Page images
PDF
EPUB

5. One part of a statute must be so construed by another, that the wholu may (if possible) stand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A. ard A. has at that time a lease of it for three years: here A. shall hold it for bis term of three years, and afterwards it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work and operate upon. But,

6. A saving, totally repugnant to the body of the act, is void. If, therefore, an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A. in the king, saving the right of A.; in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king:(k)*

7. Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one.

And this upon a general principle of universal law, that "leges posteriores priores contrarias abrogant:" consonant to which it was laid down by a law of the twelve tables at Rome, that "quod populus postremum jussit, id jus ratum esto.But this is to be understood only when the latter statute is couched in negative terms, or where its matter is so clearly repugnant that it necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards enacts, that he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end.(1) But if both acts be merely affirmative, *and the substance such

[*90 that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter-sessions, and a latter law makes the same offenco indictable at the assizes, here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assizes, and not elsewhere.(m) (%) 1 Rep. 47.

(m) 11 Rep. 63. (0) Jenk. Cent. 2, 73.

tation. Thus, remedial laws are to be so construed as to suppress the mischief and advance the remedy. Smith vs. Maffott, 1 Barb. 65. Franklin vs. Franklin, 1 Maryl. Ch. 342. Carey vs. Giles, 9 Geo. 253. So laws which have reference to the public welfare or the policy of the State, which are intended to encourage her staple productions, to maintain public peace and security, or to extend the blessings of education, Wolcott vs. Pond, 19 Conn. 597. Bryan vs. Dennis, 4 Florida, 445. In like manner, acts of the legislature relative to the general administration of justice. Mitchell vs. Mitchell, 1 Gill, 66.

SHARSWOOD.

* But a proviso, (that is, a clause ingrafted upon a preceding and complete enactment, 9 B. & C. 835,) though totally repugnant to the body or provision of the act, shall not be void, but shall stand, being held to be a repeal of the preceding enactment, by analogy to the well-known rule of construction applicable to testamentary instruments, that a later clause, if inconsistent with a former one, expresses the last intention and revokes the preceding expressions. Fitz. 195, Bac. Abr. Statute.-HARGRAVE.

** Later statutes abrogate prior ones. In affirmative statutes, however, such parts of the prior as may be incorporated into the subsequent one, and are consistent with it, must be considered in force. Daviess vs. Fairbairn, 3 Howard U. S. 636. Where two statutes can be construed together so as to allow both to stand, the latter will not be construed a repeal of the former. Morris vs. Canal Co., 4 Watts & Serg. 461. Canal Co. vs. Railroad Co., 4 Gill & John. 1. Statutes which apparently conflict with each other are to be reconciled as far as may be, on any fair hypothesis, and effect given to each if it can be, and especially if it is necessary to preserve the titles to property undisturbed. Beals vs. Hale, 4 Howard U. S. 37. The law does not favour repeals by implication. Bowen vs. Lean, 5 Hill, 221. Wyman vs. Campbell, 6 Porter, 219. Strut vs. Commonwealth, 4 W. & S., 209. A subsequent statute, attaching milder and different punishments to offences than are attached to the same offence by a prior statute, is a repeal of such prior statute. The State vs. Whitworth, 8 Porter. 434. A general law,

67

8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII., declaring the king to be the supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in Queen Elizabeth's statute, but these acts of King Henry were impliedly and virtually revived.(n)36

9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. o. 1, which directs that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of suc*91]

ceeding legislatures. “When you repeal the *law itself, (says he,) you

at the same time repeal the prohibitory clause, which guards against such repeal.”(P)

10. Lastly, acts of parliament that are impossible to be performed are of no validity: and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void.86 I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in

(*) Cum lex abrogatur, illud ipsum abrogatur, quo non

eam abrogari oporteat. I. 3, ep. 23. however, does not operate a repeal of a special law upon the same subject passed previous to the general saw. McFarland vs. The State Bank, 4 Pike, 410.-SHARSWOOD.

