Lapas attēli

enforcing existing obligations. Such statutes have been held valid, when clearly just and reasonable, and conducive to the general welfare, even though they might operate in a degree upon existing rights, as a statute to confirm former marriages defectively celebrated, or a sale of lands defectively made, to pay debts of the testator or intestate. The legal rights affected in those cases by the statutes, were deemed to have been vested subject to the equity existing against them, and which the statutes recognised and enforced. But the cases cannot be extended beyond the circumstances on which they repose, without putting in jeopar dy the energy and safety of the general principle.

The English rule formerly was, that if no period was fixed by the statute itself, it took effect by relation, from the first day of the session in which the act was passed, and which might be some weeks, if not months, before the act received the royal sanction, or even before it had ever been introduced into parliament. This was an extraordinary instance of the doctrine of relation, working gross injustice and absurdity; and yet we find the rule declared and uniformly adhered to, from the time of Hen. VI. All the judges agreed, in the case of Partridge v. Strange, in the 6ht Edw. VI. that the statute was to be accounted in law a perfect act from the first day of the session; and all persons


a Duncan, J., in Underwood v. Lilly, 10 Serg. & R. 101. v. Stooltzfoos, 16 Ibid. 35. Bleakney v. F. & M. Bank, 17 Ibid. 64. Foster v. Essex Bank, 16 Mass. Rep. 245. Locke v. Dane,

9 Ibid. 360. Townsend v. Townsend, 1 Peck's Tenn. R. 16, 17.

Ibid. 266.

b Goshen v. Stonington, 4 Conn. R. 209. Wilkinson v. Leland, 2 Peters' United States Rep. 627. Langdon v. Strong, 2 Vermont Reports, 234.

c Retrospective laws, as used in the constitutions of Tennessee, North Carolina, and Maryland, mean laws impairing the obligation of contracts. 1 Peck's Tenn. Rep. 17.

d 4 Inst. 25.

e 33 Hen. VI, 18. Bro. Exposition del Terms, 33.

f 1 Plow. 79.

were to be punished for an offence done against it after the first day of the session, unless a certain time was appointed when the act should take effect. In the case of The King v. Thurston, this doctrine of carrying a statute back by relation to the first day of the session, was admitted in the K. B.; though the consequence of it was to render an act murder, which would not have been so without such relation. The case of the Attorney General v. Panter, is another strong instance of the application of this rigorous and unjust rule of the common law, even at so late and enlightened a period of the law as the year 1772. An act for laying a duty on the exportation of rice thereafter to be exported, received the royal assent on the 29th of June, 1767, and on the 10th of June of that year, the defendants had exported rice. After the act passed, a duty of 115 pounds was demanded upon the prior exportation, and it was adjudged in the Irish Court of Exchequer to be payable. The cause was carried by appeal to the British House of Lords, on the ground of the palpable injustice of punishing the party for an act innocent and lawful when it was done; but the decree was affirmed, upon the opinion of the twelve judges, that the statute, by legal relation, commenced from the first day of the session. The K. B. also, in Latless v. Holmes, considered the rule to be too well settled to be shaken, and that the court could not take notice of the great hardship of the case. The voice of reason at last prevailed, and by the statute of 33 Geo. III. c. 13. it was declared, that statutes are to have effect only from the time they receive the royal assent, and the former rule was abolished, to use the words of the statute, by reason of "its great and manifest injustice."

There is a good deal of hardship in the rule as it now stands, both here and in England; for a statute is to operate from the very day it passes, if the law itself does not

a 1 Lev. 91.

b 6 Bro. P. C. 553. c 4 Term, 660.


establish the time. It is impossible, in any state, and particularly in such a wide spread dominion as that of the Unted States, to have notice of the existence of the law, until some time after it has passed. It would be no more than reasonable and just, that the statute should not be deemed to operate upon the persons and property of individuals, or impose pains and penalties for acts done in contravention of it, until the law was duly promulgated. The rule, however, is deemed to be fixed beyond the power of judicial control, and no time is allowed for the publication of the law before it operates, when the statute itself gives no time. Thus, in the case of the brig Ann," the vessel was libelled and condemned for sailing from Newburyport, in Massachusetts, on the 12th of January, 1808, contrary to the act of Congress of the 9th of January, 1808, though it was admitted the act was not known in Newburyport on the day the brig sailed. The court admitted that the objection to the forfeiture of the brig was founded on the principles of good sense and natural equity; and that unless such time be allowed as would enable the party, with reasonable diligence, to ascertain the existence of the law, an innocent man might be punished in his person and property, for an act which was innocent for aught he knew, or could, by possibility, have known, when he did it."

