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rights are no more favored in law than the rights of his subjects.a The sensible conclusion seems to be, that in such cases he may be precluded of such inferior claims as might belong indifferently to the King or to a subject (as the title to an advowson or to a landed estate,) but not stripped of any part of his ancient prerogative, nor of those rights which are incommunicable, and are appropriated to him as essential to his regal capacity.b
În a modern case, arising upon the "act for the more effectual administration of justice in England and Wales," the court said, "In an act of Parliament, passed expressly for the further advancement of justice, and in its particular enactments using terms so comprehensive as to include all cases brought up by writ of error, we think there is neither authority nor principle for implying the exception of criminal cases, upon the ground that the King, as the public prosecutor, is not expressly mentioned in
If an act speak of the King generally and indefinitely, naming him in his politic capacity, it extends to all his successors; and to a Queen, if the crown descend to a female.c
A statute beginning " Rex perpendens," &c; so, a statute saying, "the King commandeth that no man shall disturb any electors to make free election," are instances where the King, being named, is bound. d
And though it is said that the King shall not be bound by a statute (whether affirmative or negative) which does not expressly name him,e yet if there be equivalent words, or if the prerogative be included by necessary implication, it would seem to admit a different construction. Thus the stat. 7 H. 4, c. 4, provided that protection should not lie for a warden of a prison, in debt brought against him upon an escape." See," it is said, "that this is a statute which shall bind the King; for none can grant protection but the King only, and therefore that the statute says that the protection shall not lie, is as much as to say, that the King shall not dispense with the statute; quod nota."
Statutes often affect matters of subsequent creation, in like manner as an immemorial custom will embrace matters arising within the time of legal memory.g
Reliefs of dignities are provided for by Magna Charta; dignities subsequently created, have been held to be within that pro
Some statutes are temporary, others are perpetual. Every statute, for the continuance of which no time is limited, is perpetual, although it be not expressly declared to be so. A temporary a Rex. v. Archbishop of Armagh, 8 Mod. 8. c 12 Rep. 110.
b 1 Woodis, 31.
d 2 Inst. 31.
e Br. Parl. pl. 6; Cro. C. 526; Ascough's case, 2 Hawk. Pl. C. 411, c. 42, § 3. f Br. Parl. 30, cites 39 H. 6, 39.
g 12 Mod. 485.
statute continues in force (unless it be sooner repealed) until the time for which it is made expires; a perpetual one until it is repealed.
Acts of parliament altering other acts in force in the colonies, (of Great Britain) are considered as themselves applying there.
If an act be penal and temporary by the terms or nature of it, the party offending must be prosecuted and punished before the act expires. Although the offence should have been 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. On this account, a temporary statute is sometimes a 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.
If a statute be temporary, and limited to a given number of years, and before the expiration of the time it be made perpetual by another act, it was formerly a question, under which statute offences were to be laid to have been committed. In the case of the College of Physicians it was laid down, that if a statute, which was to have continuance only for seven years, have been afterwards, by another statute, made perpetual, only the latter statute is to be considered in force. But this decision was erroneous, and contrary both to former b and to latter adjudications; which sufficiently establish, that if a statute be permitted even to expire, and afterwards be revived by another statute, proceedings ought to be referred to the first act, the law deriving its force from the first statute. "When a statute is continued," said Lord Hardwicke, in Rex v. Morgan, c "every person is estopped to say that it is not in force." And the Court of King's Bench, in Shipman v. Henbest, d held that the statute of 21 Jac. 1, c. 4, extends to statutes made since, which revive statutes made before it; in other words, that if an expired statute be afterwards revived by another statute, the law derives its force from the first act, which is to be considered as in operation by means of this revival. If, however, a temporary act be revived after it has expired, without a special provision reaching to the intermediate time, the intermediate time is lost. No proceedings can be pursued under a repealed statute, though commenced before the repeal, unless by special exception.e
Statutes of the realm, (quæ edicta et statuta sunt,) are the declared will of the supreme power in the state, which, unless they are repugnant to the laws of God, all subjects are bound to obey.
a 29 Geo. 3, c. 64; 33 Geo. 3, c. 66; 34 Geo. 3, c. 80, &o.
