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an opposite direction, and, while sparing of injunctions, openly invaded the province of the legislature. Upon a careful investigation of the course actually pursued, it will be found that, in general, inconvenient laws were set aside, and required changes were effected, by the use of technical fictions and contrivances to evade inconsistent rules; and if there was a lamentable want of politic institution, there has been thought to have been also, at times, some defect of judicial principle. Mr. Butler is decidedly of opinion, as regards the ascertaining and obtaining the proper boundary of interpretation and legislation, that the French courts of justice have shown greater moderation than our own, in the exercise of this important branch of judicature.(a) It certainly is a remarkable fact, that the jurisdiction or methods of proceeding, in all our superior courts, will be discovered, on inquiry, to be founded in usurpation, and sustained by fiction.
cant et exundent in tantum, ut prætextu rigoris legum mitigandi, etiam robur et nervos iis incidant aut laxent, omnia trahendo ad arbitrium.-Aphorism, 43. (a) Reminis. vol. 1.
DIVISION, DURATION, QUALITIES, AND INCIDENTS OF
428. Statute law is the rule which is ordained or prescribed by the supreme power of the state, or the legislative department of the government. Statutes are divided into two classes; to wit, public and private; and these are remedial, or penal, affirmative, or negative. The parts of a statute, in its popular sense, are, the title, preamble, the purview or body of the act, the proviso, the saving clause, and the exceptions. Although in a strict sense, the title and preamble are not considered as a part of a statute. These classes of statutes and parts of statutes will come under review in a subsequent part of this work. Before proceeding to the consideration of the general doctrine of the construction of statutes, it is proper that we should submit some observations of a general character, (as preliminary to our main design,) which relate to the duration, qualities, and incidents of statutes.
§ 429. In regard to the duration of statutes, some are temporary, others are perpetual. Every statute, for the continuance of which no time is limited, is perpetual, although it be not expressly declared so to be. A temporary statute continues in force, unless it is sooner repealed, until the time for which it is made expires. Although an offence should have been committed before the expiration of an act, the party cannot be punished after it has expired, unless a particular provision be made by law for that purpose. On this account a tem
porary statute is sometimes made to continue in force, after it has ceased to operate substantially, for the purpose of supporting prosecutions against those who have violated it during the term assigned for its continuance.
$430. Statutes are the declared will of the supreme power of the state, which, unless repugnant to the laws of God, and natural justice, all subjects are bound to obey. Created by the exercise of the highest authority which the constitution acknowledges, they cannot be dispensed with, altered, amended, suspended, or repealed, but by the same authority by which they were made. The life-giving principle and the death-going stroke must emanate from the same hands; for it is a maxim of the law, "conveniens naturali æqitati unumquodque dissolvi eo ligamine, quo ligatum est."
§ 431. In regard to the qualities and incidents of statutes, a statute binds all persons but such as are specially saved by it.(a) The government itself, however, is not to be restrained of a liberty, or right it had before, by the general words of a statute, if it be not named in the act, but if a statute be intended to give a remedy against a wrong.(b) to prevent fraud, (c) tortious usurpations, or the decay of religion, the government, though not named, will be bound by the act. In England, if an act of parliament do not name the king, he is bound by acts for the advancement of religion, or learning, or for providing for the poor. And if an act speak of the king generally and indefinitely, it extends to all his successors, and to a queen if the crown descend to a female.(d)
§ 432. A statute which gives corporeal punishment, does not bind an infant, contra of other statutes, if they do not except the infant.(e) A statute cannot alter by
(a) And. 148, pl. 82.
(b) 6 Inst. 681.
(d) 12 Rep. 110.
(e) 2 Inst. 55.
reason of time, but the common law may, since cessante ratione cessat lex.(a) When statutes are made, there are some things which are exempted and foreprised out of the provisions thereof by the law of reason, though not expressly mentioned; thus, things, for necessity's sake, or to prevent a failure of justice, are excepted out of statutes.(b)
§ 433. Whenever an act gives any thing generally, and without any special restriction declared, or rationally to be inferred, it gives always subject to the general control and order of the common law. (c) Whenever a statute gives or provides any thing, the common law provides all necessary remedies and requisites.(d) statutes incidents are always supplied by intendment, in other words, whenever power is given by a statute every thing necessary to make it effectual is given by implication; for the maxim is, Quando lex aliquid concedit concedere videtur et id, per quod devenitur ad illud.(e) Thus, a statute giving an action for waste, to one as tenant for life, or for years, impliedly gives authority to him in reversion, by himself or by another, to enter to see if any waste be done.(f) Upon the same principle, in an action of waste, given by a statute repealed, against tenant in tail, after possibility of issue extinct, treble damages were held recoverable, although not mentioned:(g) for such damages were recoverable under a prior statute, by which an action of waste was given; and whenever an old action is given in a new case, all that before appertained to the action is likewise given.
(a) Dwarris on Statute, 662.
(b) Plow. Comm. 13 b. 2 Inst. 118.
(c) Rex v. Bishop of London, 2 Show. 455.
(d) The Protector v. Ashfield, Hard. 62.
(e) 2 Inst. 306. 12 Rep. 130, 131.
(f) Bro.; Waste, pl. 68.
§ 434. There are certain common law maxims, that aid in the application of statutes to given cases. Quan do aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud. Magna Charta says, no man aliquo modo destruatur nisi, &c., by which every oppression against law, by color of any usurped authority, is forbidden, and by these words, all things by any manner of means tending to destruction are prohibited, as if a man be accused or indicted of treason or felony, his lands and goods cannot be granted to any, no not so much as by promise, before attainder; for, when a subject obtaineth a promise of the forfeiture, many times undue means and more violent prosecution is used for private lucre, tending to destruction, than the just and quiet proceedings of the law would permit. (a) Whenever the provision of a statute is general, every thing which is necessary to make such provision effectual is supplied by the common law.(b) If an offence be made felony by a statute, such statute, by necessary consequences, subjects the offender to the like attainder and forfeiture, and requires the like construction, as to those who shall be accounted accessories before or after the fact, and to all intents and purposes, as a felony at common law does. (c) Misprison of felony is as well incidental to a felony created by a statute as to one of the common law. (d)
§ 435. Lex uno ore omnes alloquitur,(e) Lord Coke says: "This maxim is the pride of the English law; and it is pre-eminently so of the written law, which lays down one clear and certain rule for all descriptions of persons, and is both known and invariable. For the
(b) 1 Inst. 235. 2 Inst. 222. Bac. Abr. title Statute.
(c) 3 Inst. 47, 49, 50. 1 Hawk. c. 41, § 4.
(d) 1 S. Elec. L. 14.
(e) 2 Inst. 1847.