Definition
A restraining statute is a legislative enactment that limits or cuts back the common law at points where the common law was considered too permissive, too broad, or insufficiently regulated. The term has two principal applications in the historical legal tradition:
1. Common-law restraint. A statute that narrows a rule or principle of common law deemed too "lax and luxuriant" — that is, too open-ended or too generous in the rights or freedoms it extended. The legislature steps in to impose boundaries the common law did not supply on its own.
2. Corporate power restraint. Statutes that restrict the capacities of corporations — historically, in England, restrictions on the leasing powers of ecclesiastical and other corporations; in the United States, statutes limiting the powers of banking corporations. These were designed to prevent institutions from exceeding the bounds of their chartered authority.
The term is largely a term of historical legal art. Modern drafters would more commonly say "limiting statute," "restrictive statute," or describe the provision functionally. Researchers encountering "restraining statute" in historical sources should treat it as a category label, not a self-defining term.
Common Confusion
Restraining statute should not be confused with a restraining order, which is a court-issued equitable remedy directed at a specific party's conduct. A restraining statute is a product of the legislature and operates generally on the law itself or on a class of institutions. The words share a root but the mechanisms and contexts are entirely different. Historical sources occasionally use "restraining" loosely when describing any limiting legislative act, which can make classification imprecise in older texts.
Why It Matters in Research
Corpus researchers face two practical challenges with this term.
First, the label is not consistently applied. Blackstone uses it descriptively — there was no formal statutory category called "restraining statutes" in English law. American compilers followed Blackstone's usage, but individual statutes were not typically titled or indexed under this heading. Searching for "restraining statute" in primary source collections will surface commentary and treatises far more reliably than the statutes themselves.
Second, the corporate-restraint application is highly jurisdiction-specific and era-specific. Burrill's citation to the New York Restraining Act (1 Rev. St. 707-711) anchors a concrete historical example: early nineteenth-century American banking legislation that curtailed the inherent or implied powers of banking corporations. Researchers tracing the development of corporate capacity doctrine — particularly in banking, insurance, or ecclesiastical contexts — should look for restraining statutes as a genre of legislative intervention, not a uniform body of law. The New York example was influential and was followed in other states, but the specific provisions, triggers, and penalties varied considerably.
Third, the marriage-restraint application mentioned in Black's (restrictions on conditions that unreasonably hamper freedom to marry) represents a distinct and underappreciated use of the concept. Courts in equity developed doctrines voiding conditions in restraint of marriage, and legislatures in some jurisdictions codified related limits. A researcher working on testamentary conditions, marriage settlements, or domestic relations law should be aware that "restraining statute" can surface in this context as well.
The term connects to broader research threads on the relationship between statute and common law — specifically, the classical taxonomy of statutes as either declaratory of, remedial of, or in restraint of common law. Understanding where a statute sits in that taxonomy affected how courts construed it and how tightly they read its exceptions.
Historical Dictionary Support
Black's Law Dictionary (all editions represented here) and Burrill's Law Dictionary are in precise agreement on the core definition, drawing directly from Blackstone's Commentaries (1 Bl. Comm. 87; 2 Bl. Comm. 319-320). The unanimity is unsurprising: both sources are synthesizing Blackstone rather than independent doctrinal analysis.
Burrill adds substantive value by grounding the definition in American statutory practice — specifically the New York Restraining Act — and gesturing toward the banking-law context. This is the most practically useful addition for American legal history researchers. The Black's second edition supplemental entry is fragmentary and adds nothing beyond the core formula.
What the historical dictionaries do not address: the marriage-restraint application mentioned in passing in Black's is not developed in any of the three sources. It appears as an afterthought appended to the main entry rather than a fleshed-out sub-definition. Researchers should not rely on the dictionary record alone for that usage and should consult equity treatises and domestic relations commentaries directly.
Jurisdictional Note
The banking-context restraining statute was most fully developed in New York in the early nineteenth century and spread through state legislative adoption in the antebellum period. The ecclesiastical-corporation leasing restrictions were an English legal development with limited direct American application. There is no uniform federal counterpart to either usage.
Encyclopedia Cross-Reference
The Law Mind Remedies & Equity Encyclopedia: remedies_48 — Prohibition: Restraining Inferior Courts and Tribunals from Exceeding Jurisdiction (relevant to the broader conceptual framework of legal restraint as a tool of institutional limitation)
The Law Mind Civil Procedure & Evidence Encyclopedia: civpro_133 — Statutes of Repose vs. Statutes of Limitation (useful context for understanding how restraining statutes fit within the broader taxonomy of statutes that modify or cut back otherwise available legal positions)