tution as the paramount law, and the highest evidence of the will of the people." a

The power of interpreting laws, involves, necessarily, the function to ascertain, whether they are conformable to the constitution, or not; and if not so conformable, to declare them void and inoperative. As the constitution is the supreme law of the land, in a conflict between that and the laws, either of Congress, or of the States, it becomes the judiciary to follow that only, which is of paramount obligation. This results from the very theory of a republican constitution of government; for otherwise, the acts of the legislature and executive would, in effect, become supreme and uncontrolable, notwithstanding any prohibitions or limitations contained in the constitution; and usurpations of the most unequivocal and dangerous character might be assumed, without any remedy within the reach of the citizen. b The people would thus be at the mercy of their rulers in the State and national governments; and an omnipotence would practically exist, like that claimed for the British Parliament.

To the people at large, therefore, the institution of the judicial department is peculiarly valuable; and it ought to be eminently cherished by them. On its firm and independent structure, they may repose with safety, while they perceive in it a faculty, which is only set in motion when applied to; but which, when thus brought into action, must proceed with competent power, if required, to correct the error or subdue the oppression of the other branches of government.c But to insure a complete administration of public justice through this department, and to give. permanency to the government, the judiciary should be so organized as to carry into complete effect, all the purposes of its establishment. It must possess wisdom, learning, integrity, independence and firmness. It must at once possess the power and the means to check usurpation, and enforce execution of its judgment.d

Hence it is, that there are but few men in society who will have sufficient skill, learning, firmness, and integrity, qualities all combined in one person, to qualify them for the stations of judges.

a Id. 294.

b Federalist, No. 78

c Rawle, on the Const. ch. 21.
d Story, on Const. § 1577.

CHAPTER III.'

DIVISIONS OF STATUTES.

DIFFERENCE IN CONSTRUCTION BETWEEN

AMERICAN AND FOREIGN COUNTRIES.

ACTS of parliament are, it may be said, again, DECLARATORY of the old law, or introductive 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.

And first of DECLARATORY acts. These (in England) 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. a It follows that it does not affect 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.1

a 2 Inst. 200; 1 Inst. 111, 115; Harg. & Butler's notes, Co. Litt. 115. NOTE 1.-A declaratory statute, is sometimes intended to declare the meaning and intent of a pre-existing statute. This kind of legislation is apt to create a conflict between the proper functions of the legislative and-judicial departments of the government; because such statutes are, necessarily, to a certain extent, retrospective. It assumes the exercise of judicial power, in determining what the law was before the declaratory statute was passed. In this they exceed their power, and invade the domain of judicial authority. This kind of legislation, sometimes happens after the courts in the due exercise of their legitimate authority, as interpreters of the law, have declared the meaning and intent of the statute to be otherwise than such as the new statute declares. Without referring to other cases, a single instance may suffice. The legislature of New York, in 1853, passed an act in relation to the liability of certain insurance companies to taxation, the construction of which, was a question litigated and determined in the courts. In

an

The party may waive his benefit by such affirmative statute, and take his remedy by the common law,a which however does not mean that the statute is not binding, but that the party may take his election which to proceed upon. In like manner affirmative statute does not repeal an affirmative statute; and if the substance be that both may stand together, they shall have a concurrent efficacy. But if the latter be contrary to the former, it amounts to a repeal of the former, for it is a general principle,

a Bro. Parl. Pl. 70; 1 Rep. 64; Cro. Eliz, 104,

1855, the legislature enacted a law declaring the intent of the act of 1853, to be different from the intent as declared by the courts; such judicial decisions had been pronounced and were pending on appeal to the highest court, at the time of the enactment of the declaratory law. The Court of Appeals declared as follows: "All the judgments of the Supreme Court now under review, were rendered at the special term before the enactment of this statute. The cases since that time have been pending on appeal before the general term, and in this court; and were so pending when the statute was enacted. As regards these cases, the mandate of the legislature, if it has any application, must be regarded as addressed to the appellate tribunals. We habitually look with great respect upon all acts of the legislature, and never refuse to give them effect, except where, upon the fullest consideration, we find that they conflict with the constitution. The act in question, considered as a persuasive argument for a particular construction of the statute of 1853, loses much of its weight from the consideration that the legislative bodies had been renewed in the interval between the two enactments, and that but a few of the members of the legislature of 1853 sat in that of 1855. But, if that were otherwise, we should feel constrained to rely upon the language of the statute which we are called upon to interpret, rather than any personal assurance as to the intention of its members. The acts of the legislature do not rest in any respect upon oral tradition. They are committed to writing, and it is by the written language that their sense is to be ascertained. As an authoritative mandate in favor of the construction claimed by the insurance company, we cannot accord to it any force whatever. In the division of power among the great departments of the government, the duty of expounding written laws, has been committed to the judiciary. The legislature has no judicial power; and cannot upon any pretence, interpose its authority respecting questions of interpretation depending in the courts." People v. Board of Supervisors of New York, 16 N. Y. R. 431, 2; Dash v. Van Kleeck. 7 John. R. 477. Nor have the legislature the power to make the opinion of the Attorney General binding upon a contractor, as agent of the state prison, upon a contract previously made. Young v. Beardsley, 11 Paige, 93.

