« ZurückWeiter »
In the case of Pike v. Bayley, cited under the head of Pleading in our abstract, the court decide a plea of non-tenure in abatement, to be bad on demurrer, because it does not conclude more formally. This seems to be adhering to the established forms with great strictness.
We observe one omission in this volume; it does not give the names of the judges of the court whose decisions are reported. They will probably be given when the rest of the volume shall be published. But it is satisfactory to know in each case what judges were present and concurred in the decision, which is done either by giving the names of the judges in the beginning of the volume, and noting the absence of any one at any particular term, or in any particular case, as is done in some of the old reports, or by giving the names of the judges present at the beginning of the session in each county.
ART. IX.-PROVINCIAL AND COLONIAL LAWS.
The Force of Provincial and Colonial Laws and Customs
since the Establishment of Independence. Nothing can be more important to a free people, desiring and professing to be governed by fixed laws, than to know with certainty what provisions have the force and effect of binding laws. In many countries, uncertainties upon this subject have existed to such a degree as to render the rights of property in a great measure insecure. In many places customs prevail, having to a greater or less degree the force of law. In France, before the adoption of the Code, different customs prevailed in different provinces and districts, so that very different systems of law were to be administered by the same tribunals, and over people yielding obedience to one and the same government.
Another class of inconveniences, though of a somewhat similar character, arises where there is an uncertainty as to the authority of different acts, having to an extent the force of law, such as the decrees, rescripts, ordinances, and other acts, emanating from different authorities, and uncertain as to their force, their extent, and duration. Thus the imperfection of the laws of the Roman empire arising from these causes, previous to the time of Justinian, was one of the motives which led to the formation of the Digests and Institutes during his reign, out of the multiform and vast materials supplied by the twelve tables, plebiscita, senatus-consulta, prætorian edicts, imperial decrees, and responses of the jurisconsults.
Happily in this country we are in a good degree exempt from the doubts and difficulties arising from these causes; and although those of another character, arising from the number of legislative bodies in the United States, and the rapidity with which they move, and the consequent multiplicity of legal enactments, render it difficult for the acutest practitioner, without extreme labor and research, to keep pace with them ; yet such is the character of all our constitutions, that there is now no difficulty in determining whether any particular act emanates from a legitimnate authority. All these constitutions provide particularly the manner in wbich the legislative power shall be constituted and exercised. No act, unless it have the sanction of the regularly constituted legislative power, and be framed, authenticated, and promulgated in the course required by the constitution, can require the obedience, regulate the conduct, or affect the rights of the citizen. No proclamations, orders, ordinances, or similar acts, emanating from executive or judicial authorities, can have the force of law.
In some few instances, indeed, in the practice of the United States, an authority has been given to the President to enforce or suspend, particular legislative provisions, at his discretion; these, however, can hardly be considered exceptions to the general rule, inasmuch as the law derives its full force and effect, when in operation, from the authority and sentence of the legislature, regularly exercised, and nothing but the time, either of its commencement or termination, is left to be decided by the executive. And it is to be hoped that this limited power will be delegated sparingly, and only in cases of urgency, and upon high considerations of policy and expediency, to enable the President to negotiate more effectually with foreign powers. This power should be given sparingly, lést the people should gradually become habituated to overlook the distinction between the constitutional and the delegated powers of the executive, and to attribute a higher degree of weight and authority to executive acts, than are warranted by the constitution.
But although there may be little difficulty, with proper inquiry and research, to ascertain among modern acts, what have or have not the force of law, and as such demand the obedience, and affect the rights of the people ; yet there is a real difficulty in determining, among those which have been transmitted to us from our ancestors, those that are entitled to this character. This is a most important subject, and one well deserving the attention, particularly of the older American jurists, still remaining, whose experience and traditionary knowledge extend to a period antecedent to, or coeval with the revolution. No doubt, many customs, arising from our peculiar situation and the nature of our early institutions, many alterations and modifications of the English common law, were adopted in all the colonies, which are essential to the support and maintenance of ancient titles, but of which there is no record or evidence, except in the custom and practice of courts of justice, and the experience and memory of those most conversant with that practice. Part of these have been embodied and preserved in the decisions of courts, since regular reports have been published; and one of the most valuable purposes of the earlier reports in the several states, was, that they served as a repository for the permanent preservation of usages and principles of this description.
