the common law unreasonable, impolitic, or unjust, or repugnant to the general tenor of our jurifprudence, they have rejected it, and adopted, fuch rules in their decifions, as they conceived to be right, and confonant to the general principles of our law. Such was the cafe of Wilford, vs. Grant. Judgment had been rendered against adults, on trial, and conviction, and against minors by default, with out affigning them guardians. The question on a writ of error was whether judgment, could be affirmed against the adults, and reversed as to the minors. It was agreed that the rules of the common law, were against a reverfal in part in fuch cafe; but the court faid, that it had been admitted in other cafes without any apparent diversity of reason, and as it did not appear to have been adopted in practice, fo as to become aurthoritative, they would not regard it, but in purfuance of the general principles of reafon, and law, they would reverfe the judgment as to the minors only. One part of the English common law confifts in particular local customs, which affect only the inhabitants of particular diftricts. But in this state we have no local customs, but the citizens are all governed by the fame general rule: unless we except the five city corporations, whofe peculiar rights, and privileges are designated in the statutes by which they are incorporated. II. The other branch of our laws confifts of ftatutes which are enacted, by the general affembly, the fupreme legislative power. Statutes are either general or special, public or private. General, or public ftatutes, have univerfal authority. They are printed and diftributed thro the state, and courts are bound officially to take notice of them, without being specially pleaded by the party who wishes to take benefit of them. Special or private ftatutes, relate to the concerns of particular perfons, they are not published with the public ftatutes, and courts are not bound to regard them, unless they are specially pleaded by the party, who wishes to take benefit of their operation, and in whofe favor they are made. Statutes are faid to be declaratory of the common law, or remedial of fome de fects, operating by way of enlarging, or reftraining. Statutes affirm, alter, amend, or change the cominon law, as cafes require, or introduce regulations wholly new. In this country it has Kab. Rep. 114~ has been the object of the legislature to promulgate an equal code of laws, correfpondent to the liberal principles, which are prevalent among mankind. They avoided adopting the flavifh principles interwoven in the legal code of the native country of their ancestors, in the times of ignorance and tyranny. Having no prejudice in favour of long-established errors, and the venerable abfurdities of antiquity to combat, they had an uninterrupted career in establishing political liberty, and happiness. Such is the advantage of found. ing a government, and inftituting laws in an enlightened period of the world. In framing laws, it is the duty of the legislature to render them as clear, intelligible, and explicit as poffible, fo that there can be no doubt about the meaning and intent of them, but as this is extremely difficult, mankind beiug apt to differ about the meaning of them, certain rules have been adopted for their interpretation and conftruction. The fairest and most easy method of construction, is to confider and inveftigate the intent of the legiflature by the figns with which it is expreffed. I. u Words that are used in enacting laws, are to be taken and confidered in their common, customary, and popular use, and no grammatical construction will be admitted to vary or controul the apparent meaning of the law. 2. Terms of art, or technical terms must be confidered according to the import and meaning of them in that art, fcience, or trade from whence they are taken. 3. Where words are clearly repugnant to each other, in two laws, the last will fuperfede the first. Later laws abrogate prior contrary laws, is a maxim adopted by all nations in their civil inftitutions, 4. When words are dubious, equivocal, or intricate, it is proper to confider the preamble of the act, which will often explain the intent of it, or compare them to fome other law made by the fame. legiflator and relating to the fame point. 5. We must always take into confideration, the fubject matter about Black. Com. about which the law is concerned, and affix to the words made ufe of, a meaning correfponding to the fubject to which they are applied. For the fame words when applied to different fubjects, have different meanings. That meaning nuft be taken which is commonly intended, when employed upon that fubject about which the law is converfant. 6. Where words have no fignification, or a very abfurd one, if taken according to their literal common acceptation, there it is neceflary to deviate from the common fenfe of the words, and conftrue them in fuch a manner, as will deduce a rational and confistent meaning. Mankind often make ufe of figurative, and metaphorical expreffions, which if literally taken, would be nonfenfe--but legiflators fhould be cautious how they run into this error; for it is not fafe to leave courts to deduce their meaning from fuch uncertain premises. 