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does in the enactment of an affirmative statute, we cannot assume for it an intention also to subtract a provision; while there is any well-known rule of interpretation which, applied to the one added, will enable both it and the other to stand.

§ 92. A partial innovation upon this doctrine seems to have been made by the courts of Massachusetts, and perhaps of Maine, Pennsylvania, Alabama, and some other States, to the extent, simply and no further, that; where a new statute covers the whole ground, occupied by a previous one, or by the common law, it repeals by implication the prior law, though there is no repugnance. Perhaps a misunderstanding has arisen from not distinguishing between a revision of the subject by a statute repugnant to the old law, and by one not repugnant. However this may be, clearly the doctrine, as stated above, is contrary to the general rule; which is, that

Commonwealth v. Cooley, 10 Pick. 37; Goodenow v. Buttrick, 7 Mass. 140; Bartlet v. King, 12 Mass. 537, 545; Ashley, appellant, 4 Pick. 21, 23; Mason v. Waite, 1 Pick. 452; Ellis v. Paige, 1 Pick. 43, 45; Jennings v. Commonwealth, 17 Pick. 80; Commonwealth v. Ayer, 3 Cush. 150; Commonwealth v. Foster, 1 Mass. 488; Nichols v. Squire, 5 Pick. 168.

? Towle v. Marrett, 3 Greenl. 22.

3 Commonwealth v. Cromley, 1 Ashm. 179; Report of the Judges, 3 Binn. 595, 597. But in this State, Stat. March 21, 1806, had ordained, “ that, in all cases where a remedy is provided, or any thing or things directed to be done by an act of assembly, the directions of the act shall be strictly pursued, and no penalty shall be inflicted or any thing done agreeably to the common law, further than is necessary in carrying such act or acts into effect.” And therefore it was held, that an indictment did not lie at common law against an officer for taking illegal fees, the remedy being under the statute of March 28, 1814, $ 20. Commonwealth v. Evans, 13 S. & R. 426.

* The State v. Whitworth, 8 Port. 434; Smith v. The State, 1 Stew. 506. But see George v. Skeates, 19 Ala. 738.

• The State v. Seaborn, 4 Dev. 305, 310; Dugan v. Gittings, 3 Gill, 138; Caldwell v. St. Louis Perpetual Ins. Co. 1 La. Ann. 85; Smith v. The State, 14 Misso. 147; Bryan v. Sunberg, 5 Texas, 418; Rogers v. Watrous, 8 Texas, 62; Erwin v. Moore, 15 Ga. 361; Illinois & Michigan Canal v. Chicago, 14 III. 334; Plank Road v. Allen, 16 Barb. 15, 18; Pankey v. People, 1 Scam. 80; Leighton v. Walker, 9 N. H. 59. See Daviess v. Fairbairn, 3 How. U. S. 636.

an affirmative statute never repeals the prior law, unless there is a direct contradiction between the two. The doctrine is also difficult and uncertain in its application, and therefore objectionable; and, we inay submit, not supported by any satisfactory reasoning. Its most plausible application occurs,


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* The reader is referred, among other authorities, including those cited to the last section, to the following: Wood v. United States, 16 Pet. 342, 362; Rex r. Paine, 1 East P. C. 5; Morlot v. Lawrence, 1 Blatch. C. C. 608 ; Rex v. Carlile, 3 B. & Ald. 161; Reg. v. Salisbury, 2 Q. B. 72, 84 ; 1 Bl. Com. 89; Broom Leg. Max. 2d ed. 24; Williams v. Pritchard, 4 T. R. 2; Rix