Hoping that this subject will not be lost sight of, by those who are competent to throw light upon it, we are now desirous of calling the attention of the juridical reader to a single branch of the subject, and to inquire, or rather to encourage others to inquire, whether the ordinances passed under the first colonial government of Massachusetts, are to be regarded as usages, or rather as evidence of ancient usage, to be considered and applied in expounding ancient laws, and affecting titles so far only as they may be considered applicable and reasonable, and having no other force or effect than customs, generally acquiesced in; or whether they are to be considered as having the force and effect of statute laws, with all their qualifications, limitations, and provisions, and to be expounded like all other statute laws, according to the intent and meaning of the legislators, to be ascertained by the language used, and the subject matter to which it is applied.
One of the most important of these ordinances, is that of 1641, regulating the rights of persons holding lands bounded upon the salt water, or, in other words, the right to flats lying VOL. II.-NO, V.
between high and low water märk. It must be obvious to the most superficial inquirer, that of however little importance this species of property may have been, in early times, when there was but little commerce and navigation, the value and importance of flats, for the erection of wharves, docks, and warehouses, especially in ports and commercial towns, are likely to render all questions relative to the title to this kind of property peculiarly interesting, to the landholder and the legal practitioner. This ordinance provides, that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more whensoever it ebbs further; provided that such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks, or coves, to other men's houses or lands.'
In the case of Storer v. Freeman in 6 Mass. Rep. 438, Mr. Chief Justice Parsons having occasion to cite this ordinance, remarks, that this ordinance was annulled with the charter by the authority of which it was made; but from that time to the present, an usage has prevailed, which now has force as our common law, that the owner of lands bounded on the sea or salt water, shall hold to low water mark,' &c., according to the terms and restrictions of the ordinance.
It is certainly of importance to determine whether this observation be well founded; because if all the colonial laws are to be considered as abrogated, with the repeal of the charter, and now only stand as proof of ancient usage, stripped of the authority of law, then it is obvious that such proof may be rebutted by showing a change or discontinuance of such usage, which would wholly destroy and take away the force and effect of the ordinances, as laws. Whereas, if they are to be considered as statute enactments, having the force of law, they may be relied upon, as such, until altered or repealed by the legislature. It is indeed a startling proposition, that when a charter is made for the government of a numerous, civilized, wealthy, and free community, with full powers to make laws, provide for the administration of justice, and perform all the functions of government, if such charter is annulled, all the laws made during its existence are deemed also to be annulled with it. It would certainly seem not to be well founded, if it were beld
to extend to the annulling of vested rights; and it is difficult to perceive any limit short of that extent, at which it should stop; for, if those rights depend upon such laws, for their maintenance and support, the annulling of such laws would seem to destroy the rights depending upon them. Such, it is believed, has not been the distinction when charters of this description have been repealed or annulled.
But without relying further upon such implication or construction, arising from considerations of reason and expediency, our object is to show, from direct and unequivocal authority, that these ordinances are in force, as laws.
By the 6th art. 6th chap. of the constitution of Massachusetts, it is provided, tható all the laws which have heretofore been adopted, used, and approved, in the province, colony, or state of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature.'
Probably this constitutional provision alone would not be construed to revive and continue in force the laws of the colony, if they had been annulled previously. The word remain' seems to imply that the purpose was not to revive laws which had been annulled, but simply to provide that they should remain, as they had continued, up to the time of the revolution and change of government, thereby effected. It may fairly be inferred, however, that the makers of that constitution considered and understood that the colonial laws as well as the provincial, were equally in force. That they were right in this belief, we think will appear by a reference to the early province laws.
In the very first act passed under the charter of William and Mary, in 1692, it was enacted that all the local laws made by the governor and company of the Massachusetts Bay, and by the government of New Plymouth, not repugnant to the laws of England, nor inconsistent with the constitution and settlement established by that charter, should remain and continue in force in the respective colonies, for a short time therein mentioned, except in cases where other provision should be made by the legislature thereby constituted. By another act, passed the same year, before the expiration of the former, further provision was made for continuing the said act in force, to all intents and purposes, until the legislature should take further order. It seems, therefore, that by force of these two