Odger's English Common Law

96 SUBORDINATE LEGISLATION.
(ii.) By Custom.—Where any body, corporate or otherwise,
has no charter and no statutory power to make a by-law, the
existence of a custom entitling it so to do must be established
by those 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. 1 So, too, a court leet may by prescription make by-laws to
regulate their own common, 2 and a court baron may appoint a fieldreeve
to look after the good order of the common. 3 A guild or trade fraternity
may by custom make by-laws for the regulation of their own trade ;
and
so may a borough. 4 But any guild or fraternity, which makes or enforces
a by-law which is in diminution of the Bang'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 the Justices of Assize, will incur a fine of £40. 5
(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 cases 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, 6 " to make such by-
laws 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 £5 ; and
they must be published 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 those forty days the King, by the
1 James v. Tutney (1639), Cro. Jac.
Works (1880), 6 Q. B. D. 156, 168.
497 ; De Morgan v. Metropolitan Board of
2 Lord Crwnwett's Case (1673), Dyer, 322 ; Earl of Emoester v. Smith (1669),
2 Keble, 367.
s Lambert v. Thornton (1697), 1 Lord Raym. 91.
* See the Chamberlain of London's Case (1590), 6 Rep. 62 b.
5 19 Hen. VII. c. 7, s. 1.
6 45 & 46 Vict. o. 60.