Common LawSQE Books



Every law is made by tbe State, either directly or indirectly. It legislates indirectly in many different ways and by means of many different officers or bodies. A judge may be said to legislate indirectly when he recognises a mercantile custom and gives it judicial sanction. Again, Parliament frequently confers on inferior bodies the power to make orders, rules and regulations which ha\’e the forc(^ of law. It is practically compelled to do this by lack of time, caused mainly by its cumbrous and antiquated procedure.

During the reign of Queen Victoria our domestic legislation increased enormously, and Parliament could not grapple with it without assistance. The Private Bill Committees could not possibly deal with all the applications made to them by municipal corporations, harbour boards, railway companies, improvement commissioners, and every other kind of local authority ; and yet such matters could only be disposed of by Act of Parliament. It was necessary, therefore, for the Legislature to delegate its authority to some of the great Government departments, at the same time keeping the final decision on each matter in its own hands. And so the ” Provisional Order” was invented. Power is given to some department or other body in which Parliament has confidence —generally on the application of some local authority—to hold, if necessary, a local investigation into the circumstances, and then, if it thinks proper, to prepare a detailed scheme, which is embodied in an order. This order subsequently appears, with several others, in the schedule to a ” Provisional Order Confirmation Pill,” introduced by the Government department which has charge of such matters. It is, of course, still open to any body or person concerned or aggrieved (subject to the parliamentary rules as to locus standi) to 92 SUBORDINATE LEGISLATION. oppose the bill in the ordinary way. ]]ut this seldom oceiirs ; Proyisional Orders are confirmed by Parliament almost as a matter of conrse. A Proyisional Order has no validity till it is confirmed ; bnt when confirmed, it is part of an Act of Parliament and can therefore alter, amend or repeal former local Acts.^ Apart from Provisional Orders, power has been conferred by the Legislature on several of the great departments of State to issue general rules and orders and on municipal and other corporations to issue by-laws. Thusthe Judicature Act,
1881,- conferred upon a committee of our judges the power
to make rules, which regulate the procedure in the High
Court of Justice and in the Court of Appeal and which have
all the force and effect of statutes.^ Certain bodies have
also power to make rules or by-laws under the common law. We will briefly discuss these powers under two heads :

(i.) Orders, &c., issued by departments of State.
(ii.) By-laws.
(i.) Orders, &c., issued by Departments of State.
First and foremost among the bodies which have power to issue orders stands the Privy Council. This influential body
has inherited some of the powers of the ancient Great Council {Aula rel Curia Begin), from which it derives its origin.
Hence it has power, under the ^prerogative of the Crown and
without any authority from Parliament, to make orders with
regard to the naval and military forces, the civil service and
all matters of state ceremony. Put in addition power has
often been conferred upon it by Parliament to issue orders on special matters affecting health, trade, education, (fee.”*
1 Public Health Art, 1875 (38 & 39 Vict. c. 55). s. 303 ; Local Governmeat
Act, 188S (51 & 52 Vict. c. 41). s. 59 (6).
2 44 & 45 Vict. c. 68, s. 19 ;’ and see 57 & 58 Vict. c. 16, s. 4.
3 See the Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 17, as amended by the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), s. 17. There are more
than 1,100 of these ” Rules of the Supreme Court.” They are divided into 78 orders, which are set out in a white book called ” The Annual Practice.”
* Thus by s. 234 of the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), power was given to the Privy Council to make orders as to the quarantine of persons on board ships, which have touched at places where there is reason to
believe that some highly infectious disease or fever prevails. This power was
transferred by the Public Health Act, 1896 (59 & 60 Vict. c. 19), s. 2, to the Local Government Board, which has also power under the Public Health (Regulations as to Food) Act, 1907 (7 Edw. VII. c. 32), to make regulations to prevent
the importation from abroad of diseased meat.
STATE DEPARTMENT ORDERS. 93 Most of our Government departments such as the Board of Trade and the Board of Education were originally committees
of the Privy Council/
The Local Government Board has large legislative powers.
