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And a like principle

be according to the common law. applies to revisions of former statutes; for these are to receive the interpretations which were given to the statutes revised. Where, by the general system of legislation, white persons and slaves are punished differently; a white person, accessory to an offence committed by a slave, will be dealt with the same as white persons in other cases are, not as slaves.3 So, it being a rule of the common law that crimes are to be inquired of in the county in which they occurred, if a county is divided, the grand juries of the respective new counties will indict only for offences committed in their respective localities before the division.1

§ 87. Eighthly. The foregoing propositions are not to nullify the plain words or necessarily implied meaning of the statute. Thus the words "actually occupy," referring to the place of committing an offence, seem to have been understood as excluding the idea of guilt in one who did not, in the language of the provision, actually occupy the place. There may also be cases in which the nature of the

1 Freeman v. People, 4 Denio, 9, 29; Commonwealth v. Humphries, 7 Mass. 242; People v. Butler, 16 Johns. 203.

* Commonwealth v. Messenger, 4 Mass. 462; Ennis v. Crump, 6 Texas, 34; ante, § 71.

The State v. McCarn, 11 Humph. 494; Loughridge v. The State, 6 Misso. 594.

post, § 552.

The State v. Jones, 3 Halst. 307, 357, 372; * See 1 East P. C. 96, 247, 248, 250; Reg. v. Nickless, 8 Car. & P. 757. And see Reg. v. Whittaker, 1 Den. C. C. 310; Rex v. Franklyn, 1 Leach, 4th ed. 255; Fletcher's case, 1 Leach, 4th ed. 342, 2 Stra. 1166; 2 East P. C. 700; Norton v. The State, 4 Misso. 461; Baxter v. People, 3 Scam. 368; O'Blennis v. The State, 12 Misso. 311. "It would be dangerous to give scope to make a construction in any case against the express words, when the meaning of the makers doth not appear to the contrary, and when no inconvenience will thereupon follow; and therefore in such a case a verbis legis non est recedendum." Edrich's case, 5 Co. 118.

Ante, § 82.

* Commonwealth v. Dean, 1 Pick. 387.

offence excludes the idea of criminality in any but the individual personally doing the act.1

§ 88. Ninthly. The courts in weaving, as we have seen they should weave,2 the common and statute law into one uniform texture of jurisprudence, can use only the material which these laws furnish them; they cannot take upon themselves the legislative duty of creating laws to supply a deficiency. How far the words of a statute may be extended to meet a particular mischief, we shall consider somewhat in the chapter after the next. But, when a court has gone to the verge of its powers of construction, there will sometimes remain what is termed a casus omissus, a case within the general scope and meaning of the amended laws, yet not provided for by them. Such a case must be disposed of according to the prior law,5 and the legislature alone can cure the defect. The doctrines of this section, however, should not be applied to conflict with the propositions laid down in the introductory chapters of this volume. There is much law not yet settled by actual adjudication; but it is common law, not statutory.

1 Reg. v. Wright, 9 Car. & P. 754; 1 Alison Crim. Law, 153, 158. See, as to the English statutes against poaching, Rex v. Dowsell, 6 Car. & P. 898; Rex v. Nash, Russ. & Ry. 386; Reg. v. Whittaker, 2 Car. & K. 636, 1 Den. C. C. 309, 3 Cox C. C. 50.

* Ante, § 76.

3 Ante, § 67.

See Rex v. Hill, Russ. & Ry. 483.

'Broom Leg. Max. 2d ed. 37; Hall v. Jacobs, 4 Har. & J. 245.

• Pitman v. Flint, 10 Pick. 504, 506; 4 Bl. Com. 302. See Kilpatrick v. Byrne, 25 Missis. 571.

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SECT. 88 a-92 a.



The General Doctrine of Repeal. Particular Applications of the Doctrine. 102-109. The Consequences of Repeal.

§ 88 a. THE chapter before the last contains a general view of statutory interpretation. The last chapter gives a particular view of a portion of the field. This chapter will embrace another portion; the subsequent chapters of this book, still other portions. We shall in this chapter consider, I. The General Doctrine of Repeal; II. Particular Applications of the Doctrine; III. The Consequences of Repeal.

I. The General Doctrine of Repeal.

§89. Repeals are express or implied. Of the former, the more familiar are where the statute says, such an act, or such a provision of the common law, is repealed;1 but there is another kind of express repeals, concerning which more

1As to a clause repealing all acts coming within the " purview" of the act, see Ely v. Thompson, 3 A. K. Marshall, 70; Scutt v. Commonwealth, 2 Va. Cas. 54; Payne v. Conner, 3 Bibb, 180. Repealing all acts inconsistent, Hale v. The State, 15 Conn. 242; The State v. Taylor, 2 McCord, 483; Jackson v. The State, 12 Ga. 1. A statute provided, that every person who should vend merchandise not the product of the United States, without license, should be fined. Subsequently another act was passed, in terms repealing so much of this one as required a license to vend coffee, tea, and sugar; and the court construed it to be a repeal of the former law as concerns the enumerated articles. Taylor v. The State, 7 Blackf. 93.

