applies. This is where the statute and the common law agree, where they differ, the rule is clear and certain. But a statute, it is apprehended, (and hence, perhaps, some confusion of ideas upon the subject,) may be at the same time declaratory of the ancient law and introductive of a new. While it affirms the com mon law, it may annihilate particular customs which were before allowed in derogation of that general law. The distinction, justly taken, is confined to such statutes as, though expressed in negative terms, are merely in affirmance of, or declaratory of, the common law. Cases in which the terms of the statute, fairly taken, import something more; enlarging-restraining-qualifying-or in anywise varying the law,-do not apply. But this view of the case, consonant as it is to reason, and not unsupported by authority,a cannot fearlessly be pronounced to be the law. It must be delivered as doubtful. It is the questionable doctrine of the latter cases,b that no prescription or custom is good against a negative statute, whether it be declaratory of the common law, or introductive of a new law; and this is the latest decision.

It is, as a maxim, generally true, that if an affirmative statute, which is introductive of a new law, direct a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner.c But where the question was, whether an appointment of overseers made after the expiration of the time limited by the statute for such an appointment was valid? It was held to be so, for the statute (43 Eliz. ch. 4,) ought to receive a liberal construction; it was not in the power of the parish to compel the justices to make an appointment within the time. Although the statute be introductory of a new law, no negative ought to be implied.d

If a new power be given by an affirmative statute to a certain person, by the designation of that one person, although it be an affirmative statute, all other persons are in general excluded from the exercise of the power; since expressio unius est exclusio alterius. Thus, if an action founded upon a statute be directed to be brought before the justice of Glamorgan in his sessions, it cannot be brought before any other person, or in any other place. So, by the Scotch law: "statutory provisions cannot be supplied by equipollents."f

But the designation of a certain person, to whom a new power is given, does not exoiude another person who was by a precedent statute authorized to do it, from doing the same thing. g

a Harg. and Eut. Co. Litt. 115, (a) note 9. 2 Hawk. P. C. c. 10, s. 8.

b Lord Lovelace's case, 1 Jčn. 271; 2 Bulstr. 36; Shower, 420.

e Hob. 298; Sid. 56; Stra. 1125; 2 T. R. 395. d R. v. Sparrow, Bott. 11. f Alisor's Practice Scotch Law.

e 11 Rep. 59. Foster's case, id 61.

g Foster's case.'11 Rep. 39.

*So the Spanish law holds that a custom being general and immemorial, may alter the anterior law. L. 6, Tit. 2 Partid. 1.

Laws declaratory in name, are often imperative in effect: legislative, like judicial interpretation being frequently deceptive, and establishing new law under guise of expounding the old. Acts to explain laws, are properly, acts of interpretation by legislative authority, or to borrow an expression from the writers on the Roman law, they are acts of authentic interpretation.a

Repeal acts, are revocations of former statutory laws, authorizing or permitting the parties, to whom the repeal extends, to forbear from acts, which they were before commanded to do. Hence, they are often named permissive laws; or more briefly permis

sions."

Remedial acts are made from time to time, to supply the defects discovered in the anterior law, whether they arise from the general imperfection of all human laws; from change of time and circumstances; from mistakes and unadvised determinations, or from any other cause. And this being done, either by enlarging the ancient law when it was found too narrow, or restraining it where it was too luxuriant, occasioned the other subdivision into enlarging or restraining statutes.

A remedial statute, is one which supplies such defects, and abridges such superfluities in the common law as may have been discovered,b such as may arise either from the imperfection of all human laws, from change of time and circumstances, from mistakes, and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever;c and this being done either by enlarging the common law, where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, has occasioned another subordinate division of remedial acts into enlarging and restraining statutes. So, it seems, that a remedial statute may also have its application to, and effect upon other existing statutes, and gives the party injured a remedy; in other words; and for a more general definition, "it is a statute giving a party a mode of remedy for a wrong where he had none, or a different one before."d

Such a statute, it is universally held, is to be liberally construed, and that everything is to be done in advancement of the remedy

a Austin on Jurisprudence. c Id.

b1 Black. Com. 86.

d Chitt. Black. Com. note to p. 86.

NOTE 5.-Though the provisions of two acts be different, a general statute without negative wors will not repeal a previous one, which is particular. Brown v. County Commissioners, 9 Harris, Penn. 37.

that can be givensistently with any construction that can be put upon it.a

A preceptive statute, is one which commands certain, and it regulates the forms and acts which ought to accompany them.b

A prohibitive statute is one that forbids all actions which disturb the public repose, or injury to the rights of others, or crimes and misdemeanors; or when it forbids certain acts in relation to the transmission of estates, or the capacity of persons and other objects.c

A permissive statute, is one which allows certain actions or things to be done without commanding them, as for examplewhen it allows persons of a certain description, or indeed any person, to make a will.

A penal statute, is one which imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing prohibited.

