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otherwise expressed, "a thing given in particular shall not be taken away by general words." 1 Thus a statute prescribing the time within which a class of offences must be prosecuted, or prescribing the place of the trial, controls a general one, even subsequent in date, creating an offence within the class, and providing for its punishment. So, when a general act gives to justices of the peace jurisdiction over offences punishable by ⚫fine not exceeding seven dollars; and another act confers on them jurisdiction over particular offences therein named, punishable by more than seven dollars fine; the latter act, being specific, governs the former. But the principle of general and specific is not applicable to all cases of conflicting provisions; and, where it is not, we may resort to any appropriate doctrines, such, for example, as those mentioned in the last chapter, to determine which shall give way.1
§ 79. Secondly. In like manner, one statutory provision may be extended and enlarged by another statutory provision. Thus, if by one statute offences of a certain class are excluded from clergy, all offences subsequently by statute created within that class are excluded; in other words, the
tive words, will not repeal a prior one which is particular. S. P., Haywood ʊ. Mayor, 12 Ga. 404. It has however been held, that, when an act limited to a single county prescribes the mode of punishing an offence within the county, and afterward an act is passed regulating the mode for the entire State, the latter repeals the former. Nusser v. Commonwealth, 1 Casey, 126, See also Blevings v. People, 1 Scam. 172.
Hutton, J., in Standen v. University of Oxford, W. Jones, 17, 26; McFarland v. State Bank, 4 Pike, 410.
Johnson v. United States, 3 McLean, 89; United States v. Ballard, 3 McLean, 469; Rex v. Wyndham, Russ. & Ry. 197, 3 Camp. 78; Churchill v. Crease, 5 Bing. 177, 180; Gregory's case, 6 Co. 19 b; Dwar. Stat. 2d ed. 514; Ottawa v. La Salle, 12 Ill. 339.
Barnes The State, 19 Conn. 398.
* Ante, § 63–66. And see Cincinnati v. Rice, 15 Ohio, 225; Tuttle v. Jackson, 6 Wend. 213; Jackson v. Anderson, 4 Wend. 474; Reg. v. Thompson, 4 Eng. L. & Eq. 287.
1 East P. C. 136. And see 1 East P. C. 129.
earlier statute enlarges the later into the forbidding of clergy to the offender. So the act of congress of March 3, 1825, defined the crime of perjury against the United States; and it was held to apply to false swearing under the statute of bankruptcy, subsequently passed; the two enactments thus operating upon, and enlarging each other. On the same principle, when the act of congress of March 3, 1817, had provided, that every collector of the customs "shall have authority, with the approbation of the secretary of the treasury, to employ within his district such number of proper persons as deputy collectors of the customs as he shall judge necessary, who are hereby declared to be officers of the customs," the construction was, that, wherever in subsequent enactments any authority, as to administer an oath, was conferred on the collector, the same extended by necessary exposition to his deputy.2
§ 79 a. A case aptly illustrating this doctrine occurred in Tennessee. A statute enlarged the duties and jurisdiction of a certain county court, and provided, that "the judge of said court. . . . shall have the same salary as the circuit judges of the State." Afterward the salaries of the circuit judges were increased by statute; and the court held, that the former mentioned judge was entitled to the increased salary also.3 An Alabama case is as follows: The pay of quartermastergeneral having been fixed by statute at two hundred dollars a year, another statute, repealing this one, placed it at four dollars a day while he should be on duty. But the general appropriation act, afterward passed by the legislature during the same session, yet approved by the governor the same day, appropriated to this officer two hundred dollars a year for two years; and this appropriation act was held to postpone the
1 United States v. Nihols, 4 McLean, 23.
* United States v. Barton, Gilpin, 439. See also The State v. Raines, 3 McCord, 533; Doebler v. The State, 1 Swan, Tenn. 473; Campbell v. People, 8 Wend. 636.
Crozier v. The State, 2 Sneed, 410.
operation of the act fixing the pay at four dollars a day, until the two years should expire.1
§ 80. Thirdly. The operation of statutes is cut short by the common law. Sometimes a statutory provision and provision of the common law, like two statutory ones,2 may stand together up to a given point, beyond which they come into conflict. In such a case, the prior law is not repealed; but the one or the other simply gives way at the point of difference. For example, a statute general in its terms is always to be taken as subject to such exceptions as the common law requires. Thus, if it creates an offence, it includes neither infants under the age of legal capacity; nor insane persons;5 nor ordinarily married women acting in the presence and by the command of their husbands. If it creates a forfeiture, it does not apply to women under coverture. And a statute will not generally make an act criminal, however broad may be its language, unless the offender's intent concurred with his act; because the common law requires such concurrence to
1 Riggs v. Pfister, 21 Ala. 469. And see further concerning the doctrine of this section, Griswold v. Atlantic Dock, 21 Barb. 225.
* Ante, § 78.
See Wilbur v. Crane, 13 Pick. 284; United States v. Hart, Pet. C. C. 390; Commonwealth v. Knox, 6 Mass. 76; The State v. Martindale, 1 Bailey, 163.
*Post, ch. on Infancy; Rex v. Groombridge, 7 Car. & P. 582. And see Sydney v. The State, 3 Humph. 478.
5 Post, ch. on Insanity.
€ Post, ch. on Coverture. And see Commonwealth v. Hadley, 11 Met. 66.
