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.

is

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 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 Norman 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.

tra-distinguished by the appellation nova statuta. The former also, from some accidental circumstance of collection or publication, are sometimes spoken of as prima aut secunda pars veterum statutorum.* Of the earlier statutes some are in Latin, some in French. On the accession of Richard III. (1483) the laws were first printed and promulgated in English. Since the time of his successor, Henry VII., all the statutes have been drawn in English.t

* Dwarris on Statutes, p. 460.

†The history of the English language is very curiously illustrated by the history of the law. As late as the middle of the 14th century, all the oral proceedings in open court were in the French tongue, when by the 36th Edward III. c. xv. (1362), the English was introduced into the tribunals. That statute recites that the laws of England are disregarded because the proceedings in court are in French, "a tongue much unknown in the said realm," so that clients do not understand what is said for or against them; that in other countries the laws are better observed because justice is done in the vernacular; and it then goes on to declare that thenceforth all pleas shall be pleaded, showed, defended, answered, debated, and judged in the English tongue. The Latin was, however, by the same statute, preserved as the language of the written pleadings and of the record.

The statutes, however, still continued to be enacted in Law French, till the reign of Richard III., when they first appear in English; and so tenacious was the hold that the language of France had acquired, that it remained the language of the reports till the time of the Commonwealth. Nor did the Latin disappear from the records till the 4 Geo. II. c. 26 (1731); when, the oral discussions and reports being in English, the final triumph of the language was achieved, and Latin was prohibited as the language of the records also. It appears by this, that for nearly 300 years, viz. : from the 36th Edward III. (1362), to the time of the Commonwealth, English was the language of oral discussion; French, of the reports, and Latin of the records; French also being mainly the language of the statutes from 1275, or thereabouts, till the accession of Richard III. (1483). The first laws in the English statute book, are in Latin. The earliest statute in the French language, is the Statutum de Scaccario, 51 Hen. III. (A. D. 1266); and it is remarkable not only that French continued to be used as the parliamentary language after it had been abolished in the courts of justice, viz.: from the 36 Edward III. (1362) to the 1st of Richard III. (1483), but still more that it should ever have been the language of the laws. Barrington says there is no other instance of any country in Europe per