35 Where a repealing statute is itself repealed, the first or original statute is thereby ipso facto revived. Commonwealth vs. Churchill, 2 Metc. 118. Directors vs. Railroad Co., 7 W. & S. 236. Harrison vs. Walker, 1 Kelly, 32. The repeal of a statute, however, will not be construed to divest rights which have vested under it. Davis vs. Minor, 1 Howard, (Miss.,) 183. James vs. Dubois, 1 Harr. 285. Mitchell vs. Doggett, 1 Branch, 256. The repeal of a prohibitory act does not make valid contracts prohibited by it which were made while it was in force. Milne vs. Huber, 3 McLean, 212. Where a statute, reviving a statute which had been repealed, is itself repealed, the statute which was revived stands as it did before the revival. Calvert vs. Makepeace, 1 Smith, 86. This rule has been altered in England by St. 12 & 13 Vict. c. 21, s. 5, which enacts that repealed statutes shall not be revived by the repeal of the act repealing them, unless express words be added reviving such repealed acts. The same enactment was made in Virginia in the year 1789.-SHARSWOOD.

36 If an act of parliament is clearly and unequivocally expressed, with all deference to the learned commentator, I conceive it is neither void in its direct nor collateral coll sequences, however absurd and unreasonable they may appear. If the expression will admit of doubt, it will not then be presumed that that construction can be agreeable to the intention of the legislature, the consequences of which are unreasonable; but where the signification of a statute is manifest, no authority less than that of parliament can restrain its operation.-CHRISTIAN

4 Inst, 325.
4 Inst. 43.

rhich he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel.(9) But, if we coul: conceive it possible for the parliament to enact, that he should try as weli his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.37

These are the several grounds of the laws of England: over and above which, equity is also frequently called in to *assist, to moderate, and to explain them. What equity is, and how impossible in its very essence to be re

[*92 duced to stated rules, hath been shown in the preceding section. I shall therefore only add, that (besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind) there are also peculiar courts of equity established for the benefit of the subject: to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of our courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power

(9) 8 Rep. 118.

37 The following canons of interpretation may be added to those stated in the text:

11. A statute shall always be so construed as to operate prospectively, and not retrospectively, unless, indeed, the language is so clear as to preclude all question as to the intention of the legislature. Sayre vs. Wisner, 8 Wend. 661. Hastings vs. Lane, 3 Shep. 134. Brown vs. Wilcox, 14 S. & M. 127. Quackenbush vs. Danks, 1 Denio, 128. This is a very important rule and frequently called into exercise. The provision in the Federal and most of the State constitutions prohibiting the passage of ex post facto laws has been confined by construction to criminal or penal laws; and the power of the legislature to affect injuriously vested rights, when the obligation of contracts is not violated, is generally conceded. Hence the value and necessity of the rule in question.

12. Contemporaneous usage may be resorted to as evidence of the construction put upon a statute by those best acquainted with the mind and intention of the lawmakers. When a particular construction has thus been assumed and acted on at an early day, and especially if many titles depend upon it, the courts will not at a subsequent period disturb it, even if it should appear to be indefensible on principle. McKeer vs. Delancy, 5 Cranch, 22. Chesnut vs. Shane, 16 Ohio, 519. Kernion vs. Hills, 1 Louis. Ann. R. 419.

13. The judicial interpretation of the statute of a State as settled by its own courts is to be received and followed by the courts of other States and by the Federal Judiciary. Johnston vs. The Bank, 3 Strobh. Eq. 263. Hoyt vs. Thompson, 3 Sandf. Supreme Court, 416. So even the Supreme Court of the United States is held bound by the determination of the State courts upon the construction of their State constitutions, and the validity of State laws as dependent thereon. Elmendorf vs. Taylor, 10 Wheat. 152. Harpending vs. Dutch Church, 16 Peters, 439.

14. Where there has been a general revision of the statute code of a State, under the authority of the legislature, and the revision has been approved and adopted, a mere change of phraseology introduced by the revisers will not be held to have effected a change, unless such appear clearly to have been the intention. Chambers vs. Carson, 2 Whart. 9. Commonwealth vs. Rainey, 4 W. & S. 186. In re Brown, 21 Wendell, 316 It has been held in some States, however, that where a statute is revised and a provision contained in it is omitted in the new statute, the inference is that a change in the law is intended. If the omission is accidental, it belongs to the legislature to supply it. Buck vs Spofford, 31 Maine, 34. Ellis vs. Paige, 1 Pick. 43.

15. A statute cannot be repealed by usage or become obsolete by non-user. Wright vs. Crane, 13 Serg. & R. 447. Snowden vs. Snowden, 1 Bland. 550. When the circumstances or business of a community so materially change that the facts no longer can arise to which a statute was meant to apply, in that sense it may become obsolete. It may, however, so happen that the current of legislation shows that an old statute, never actually repealed, was regarded by the legislature as no longer in force; and in that case it may be regarded as repealed by implication. Hill vs. Smith, 1 Morris, 70.-SHARSWOOD

should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by par. tiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.