difficulty arises, namely, repeals by what are termed negative statutes. An old division of statutes is into affirmative and negative; the one class embracing those expressed in affirmative, the other those in negative, words. Thus a legislative provision, that it shall be lawful for tenant in fee-simple to make a lease for twenty-one years, and the lease shall be good, is affirmative; a provision, that it shall not be lawful to make a lease for above twenty-one years, or that a lease for more shall not be good, is negative.2

§ 90. Obviously a negative statute, being in express denial or negation of the prior law, repeals it.3 And that the prior law may be repealed by a custom also, is laid down in England; provided such prior law is either the common law, or a statute declaratory merely of it; but doubts have been entertained concerning the latter branch of the proposition, namely, whether a statute merely declaratory of the common law can be so superseded. Plainly, on principle, it cannot be: we have already seen,5 that non-user does not do away with the force of a statute; therefore a custom cannot do more as a general doctrine; and that a statute is only declaratory of the prior law prevents not its effect as a statute. The question, however, has little practical importance in this country, where it could seldom or never arise. Negative statutes are to be construed, in respect to the matter of repeal, strictly; that is, as abrogating the preëxisting law no further than their express words require.

1 Bac. Ab. Statute, G.

Dwar. Stat. 2d ed. 475.

Bac. Ab. Statute, G.; Dwar. Stat. 2d ed. 475; Gooch v. Stephenson, 13 Maine, 371. In a Pennsylvania case, the legislature had repealed a clause of a bill which had not then become law for want of the governor's signature. Afterward the bill was signed; but the court held the repeal of the clause to be effectual, on the ground, that, as the legislature could abrogate a statute duly signed, it could do the same of one before the signature was attached. Southwark Bank v. Commonwealth, 2 Carey, 446. Dwar. Stat. 2d ed. 475-477; Bac. Ab. Statute, G.

5 Ante, § 56.

• See authorities cited, post, § 91.


§ 91. Another method of repeal is by an affirmative statute, the matter of which is irreconcilably inconsistent with the previous law. This is what we have called an implied repeal. We have seen,2 that every legislative act in affirmative words is to be regarded, prima facie, as an addition to the mass of law; for such, on its face, it purports to be. Yet when it is inconsistent with the former law, it must, as the last expression of the legislative will, prevail. But repeals by implication, thus explained, are not favored. Therefore statutes in derogation of the common law, or of a previous express enactment, are to be construed strictly; not operating beyond their words, or the clear repugnance of their provisions; that is, the new displaces the old only when and so far as directly and irreconcilably opposed in terms. For when the legislative power professes to add a provision, as it

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Broom Leg. Max. 2d ed. 23; Commonwealth v. Cromley, 1 Ashm. 179; Harris v. Robinson, 2 C. B. 908, 910; Reg. v. Salisbury, 2 Q. B. 72, 84; Byrne v. Stewart, 3 Des. 135; Britton v. Commonwealth, 1 Cush. 302; The State v. Miskimmons, 2 Cart. Ind. 440; United States v. Irwin, 5 McLean, 178; Sullivan v. People, 15 Ill. 233; Adams v. Ashby, 2 Bibb, 96; Moore v. Vance, 1 Ohio, 1; Den v. Pine, 4 Wash. C. C. 691; Morrison v. Barksdale, Harper, 101; Moore v. Moss, 14 Ill. 106.

Loker v. Brookline, 13 Pick. 343, 348; Haynes v. Jenks, 2 Pick. 172, 176; Snell v. Bridgewater Cotton Gin Man. Co. 24 Pick. 296, 297; Goddard v. Boston, 20 Pick. 407; Bowen v. Lease, 5 Hill, N. Y. 221; Wyman v. Campbell, 6 Port. 219; Dugan v. Gittings, 3 Gill, 138; McCartee v. Orphan Asylum Society, 9 Cow. 437; Lichtenstein v. The State, 5 Ind. 162; Erwin v. Moore, 15 Ga. 361; Aspden's estate, 2 Wallace, Jr. 368, 431.

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Melody v. Reab, 4 Mass. 471; Gibson v. Jenney, 15 Mass. 205; Commonwealth v. Knapp, 9 Pick. 496, 514; Wilbur v. Crane, 13 Pick. 284; Lock v. Miller, 3 Stew. & P. 13; Goodwin v. Thompson, 2 Greene, Iowa, 329; Rex v. Paine, 1 East P. C. 5; The State v. Norton, 3 Zab. 33.

* White v. Johnson, 23 Missis. 68; Street v. Commonwealth, 6 Watts & S. 209; Morlot r. Lawrence, 1 Blatch. C. C. 608; Clarke v. The State, 23 Missis. 261; Williams v. Potter, 2 Barb. 316. The doctrine of the text is deemed to apply with special force where both acts are passed at the same session of the legislature; for "the presumption of so sudden a revolution in the mind of the legislature ought not to be indulged." Peyton v. Moseley, 3 T. B. Monr. 77.

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