Imagens das páginas
PDF
ePub

ferred, that a code of statutes relating to one subject, was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. Upon the same principle, whenever a power is given by a statute, every thing necessary to the making of it effectual, or requisite to attain the end, is implied. Quasdo lex aliquid concedit, concedere videtur et id, perquod devenitur ad illud.

Statutes are likewise to be construed in reference to the principles of the common law, for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely required, This has been the language of the courts in every age ; and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law, as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction. It was observed by the judges, in the case of Stowell v. Zouch, that it was good for the expositors of a statute to approach as near as they could to the reason of the common law; and the resolution of the barons of the exchequer, in Heydon's case, was to this effect. For the sure and true interpretation of all statutes, whether penal or beneficial, four things are to be considered: What was the common law before the act ; what was the mischief against which the common law did not provide ; what remedy the parliament had provided to cure the defect; and the true reason of the remedy. It was held to be the duty of the judges, to make such a construction as should repress the mischief, and advance the remedy.

In the construction of statutes, the sense which the contemporary members of the profession had put upon them, is deemed of some importance, according to the maxim that

a Ploud. 365.

b 3 Co. 7.

contemporanea expositio est fortissima in lege. Statutes that are remedial and not penal, are to receive an equitable interpretation, by which the letter of the act is sometimes restrained, and sometimes enlarged, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy. This may be illustrated in the case of the registry acts, for giving priority to deeds and mortgages, according to the dates of the registry. If a person claiming under a registered deed or mortgage, had notice of the unregistered prior deed when he took his deed, and procured the registry of it in order to defeat the prior deed, he shall not prevail with his prior registry, because that would be to counteract the intent and policy of the statutes, which were made to prevent and not to uphold frauds. Statutes are sometimes merely directory, and, in that case, a breach of the direction works no forfeiture or invalidity of the thing done ; but it is otherwise if the statute be imperative.

If an act be penal and temporary by the terms or nature of it, the party offending must be prosecuted and statutes. punished before the act expires, or be repealed. Though the offence be committed before the expiration of the act, the party cannot be punished after it has expired, unless a particular provision be made by law for the purpose. If a statute be repealed, and afterwards the repealing act be re

Effect of ten porary

a Miller's case, 1 Wm. Blacks. Rep. 451. The Irresistible, 7 Wheaton, 551. The United States v. Passmore, 4 Dallas, 372. The State v. Cole, 2 M-Cord's Rep. 1. Anon. 1 Washington's Circuit R. 84. The State v. The Tombeckbee Bank, 1 Stewart's Ala. R. 347. The same as to judicial proceedings begun under an act and not finished when it is repealed. They cannot be pursued. 1 W. Blacks. 451. 4 Yates, 392. Wharton's Dig. 569. n. 6. But it seems, that a seaman in the navy, put under arrest before his term of service expired, may be retained for trial by a court martial after his term has expired. This rule of construction is indispensable to the discipline of the navy. Case of Walker on hab. corp. The American Jurist, No. 6. p. 281. Vol. I.

53

pealed, this revives the original act;" and if a statute be temporary and limited to a given number of years, and before the expiration of the time it be continued by another act, it was formerly a question under which statute acts and proceedings were to be considered as done. In the case of The College of Physicians," it was declared, that if a statute be limited to seven years, and afterwards by another statute be made perpetual, proceedings ought to referred to the last statute, as being the one in force.

But this decision was erroneous, and contrary to what had been said by Popham, Ch. J., in Dingley v. Moor, and all acts, civil and criminal, are to be charged under the authority of the first act. Thus, in the case of Rex v. Morgan, on an indictment for perjury, in an affidavit to hold to bail, it was laid to have been taken by virtue of the statute of 12 Geo. I., which was a temporary law for five years, and which was afterwards, and before the expiration of it, continued by the act of 5 Geo. II., with some alterations. Lord Chief Justice Hardwicke said, that when an act was continued by a subsequent act, every body was estopped to say the first act was not in force; and as the act in question was not altered in respect to bail, the offence was properly laid to have been done against the first act. In Shipman v. Henbest, the King's Bench held, that if a statute be permitted even to expire, and be afterwards revived by another statute, the law derives its force from the first statute, which is to be considered as in operation by means of the revival. If, however, a temporary act be revived after it has expired, the intermediate time is lost, without a special provision reaching to the intermediate time.