Its orders, rules and regulations have in many cases the force and effect of a statute. This legislative power of the Board in poor-law matters is subject to a threefold control. In the first place, a copy of every general rule, order or regulation issued by it must be laid before both Houses of Parliament as soon
as practicable after its publication. Secondly, the King may,
by the advice of his Privy Council, disallow a general rule or any part of it, which will then cease to be of any further
force or validity. Lastly, there is a power, little known and
seldom, if ever, exercised, to bring any rule, order or regula- tion of the Board before a Court of law and have it declared illegal and ultra vires. But no rule, order or regulation of the Board comes into operation until fourteen days after it has been published, though it may be acted on within the fourteen days. And at any time within a year after it has been published, any person aggrieved may apply to the High
Court of Justice to have the rule, order or regulation quashed.
Till it is quashed, however, the rule remains in force, in spite of the application.
The Board of Trade possesses large administrative
powers.- It deals with a vast number of most important
matters, such as bankruptcy, companies,^ copyright, ti’ade marks, harbours, railways and canals. It regulates light rail- ways and tramways, and grants licences to local authorities under the Electric Lighting Acts, 1882 and 1888.* The
Board of Agriculture and Fisheries also has power to issue orders and regulations.’^ It has inherited all the powers of the Land Commissioners under the Settled Land Act, 1882,^
1 See Odgers on Local Government, 2nd ed., Chap. XII.
2 See 25 & 26 Vict. c. 69, Interpretation clause.
3 See, for instance, the Companies (Winding-up) Rules, dated March 29, 1909, made pursuant to the Companies (Consolidation) Act, 1908 (8 Edw. VII. c. 69), and signed by the Lord Chancellor and the President of the Board of Trade.
* 45 & 46 Vict. c. 56, as amended by 51 & 52 Vict. c. 12.
5 The Board of Agriculture was created in 1889, by the 52 & 53 Vict. c. 30.
I*: became the Board of Agriculture and Fisheries in 1903 by the 3 Edw. VII. c. 31.
6 45 & 46 Vict. c. 38, s. 48.
y4 SUBORDINATE LEGISLATION. aud some of the powers of the Privy Council.^ It also prescribes and regulates the iniizzling of dogs and the seizure,
detention, disposal and, if need be, slaughter of stray dogs.
The Eoard of Education’^ has power to issue from time to time a Code, giving minute directions as to the management
of an elementary educational school.
(ii.) By-Laws.
The term ” by-law ” ‘^ includes any order, rule or regulation
made by any local authority or statutory corporation subordi- nate to Parliament. The subordinate authority must, of course, have power expressly or impliedly conferred on it to legislate on the matters to which the by-law relates ; and the by-law which it makes must be reasonable in itself, it must
not be retrospective nor contrary to the general principles of our law. If these conditions be satistied, the by-law is binding on all the persons for whom, or throughout the
place or district for which, that subordinate authority has power to legislate.
A by-law reg-ularly made by a corporate body under its charter “has the same effect within its limits, and with respect to the persons upon whom it lawfully operates, as an Act of Parliament has upon the subjects at large.” * ” A by-law, though made ijy, and applicable to, a particular body, is still a law, aud differs in its nature from a provision made on or limited to particular occasions : it is a rule made prospectively, and to l)e applied whenever the circumstances arise for which it is intended to provide.” ” “A by-law is uot an agreement, but a law binding ou all persons to whom it applies, whether they agree to be bound by it or not. All regulations made by a corporate body, and intended to bind not only themselves . and their officers and servants but members of the public who come within
the sphere of their operations, may be properly called by-laws.” ^’ A by-law may be good as against a particular class of persons only. Thus a by-law may bind the members of the corporation making it, and
yet not bind strangers. The homage of a manor may make by-laws for
‘ E.{/., under the Destructive Insects Act, 1877 (4n & 41 Vict. c. 68, as extended by 7 Edw. VII. c. 4), and the Contagious Diseases (Animals) Acts, 1878 to 1893,
as consolidated in the Diseases of Animals Acts, 1894 to 1910 (57 & 58 Vict. c. 57 ; In Edw. VII. i; 1 Geo. V. c. 20).
