No. 90.

Preliminary Book, part 5, tit. 7, chap. 2, sec. 2.

No. 90.

amount to a legislative declaration of its meaning, and will govern the construction of the first statute.(a) And a mistake apparent in one part of a statute, may be corrected by another part. (b)

3. The construction of each law must be made in relation to the subject matter of the statute.(c)

4. Statutes must be construed as to their effects or consequences, so that where words bear either none or a very absurd signification, the intention ought to be adopted.(d)

5. A statute should be construed by considering the reason and spirit of the act. But this can only take place when the plain import of the words is dubious.(e)

6. Mere failure of justice is not a sufficient ground for construing a statute against its clear meaning, so as to give a court jurisdiction.(f)

7. A statute ought to be so construed, if possible, so that every word shall have some force and effect, (g) and that no clause, sentence or word, shall be superfluous, void, or insignificant. (h)

8. Statutes are to be construed prospectively, unless the contrary intention of the legislature be clearly expressed.(i)

9. The rules for construing statutes are the same in equity that they are at law.(k)

10. A posterior law shall be construed to repeal an anterior one, when they are inconsistent

(a) U. States v. Freeman, 3 How. U. S. R. 556.

(b) Blanchard v. Sprague, 3 Sumn. 279.

(c) Ruggles v. Washington County, 3 Mis. 496; Ex parte Hall, 1 Pick. 261; Woodworth v. Paine, Breeze, 294; Jacob v. U. States, 1 Brock. 520. (d) Henry v. Tilson. 17 Verm. 479.

(e) Kilby Bank v. Petitioners, 23 Pick, 93; Opinion of the Justices, 22

Pick. 571.

(f) Pitman v. Flint, 10 Pick. 506.

(g) Opinion of the Justices 22 Pick. 571.

(h) Jones v. Dubois, 1 Harr. 285; Hutchen v. Niblo, 4 Black f. 148.

(i) Hastings v. Lane, 3 Shepl. 134; Garret v. Doe, 1 Scam. 335; Guard

v. Rowan, 2 Scam. 499; Forsyth v. Marbury, R. M. Charlt. 324. (k) Talbot v. Simpson, Pet. C. C. Rep. 188.

No. 91.

Preliminary Book, part 5, tit. 8, chap. 1.

No. 93.

with each other. (a) Posteriora derogant prioribus is the rule.

TITLE VIII.-OF THE REPEAL OF LAWS.

CHAPTER I.—WHAT IS A REPEAL.

91. To repeal a law is to annul it and destroy all its force and effect. In the civil law, the term used for repeal is abrogation. It differs from derogation, which is only a partial abrogation; derogatur legi, cùm pars detrahitur; abrogatur legi, cùm prorsùs tollitur.(b) Laws are repealed by new laws, and they are derogated from either by provisions in the new laws, or by usage, which has acquired the force of law.

92. The repeal is either express or implied; it is express, when it is literally declared by the new law, either in general terms, as where a provision declares all laws contrary to the repealing act to be repealed, or in special terms, when such and such laws, which are named and identified, are repealed.(c)

93. It is implied, when the new law contains provisions contrary to those of former laws, without expressly repealing them: posteriora derogant prioribus is the maxim in such cases, as has been already observed, (d) though the law does not favor repeals by implication.(e)

The rule posteriora derogant prioribus must, however, be applied with great discretion; for as the laws ought not to be changed, modified or repealed, except with great consideration, the repeal of the old by the new laws ought not to be presumed; there must be a for

(a) Morris v. Delaware and Schuylkill Canal, 4 W. & S. 461. (b) Dig. 50, 16, 102.

(c) The State v. Stinson, 5 Shepl. 154.

(d) Milne v. Huber, 3 McLean, 212.

(e) Snell v. Bridgewater, 24 Pick. 296; Bowen v. Lease, 5 Hill, 221; Wyman v. Campbell, 6 Port. 219; Street v. Commonwealth, 6 W. & S.

No. 94.

Preliminary Book, part 5, tit. 8, chap. 2.

No. 95.

mal conflict between the two laws, in order that the old shall be impliedly repealed by the new. (a)

When the laws are in conflict only as to some points, the new derogates from the old only as to those points, and the remainder is in full force.

94. Usage and custom have also much force to construe or abrogate old laws, and non user for a great length of time will have the effect of a repeal. But it must be a very strong case which will have that effect.(b)

CHAPTER II.-EFFECT OF A REPEAL OF A LAW.

95. Whenever rights have become vested by virtue of a statute, which is afterwards repealed, such rights are not affected by the repeal.(c) But inchoate rights, generally, derived from a statute, are lost by its repeal, unless expressly excepted.(d)

When a penal statute is repealed, a violation before its repeal cannot be punished afterwards, for then there is no law to authorize the punishment. (e) In general there is an exception as to the extent of the repeal, and the statute remains in force as to such violations.

