sovereign, should be abandoned to usage, or confided to the judiciary.*

In the early ages of the English system, it appears that the line between the Judiciary and the Legislature was not distinctly marked, and that Parliament, consisting of one great chamber in which sat both Lords and Commons, not only made, but interpreted the law.† But it has now long been settled in England, that the interpretation of statute law belongs to the judiciary alone, and in this country, they have claimed and obtained an equal control over the construction of constitutional provisions. This treatise is, then, devoted mainly to a consideration of constitutional and statute law, and of the control exercised by the judiciary over it.

It is plain that the matter is of great moment. On the one hand, the nature of the case, the frequency of doubt, the impossibility of recurring to the legislature or to popular sovereignties for the removal of difficulties, and the general analogies of our system, require the power of the judiciary to be extended over the subject; while, on the other hand, unless their authority be very carefully exercised and confined within strict limits, the boundary between the legislature and the judiciary would be gradually effaced and the most valuable parts of the law-making power practically fall into the hands of that branch of the government which

* Comm., Lib. i. Tit. iii. de legibus.

"Originally, the Houses of Lords and Commons sat together. The courts of law were clearly subordinate to the Parliament. A writ of error lay from them to the Parliament, and they were accustomed even to consult Parliament before they decided points of difficulty and importance."-Sir J. Campbell, arguendo, in Stockdale vs. Hansard, 9 Ad. and Ell. 1; see, post, ch. v.

Kent, Part iii. Lec. xx. vol. i. p. 449 et seq.

is not intended to have any share whatever in the enactment of laws.

Having thus endeavored to give a general idea of the various sources of our jurisprudence, and of the principal objects of this treatise, we proceed now to a more particular examination of our immediate subject, desiring, however, that the results at which we have thus far arrived, may be borne in mind: That the common law is the great basis of both English and American municipal law; that the interpretation or construction of the written law belongs to the judiciary; that the rules governing the application of statutes may, as a general proposition, be considered the same in both countries, but that on the contrary, the head of constitutional law is wholly peculiar to American jurisprudence.

As the authority of Congress is subordinate to that of the Constitution of the United States, and that of each Legislature both to the federal charter and the constitution of its own State, it is plain that the inquiry of the American student in all new cases, must be directed to constitutional provisions before it turns to the statute law. The prominent question in any case of first impression growing out of the provisions of written law, will usually be with every legal mind: does the alleged right interfere with any constitutional provision, State or federal? And it might, therefore, appear proper first to speak of constitutional law; but, as has been observed, the basis of our jurisprudence is the English system, the general rules of interpretation are the same, whether applied to statutes or constitutions; and as constitutions for the purpose of this work will be considered mainly in the light of restraints or limitations upon legislative power, it will be found better

at the outset to examine those rules and discuss those doctrines common to the legal science of both countries. I shall first, therefore, consider the subject of Statutes.

It will be remembered, however, that my leading object is not to give the actual interpretation of particular constitutional or statutory provisions. This would require a work of vast magnitude, and would lead me far beyond my present purpose. That purpose is to consider the rules which govern the application of written law, to exhibit the leading principles of interpretation, and in regard to constitutions, to observe their analogies and study their general operation. The construction of special provisions, whether of statutes or constitutions, will be carried no further than shall appear to be necessary for a complete understanding of the subject.

Before discussing the subject of the construction of statutes in doubtful cases, it is necessary first, however, as I have said, to understand the rules which govern their application where no doubt arises. Having first examined their division and classification, their separate parts and their various incidents, we shall be then better prepared to understand the rules which are adopted where cases of difficult or doubtful interpretation arise.

CHAPTER II.

GENERAL CLASSIFICATION AND DIVISION OF STATUTES.

Division of Statutes-In England divided into ancient and modern-Division in the United States-Public and Private Acts-Declaratory and Innovating Statutes-Affirmative and Negative Statutes-Remedial StatutesPenal Statutes-Repealing Statutes.

THOSE who desire to know the origin and history of the formation of statutes, from the earliest periods, in the country from which our legislation derives its source, will do well particularly to consult Mr. Dwarris' very valuable work on Statutes.* The inquiry involves some of the most interesting questions connected with the early annals of England, the power of the Nor man Conqueror and of his first successors, the rise and progress of parliaments, and many other subjects equally curious and attractive.

For our present purpose it is sufficient to observe, that the original term for all laws was Assisæ or

* Treatise on Statutes, by Fortunatus Dwarris, Kt., and W. H. Armyot. Second edition, 1848. The first volume is devoted to the origin and history of statutes, and the course of proceedings in Parliament. The second volume treats of the construction of statutes, their division, parts, authority, and incidents.

This latter part has been republished in the ninth volume of the first series of that valuable compilation, the Law Library, and is familiarly known to our legal scholars. The whole work has, I believe, never been republished in this country. Barrington's Observations on the Statutes is also full of curious learning on the same subject.

Constitutiones (rex precepit vel constituit); and among the earliest monuments of English legislation, there are statutes which bear the traces of a great council assisting the king, besides ordinances, grants, charters, and patents, emanating from the crown alone. The first statutes appear to have been enacted upon petitions which were presented, discussed, and acted on in Parliament, the statute being, at the end of each parliament, drawn up by the judges, and entered on the statute roll.. This was found subject to great irregularity and abuse; and finally, in the time of Henry VI., bills were in the first place, as now, drawn up and presented to the two Houses.* But as this investigation to us would be interesting mainly if not solely in an historical and antiquarian point of view, I shall content myself with this brief notice of so much of my subject as is entirely peculiar to England, and proceed at once to the enumeration of the different classes into which statutes are divided. Here we shall find the basis of the classification to be derived from the English law.

The English have, however, a division of statutes which is unknown to us, viz.: into ancient and modern. The earliest statutes in the printed collections are those of the ninth year of Henry III., A. D. 1225. The statutes from Magna Charta down to the end of Edward II, 1326 (including also, some which, because it is doubtful to which of the three reigns of Henry III., Edward I., or Edward II., to assign them, are termed incerti temporis), compose what have been called the vetera statuta, or ancient statutes; those from the beginning of the reign of Edward III. (1327) being con

* Dwarris on Statutes, vol. ii. ch. i.