Created by an exercise of the highest authority which the constitution of this country acknowledges, they cannot be dispensed with, altered, amended, suspended or repealed, but by the same authority of parliament by which they were made. For it is a maxim of law, that it is conveniens naturali æqitati unumquodque dissolvi eo ligamine, quo ligatum est.
An act of parliament cannot be repealed by non user. a Scotch lawyers hold, that a statute loses its force by desuetude, if it hath not been put in execution for sixty years. Other writers have extended this term to a century, and make a distinction between statutes half obsolete, and those in viridi observantia.
An act of Parliament* may be repealed by the express words of a subsequent statute, or by necessary irresistible implication. But an act, according to the positive rules of both Houses of Parliament, cannot be altered or repealed in the same session of Parliament in which it was passed, unless there be a clause inserted, expressly reserving a power to do so.
If a subsequent statute, contrary to a former act, have negative words, it shall be a repeal of the former act.
Every affirmative statute is a repeal of a precedent affirmative statute, where its matter necessarily implies a negative; but only so far as it is clearly and indisputably contradictory and contrary to the former act "in the very matter" (Foster's case;) and the repugnancy such, that the two acts cannot be reconciled; for then "leges posteriores, priores contrarias abrogant." The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction, as almost to establish the doctrine of "no repeal by implication." But this goes beyond the limits of Foster's case, that "such repeal is not to be favored;" and, in a recent case, Lord Denman said, "while we hold that a positive enactment is not to be restrained by inference, we must also act on the maxim, leges posteriores priores contrarias abrogant,' whenever it comes in operation."b✦
a 2 T. R. 275.
b2 Q. B. Rep. Reg. v. Inhabitants of St. Edmund's, Salisbury, p. 84.
The following are the observations of the framers of the Code Napoleon:"Les lois conservent leur effet, tant qu'elles ne sont point abrogees par d'autres lois, ou qu'elles ne sont point tombees en desuetude. Si nous n'avons pas formellement autorise le mode d'abrogation par la desuetude ou le non-usage, c'est qu'il eut peut-etre ete dangereux de le faire. Mais peut-on, se dissimuler l'influence ee l'utilite de ce concert indelibere, de cette puissance invisible, par laquelle, sans secousse et sans commotion, les peuples se font justice des mauvaises lois, et qui semblent proteger la societe conire les surprises faites au legislateur, et le legislateur contre lui meme."-Discours preliminaire du premier projet du Code Civil.
It is elsewhere, in the same admirable dissertation, philosophically observed, "Les codes de peuples se font avec le temps; mais, a proprement parler, on ne les fait pas."
NOTE 4.-The American authorities are substantially to the same effect. A statute can be repealed, only by an express provision of a subsequent law, or by
"If two inconsistent acts be passed at different times, the last," said the Master of the Rolls, "is to be obeyed, and if obedience cannot be observed without derogating from the first, it is the first which must give way. Every act of Parliament must be considered with reference to the state of the law subsisting when it came into operation, and when it is to be applied; it cannot otherwise be rationally construed. Every act is made, either for the purpose of making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment."a"
a The Dean of Ely v. Bliss, 5 Beav. 582.
necessary implication. To repeal a statute by implication, there must be such a positive repugnancy between the provisions of the new law and the old, that they cannot stand together, or be consistently reconciled. Cool v. Smith, 1 Black. 459; Wood v. U. S. 16 Pet. 342, 10 Barr. R. 448; Hartford v. United States, 8 Cranch, 109; Brown v. County Commissioners, 21 Penn. 37; Street v. Commonwealth, 6 Watts and Serj. 209; Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 Barb. 316; People v. Deming, 1 Hilt. 271. In McCool v. Smith, 1 Black. U. S. R. 470, Justice Swayne said, "a repeal by implication is not favored; the leaning of the courts is against the doctrine, if it be possible to reconcile the two acts of the legislature together." Where a late statute, is absolutely repugnant to a former one, only in part, it repeals the former only so far as the repugnancy extends, and leaves all the remainder in force. Van Rensselaer v. Snyder, 9 Barb. 308, and cases supra.