7. A common and univerfal method of afcertaining the meaning of a law, when the words are dubious, is to confider the reason and spirit of the law, or the caufe which induced the legislature to make it; for it is a common maxim, that when the reason of a law ceases, the law itself ought to ceafe. view, feems to be rational and well grounded. This method at first There may be ma ny instances where a literal conftruction will do injustice, and many where the cafe is within the meaning and defign of the law, but not within the letter. Here it feems to be neceffary to give courts a power of confidering the meaning and fpirit of the law, and of applying it accordingly. If the cafe be within the letter but not within the meaning, that they may fo determine, or if without the letter, but within the meaning, fpirit, equity, or mischief, that they may extend the law to it. But this mode of conftruing law, gives too great latitude to judges, and may be improved to oppreffive purposes. It destroys that uniformity, certainty and precifion, which are the effence of law. It throws the rights of mankind afloat, by placing them upon the arbitrary opinions and capricious whims of judges. The lawyer can never tell, how to advife his client, and the people cannot know the law. This rule therefore should be admitted with great caution, and practifed upon with great prudence. VOL. I. 8. Penal 8. w Penal Statutes are always to be construed ftrictly, for the benefit of the fubject. Nothing more is to be deduced from the words, than what they expressly warrant, and they are not to be extended by implication. Thus the statute which renders it a capital crime for a woman to conceal the death of a bastard child, either by drowning, or fecret burying, or any other way, must be confined to the only methods of concealment expreffed by the ftatute, and the words " any other way," are void for uncertainty. 9. Statutes not penal, and which merely concern property, are to be expounded liberally, fo as to answer the defign of the legilature. The expreffions like thofe which are void, in the abovementioned penal statute, would where the ftatute was not penal, be extended to remedy the inconvenience for which the statute was intended. 10. Every part of the statute must be so conftrued, that if poffible the whole must be allowed to stand. Thus any feeming contradiction must be reconciled by the manifeft defign and intent of the legiflature. 11. A faving inconfiftent with the body of the ftatute is void. 12. Where the common law and statute differ, the latter fuperfedes and annuls the former. 13. Later ftatutes, abrogate and repeal prior contrary ftatutes. This must be understood where the ftatutes are expressly contrary, or negative words are ufed, otherwife, if both the ftatutes can be reconciled, they must stand, and have a concurrent operation. 14. If a statute repealing another, be afterwards repealed, the firft ftatute is revived without any exprefs words, by mere implica tion. 15. Statutes calculated to diminish or reftrain the power of any fubfequent affembly, are of no validity, for each affembly muft poffefs equal authority-of courfe they cannot limit or controul each other. 16. Statutes it is faid, which are repugnant to the principles Black, Sem of of justice, and the dictates of common sense, are void: and fo are all ftatutes fubverfive of the fundamental principles of the conftitu tion, with which no legiflature has any right to interfere. It is contended that it is neceflàry that there be some restrictions and limitations to govern and controul the legislative power: that there muft reft in the people a right to guard the conftitution, and in judges a power to restrain the operation of unjust and unreasonable laws. It is confidered by fome writers, that only the confequences arifing collaterally from a ftatute, that are abfurd or unreasonable, are void; but that if the legislature exprefsly pass an act, that is unreasonable, no court has a right to reject it, because this would elevate the judicial above the executive power. It is faid by others, that tho the legislature is fovereign and fupreme in all matters within their jurifdiction, yet they are governed by the principles of the conftitution, the rules of juftice, and the dictates of reafon; that when they exceed these limits, their acts are of no validity. Judges are not bound to conform to them in their determinations, and the people are not bound to yield them obedience. This idea, tho very popular ard very prevalent, requires fomet confideration. It is true that it may be faid, that if there be no bounds fet to the power of the legislature, in conftruing the conftitation, that they may encroach upon the rights of the people; theymay pafs laws requiring things immoral and unjust, and they may destroy the conftitution; that therefore, in fuch cafes, the judicia ry, fhall have the power to declare fuch laws to be unconstitutional and void. A cafe may be ftated, that the legislature pafs an act requiring the people to commit fome crime, authorifing a court to condemn a man for a crime without evidence, or establishing their feats during life. In fach cafes the law would be fo manifeftly unconftitutional that it would feem wrong to require the judges to regard it in their decifions. In like manner it may be faid, and with equal truth, that the judiciary granting them this power, may adjudge and declare certain laws which are clearly within the conftitution, and which are neceffary to preserve the public fafety, to be unconftitutional and void. It will be agreed, that it is as probabls that the judiciary will H 2 |