2 Created in 1899 by the Board of Education Act (*52 & 63 Vict. c. 33).
3 This word originally meant the law of a borough—any rule which was in force in, and was issued for the regulation of, a borough. ” By ” or ” burh ” was
the name given to any fortified town or vill. * Per Lord Abinger, C. B., in Hopkins v. Maijor, c^’c, of Swansea (1839), 4 M. & W., at p. 640.
o Per cur. in Gosling v. Veley (1847), 7 Q. B., at p. 451.
6 Per Lindlev, L. J., in London Association of Shipowners v. London, A’c, Docks
Committee, [1892] 3 Ch., at p. 2,52.
the management of the common lands which will bind all commoners. A
raihvay company may make by-laws for the regulation of its traffic which
will bind all its passengers and servants. Tlie town council of a borouo-h may make by-laws for the government of the borough which will bind all who come into it. But such by-laws will not affect the outside public or derogate from their vested rights.^ In determining the validity of by-laws made by public representative
bodies, such as county councils, the Court ought to be slow to hold that a by-law is void for unreasonableness. A by-law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes, or unjust, or made in bad faith, or clearly involves an unjustifiable interference with the liberty of those subject
to it.- Disobedience to a by-law is generally punished by imposing
a tine ; a by-law cannot be made to inflict imprisonment on an offender or to forfeit his goods, unless such a power be
expressly given by statute.-‘ But a chartered trading corporation may make a by-law, forfeiting the stock or shares of any
member of the corporation who does not pay his calls/ The power to make by-laws may be given (i.) by charter, either expressly or impliedly, (ii.) by custom, or (iii.) by
(i.) By Charter.—A charter is a document under the seal of the Crown granting certain privileges ^ to individuals or corporations, or forming individuals into a corporation.
Power to make b3^-laws is usually given in express terms by
the charter creating the corporation. When not so expressed,
still the power is deemed to have been granted by implication ; for it is essential to the very existence of a corporation.”
When there is an express grant of such a power, it can only be exercised by the persons on whom the power is expressly
conferred, and in the manner and for the purposes, if any,
specified. But if the charter be silent, the power rests in the members of the corporation at large for all purposes within the charter.”
1 Mace V. Philcox (186i), 15 C. B. N. S. 600.
2 Kruse v. Johnson, [1898] 2 Q. B. 1)1 ^ Vlarlt’^ Ca.^p. (lo’.ifi), 5 Hep. (Jl a : Kirk v. Xowill (178(;), 1 T. R. 118.
* Child V. Hudson’s Bay Co. (1723), 2 P. Wms. 207.
^ A privilege conferred by a charter is called a franchise.
« Selwyn’3 Nisi Prius, 13th ed., p. 1129.
^ Child V. Hudson’s Bay Co.. sitpra.
(ii.) Bi/ Cu!itoiii. —Where any body, corporate or otherwise, has no charter and no statutory power to make a by-kw, the
existence of a custom entitling it so to do must be established by tliose who assert the validity of the by-law.
” A custom in a manor to make by-laws for the regulation of a common
or great waste, parcel of the manor, is good,” so long as it does not wholly
exclude any commoner from the common. But a by-law would be bad if
it wholly debarred any one of his right, instead of merely regulating his exercise of it.^ So, too, a court leet may by prescription make by-laws to regulate their own common,- and a court baron may appoint a fieldreeve
to look after the good order of the common.^ A guild or trade fraternity may by castom make by-laws for the regulation of their own trade ; and
so may a borough.-* But any guild or fraternity, which makes or enforces
a by-law which is in diminution of the King’s prerogative or against the common profit of the people, without first submitting the same to be examined and approved by the Chancellor, Treasurer and Chief Justices^
or tlic Justices of Assize, will incur a fine of £40.^
(iii.) By Statute.—The power of making by-laws has been
very freely bestowed by Parliament on local authorities and
public companies. But in most eases such by-laws must be
confirmed by some central authority.
