case is not comprehended within the meaning of a law, because, if it were so comprehended, some absurdity would necessarily follow.3

The same learned writer illustrates this by the wellknown case supposed in Cicero's treatise De Inventione: "It was forbidden by a law to open the gates of a town during the night. A man opened the gates at night for the purpose of admitting troops to succour the town, when

1 " Neque leges neque senatusconsulta ita scribi possunt, ut omnes casus, qni quandoque inciderint, comprehendantur: sed sufficit ea qua; plerunque accidunt contineri."—L. 10. ff. de It gib.

s Grotius, Droit de la Guerre et de la Paix, 1. ii. c. rvi. § 26. Pufendorf, Dr. des Gens, 1. L c. ii. § 8; l.v.c, xii. § 21. Blackst. Com. b. iii. p. 429, 430. Woodesson's Lectures, lect . vii.

3 St. Germain says, " In some cases it is necessary to leave the words of the law, and to follow that reason and justice requireth; and to that intent equity is ordained, that is to say, to temper and mitigate the rigour of the law," Sic. "And so it appeareth that equity taketh not away the very right, but only that that seemeth to be right, by the general words of the law."—Dr. and Stud., dial. i. c. xvi.

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