another; a robbery, for example, being an assault committed under particular circumstances of aggravation; and that, in these cases, the offender may be convicted of either the simpler or aggravated form, at the election of the prosecutor; except that, sometimes, the line between felonies and misdemeanors cannot in this way be passed.1 These several degrees of the same offence have their corresponding degrees of punishment; though, when a prisoner has been convicted in one degree, he cannot be convicted in another degree. There-fore, if the new statute adds aggravations not existing in the. old law of the offence, and creates a higher penalty; 2 or omits some aggravating quality, and provides a lower penalty; or if the new statute is applicable to a particular class only of persons, who owe particular duties in the matter; + the new punishment does not supersede the old. This is clear: but where the law is changed in a way the reverse of this, the same result does not necessarily follow. Thus in Alabama it was held, that, where the new law provided a less penalty for an offence of a higher grade than the old, it superseded the old.

3

§ 99 a. The difficulties disclosed in the last few sections will be found less embarrassing in the facts of cases as they arise, than they appear upon our statement. Because, when a court takes into its view the large range of subjects required in the interpretation of statutes, it will usually discern some

1 Post, § 529 et seq.

2 The State v. Maloney, R. M. Charl. 84.

The State v. Buckman, 8 N. H. 203; Rex v. Taylor, Russ. & Ry. 373; The State v. Danforth, 3 Conn. 112; Southworth v. The State, Conn.

325.

Gregory v. Commonwealth, 2 Dana, 417.

Ante, § 93, 97. And see The State v. Taylor, 2 McCord, 483; Rex v. Waddington, 1 B. & C. 26; Knowles v. The State, 3 Day, 103; Commonwealth v. Pegram, 1 Leigh, 569; Allen v. Commonwealth, 2 Leigh, 727; Taylor v. The State, 7 Humph. 510.

Smith v. The State, 1 Stew. 506. And see The State v. Jones, 5 Ala. 666; The State v. Flanigin, 5 Ala. 477.

circumstance to relieve any doubts which might encumber an abstract proposition.

§ 100. Having thus considered the matter of implied repeal as respects the punishment, we next come to look at it as respects the offence itself. And the instances are rare in which a statute operates as such repeal of the prior law, statutory or common, concerning merely the offence, distinguished from the punishment. Of course from this statement. must be excluded the peculiar doctrine of some tribunals, mentioned in a previous section.1 Since there are, under many circumstances, various shades and degrees of legal offence attaching to a single act, no reason exists why any new provision of statutory law should be construed otherwise than as creating an additional offence, though of the same general kind which existed before.2 But, on principles to be made apparent when we come to consider the distinction between felonies and misdemeanors, if a statute elevates to a felony what before was a misdemeanor, or creates a misdemeanor of what was before a felony, the old law is gone, by reason of the repugnance, and the offender can be indicted only under the new.3

§ 101. We have already seen, that the rules governing implied repeal by the operation of affirmative statutes, on the ground of repugnance, are not identical in our States. The practitioner may therefore like to see, in a note, references to some of the authorities showing when a repeal takes place, particularly for the cause now under consideration, arranged

1 Ante, § 92.

* See cases cited ante, § 91-93; Commonwealth v. Herrick, 6 Cush. 465. Reg. v. Button, 12 Jur. 1017, 1021; Rex v. Robinson, 2 East P. C. 1110, 1114, 1115, 2 Leach, 4th ed. 749; Rex v. Walford, 5 Esp. 62; The State v. Wright, 4 McCord, 358; Barton v. Watkins, 2 Hill, S. C. 674; The State v. Dick, 2 Murph. 388; Warner v. Commonwealth, 1 Barr, 154; Rex v Cross, 1 Ld. Raym. 711, 12 Mod. 634; Rex v. Pim, Russ. & Ry. 425.

'Ante, § 92.

in the order of the countries and States to which they belong.1

1 England. Rex v. Paine, 1 East P. C. 5; Rex v. Thorne, 2 East P. C. 622; Williams v. Reg. 7 Q. B. 250; Reg. v. Wynn, 1 Den. C. C. 365, 1 Temp. & M. 32, 13 Jur. 107, 18 Law J., N. S., M. C. 51; Reg. v. Overton, 4 Q. B. 83; Reg. v. Tivey, 1 Den. C. C. 63; Rex v. Farrington, Russ. & Ry. 207; Rex v. Robinson, 2 Leach, 4th ed. 749, 2 East P. C. 1110; Rex v. Carlile, 3 B. & Ald. 161; Rex v. Waddington, 1 B. & C. 26; Rex v. Moor, 2 Mod. 128; Sir John Knight's case, 3 Mod. 118; Rex v. Jackson, Cowp. 297; Rex v. Taylor, Russ. & Ry. 373; Rex v. Pugh, 6 Mod. 140, 141; Reg. v. Sill, 14 Eng. L. & Eq. 135; Rex v. O'Brian, 7 Mod. 378, 379; Reg. v. Brecon, 3 New Sess. Cas. 434, 13 Jur. 422, 18 Law J., N. s., M. C. 123; Reg. v. Thompson, 20 Law J., N. s., M. C. 183, 15 Jur. 654; Rex v. Stanley, Russ. & Ry. 432; Rex v. Royall, 2 Bur. 832, 2 Keny. 549.