a 2 Inst. 686. The Revised Statutes of Illinois, published in 1829, abolished the rule of the common law, stated in the text, as to the constructive revival of repealed statutes.

b Littleion's Rep. 212.
c Cro. Eliz. 750.
d Str. 1066.
e 4 Term, 109.

If a statute inflicts a penalty for doing an act, the penalty Statute

penalties. implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute. Lord Holt, in Bartlett v. Viner,' applied this rule to the case of a statute inflicting a penalty for making a particular contract, such as a simoniacal or usurious contract; and he held, that the contract was void under the statute, though there was a penalty imposed for making it. The principle is now settled, that the statutory prohibition is equally efficacious, and the illegality of a breach of the statute the same, whether a thing be prohibited absolutely or only under a penalty. The New-York Revised Statutes make the doing an act contrary to a statute prohibition a misdemeanor, though no penalty be imposed. Whether any other punishment can be inflicted than the penalty given by the statute, has been made a serious question. The Court of K. B., in Rex v. Robinson," laid down this distinction, that where a statute created a new offence, by making unlawful what was lawful before, and prescribed à particular sanction, it must be pursued, and none other; but where the offence was punishable at common law, and the statute prescribed a particular remedy, the sanction was cumulative, and did not take away the common law punishment, and either remedy might be pursued. The same distinction had been declared long before ;e and the proper inquiry in such cases is, was the doing of the thing, for which the penalty is inflicted, lawful or unlawful, before the passing of the statute? If it was no offence before, the party offending is liable to the penalty, and to nothing else. The distinction between statutory offences, which are mala prohibita only, or mala in se, is now exploded, and a breach of the statute law, in either

a Carth. 251. Skinner, 322. b Bensley v. Bignold, 5 B. & Ald. 335. c Vol. 2, 696. sec. 39. d 2 Burr. 799. e Castle's case, Cro. J. 644. Regina v. Wigg, 2 Salk. 460.

case, is equally unlawful, and equally a breach of duty; and no agreement, founded on the contemplation of either class of offences, will be enforced at law or in equity;*

There are a number of other rules, of minor importance, relative to the construction of statutes, and it will be sufficient to observe, generally, that the great object of the maxims of interpretation is, to discover the true intention of the law; and whenever that intention can be indubitably ascertained, and it be not a violation of constitutional right, the courts are bound to obey it, whatever may be their opinion of its wisdom or policy. But it would be quite visionary to expect, in any code of statute law, such precision of thought and perspicuity of language, as to preclude all uncertainty as to the meaning, and exempt the community from the evils of vexatious doubts and litigious interpretations. Lord Coke complained that in his day great questions had oftentimes arisen “ upon acts of parliament, overladen with provisoes and additions, and many times on a sudden penned or corrected, by men of none, or very little judgment in law."

Various and discordant readings, glosses, and commentaries, will inevitably arise in the progress of time, and, perhaps, as often from the want of skill and talent in those who comment, as in those who make the law. Though the French codes, digested under the revolutionary authority, are distinguished for sententious brevity, there are numerous volumes of French reports already extant, upon doubtful and difficult questions, arising within a few years after those codes were promulgated.

a Aubert v. Maze, 2 B. & Puller, 371. Cannon v. Bryce, 3 B. of Ald. 179. Daniels ex parte, 14 Vesey, 191.

b Pref. to 2 Co.

c The Journal du Palais, presentant la Jurisprudence de la Cour de Cassation, et des Cours Royales, sur l'application de tous les Codes Français aux questions douleuses et difficiles, had amounted, in 1818, to fifty volumes and upwards. From the time of the French revolution, down to 1828, there were 100 volumes of statutory law made in France.

« AnteriorContinuar »