The code Napoleon adopted the true rule on this subject. It declared, that laws were binding from the moment their promulgation could be known, and that the promulgation should be considered as known in the department of the imperial residence one day after that promulgation, and in each of the other departments of the French empire,

a 1 Gallison, 62.

b Judge Livingston, in 1810, held that the embargo law of December, 1807, did not operate upon a vessel which sailed from Georgia on the 15th of January, 1808, before notice of the act had arrived. 1 Paine's Rep. 23.

< Art. 1.

after the expiration of the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place. The NewYork Revised Statutes have also declared the very equitable rule, that every law, unless a different time be prescribed therein, takes effect throughout the state, on, and not before, the 20th day after the day of its final passage.

If the statute be constitutional in its character, and has duly gone into operation, the next inquiry is respecting its meaning; and this leads us to a consideration of the established rules of construction, by which its sense and operation are to be understood.

and private.

There is a material distinction between public and pri- Acts, publie vate statutes, and the books abound with cases explaining this distinction in its application to particular statutes. is sometimes difficult to draw the line between a public and private act, for statutes frequently relate to matters and things that are partly public and partly private. Generally speaking, statutes are public; and a private statute may rather be considered as an exception to a general rule. It operates upon particular individuals, or upon private persons. It is said not to bind or include strangers in interest to its provisions, and they are not bound to take notice of a private act, even though there be no general saving clause of the rights of third persons. This is a safe and just rule of construction; and it was adopted by the English courts in very early times, and does great credit to their liberality and spirit of justice." It is supported by the opinion of Sir Matthew Hale, in Lucy v. Levington, where he lays down the rule to be, that though every man be so far a party to a private act of parliament, as not to gainsay it, yet he is not so far a party as to give up his interest. To take the

a Vol. 1. 157. sec. 12.

b 37 Hen. VI. 15. Bro. Parliament, pl. 27. Boswell's case, 25 and 26 Eliz. cited in Barrington's case, 8 Co. 138. a.

c 1 Vent. 175.

Rules for the interpreta


case stated by Sir Matthew Hale, suppose a statute recites, that whereas there was a controversy concerning land between A. and B., and enacts that A. shall enjoy it, this would not bind the interest of third persons in that land, because they are not strictly parties to the act, but strangers, and it would be manifest injustice that the statute should affect them. This rule, as to the limitation of the operation of private statutes, was adopted by the Supreme Court of New-York, and afterwards by the Court of Errors, in Jackson v. Catlin. It is likewise a general rule, in the interpretation of statutes limiting rights and interests, not to construe them to embrace the sovereign power or government, unless the same be expressly named therein, or intended by necessary implication. Private statutes are placed under another limitation. The courts of justice are bound, ex officio, to take notice of public acts without their being pleaded, for they are part of the general law of the land, which all persons, and particularly the judges, are presumed to know; but they are not bound to take notice of private acts, unless they be specially pleaded, and shown in proof, by the party claiming the effect of them.

The title of the act, and the

preamble to the act, are,

tion of strictly speaking, no parts of it. They may serve to show the general scope and purport of the act, and the inducements which led to its enactment. They may, at times, aid in the construction of it; but generally they are very loosely and carelessly inserted, and are not safe expositors of the law. The title frequently alludes to the subject matter of the act only in general or sweeping terms, or it alludes only to a part of the multifarious matter of which the statute is composed. The title, as it was observed in United States v. Fisher, when taken in connexion with other parts, may


a 2 Johnson's Rep. 263. 8 Johnson's Rep. 520. S. C.

b 1 Blacks. Com. 261.

J., 4 Mason, 431.

c 2 Cranch, 386.

Comyn's Dig. tit. Parliament, R. 8. Story,

« iepriekšējāTurpināt »