NOTE 2.-Nor would a statute declaratory of the common law, retroact upon past controversies, or reverse decisions which the courts in the exercise of their undoubted authority have made. Cooley on Const. Lim. 94. This would be a like exercise of judicial power, which if tolerated, might constitute the legislature a court of review in all cases where disappointed partisans could obtain a hearing, after being dissatisfied with the rulings of the court. Id.

that "leges posteriores, priores contrarias abrogant." But this is meant of a case where a statute by its matter necessarily implies a negative, for an act of parliament may be repealed by the express words of a subsequent statute, or by implication.

Next arises the consideration of those statutes which obtain the name of negative statutes, because they are penned in negative terms; as the statute of Marlbridge, which is" Non ideo puniatur Dominus per redemptionem;" and Magna Charta, " Nullus capiatur aut imprisonetur." "And here, the rule prevails, that if a subsequent statute, contrary to a former, have negative words, it shall be a repeal of the former; and a negative statute it is said too, so binds the common law, that a man cannot afterwards have recourse to the latter a.

The different operation of affirmative and negative statutes is thus illustrated: If a statute were to provide that it should be lawful for tenant in fee simple to make a lease for twenty-one years, and that such lease should be good; this affirmative statute could not restrain him from making a lease for sixty years; but the lease for more than twenty-one years would be good, because it was good by the common law, and to restrain him, it ought to have words negative; as, that it shall not be lawful for

a Bro. Parl. pl. 72..

The legisla ure may within their legitimate powers, declare what the law shall be in future, but to declare what the law is, or has been, is the province of the judiciary. See Greenhough v. Greenhough, 11 Penn. St. R. 494, and Reiser v. Tell Association, 39 id. 137. In the latter case, the court say in relation to such a declaratory act, "It is the interpretation by one legislature of a written statute by another, and therefore an adjudication of private rights that have arisen under it. And yet the former legislature said nothing like this, and nothing from which it can be inferred. The legislature have no such authority over us, to change the laws of language. If given language does not express a given meaning, they may give us other language that does; but this will not change the meaning of former language. In the very nature of language, this is impossible. It is with, and by virtue of the new expressions, that we get the new meaning, and the meaning of the law is the law itself, and the law can be no older than the effectual expression of it.

NOTE 3.-A DECLARATORY law, founded upon a mistaken opinion of the legislature, though inoperative as to the past, may operate in the future. P. M. Gen'l v. Early, 12 Wheat. 148. A declaration of the legislature as to what they intended for the time in the past by a law, does not make the law what they intended it, if they are in error. It only affects it in the future; the past law is to be determined by the judiciary; but it is the duty of the courts to give to a construing act its intended practical operation, as far as is possible. Bassett v. U. S. Nott & Huntington R. 448. In this country, where the legislative power is limited, declaratory laws, so far as they operate on vested rights, cannot change the rule of construction as to a pre-existing law. Salters v. Tobias, 3 Paige, 388.

him to make a lease for above twenty-one years; or that a lease for more, shall not be good.

Upon the rule itself, a nice, abstruse, and difficult question, and one much litigated, arises.

A man might have alleged a custom against the common law; if the statute be only declaratory of the common law, shall he not, in like manner, prescribe against the statute? Lord Coke remarks it as an important distinction between negative statutes of different kinds, that where they are only affirmative of the ancient, that is of the common law, there, a custom will equally prevail against the statute, as it before obtained against the common law. a Such negative statutes, according to him, cannot extend the common law, and no more effect is given to them than if the statutes were expressed in affirmative terms. If the statute be a mere affirmance, or declaration of the common law-whether the words used be affirmative or negative, can, it might be thought, substantially, make no difference. The one it is reasonably to be presumed, cannot have an operation more extended than the other. An affirmative statute, it is unqualifiedly laid down, does not take away a custom.b Thus, says Lord Coke, the statutes of Wills of 32 and 34 H. 8, do not take away a custom to devise lands, as it hath been often adjudged; so, a negative statute, in affirmation or declaration of the common law, may be prescribed against. "As the Statute of Magna Charta provideth that no leet shall be holden but twice in the year, yet a man may prescribe to hold it oftener at other times; for that the statute was but in affirmance of the common law." This instance of Lord Coke has been questioned, and seems liable to exception; it possibly may not be apt; but granting that it is doubtful, the objection applies to the fitness of the example, and not to the force of the rule. Another illustration is drawn by Lord Coke from the forest laws. "The statute of 34 E. 1, provideth that none shall cut down any trees of his own within a forest, without the view of the forester; but inasmuch as this act is in affirmance of the common law, a man may prescribe to cut down his woods within a forest without the view of the fcrester." This case also has been impeached, but still the, reason, and good sense of Lord Coke's distinction remains unimpaired. The pertinent inquiry still to be made is, whether the provision of the act be contrary to the former law? If not, the common law tontinues as in the case of affirmative statutes, to be construed as before its recognition, and the maxim consuetudo privet communem legem still

NOTE 4.-Where there are two affirmative statutes, such parts of the prior stat ute as may be incorporated into the subsequent statute, is consistent with it must be considered in force. Davies v. Fairbairn, 3 How. U. S. R. 636.