Ireland. Reg. v. Murphy, Jebb, 315.

United States. United States v. Pirates, 5 Wheat. 184; United States v. Halberstadt, Gilpin, 262; United States v. Jones, 3 Wash. C. C. 209; Morlot v. Lawrence, 1 Blatchf. C. C. 608; United States v. A Package of Lace, Gilpin, 338; United States v. Irwin, 5 McLean, 178.

Alabama. The State v. Coleman, 5 Port. 32; Smith v. The State, 1 Stew. 506; Hodges v. The State, 8 Ala. 55; The State v. Whitworth, 8 Port. 434; The State v. Jones, 5 Ala. 666; The State v. Flanigin, 5 Ala. 477; Hawkins v. The State, 3 Stew. & P. 63; Moore v. The State, 16 Ala. 411; The State v. Moseley, 14 Ala. 390; The State v. Allaire, 14 Ala. 435; Hirchfelder v. The State, 18 Ala. 112; Sterne v. The State, 20 Ala. 43; The State v. Moore, 19 Ala. 514; Huggins v. Ball, 19 Ala. 587; De Bernie v. The State, 19 Ala. 23; Jordan v. The State, 15 Ala. 746.

Arkansas. Scoggin v. Taylor, 8 Eng. 380; Campbell v. Campbell, 8 Eng. 513; Ex parte Trapnall, 1 Eng. 9; Hamilton v. Buxton, 1 Eng. 24.

Connecticut. Hale v. The State, 15 Conn. 242; Knowles v. The State, 3 Day, 103; The State v. Danforth, 3 Conn. 112; Southworth v. The State, 5 Conn. 325.

Delaware. The State v. Harker, 4 Harring. Del. 559.

Georgia. The State v. Calvin, R. M. Charl. 151; The State v. Maloney, R. M. Charl. 84; The State v. Savannah, T. U. P. Charl. 235; Union Branch Railroad v. East Tennessee and Georgia Railroad, 14 Ga. 327.

Illinois. Town of Ottawa v. County of La Salle, 12 Ill. 339; Illinois and Michigan Canal v. Chicago, 14 Ill. 334; Tyson v. Postlethwaite, 13 Ill. 727; Perry v. People, 14 Ill. 496.

Indiana. The State v. Mullikin, 8 Blackf. 260; Fuller v. The State, 1 Blackf. 63; Strong v. The State, 1 Blackf. 193; Cheezem v. The State, 2 Cart. Ind. 149; The State v. Miskimmons, 2 Cart. Ind. 440; King v. The State, 2 Cart. Ind. 523; The State v. Youmans, 5 Ind. 280.

III. The Consequences of Repeal.

§ 102. We are next to consider the effect of a repeal. Law divides itself into that which concerns the right, and that

Iowa. The State v. Moffett, 1 Greene, Iowa, 247; Goodwin v. Thompson, 2 Greene, Iowa, 329.

Kentucky. Ely v. Thompson, 3 A. K. Marshall, 70; Ervine v. Commonwealth, 5 Dana, 216; Harrison v. Chiles, 3 Litt. 194; Gregory v. Commonwealth, 2 Dana, 417; Adams v. Ashby, 2 Bibb, 96; Eccles v. Stephenson, 3 Bibb, 517; Lillard v. McGee, 4 Bibb, 165; Hickman v. Littlepage, 2 Dana, 344; Commonwealth v. Craig, 15 B. Monr. 534.

Louisiana. Caldwell v. St. Louis Perpetual Ins. Co. 1 La. Ann. 85; De Armas case, 10 Mart. La. 158; Bernard v. Vignaud, 10 Mart. La. 482; Herman v. Sprigg, 3 Mart., N. s., 190.

Maine. Gooch v. Stephenson, 13 Maine, 371; Towle v. Marrett, 3 Greenl. 22; Parsons v. Bridgham, 34 Maine, 240; The State v. Woodward, 34 Maine, 293.

Maryland. Dugan v. Gittings, 3 Gill, 138; Wright v. Freeman, 5 Har. & J. 467; Canal Company v. Railroad Company, 4 Gill & J. 1.