SECTION IV.

OF THE COUNTRIES SUBJECT TO THE LAWS OF

ENGLAND.

The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the king. dom of England itself, the original and proper subject of these laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæsar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostile invasions of the Šaxons, when the ancient and Christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were converted to Christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the First, who may justly be

styled the conqueror of *Wales, the line of their ancient princes was

abolished, and the King of England's eldest son became, as a matter of course, their titular prince; the territory of Wales being then entirely reannexed (by a kind of feodal resumption) to the dominion of the crown of England;(a) or, as the statute of Rhudlan(6) expresses it, “ Terra Walliæ cum incolis suis, prius regi jure feodali subjecta, (of which homage was the sign,) jam in proprietatis dominium totaliter et cum integritate conversa est, et coronæ regni Angliæ tanquam pars corporis ejusdem annexa et unita.” By the statute also of Wales(C) very material alterations were made in divers parts of their laws, so

jected with its inhabitants to the king by the feudal law, is b) 10 Edw. I.

erected into a principality; and as an integral part of Eng (Terra. 12 Edw.I.-" The territory of Wales, before sub land, annexed to and united with the crown.”

*94]

1

(a) Vaugh. 400.

1 It cannot be said that the king's eldest son became Prince of Wales by any necessary or natural consequence; but, for the origin and creation of his title, see page 224. -CHRISTIAN.

2 The learned judge has made a mistake in referring to the statute, which is called the statute of Rutland, in the 10 Ed. I., which does not at all relate to Wales. But the statute of Rutland, as it is called in Vaughan, (p. 400,) is the same as the Statutum Walliæ, Mr. Barrington, in his Observations on the Ancient Statutes, (p. 74,) tells us, that the Statutum Walliæ bears date apud Rothelanum, what is now called Rhuydland in Flintshire. Though Edward says, that terra Wallice prius regi jure feodali subjecta, yet Mr. Barrington assures us, that the feudal law was then unknown in Wales, and that “there are at present in North Wales, and it is believed in South Wales, no copyhold tenures, and scarcely an instance of what we call manerial rights; but the property is entirely free and allodial. Edward, however, was a conqueror, and he had a right to make use of his own words in the preamble to his law." Ib. 75.-CHRISTIAN.

as to reduce them nearer to the English standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity; particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency was given by the statute 27 Hen. VIII. c. 26, which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and mado . fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practised with great success, till she reduced all Italy to her obedience, by admitting the vanquished states to partake of the Romaw privileges.

It is enacted by this statute 27 Henry VIII., 1. That the don.inion of Wales shall be forever united to the kingdom of England. 2. That all Welshmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of descent. 4. That the laws of England, and no other, shall *be used in Wales: besides many other regulations of the police of this principality. And the

[*95 statute 34 and 35 Hen. VIII., c. 26, confirms the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of England in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of Westminster-hall,) and some other immaterial peculiarities, hardly more than are to be found in many counties of England itself.

The kingdom of Scotland, notwithstanding the union of the crowns on the accession of their King James VI. to that of England, continued an entirely separate and distinct kingdom for above a century more, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were anciently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. By an act of parliament 1 Jac. I. c. 1, it is declared, that these two mighty, famous, and ancient kingdoms, were formerly one. And Sir Edward Coke observes,(d) how marvellous a con. formity there was, not only in the religion and language of the two nations, but also in their ancient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. Upon which account he supposes the common law of each to have been originally the same; especially as their most ancient and authentic book, called regiam majestatem, and containing the rules of their ancient common law, is extremely similar to that of Glanvil, which contains the principles of ours, as it stood in the reign of Henry II. And the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms.

(1) 4 Inst. 345.

3 The laws in Scotland concerning the tenures of land, and of consequence the constitution of parliaments and the royal prerogatives, were founded upon the same feudal principles as the laws respecting these subjects in England. It is said, that the feudal polity was established first in England; and was afterwards introduced into Scotland, in imitation of the English government. But it continued in its original form much longer in Scotland than it did in England, and the changes in the Scotch government, probably owing to the circumstance that they are more recent, are far more distinctly marked and defined than they are in the history of the English constitution. And perhaps the progress of the Scotch parliaments affords a clearer elucidation of the obscure and ambiguous points in the history of the representation and constitution of our country, than any arguments or authorities that have yet been adduced. But a particular discussior.

« PreviousContinue »