(a) The council of every borough has power under section 23
of the Municipal Corporations Act, 1882,” ” to make such bylaws as to them seem meet for the good rule and government
of the borough, and for the prevention and suppression of nuisances not already punishable in a summary manner by
virtue of any Act in force throughout the borough.” Such
by-laws may be enforced by fine not exceeding £o ; and
they must be publislied in the borough at least forty days
before they come into force. All by-laws made under this section for good rule and government, and not as to the prevention or suppression of nuisances, must be submitted
to a Secretary of State forty days before they come into
force ; and if within tliose forty days the Xing, by the
1 James v. Tutney (1639), Cro. Jac. 497 ; De Morgan v. Metropolitan Board of Works (1880), 5 Q. B. D. 155, 158.
” 2 Lord Crumwell’s Case (1573), Dyer, 322 ; Earl of Excester v. Smith (1669),
2 Keble. 367.
3 Lambert v. Thornton (1697), 1 Lord Raym. 91.
4 See the Chamberlain of London’s Case (1590), 5 Eep. 62 b.
5 19 Hen. VII. c. 7, s. 1. 6 45 & 46 Vict. c. 50.
advice of his Privy Council, disallows any by-law, it will not come into force. All by-laws made by a local authority,
under the Weights and Measures Act, 1889,^ must be approved by the Eoard of Trade.

This power of a boronu-li council to make by-laws is not restricted to offences which are already [)unishable in some method other than by summary conviction. Thus, a by-law made by a borough council, imposing a penalty on any person who shall frequent or use any street or other
public place for the purpose of bookmakins; and betting, is not ultra vires (although it creates a new offence), so long as it is aimed at persons stand- ing on the pavement with boolcs in their hands lying in wait for customers, and does not include a person who happens to be in the street and casually makes a bet there.^ And a l)y-law made with the object of preventing any annoyance or disturbance from shooting-galleries, swing-boats, roundabouts
ttc, is not bad, although it extends to land adjoining or near to a street or public place.”* But any by-law prohibiting uersous other than freemen from opening a shop or carrying on any lawful trade within a borough would now be bad,^ though such a custom was held good in KIlO.s (b) A borough council has additional powers of making
by-laws in its capacity as an urban district council. Urban
district councils can make by-hnvs under several sections of the Public Health Act, 187-3,” and the Public Health Acts Amendment Act, 1890.^ Such by-laws do not come into
force until they have been confirmed by the Local Government
lioard, wliicli has power to disallow, alter or amend any of them ; and an opportunity must be given to the ratepayers
of inspecting the proposed by-laws before they are confirmed.’-* A penalty not exceeding £5 may be imposed for breach of any such by-la^’. The Local Government Board freely exercises its power ofsupervising by- laws made by any local authority under the Public Health Act, 1875.^” For
‘ :.2 & 53 Vict. c. 21.
* lb., s. 28.
» Burnett v. Berry, [1896] 1 Q. B. 6il ; 31aiiUe v. Jordan, f 18’J7] 1 Q. B. 248 : White V. Morley, [1899] 2 Q. B. 31 ; Thomas v. Suiters. [1900] 1 Ch. 10.
< Teale v. Harris (1896), 60 J. P. 744 ; see ShilUto v. Thompson (1875), 1 Q. B. D. 12 ; and Strickland v. Hayes, [1896] 1 Q. B. 290.
‘ Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 247.
^ 8 Rep. 124 b. I28;i : see Chamherkmi v. Conway (1889), 53 J. P. 214 ; Byrne
V. Brown (1893), 57 J. P. 741 ; Nash v. Manninrj (189 4), 58 J. P. 718 ; and
Toronto Municipal Corporation v. Virgo, [1896] A. C. 88 . 38 & 39 Vict. c. 55 ; see especiaUy ss. 44, 80, 90, 113, 141, 157, 164, 167, 169, 171, and 172.
** 53 & 54 Vict. c. 59, ss. 20, 23, 44. 38 & 39 Vict. C-. 55, ss. 182—188. The Local Government Board has issued a
series of model by-laws relating to these matters for the guidance of local authorities.