A temporary statute, is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed.d

A perpetual statute, is one for the continuance of which there is no limited time, although it be not expressly declared to be so. If, however, a statute which does not in itself contain any limitation, is to be governed by another which is temporary only, the former will also be temporary and dependant upon its existence of the latter.e

An affirmative statute, is one which is enacted in affirmative terms. Such a statute does not take away the common law in relation to the same matter.f

A negative statute, is one expressed in negative terms, and so controls the common law, that it has no force in opposition to the statute.g

A prospective statute, is one which regulates the future, and is the only one which can be just, for no man can conform himself to the law which is yet unknown to him.h

a Johns v. Johns, 3 Dow. 15; Gillett v. Moody, 3 N. Y. 479; People v. Runkle, 9 John. R. 147.

A retrospective statute, is one which is made to operate upon some subject, contract, or crime, which existed before its enactment.

These laws are generally considered unjust, and are, to a certain extent, forbidden by that article of the constitution of the United States which prohibits the passage of expost facto laws, or laws impairing the obligation of contracts.

We shall have occasion hereafter, to notice the incidents of these several divisions or classes of statutes, when we come to treat of their power and effect, and the rules of construction by which they are governed.

A statute which gave bishops and other sole ecclesiastical corporations, (except parsons and vicars,) a power of leasing, which they did not possess before, viz., stat. 32 Hen. 8, c. 38, was an enabling statute. The stat. 13 Eliz. c. 10, which afterwards limited that power, is, on the contrary, a disabling statute.

Penal statutes are acts of Parliament, by which a forfeiture is inflicted for transgressing the provision therein contained.

A penal statute may also be a remedial law;a and a statute may be penal in one part, and remedial in another part.b

Of

no validity and VOID are, it is alleged: 1st, such acts as affect to bind future Parliaments; 2dly, such as are contrary to the laws of God and nature, and to right reason. But the latter doctrine is not admitted as excepting acts from construction, though it will decide their construction.

As to the former proposition it is clearly maintainable: Subsequent Parliaments cannot be restrained by the acts of former ones. It is only necessary to repeal the ordinance to destroy the prohibition; and without a formal repeal, it seems that the act is ipso facto void. Some parts of Magna Charta, although it be expressly declared by the 42 Ed. 3, c. 2, that all statutes contrary thereto shall be void, have been repealed, and other parts have been altered by subsequent statutes; yet such latter statutes, instead of being thus made void are said in Jenkin's Centuries, to have been constantly held to be in force.c

By construction, and that not always sound, things declared void by statute are often, it will be seen, only voidable at the

b Dougl. 702.

c Jenk. Cent, 2.

a 1 Wils. 126. NOTE 6. The principle cannot be controverted, that one legislature is competent to repeal any act which a former legislature was competent to pass. One legislature cannot abridge the powers of a succeeding one.* Rut if an act be done under a law a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power.

* Marshall. Ch. J. 6 Cranch 135; Puffendorff, B. 1, Chap. 1, § &

election, or on the active motion of the party to be affected by them.

An act of Parliament shall not change the laws of nature,a for jura naturae sunt immutabilia, and they are leges legem. "Nec vero per senatum aut per populum, solvi hoc lege possimus," says Cicero. "The law of nature stands as an eternal rule to all men,' says Locke,* legislators as well as others, and the rules that they make for other men's actions must, as well as their own and other men's actions, be conformable to the will of God, of which that is a declaration. If a statute says that a man shall be a judge in his own cause, such a law being contrary to natural equity, shall be void. Such was the (at least intrepid,) opinion of Lord Chief Justice Hobart, in Day and Savage. Influenced by the same powerful sense of justice, Lord Coke, when Chief Justice, in Bonham's case,b unguardedly, perhaps, but fearlessly, declared, that where an act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law shall control it, and adjudge it to be void. And Lord Holt, in the case of the City of Londonc and Wood, to the dismay of all mere lawyers, manfully expressed an opinion, that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying. There is reason to believe that what Lord Coke said in his Reports upon this subject, is part of what King James alluded to, when he said that "in Coke's Reports were many dangerous conceits of his own, uttered for law, to the prejudice of the crown, parliament, and subjects." Lord Ellesmere, in his observations on Lord Coke's Reports, calls this passage "a paradox which derogateth much from the wisdom and power of Parliament, that when the three estates, King, Lords, and Commons, have spent their labor in making a law, three judges on the bench shall destroy and frustrate their pains, advancing the reason of a particular court above the judgment of all the realm. Besides, more temperately, did that reverend Chief Justice, Herle, temp. E. 3, deliver his opinion, 8 E. 3, cited by Co. Rep. 11, f. 98, when he said-some acts of Parliament are made against law and right; which they that made them perceiving, would not put them into execution; for it is magis congruum that acts of Parliament should be corrected by the same pen that drew them, than be dashed to pieces by the opinion of a few judges." So, Sir W. Blackstoned confines the rule of avoidance of unreasonable statutes, to any absurd consequences which arise out of them collaterally. The judges, he says, are in decency to conclude that this consequence was not foreseen by the Parliament, and only quoad hoc to disregard it.

a Hobart, 87,

b 8 Rep. 116.

c 12 Mod. 687.

d 1 Comm. 91.

Lib. 2, C. 11, § 35, and see Hooker's Ecclesiastical Polity, 1, and Bishop Cumberland's De Lege Naturae.