Massachusetts. Commonwealth v. Worcester, 3 Pick. 462; Jennings v. Commonwealth, 17 Pick. 80; Wilde v. Commonwealth, 2 Met. 408; Commonwealth v. Cooley, 10 Pick. 37; Shattuck v. Woods, 1 Pick. 171; Goodenow v. Buttrick, 7 Mass. 140; Bartlet v. King, 12 Mass. 537; Ashley, appellant, 4 Pick. 21; Mason v. Waite, 1 Pick. 452; Nichols v. Squire, 5 Pick. 168; Commonwealth v. Ayer, 3 Cush. 150; Ellis v. Paige, 1 Pick. 43; Commonwealth v. Kimball, 21 Pick. 373; Commonwealth v. King, 13 Met. 115; Britton v. The Commonwealth, 1 Cush. 302; Salem Turnpike and Chelsea Bridge v. Hayes, 5 Cush. 458; Commonwealth v. Herrick, 6 Cush. 465. Mississippi. White v. Johnson, 23 Missis. 68; Shelton v. Baldwin, 26 Missis. 439.

Missouri. Smith v. The State, 14 Misso. 147.

New Hampshire. The State v. Buckman, 8 N. H. 203; Leighton v. Walker, 9 N. H. 59.

New Jersey. Perine v. Van Note, 1 Southard, 146; Buckallew v. Ackerman, 3 Halst. 48.

New York. Vallance v. King, 3 Barb. 548; People v. Townsey, 5 Denio, 70; Crittenden v. Wilson, 5 Cow. 165; Wright v. Smith, 13 Barb. 414; Bowen v. Lease, 5 Hill, N. Y. 221; Williams v. Potter, 2 Barb. 316; Almy r. Harris, 5 Johns. 175; Platt v. Sherry, 7 Wend. 236; Scidmore v. Smith, 13 Johns. 322; Wheaton v. Hibbard, 20 Johns. 290; Stafford v. Ingersol, 3 Hill, N. Y. 38; Renwick . Morris, 3 Hill, N. Y. 621, 7 Hill, N. Y. 575;

which concerns the remedy. Rights depend on the rule prevailing at the place where, and the time when, the fact transpired; remedies, on that of the place where they are sought to be enforced,1 as existing at the time? when the proceedings are carried on, and the judgment is rendered.

§ 103. The punishment, we have seen,3 to be treated of, as separable from the offence, belongs, under this division, to the remedy. A prisoner therefore is to receive the sentence le

McCartce v. Orphan Asylum Society, 9 Cow. 437; Hand v. Ballou, 2 Kernan, 541.

North Carolina. The State v. Henderson, 2 Dev. & Bat. 543; The State v. Walker, 2 Taylor, 229; The State v. Seaborn, 4 Dev. 305, 310; The State v. Nat, 13 Ired. 154.

Ohio. Carter v. Hawley, Wright, 74; Moore v. Vance, 1 Ohio, 1; Dodge v. Gridley, 10 Ohio, 173, 178; Seymour . Milford and Chillicothe Turnpike, 10 Ohio, 476, 482.

Pennsylvania. Foster v. Commonwealth, 8 Watts & S. 77; Drew v. Commonwealth, 1 Whart. 279; Report of Judges, 3 Binn. 595; Commonwealth v. Cromley, 1 Ashm. 179; Street v. Commonwealth, 6 Watts & S. 209; Commonwealth v. Evans, 13 S. & R. 426.

Rhode Island. The State v. Wilbor, 1 R. I. 199. South Carolina. The State v. Jones, 1 McMullan, 236; The State v. Williams, 2 Rich. 418; The State v. Baldwin, 2 Bailey, 541; The State v. Brown, 2 Speers, 129; The State v. Bowen, 3 Strob. 573; The State v. Nicholas, 2 Strob. 278; The State v. Thompson, 2 Strob. 12; The State v. Cattell, 2 Hill, S. C. 291; The State v. Huntington, 3 Brev. 111; The State v. Evans, 3 Hill, S. C. 190.

Tennessee. The State v. Gainer, 3 Humph. 39; The State v. Rutledge, 8 Humph. 32; Simpson v. The State, 10 Yerg. 525; Taylor v. The State, 7 Humph. 510.

Texas. Fowler v. Brown, 5 Texas, 407; Rogers v. Watrous, 8 Texas, 62; The State v. Horan, 11 Texas, 144.

Vermont. The State v. McLeran, 1 Aikens, 311; The State v. Wilkinson, 2 Vt. 480; Pratt v. Jones, 25 Vt. 303, 307.

Virginia. Commonwealth v. Pegram, 1 Leigh, 569; Lanthrop v. Commonwealth, 6 Grat. 671.

1

May v. Breed, 7 Cush. 15, 34; Story Confl. Laws, § 556-558.

2 Hale v. The State, 15 Conn. 242; Lore v. The State, 4 Ala. 173; The

State v. Fletcher, 1 R. I. 193; Davidson v. Wheeler, Morris, 238; Knoup v. Piqua Bank, 1 Ohio State, 603.

* Ante, § 95.