Proceedings commenced under a statute are arrested by its repeal, because after that there is no law authorizing them.(ƒ)

At common law the repeal of a statute, which was itself a repealing statute, revives the first.(g) But in some states this rule has been changed by a legislative act.(h)

(a) Kinney v. Mallory, 3 Ala. 626; Bowen v. Lease, 5 Hill. 221; In the matter of Brown, 21 Wend. 316; Comm. v. Cromly, 1 Ashm. 179; Daviess v. Fairbairn, 3 How. U. S. R. 636.

(b) Wright v. Crane, 13 S. & R. 452; Ruthf. Inst. B. 2, c. 6, s. 19; Merl. Répert. Désuetude.

(c) Davis v. Minor, 1 How. Mis. 183; James v. Dubois, 1 Harr. 285.

(d) Butler v. Palmer, 1 Hill, 324.

(e) Comm. v. Welsh, 2 Dana, 330; Road in Hatfield, 4 Yeates, 392; Anon. 1 W. C. C. 84; Atto v. Comm. 2 Virg. Cas. 382.

(f) North Canal Street Road, 10 Watts. 351.

(g) Directors v. Railroad Co. 7 W. & S. 236; Comm. v. Churchill, 2 Met. 118; Comm. v. Mott, 21 Pick. 492.

(h) Civ. Cod. Lo. art. 23.

No. 96.

Preliminary Book, part 5, tit. 9, chap. 1.

No. 98.

TITLE IX.-OF THE SEVERAL KINDS OF LAWS.

96. Laws may be divided into four principal kinds, namely, 1, Natural law; 2, the Law of Nations; 3, Public law; 4, Private or civil law.

Having considered these general laws in another place, (a) this title will be confined to the laws of the United States and of the several states. When considered as to their several kinds, laws are express or tacit; when as to their object, they are civil and criminal, they relate to the law merchant, the municipal law, and the law martial; when as to their duration, they are immutable and arbitrary;、 when as to their origin, they are national or domestic laws and foreign laws; when as to their extent, they extend over the United States, over their territories, and over ships.

97. Blackstone, Hale and others, have divided laws, when considering the source whence they arose, into lex scripta and lex non scripta. By the former they designate the statute law, and by the latter the common law. (b) This division is not exact as applied to American law. Our constitutions, treaties, orders or rules of court, would come within the definition of lex scripta as well as statutes; and the common law is not literally lex non scripta.

A preferable mode of dividing them has been adopted. They are express, or made directly and expressly for the people by the legislative power; and tacit, when they receive their force from the general adoption of them by the people.

CHAPTER I.-OF EXPRESS LAW.

98. The express laws are, first, the constitution of the United States; secondly, the treaties made with foreign powers; thirdly, the acts of congress; fourthly, the constitutions of the respective states; fifthly, the (b) 1 Bl. Com. 63.

(a) Ante, n. 9, et seq.

No. 99.

Preliminary Book, part 5, tit. 9, chap. 1, sec. 1, 2, 3.

No. 101.

laws of the several state legislatures; sixthly, laws made by inferior legislative bodies, such as the councils of the municipal corporations, and general rules made by the courts.

SECTION 1.-OF THE CONSTITUTION OF THE UNITED STATES.

99. The Constitution of the United States is an act of the people themselves, made by their representatives elected for that purpose. It is the supreme law of the land and binding on all future legislatures, until it shall be altered by the people in the manner provided for in the instrument itself.

SECTION 2.-OF TREATIES.

100. Treaties constitutionally made are declared to be the supreme law of the land. (a) A treaty is a compact made between two or more independent nations, with a view to the public welfare. Treaties are for a perpetuity, or for a considerable time. When contracts between nations are performed by a single act, and their execution is at an end at once, they are not called treaties, but agreements, conventions or pactions.

Treaties are made by the president and senate on the part of the United States. (b) No state of the Union can enter into a treaty with a foreign government, or with another state. (c)

SECTION 3.-OF STATUTES.

101. Acts and resolutions of congress, enacted constitutionally, are of course binding. These are called statutes, and they are of several kinds, namely, constitutional and unconstitutional; public and private; declaratory and remedial; preceptive, prohibitive, permissive and penal; temporary and perpetual; affirmative and negative; prospective and retrospective.

(a) United States v. Schooner Peggy, 1 Cranch, 103; Lessee of Gordon v. Kerr, et al. 1 Wash. C. C. 322.

(b) Ante, n. 51; Const. art. 2, s. 2, n. 2.

(c) Const. art. 1, s. 10, n. 1 and 2.