Statutes admit of a variety of divisions, namely, public and private, declaratory and remedial, preceptive, prohibitive, permissive and penal, temporary and perpetual, affirmative and neg. ative, prospective and retrospective, constitutional and unconsti tutional. In treating of the division of statutes, we shall omit that distinction which exists in England, but which has no application here, to wit, between ancient and modern statutes; those dating before and those after a certain period in English history.a American statutes that have not been repealed, or are not in some way abrogated, do not become impaired by mere lapse of time, but are all equally in force; and though here, as in England, we have acts known as public, and private acts, and also, as local and personal acts, unlike the English, our statutes are all printed and published.b Each of these divisions will be noticed in their appropriate place. We might in this place refer to another division of statutes that exist here, which is unknown in England, to wit: statutes of the United States or federal government passed by Congress; statutes of the several States passed by the legislatures of the several States; and colonial statutes passed by the several colonial governments before their separation; to which it may perhaps be added, territorial acts, passed by the new territories before their admission in the Union as States. But this last division is of little practical importance, and calls for no special consideration. The first division of statutes that I propose to notice, is that of general, or public acts, and such as are special or private. A public act is a universal rule, that regards the whole community; and of this, courts of law are bound to take notice judicially, and ex officio, without the statute being particularly pleaded, or formerly set forth by the party who claims advantage under it.c Private acts are those which concern only a particular a The antiquarian or student who may be curious to learn the history of early ordinances of the King and his Council, is referred to the first volume of Dwarris which is chiefly devoted to such early history. b Art. 6, Const. N. Y. of 1846, § 22; Const. U. S., art. 4, § 1; Statutes at Large, vol 1; 122; vol. 9, 75. c1 Black. Com. 86. Com. Dig. tit. Parliament, R, 7. species, thing, or person; of which the judges will not take notice without pleading them; as acts relating to any particular place; or to divers particular towns; or to one or divers particular counties; or to a college or university; etc. It 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 an exception to the general rule.a The most comprehensive, if not the most precise definition, is that given by Dwarris; "that public acts relate to the public at large, and private acts concern the particular interest or benefit of certain individuals, or of particular classes of men." In a general act, there may be a private clause. b So, a statute which concerns the public revenue is a public statute, but some clauses therein, may, if they relate to private persons only, be private; for a statute may be public in one part, and private in another. c' A general or public act, then, regards the whole community; special or private acts relate only to particular persons, or to private concerns. Public acts, the courts of justice are bound ex officio to notice, without their being formally set forth. Of private acts, the judges are not bound to take notice unless they be formally shown and pleaded. And this is the doctrine, though the private act should make void all proceedings to the contrary in such place. d As the judges are bound to take notice of a general law, so it is their province to determine whether it be a statute or not, and whether public or private. It was held upon one e occasion that d Skin., 350. a 1 Kent Com. 459. b 4 Cowen. 79. c Dwarris. e Lord Raym., 709. NOTE 1.—The exceptions to this rule are in the State of Virginia. These private statutes need not be pleaded, yet they must be exhibited in court as documents. Even there, they will not be noticed judicially like public statutes. Le Grand v. Hamp. Sid. College, 5 Munf. R 324. And in Kentucky, the courts judicially notice private as well as public statutes, if printed without their being formally pleaded. Halbert v. Skyles, 1 Marsh. Ken. R 368. Farmers and Mechanica Bank v. Jervis, 1 Munroe, R. 4, 5. NOTE 2.-Laws creating banks of issue, though not declaring themselves public, are public laws. Smith v. Strong, 2 Hill, 241; Bank of Utica v. Smedes, 3 Cowen 662 the judges are not obliged to take notice of a statute of general pardon, unless they are by such statute itself directed to do so;a for as a general pardon only relates to offenders, it is not a public statute. For it is added, it is by no means a consequence that because a man is enabled to give such statute in evidence upoz the general issue, that the judges must take notice of it for any other purpose. But this appears to be a harsh construction, and such as would scarcely be supported at the present day. Accordingly, another case will be found, b decided about the same time, in which a statute for the discharge of poor prisoners was relied upon by the defendant, and an exception taken that it should have been pleaded at large (being a private statute), as not extending to all prisoners, but to such only as were in prison at a time mentioned in the act. The court, however, construed it to be a public statute, holding that all the people of England might be interested as creditors; that, as a merciful act, it should have a favorable construction; and that poor prisoners ought not to be put to the difficulty and expense of pleading it specially-three grounds, which were sound, merciful and just. The probable grounds of the declared difference in the judicial notice of statutes, public and private, may be (besides the solemnity and intrinsic authority of a public act of the legislature, and the supposed greater notoriety of a matter of universal concern), the extreme inconvenience of a contrary rule, and the difficulty and uncertainty of which it would be productive. The rule which we have given, however, without regard to the supposed reasons for its adoption, depends on positive law, and not on conjectural expediency. Accordingly, the existence of a public act must be tried by the judges, who are to inform themselves of this, in the best way they can. A private act may be put in issue and shall be tried by the record.'" b Lord Raym. 120, Jones v. Axen. a Ingram and Foot, 12 Mod. 613. NOTE 3.