'Martin v. Commonwealth, 1 Mass. 347. See also Cornwall v. Hoyt, 7 Conn. 420. But a feme covert may be proceeded against under a penal statute, without joining her husband. Rex v. Crofts, 7 Mod. 397.
* The William Gray, Paine, 16; Reg. v. Allday, 8 Car. & P. 136, 139; Anonymous, 2 East, P. C. 765; Price v. Thornton, 10 Misso. 135; Commonwealth v. Stout, 7 B. Monr. 247; Duncan v. The State, 7 Humph. 148; Commonwealth v. Slack, 19 Pick. 304; Reg. v. Page, 8 Car. & P. 122; Reg. v. Langford, Car. & M. 602; Reg. v. Caruthers, 3 Crawf. & Dix C. C. 391; Commonwealth v. Fourteen Hogs, 10 S. & R. 393; Campbell v. Common
constitute a crime. A case of overwhelming necessity,1 or of honest mistake of facts,2 will thus be excepted out of a general statutory prohibition. So the defendant in an information qui tam may show that the plaintiff is outlawed, and thereby defeat the proceeding, though the statute on which the information is founded allows any person to inform.3 If a legislative act provides, that a husband or wife may have a divorce for an offence named, committed by the other, yet a party guilty of the offence cannot have the divorce, though the other is guilty also; because by the common law of divorce one who has himself violated his matrimonial obligations cannot complain of the same thing in the other; and this doctrine operates as an exception to the statute.
§ 81. Almost all general statutes, especially criminal ones, are more or less cut short in their operation in this way.5 Thus those against cheating by false pretences are broad in their terms; but numerous limitations, drawn from the reasons of the common law, as well as from a consideration of the objects and purposes of such statutes, encumber their practical application.
wealth, 2 Rob. Va. 791; Reg. v. Philpotts, 1 Car. & K. 112; Rex v. Speed, 1 Ld. Raym. 583, 584. But see Reg. v. Armstrong, 1 Crawf. & Dix C. C. 110; Reg. v. Woodrow, 2 New Sess. Cas. 346. And see Reg. v. Tivey, 1 Den. C. C. 63; The State v. Nicholas, 2 Strob. 278; post, § 140.
1 The Gertrude, 3 Story, 68; The Josefa Segunda, 5 Wheat. 338; Stratton v. Hague, 4 Call, 564.
Myers v. The State, 1 Conn. 502; Reg. v. Grasseley, 2 Dyer, 210, pl. 25; Preston v. Hunt, 7 Wend. 53; The Marianna Flora, 11 Wheat. 1; Etheridge v. Cromwell, 8 Wend. 629; United States v. Package of Wool, Gilpin, 349. But see Reg. v. Woodrow, 15 M. & W. 404; Attorney-General v. Lockwood, 9 M. & W. 378; Rex v. Marsh, 4 D. & R. 260.
Atkins v. Bayles, 2 Mod. 267.
4 Bishop Mar. & Div. § 389.
The reader will find matter bearing upon this subject in the chapter after the next.
• See The People v. Clough, 17 Wend. 351; Reg. v. Johnston, 2 Moody, 254; Commonwealth v. Drew, 19 Pick. 179.
§ 82. Fourthly. A statute may likewise be extended by the common law. Thus: since by the common law an agent stands in the place of his principal, a false pretence made to a clerk or salesman, by whom it is communicated to the employer, is a false pretence to the employer. And if a statute makes it criminal to trade with a slave without a permit from his master, a permit from the overseer, being the master's agent, is sufficient; but here this doctrine is limited where the common law limits the powers of agents, who cannot act for themselves and their principals in the same transaction; therefore the overseer cannot trade with the slave on a permit given by himself." It is likewise a doctrine of the common law, that all persons present giving aid and comfort to another committing an offence, even a felony, are to be considered as principals; that is, as in legal contemplation doing the deed; therefore if a statute makes the doing of a thing criminal, it includes persons present lending their countenance and aid. Thus under the English statute, 9 Geo. 1, c. 22, which makes it felony for one to "wilfully and maliciously shoot at any person," it is held, that an individual present encouraging, but using no firearms himself, while his companion shoots, is a principal offender; 5 and under the Tennessee act of 1820, not only the person who deals the cards at faro is guilty of a felony, but the owner of the funds and house, who receives the profits, and is present assisting, is also guilty as a principal. And if the statute makes the
1 Commonwealth v. Harley, 7 Met. 462; Commonwealth v. Call, 21 Pick. 515; Vol. II. § 386-388.
The State v. Chandler, 2 Strob. 266. See Reg. v. Nickless, 8 Car. & P.
* Post, § 456.
* United States v. Wilson, Bald. 78, 103; Rex v. Tattersal, 1 Russ. Crimes, Grea. Ed. 27; Rex v. Manning, Comyns, 616; Reg. v. Simpson, Car. & M. 669; Rex v. Bear, 2 Salk. 417, 418.
1 East P. C. 413; Rex v. Wells, 1 East P. C. 414. And see Reg. v. Whittaker, 1 Den. C. C. 310; Rex v. Franklyn, 1 Leach, 4th ed. 255. And see Reg. v. Davis, 8 Car. & P. 759; Reg. v. Williams, Car. & M. 259.
. McGowan v. The State, 9 Yerg. 184.