‘” 38 & 39 Vict. c. 55 ; and see 47 Vict. c. 12. B.C.L. 7
instance, it has disallowed a by-law prohibiting all boys from throwing
stones in the town, a by-law prohibiting persons from singing hymns in
tlie street, a liy-law forbidding strangers to bring dogs into the town, and a by-law forbidding ” lounging ” on Sunday afternoons I
(c) A I’ural disti-ict council has some of the powers mentioned in paragraph (h) above, and may acquire others.^ (d) A county council has the same power as the council of a borough to make by-laws for the good rule and government
of its county, and for the suppression of nuisances not other- wise summarily punishable. By-laws made under this power
must be passed by a meeting consisting of at least three -fourths
of the members of the council ; they may be enforced on sum- mary conviction by a fine not exceediug £5 ; they must be
published for at least forty days before coming into operation • but no by-law may impose a penalty exceeding £b for any
one offence. No county by-law has any force within a municipal borough. Any by-law made by a county council
for the good rule and government of any district in the county must be confirmed by a Secretary of State as in the
case of any such by-law made by a borough council.’- It will be construed so as to give all reasonable effect to the
object which the council had in view\^
A county council has also power to make regulations for bicycles ; ^ and
as to the sale of coal under the Weights and Measures Act, 1889 ; ^ as to land leased foe military purposes under the Military Lands Act, 1892 ; ^ as to light locomotives on bridges under the Locomotives on Highways
Act, 1896 ; ” as to sea fisheries under the Sea Fisheries Regulation Act, 1888, and the Fisheries Act, 1891 ;^ as to the employment of children under the Employment of Children Act, 1903,^ &l’. The London County Council has power to make by-laws as to very many matters affecting the metropolis under the Metropolis Management
Acts, 18.55 and 1862,^’^ the Pu])iic Health (London) Act, 1891,” the London
1 See sections &^nd 23 of the Public Health Acts Ameudmeut Act. 1890 (58 ^^ 54
Vict. c. 59).
2 Local Government Act, 1888 (51 & 52 Vict. c. 41). s. IG.
3 Booth V. JJoicell (1889), 53 J. P. 678 ; Walker v. Stretton (189C). 60 J, P. 313.
* 51 & 52 Vict. c. 41, s. 85.
5 52 & 53 Vict. c. 21, s. 28.
6 55 & 56 Vict. c. 43.
7 59 & 60 Vict. c. 36.
s 51 & 52 Vict. c. 54 ; 54 & 55 Vict. c. 37.
9 3 Edw. VII. c. 45.
10 18 M in Vi.t. r. 121) : 2.5 6c 26 Vict. c. 102. as amended bv the 48 & 49 Vict. c. 33. ” 54 & 55 Vict. c. 76.
Building- Act, 189i,i and amending Acts, the Metropolis Management Acts ment (By-laxvs) Act, 189!),- and other statutes.
(e) A parish council may make by-laws for regulating
parks, recreation grounds, village greens, &c., and as to pleasure-boats on any water in such parks or recreation grounds.^
(f) Metropolitan borough councils derive power from the London Government Act, 1899,^ to make by-laws under
section 23 of the Municipal Corporations Act, 1882,^ as to the good rule and government of the borough, and for the pre- vention and suppression of nuisances. These by-laws are to be in force only within the borough and must not be inconsistent with any by-laws made by the county council. Bylaws may also be made—as to many matters affecting the metropolis—under the Metropolis Management Acts, 1855
and 1862,’^ the Public Health (London) Act, 1891,^ and other
statutes. Such by-laws, if made for the good rule and
government of the borough, must be confirmed by a Secretary
of State ; if for the suppression of nuisances, by the Local Government Board.
(g) Since 1902 the local education authority for a county
is the county council, for a county borough the county
borough council, for a borough—other than a county borough —where the population is over ten thousand, the borough
council, and for an urban district where the population is over twenty thousand, the urban district council. Such a
local education authority may make by-laws for various purposes under the Education Acts, 1870 to 1902,^ with the
sanction of the Board of Education.
(h) Parliament has also conferred power to make by-laws on all railway companies and on many dock companies, canal companies, &c.
1 57 & 58 Vict. c. ccxiii.
« 62 & 63 Vict. c. 15.
•’ Local Government Act, 1894 (56 & 57 Vict. c. 73), s. 8.
” (,2 & G’} Vict. c. 14, s. 5 (2), and Part II. of Sched. 2.