-A private act that confirms a land claim, is presumed to have been passed with reference to the particular claims of the individuals who so claim to be interested, and to the situation of the land embraced in the law at the time it was passed; but such an act does not enlarge the parties rights as against adverse claimants, nor conclude them. Pollard's heirs v. Kibbe, 14 Pet. 353; Lanfear v. Huntly, 4 Wall. 204. Though an act confirming a deed given by an executrix on a sale of land in order to pay the testators debts, will be held good as against the heirs at law of the testator. Leland v. Wilkinson, 10 Pet. 294. 8 2. It has been held that where a statute makes it felony to steal the notes of a particular bank, its act of incorporation thereby becomes a public statute, U. S. v. Porte, 1 Cranch. C. C. R. 369; and in Young v. Bank of Alexandria, 4 Cranch. R. 388, an act of the State of Virginia, incorporating the Bank of Virginia was declared a public act. What is a public act? 4 Pet. 166. To both the general rules, that general or public acts are to be noticed judicially without pleading, and that special acts must be shown by pleading, there will be found in this country some other exceptions. Among these exceptions, are those that relate to the particular character of the statute, and among these, are the statutes of limitations, and the statute against usury. These are public and general statutes, yet the party who intends to avail himself of their benefits, must plead them, or he will not be permitted to give the defence arising under such statutes in evidence. And though a cause of action appear in the declaration or complaint to have accrued upwards of six years before the commencement of the action, a defendant can only have the advantage of it by plea, or answer.a But in pleading in a case which is to be governed by the principle of a statute of the mother country which became a part of the colonial common law, it is not necessary to refer to the statute; it is enough to plead the facts which bring the case within it as a part of the common law of the State.b Acts of Parliament are, again, DECLARATORY of the old law, or introductory of new, or both, as by the addition of greater penalties, the destruction of particular customs, and the like. Declaratory, are necessarily in their terms, affirmative or negative. Both kinds of laws, those declared and affirmed, as well as those newly enacted, may be PENAL; the affirmance of the anterior law cannot properly be styled REMEDIAL. A subordinate division of REMEDIAL acts has been made into ENABLING and DISABLING— ENLARGING and RESTRAINING statutes. Those against natural law and reason are said to be VOID. It is proposed to examine the nature of each successively; the rules with regard to their construction will be more fitly considered at a future period. a See 2 Chitty, Pl. 450 and notes; Puckle v. Moor, 1 Vents. 191; Lee v. Rodgers, I Lev. 110; Goold v. John, 2 Ld. Raym. 838; N. Y. Code, § § 74, 149, 150; Voorbees v. Voorhees, 24 Barb. 150; Sands v. St John, 36 Barb. 628. b Bogardus v. Trinity Church, 2 Paige R 198. 3. A private act of incorporation is to be regarded as in the nature of a contract, and cannot effect the rights of individuals who do not assent to it; but their assent may be inferred from their acts, such as taking benefits under it. Beatly v. Knowler, 4 Pet. 166. 4. An act prescribing the boundaries of a county is a public act. Stephenson ▼. Doe, 8 Black. 508, And first of DECLARATORY acts. These are made where the old custom of the kingdom is almost fallen into disuse, or become disputable, in which case the Parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. And such statutes are expressed affirmatively, or in negative terms. A statute made in the affirmative, without any negative expressed or implied, does not take away the common law. It follows, that it does not effect any prescriptions or customs clashing with it, which were before allowed; in other words, the common law continues to be construed as it was before the recognition by Parliament. The next difference observable between public and private statutes, is, that particular, as opposed to general acts, will not bind strangers; though they should not contain any saving of their rights. Á general saving of the rights and interests of all persons whatsoever, except those whose consent was given or purchased, and who were particularly named in the act, used to be constantly added to all private bills; but it was held, that, even if such saving were omitted, the act would bind none but the parties. At present, it is usual a in preparing modern private acts, to insert, ex cautela, a special saving clause, explaining how far the rights of strangers are intended to be affected. The reason of the rule is apparent, and the rule itself is founded in wisdom and justice. Every person is considered as assenting to a public act; b but it is a rule, that private acts of Parliament, introduced only for the settlement of particular estates, ought to be considered merely as common conveyances, and directed by the same rules of law; and therefore they cannot be taken to extend as a discharge of any person's right not mentioned in the act. This, says the judicious and candid commentator on the laws of the United States of America c is a safe and just rule, and it was it was adopted by the English Courts in very early times,d and does great credit to their liberality and spirit of justice. It is supported by the opinion of Sir Matthew Hale, in Lucy and Levington, e 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.' It is the great question in Barrington's case, 8 Rep.. "The matter of the act there directs it to be, between the foresters and the proprietors of the soil; and therefore it shall not extend to the commoners, to take away their common. Suppose a statute recites, that whereas there was a controversy concerning land between A. and B., and enacts, that A. shall enjoy a See Hargrave and Butler's note to Co. Litt. 98. c 1 Kent, 427. e 1 Ventris, 175. |