TREATISE ON STATUTES: THEIR RULES OF CONSTRUCTION, AND THE PROPER BOUNDARIES OF LEGISLATION AND BY SIR FORTUNATUS DWARRIS, KNT., B. A., OXFORD, F. R. S., F. 8. A. LAW LIBRARY OF UNIVERSITY Or WITH AMERICAN NOTES AND ADDITIONS, AND WITH NOTES AND MAXIMS OF CONSTITUTIONAL AND OF 1332 ALSO A TREATISE ON CONSTITUTIONAL LIMITATIONS UPON THE WITH A CHAPTER ON PARLIAMENTARY LAW AND PARLIAMENTARY PRIVILEGES. BY PLATT POTTER, LL. D., ONE OF THE JUSTICES OF THE SUPREME COURT OF THE "Optima est lex quæ minimum relinquit arbitrio judicis, optimus judex qui minimum sibi.” 1 UNIVERSITY OF MICHIGAN WILLIAM GOULD & SONS, LAW PUBLISHERS, 68 STATE STREET, ALBANY, N. Y. 1871. ENTERED according to act of Congress, in the year one thousand eight hundred and seventy-one, BY WILLIAM GOULD & SONS, in the office of the Librarian of Congress at Washington. Wiseman & Seymour, Stereotypers, PRE FACE. THE republication of the Treatise of "Dwarris on Statutes," requires no apology. It is a standard work of the highest authority, acknowledged by all the courts of this country, as well as in England. It was out of print; could not be supplied at any price, though greatly demanded. No law library, can be regarded as complete, without it. Indeed, the student, who desires to possess a fair knowledge of the jurisprudence of the state and nation of which the statute law forms so striking and material a portion, will remain deficient in the necessary qualifications for an honorable profession, if found wanting in the proper knowledge which this work supplies, of the recognized parts and divisions of statutes, and of the different rules of construction and interpretation by which the different characters of statutes are governed. An applicant for admission to the bar of the state, or nation, should be debarred, who shall have advanced no further in the science of the law, than to suppose the rule of interpretation of all statutes was one uniform rule; that a remedial and a penal statute were to be construed alike; or who could not answer to the distinctions between, prospective and retrospective, public and private, enabling and disabling, enlarging and restraining, affirmative and negative statutes, and to the various other known divisions, as well as of the particular rules of construction applicable to each division; and, as applicable also to the various parts of the same statute; to the title; the preamble; the enacting part; the clauses; provisos and exceptions; and to the effect which each part bears upon the whole, and upon its construction. This treatise may therefore be regarded as elementary, and the necessary complement to the professional life of the lawyer. This republication, has preserved all the original text of its author which has application to the division and construction of statutes, and has omitted only such portions of it, as relate exclusively to the institutions of Great Britain, their origin and history; the forms of summoning parliament; the composition of that body; the degrees of nobility and the powers possessed respectively by each rank and order in that body. In the volume here presented, the text of Dwarris will be found distinguished from that of the American author, by being in what is called solid printed matter without quotation marks; that of the American additions, by being in open leaded matter. A republication of this work in America, would have failed of meeting public expectation had it omitted to add, to it, the American authority upon the same subject, or to notice such changes as our different theory of government, and the advance which general legal intelligence has made necessary. He has therefore added, by way of original text and commentary, as well as by notes, what he regards as the American law, in the enactment and construction of statutes. Nor could a treatise upon American statutes, approach to any degree of practical use here, without contrasting the power of enacting statutes in this country with that of the mother country whose statutes, as well as common law, we have so extensively copied and adopted. To do this, it also became necessary to show the source and extent of the law making power in this country, and to introduce into the work, the effect of that new feature in legislative power, not known in England; of legislatures restrained and limited in their powers to enact laws by written constitutions, which, are the fundamental, superior and controlling authority. It also became necessary to show the effect of laws passed by legislatures, in cases where the legislatures have exceeded the constitutional limits. The necessary distinction between statutes enacted by legislatures under restricted constitutional power, and those which are not, seemed to call for the American view of the statute construction, as distinguished from the English; and this has been attempted in this work. First, by a limited commentary upon the theory of American constitutional governments. Second, upon the limitations and restraints upon the legislative power; and, Third, upon the rights, immunities and privileges of the citizen, secured to him by these written constitutions, national and state. These are divided into appropriate chapters, containing the rules recognized in American jurisprudence, for the protection, as well as the limitation of the constitutional securities of the citizen. The limits of this work would not admit of an elaborate commentary upon the national constitution, like that of Justice Story, in two volumes; nor one extended enough to embrace an equally elaborate treatise upon thirty-six several and varying state constitutions, by showing the disparities between them, and the differences of state policy and jurisprudence under them respectively; but it is believed that the work is comprehensive enough, with the references it contains to judicial decisions and to standard legal treatises of established authority, to make it a convenient guide to the student who desires to extend his knowledge of constitutional law, and their limitations; to inspire him to seek the more elaborate and profound treatises upon the same subjects; and to present in a brief space, such elementary constitutional principles as are common to all the state governments, as well as to the national, in their protection to the citizen. In doing this, the author has endeavored, as a general rule, to state established principles and adjudications, rather than his own opinions of the law; and he has not omitted to avail himself to some extent, of the views of those whom he regards as the ablest of jurists, commentators and authors that have presented their own views to the world. To Marshall, Kent, Story, and others, as jurists and authors; and including Smith, Sedgwick and Cooley as writers; to a greater or less extent upon the same subjects, he is indebted for many of his views contained in this work, which, in some respects, may be regarded as an abridgement of the more elaborate treatises; in other respects, while he has ventured to differ in some particulars from those authors, he has not done so without diffidence, nor without support, by reference to the opinions of others, whose authority he has cited to that end. Neither the subject of construction of statutes, nor that of constitutional power and limitations, has yet been exhausted by what has been written thereon. It is an extended field; and each day, through |