^ 45 &; 46 Vict. c. “)9.
6 18 & 19 Vict. c. i20 ; 25 & 23 Vict. c. 102, as amended by the 48 & 49 Vict.
c. 33.
7 54 & 55 Vict. c. 76.
•^ See 2 Edw. VII. c. 42, s. 17.
100 SUBORDINATE LE(;ISLATI()N. The Ifarliou!’?, Docks uud Piers Clauses Act. 1847,^ enables a clock com- pany to make by-laws under its common seal for a great variety of purposes connected with the use and management of its docks and property. Penalties may be imposed for infringements of these by-laws.^ But no
by-laws (except such as relate solely to the company or its officers or servants) have effect, unless confirmed by a judge of one of the superior Courts, or by the justices at (Quarter Sessions, or by such other confirming
authority as may be prescribed in the special Act.^ Moreover, notices have to be given before they are confirmed,-* and, when confirmed, they have to be published as directed by the Act.-^ When duly made, confirmed and published, the by-laws become binding on all parties,*^ and they can
only be altered by other by-laws similarly made and confirmed. A board
of conservators has power to make by-laws under ss. 39 and 45 of the Salmon Fishery Act, 1873 ;” so lias a canal company.*
When power to make oy-luws is conferred by statute, a condition, as we have seen, is generally imposed that before such by-laws come into operation tliey must be submitted to some confirming authority, ^^’hicll has power to disallow them,
wholly or in part. And even though a by-law has been
duly approved and confirmed by the appointed authority, it may yet be held invalid by the High Court, if it be either unreasonable in itself or contrary to the general law of the
land. It is impossible to lay down any general rule which
will determine when a by-law is unreasonable. As Lord
Eussell, C. J., says in Biinictt v. Bcrrij^^ *’ Authorities cited on the construction of other by-laws are of very little use in assisting the Court to decide whether the particular by-law
before them is or is not good. Each must be judged by its own language.” ^^ A bj’-law imposing a penalty on a passenger for travelling in a superior
class to that for which his ticket was issued, or for using a ticket on any
day for which it is not avaihible, or which has been already used, without
requiring that the act should be done with intent to defraud, is uureasonaUie, an intention to defraud being ” the gist of auv such offence.”
‘” And see GenM v. h’appx, [li)()2; 1 K. B. KJi* : W’il’^on v. Fearnley (1905), 92 I,. T. 617 : Jiatchelor v. Shn-lri/ (19)5). 9;! L. T. r,:V.i ; Sr„ft v. Pill’nirr, [1904] 2 K. B. 8o5.
‘1 Dyso7i V. L. .5’ N.’W. Ry . Co. (1881), 7 Q. B. D. 32; Bufam v. North
Stafordshire Ry. Co., [1894] 2 Q. B. 821.
CONFIRMATION OF BY-LAWS. 101 A town council or otlier lociil autliorir.y has power to make by-laws for the regulation of bathing on the seashore within its district. ^ But any
by-law which fixes a maximum charge for towels or bathing costumes, or requires that such articles shall be provided by the proprietors of bathing machines without extra charge, is iiltra vires and cannot be enforced. Ohannell, J., however, was of opinion that a by-law requiring the proprietor
of bathing machines to supply some kind of bathing costume without
extra charge would not be nltra vires, if it left him free to make an extra charge for articles of superior quality.^
In this Introduction we have endeavoured to state in outline the general principles of the law of England in clear and
simple language, and without any reference to technical
details. But this to a practising lawyer is by no means an
easy task. He is so used to the language of the Courts that
it is difficult for him to translate it into the huiguage of the market and the home, ^loreover, while stating these general
principles broadly —and general principles must be stated broadly—he is conscious that there are to most of them many
minute exceptions, chiefly created by statutes, which it is impossible for him to state iu his proposition without render- ing it cumbrous and pedantic, and probably also unintelligible.
The reader will not expect in a piece of scene-painting the minute correctness of a miniature ; he will understand that there arc important exceptions to many, if not to all, of the general propositions hitherto laid down. Some of these exceptions will be found stated in the following pages.


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