NOTE 5.-The more natural, if not necessary inference in all such cases is, that the legislature intend the new law to be auxiliary to, and in aid, of the purposes of the old law. There should be therefore, a manifest and total repugnancy in the provisions of a new law to lead to the conclusion that the latter law abrogated, and was designed to abrogate the former. There are cases however, where, though the latter statute be not repugnant to a former one, and no express provision in the latter repealing the former, if the latter prescribe the only rules which shall govern, it repeals the former one in all those respects in which it differs from the latter as to the governing rule. Daviess v. Fairborn, 3 How. U. S R. 636. If the latter statute is upon the same subject matter with the former, and introduces some new qualification or modification, so that it is impossible both should be in force, then the latter repeals the former, but if it be possible that both can stand, by construction, the question resolves itself into an inquiry, what was the intention of the legislature? Did it mean to repeal, or take away the former law, or was the new statute intended to be merely cumulative? U. S. v. Case of Hair Pencils, 1 Paine, 400.
A repealing statute, is a total abrogation of the law repealed, but rights acquired, and which became perfect under the law before its repeal, are not affected by the repeal. Prusseaux v. Welch, 2 Western Law Monthly, 209.
A repealing act, and another act passed at the same session, suspending the effect of the repealing act for a limited period, leaves the former law in force
It is a general rule that subsequent statutes, which add accumulative penalties, and institute new methods of proceeding, do not repeal former penalties and methods of proceeding ordained by preceding statutes, without negative words. Nor hath a latter act of parliament ever been construed to repeal a prior act, unless there be a contrariety or repugnancy in them, or, at least, some notice taken of the former act, so as to indicate an intention in the lawgiver to repeal it. Neither is a bare recital in a statute without a clause of repeal, sufficient to repeal the positive provisions of a former statute. a The law does not favor a repeal by implication, unless the repugnance be quite plain; and such
a Dore & Grey, 2 T. R. 365.
during the period the repealing act is suspended.
This was held in relation to statutes of the state of Virginia; that state having adopted the British rule of construction, that all statutes passed at the same session, take effect from the first day of the session; so that both statutes are to be regarded as parts of the same act. Brown v. Barry, 3 Dallas, 367.
Where a statute is repealed by a subsequent one, and a third act is then passed declaring the first not to have been repealed by the second; the third is inoperative as to all cases occurring before its passage. Ogden v. Blackledge, 2 Cranch. 194.
In the state of Ohio, the repeal of a repealing act does not revive the original statute; nor does the repeal of a prohibitory act, make a valid contract entered into in violation of the act repealed. Milne v. Huber, 3 McLean, 212.
A subsequent act making a different provision on the same subject, is not to be construed as an explanatory act, but an implied repeal of the former, if the latter act be incompatible with the former. Dash v. Van Kleeck, 7 John. 497; Columbian Manufac. Co. v. Vanderpool, 4 Cow. 556; Livingston v. Harris, 11 Wend. 329. If the latter part of a statute is repugnant to the former part, it shall stand, and so far as it is repugnant, shall operate as a repeal of the former part. So if there are two statutes on the same subject which are repugnant, the latest operates as a repeal of the first, so far as the repugnancy extends, but no farther. The latest expression of the legislative will must prevail. Harrington v. Trustees of Rochester, 10 Wend. 550; Bac. Abr. tit. statutes D; Bowen v. Lease, 5 Hill, 225, and note; Williams v. Potter, 2 Barb. 316; People v. Deming, 1 Hilton 271; Van Rensselaer v. Snyder, 9 Barb. 302.
Repeals by implication, are not favored in law, and are never allowed but in cases where inconsistency and repugnancy are plain and unavoidable. Cases last, supra, and Wallace v. Bassett, 41 Barb. 92.
In a criminal case, where the judgment was pending for review upon a writ of error, and between the rendition of the judgment, and the hearing upon the writ, the statute upon which the judgment was rendered, was repealed, it was held that the judgment should be reversed, notwithstanding the judgment was correct upon the law when it was pronounced, on the ground that the repeal of the law imposing the penalty. though it took place after conviction, arrested the judgment, on the ground, that there was then no law that authorized the execu