BY-LAW. By-laws are the private regulations of a society or corporation, agreed upon by the major part of the members, for more conveniently carrying into effect the object of the institution.
It is not every voluntary association to which the law of England gives the power of binding dissentient members by the rules made by the majority. Im memorial custom or prescription, or legal incorporation i by the king, or some act of parliament, is necessary to confer the power of making by-laws ; and even in those cases the superior courts of law can take cognizance of the by-law, and esta blish its legality or declare it to be void. In order to stand this test a by-law must be reasonable and agreeable to the law of England, and must not attempt to bind strangers unconnected with the society, or to impose a pecuniary charge without a fair equivalent, or to create a monopoly, or to subject the freedom of trade to undue restraint. The general object of a by-law is rather to regulate existing rights than to introduce new ones or to extinguish or restrain the old.
The power of making by-laws is not confined to corporate bodies. It is in some instances lawfully exercised by a class of persons having no strict corporate character. Thus the tenants of a manor, the jury of a court-leet, the inhabitants of a town, village, or other district, fre quently enjoy a limited power of this kind, either by special custom or common usage. But in general the power is exer cised only by bodies regularly incorpo rated, and in such bodies the power is inherent without any specific provision for that purpose in the charter of their incorporation.
Our own term is of Saxon origin, and is supposed by some writers to be formed by prefixing to the word law an other word or bye, which means house or town. Hence its primary import is a and in this form and with this meaning it is said to be found among the ancient Goths, the Swedes, the Danes, and other nations of Teutonic descent.
(Cowel, voc. " Bilaws ;" Spelman On Feuds, chap. ii And the Glossaries under the head or Bellago.") But it seems a simpler explanation to suppose that by-law means a subsidiary or supplemental law. The modern German " beilage," "addition," or "supplement," is in fact the same word as by-law ; and the prefix " by" is common in the English language. In German the equivalent prefix bei is still more common.
The act for the regulation of municipal corporations, 5 & 6 Wm. IV. c. 76, gives to the town councils a power of making by laws for the good rule and government of the boroughs, and for the suppression of various nuisances ; and of enforcing the observance of them by fines limited to 51. It directs however that no by-laws so framed shall come into operation until they have been submitted to the privy council for the king's approval—a pre caution resembling in some degree the provisions of the statute 19 Hen. VII. c. 7, by which the ordinances of trading wilds were made subject to the approba tion of the chancellor, treasurer, chief justices, or judges of assize.
Under the Joint-Stock Companies Act, 7 & 8 Viet. c. 110, §§ 47, 48, provision is made for registering by-laws of such com panies, as a condition of their being in force.
In Scotland there is very little common law on the subject of by-laws. The insti tutional writers say generally that every coration, or other community, may make its own by-laws, provided they do not infringe on the law of the land ; but there are hardly any precedents on the subject.