Borton, 12 A. & E. 470; Dakins v. Seaman, 9 M. & W. 777, 789, 6 Jur. 783; Wynn v. Davies, 1 Curt. Ec. 69, 80; Middleton v. Crofts, 2 Atk. 650, 675; Foster's case, 11 Co. 56, 63; Ashton v. Poynter, 1 Cromp. M. & R. 738; Phipson v. Harvett, 1 Cromp. M. & R. 473; Rex v. Aslett, 1 New Rep. 1, 7; Dore v. Gray, 2 T. R. 358, 365; Planters Bank v. The State, 6 Sm. & M. 628; Kinney v. Mallory, 3 Ala. 626 ; Canal Company v. Railroad Company, 4 Gill & J. 1; The State v. Harker, 4 Harring. Del. 559; De Armas case, 10 Mart. La. 158, 172; Herman v. Sprigg, 3 Mart. N. S. 190, 199; Williams v. Potter, 2 Barb. 316; George v. Skeates, 19 Ala. 738; United States v. Twenty-five Cases of Cloths, Crabbe, 356, 370, 382; The State v. Moore, 19 Ala. 514; Freeman v. The State, 6 Port. 372; Morris v. Delaware & Schuylkill Canal, 4 Watts & S. 461 ; Beals v. Hale, 4 How. U. S. 37; Brown v. Miller, 4 J. J. Marshall, 474; Alexandria v. Dearmon, 2 Sneed, 104; Aspden's estate, 2 Wallace, Jr. 368, 431 ; Daviess v. Fairbairn, 3 How. U. S. 636. In, New York, the act of April 10, 1824, § 12, authorized a divorce from bed and board on the prayer of the husband, for the wife's cruel treatment;

the revised statutes of 1830 gave this remedy only to the wife; but by accident the act of 1824 was not expressly repealed, and the courts held that it remained in force. Bishop Mar. & Div. § 490, note. In accordance with our view in the text appears also to be the Scotch Law. Cumming's case, Shaw. Crim. Cas. 17. " It is a rule of law, that one private act of parliament cannot repeal another, except by express words.” Even though the second private act is declared to be a public one, the consequence is the same. Birkenhead Docks v. Birkenhead Docks Company, 23. Eng. L. & Eq. 389.

* In Ellis v. Paige, 1 Pick. 43, 45, the court put the matter thus: “It is a well-settled rule, that, when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would be to impute to the legislature gross carelessness or ignorance; which is altogether inadmissible.” The fallacy of this reasoning is obvious when we consider, that the question is not, whether the parts omitted are to be revived by

where a statute of our own has covered the whole subject embraced in some English act, which with us is common law. In such a case, it is said that our statute repeals the English, - a view entitled to great consideration on the question, whether we have adopted the English act; but, supposing we have adopted it, why may it not stand until the legislature dissents from it, either by direct words or by an inconsistent enactment?

§ 92 a. Another view of the matter' discussed in the last section is this: if the new statute contains nothing inconsistent with the prior law, no presumption' can arise of an intent to repeal the latter; because the common law itself, in harmony with which all legislative enactments are to be interpreted, recognizes the doctrine of a variety of remedies for a single wrong, of a variety of offences committed by a single act, of a variety of modes of procedure to attain a common right, of a variety of jurisdictions over a given matter, of a variety of results from a single cause. Nature recognizes the

And for a court to interpose views of its own against wisdom from both these sources; and, without any positive or necessarily implied direction from the legislature, to assume a repeal, is to perform the functions of the lawgiver, rather than of the judge.


II. Particular Applications of the Doctrine. $ 93. Where the new statute does not repeal the previous law, both laws have a concurrent efficacy, and suitors may

construction; but whether the whole is to be repealed by construction; in other words, whether we are to impute to the legislature, either the ignorance of not knowing what was the previous law, or the carelessness of not saying that they intend its repeal.

1 Mason v. Waite, 1 Pick. 452; The State v. Seaborn, 4 Dev. 305, 310; Report of Judges, 3 Binn. 595, 597; Towle v. Marrett, 3 Greenl. 22. & Ante, $ 86.

elect under which to proceed.? For example, “if, by a former law," says Blackstone," an offence be indictable at the quarter-sessions, and the later law makes the same offence indictable at the assizes; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either, unless the new statute subjoins express negative words, as that the offence shall be indictable at the assizes, and not elsewhere." 2 So it is every-day practice, in the criminal courts, for a prosecutor to proceed on either one of two statutes, or at the common law, as he may elect;3 and, where an indictment is intended to be drawn upon a statute, but is found defective as such, yet good at the common law, it stands, — the courts rejecting the concluding words, “ against the form of the statute," as surplusage.

