A GENERAL TREATISE ON STATUTES.

CHAPTER I.

INTRODUCTORY COMMENTARY.

OF THE DEFINITION OF STATUTES, ANCIENT AND MODERN. THEIR ORIGIN, INCIDENTS, &c.

STATUTE LAWS, their definition, origin, manner of enactment, forms, authentication, promulgation, force, interpretation, limitations, variety and incidents, are the subject of this work.'

History, as well as experience, has taught us, that in every civilized community, however high or low it may rank in the scale o intelligence, there is an absolute necessity for the existence of a power for the administration of justice. This necessity is so absolute and indispensable, that all social institutions, whatever may be their object, seek to provide some recognized authority to admin

NOTE 1.-While the design of this work is to present to the profession, an American treatise on statutes and constitutional law, the labor assumed, is greatly relieved, and the performance of the duty, (it is believed) more satisfactorily discharged, by adopting, as far as it is practicable, a work of approved and standard authority, in all the courts of England and America, upon the subject of statutes. There is, perhaps, no writer, in either country, whose work upon the construction of statutes, has been more universally regarded by the courts and bar, as authority, than the "Treatise upon Statutes, by Sir Fortunatis Dwarris, Knt. B. A. of Oxford, F. R. S., F. S. A. of England." The text of this author, in that part of his treatise, which has application to statutes generally, will be adopted in this work. This will supply an almost importunate demand by the profes sion, for a republication in America, of that standard, and greatly desired work. To this original of Dwarris, will be added by original text, and also by notes of authority, such views of American law on the construction of statutes, as can be brought within the scope of the work, with American authority upon Constitutional limitations, and legislative powers; and also, views of construction upon such subjects of statute law as have no existence in England, or such as remain untouched by the English author, with a chapter upon parliamentary law and the law of parliamentary privilege.

ister justice. It requires uniform rules; rules which shall be promulgated, and known by all the members of such social community. It becomes a necessity, which lies at the foundation of all civil, society,, otherwise, each individual of the community would attempt to administer justice for himself.,

These uniform rules, so adopted by a community, are to a great extent, the rules of conduct by which its members are to be governed, and are therefore denominated its laws; and laws are regarded as the rules of right; as the measure of justice between man and man; and are generally found existing to a greater or less extent in an authentic form, either written or printed. But, in order to give binding force to laws, nothing is more certain than the indispensable necessity of Government. And it is equally, undeniable, "that wherever and howsoever government is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers." a

Government, implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the commands which pretend to be laws, will in fact amount to nothing more than advice or recommendation. This would not be government. Among the necessary powers of government, is that of legislation, which is the power in the government to make laws, not only, but to make the laws so made, the means of executing the legislative power.

"A law by the very meaning of the term, includes supremacy, It is a rule, which those by whom it is presented are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact pursuant to the powers entrusted to it by the terms of the compact, or constitution, must necessarily be supreme over the societies so united, and over the individuals of which they are composed. It would otherwise be a mere treaty, dependent upon the good faith of the parties, and not a governa Federalist, Letter 2,

ment, which is only another word for political power and supremacy," a

The great aim and object then, of the political institution called government, is to provide for the safety and happiness of the society, and the individual members of which it is composed, and ustice is the end to be secured. It is government that secures the weaker against the violence and oppression of the stronger, and secures itself, by the possession of the power conferred by all.

When laws are made, and promulgated in their most authoritative form, namely, by legislation, they are then denominated statntes. Other authorities of law, are usages and customs; these are supposed to be based upon the precepts of natural right, and are also intended to be the measure of justice.

Statute law, by American definitions, is an act which is prescribed by the legislature, or supreme power of the State; it extends its binding force to all the citizens or subjects of that State. b

This definition, applies as well to the State in its national capacity, as to the several sovereign states, whose union compose the national body politic. These statutes, State and National, are equally the expressions in writing, of the sovereign or legislative will, known in ancient and elementary law books, as "leges Scripta," c or written laws, as distinguished from the "leges non Scripta," the unwritten or common law. The latter, owe their binding force to the principles of justice as declared by the courts, and to long usage and consent of the nation, or people. The former, to the positive command or declaration of the supreme power.

Statute law, in a republican form of government, is commonly applied to the acts of a legislative body, consisting of representatives chosen by the people. In monarchies, they are the written will of the sovereign power, whether expressed by absolute will of the king alone, or by a union of wills, of king, nobles and commons, when the commons act in a representative character. When expressed by the king alone, they are sometimes called edicts, decrees, ordinances, rescripts, &c.

a Foderalist, No. 31.

b 1 Kent Com. 447; 2d id. 456.

c 1 Black Com. 85.

Statutes are of both Divine, and human origin; the former, having God, the latter man for their authority.

It is not within the scope or object of this work to discuss the question of the true origin of governments in either their ethical or political bearing; nor whether governments are based upon divine or human authority, but only assume that every duly organized government possesses the power to ordain and establish the laws by which its subjects shall be controlled; and confine this treatise chiefly to the subject of the written or statute laws.

The municipal laws of nations and of communities, are therefore, in their origin and intrinsic force, no other than the rules of being, given to man by God. But as the heavenly wisdom must flow through the impure channel of humanity, it is necessarily mingled with the provisions of human invention, and there must necessarily be some conflict with the primary perfection. Indeed, the divine rule itself, provides for human modifications. So that laws may be adapted to the particular circumstances, views, and wants of the subjects to whom, and to whose interests they are to be applied, and whether human modifications accord with the original right and perfection or not, they are alike permitted as laws; and become so essential to human association, that men cannot live in communities without them.

Human laws, which are intended to be an approach toward the perfection and majesty of the law of God, are entitled to a corresponding dignity and respect; they are entitled to the strongest affection; and should be enshrined in the hearts of a people who are the subjects of the government, and whose public sentiment they are supposed to express. They cannot be held in too high

NOTE 2.- -"Because they had not executed my judgments; but had despised my statutes; and had polluted my Sabbaths, and their eyes were after their fathers idols. Wherefore I gave them statutes, also that were not good." Ezekiel 20, 24. If the wicked restore the pledge, give again that he had robbed, walk in the statutes of life without committing iniquity, he shall surely live, he shall not die. Ezekiel 33, 15. The statutes of the Lord are right, rejoicing the heart. Psalms 19, 9. Thou comest down also upon Mount Sinai, and speakest with them from Heaven, and gavest them right judgements, true laws, good statutes and commands; and madest known to them thy holy Sabbath, and commanded them precepts, statutes and laws by the hand of Moses thy servant, Nehemiah 9, 13, 14. See also Exodus 15, 26. Deut. 6, 17; 2 Kings 17, 15; 1 Chron. 29, 19; Micah 119, 12, 16, 23, 26, 33, 54, 64, 68, 71, 117.

6, 16; Psalms 18, 22: Id.