* Broom Leg. Max. 2d ed. 25; Foster's case, 11 Co. 56, 62; Richards v. Dyke, 3 Q. B. 256, 268; Gooch v. Stephenson, 13 Maine, 371; Fuller v. The State, 1 Blackf. 63; Almy v. Harris, 5 Johns. 175; Platt v. Sherry, 7 Wend. 236; Farmers Turnpike v. Coventry, 10 Johns. 389; Colden v. Eldred, 15 Johns. 220,

? 1 Bl. Com. 90.

* 1 Saund. Wms. Ed. (6th) 135 b, note; Gooch v. Stephenson, 13 Maine, 371 ; The State v. Abram, 4 Ala. 272. See The State v. Savannah, T. U. P. Charl. 235; Gooch v. Stephenson, 13 Maine, 371; The State v. Wilkinson, 2 Vt. 480; Reg. v. Tinsley, Reg. v. Brightside Birelow, and Reg. v. Attercliffe cum Darnall, 4 New Sess. Cas. 47, 14 Jur. 174, 19 Law J., N. S., M. C. 50; The State v. Morton, 1 Wms. Vt. 310; The State v. Norton, 3 Zab. 33 ; The State v. Berry, 4 Halst. 374. Where the charter of a turnpike corporation provided a penalty for a failure to keep the road in repair, but contained no negative words, the court held, that an indictment for non-repair against the corporation would still lie at common law. Waterford & Whitehall Turnpike r. People, 9 Barb. 161.

* Rex v. Dickenson, note, 1 Saund. Wms. Ed. 135; Reg, v. Wigg, 2 Ld. Raym. 1163; Bennet v. Talbois, 1 Ld. Raym. 149; The State v. Walker, 2 Taylor, 229. So a recognizance not strictly conformable to the statute may be good at the common law. Phelps v. Parks, 4 Vt. 488, the court referring to Fanshaw v. Morrison, 2 Ld. Raym. 1138; Johnson v. Laserre, 2 Ld. Raym. 1459; Young v. Shaw, 1 D. Chip. 224. S. P., Reg. v. Ewer, Holt, 612.

$ 94. Nature of the Repugnance. The nature of the repugnance which works a repeal of the prior law is now to be considered. We have already seen, how distinct statutory and common law provisions operate one upon another, contracting, expanding, and modifying one another; and how, when they so operate, their construction is not determined primarily by the order in which they were established, but by other principles. Therefore where a provision of law is thus modified or cut short, it is not, in any proper sense, repealed. And we may lay down the doctrine broadly, that no repeal takes place if the earlier provision can stand, to any extent, consistently with the later. Yet this proposition must not be misapplied. If the later statute conflicts in any particular with the earlier, then the earlier is so far abrogated; though we do not say, speaking of the earlier as a whole, that it is repealed. Now the abrogation of a provision of law may extend only to some matter incidental to the main provision; or, on the other hand, the main provision may be abrogated, leaving only the minor matter to stand. In determining when an abrogation takes place, and how widely it operates, we are compelled to know into what parts a statutory provision may for this purpose be separated. Let us look a little at that question.

§ 95. We may always separate the offence from the punishment; and so a statute which provides a new punishment for an old offence operates as a repeal of only so much of the old law as relates to the punishment. A person offending



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Ante, $ 77–88.

This doctrine was stated in part by Mathews, J., as follows: " A particular law is not repealed by a subsequent general law, unless there be such repugnancy between them that they cannot both be complied with, under any circumstances." De Armas case, 10 Mart. La. 158, 172.

3 We are now upon cases in which the new statute provides for a new punishment. It would seem, that, if a statute simply repeals so much of a previous one, creating an offence and affixing a penalty, as relates to the

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