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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 Statutes. - Penal 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 Assisa or 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

* 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.

*

presented to the two Houses." But as this investigation to us would be interesting mainly, if not solely, in a 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 contradistinguished 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.

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* Dwarris on Statutes, vol. ii, ch. i. 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 (1488). 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

In the early periods of English legislation, all the statutes of each session of Parliament were consolidated and styled one statute, each being called merely a separate chapter. In the time of Henry VIII, it first became usual to prefix a distinct title to each particular chapter of the statute.*

In this country we have no knowledge of the division of statutes into ancient and modern, of which we have spoken. The only divisions which we recognize spring from the authority to which the statutes owe their origin. We have

The Colonial Statutes, passed by the governments of the old⚫ thirteen colonies, before the authority of the mother country was thrown off:

The Acts of the United States, passed by the Federal Government:

The Laws of the States, passed by the States respectively; and

The Acts of the Territories, passed by the governments of the new territories before they are admitted into the Union as States.

We shall also have occasion to speak of the municipal ordinances of our cities, some of which are quite equal in importance to the acts of legislation of many of the States.†

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 permitting their laws to be enacted in a modern European language. See his remarks on the subject, under the head of the Statutum de Scaccario, 51 Henry III, A. D. 1266, p. 57.

Fortesque, writing in the reign of Henry VI, states that in the Universities of England, the sciences are only taught in Latin, but that the law is taught in the three languages, English, French, and Latin. Leges terræ illius in triplici lingua addiscuntur, videlicet, Anglia, Gallica, et Latina. Fortesque de Laudibus Leg. Angl. c. 48.

Chaucer's slur at the Anglo-French in com-
mon use in his time is well known:
And Frenche she spake full fetously,
After the scole of Stratforde at Bowe,
For Frenche of Paris was to her unknowe."
Prologue to the Prioress' Tale.
The great poet showed at once his sense and
patriotism by using the English tongue. But

so slow has been the growth of that strong and nervous speech which now bids fair to assert a successful claim to universal dominion. See Tyrwhitt's Essay on Language of Chaucer.

Dwarris on Statutes, vol. 2, p. 462.

Coke, Inst. 116, thus enumerates the "divers laws within the realm of England." (1) The law of the Crown.

(2) The law of custom of Parliament.
(3) The law of nature.

(4) The common law.
(5) Statute law.

(6) Customs reasonable.

(7) The law of arms, war, and chivalry. (8) Ecclesiastical or canon law.

(9) Civil law as in the courts of the constable and marshal.

(10) Forest law.

(11) The law of marque.
(12) The law merchant.

(13) The laws and customs of the isles of Jersey, &c.

(14) The law and privilege of the stan

naries.

(15) The laws of the east, west, and middle marches-now abrogated.

When we come to consider statutes not as to their origin, but with reference to their subject-matter, we find the leading division to be into

Public or General, and

Private or Special.

Public or General Statutes are in England, those which relate to the kingdom at large. In this country, they are those which relate to or bind all within the jurisdiction of the lawmaking power, limited as that power may be in its territorial operation, or by constitutional restraints. Private or Special Statutes relate to certain individuals or particular classes of

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Laws which concern the sovereign or heir apparent, all officers in general, the whole spirituality, all lords of manors, such also as relate to trade in general, are in England public acts. A statute concerning all persons generally, though with relation to a special or particular thing, as appeals, assizes, or woods in a forest, is also a public act.

On the contrary, such statutes as concern only a particular

Mr. Dwarris, p. 463, gives the English parliamentary division of statutes as follows: "The first and principal division is into general and special, public and private. For the convenience of citation to a practicing lawyer, the printed book is again divided into public general acts; local and personal acts, declared public and to be judicially noticed; private acts printed by the king's printer, and of which printed copies may be given in evidence; and private acts not printed.

"In Parliament are adopted other distinctions resting upon different grounds; there, all bills whatever from which private persons, corporations, &c., derive benefit, are subject to the payment of fees, and such bills are in this respect denominated private bills; while among the public acts are included some merely personal, as acts of attainder and patent acts. Of private acts, some, as has been already shown, are local, as inclosure acts, and some personal, viz., such as relate to naturalization, names, estates, divorces, &c.; of the latter, some are fiscal, as bills for compounding debts due to the crown, &c. In the Lords, the term 'private' is is applied technically to estate bills only, all other bills being distinguished as local and personal.

"After they have received the royal assent, private bills are divided into three classes. 1. Local and personal acts, declared

public. 2. Private acts printed by the king's printer. And 3. Private acts not printed.

"Every local and personal act contains a clause declaring that it shall be a public act, and shall be judicially taken notice of as such,' and receives the royal assent as a public act."

Those who are desirous to consider the subject of English statutes, and the ancient laws more particularly, will do well to consult the collections of English statutes. There are several, and they are full of very curious and interesting matter.

The oldest abridgment of the English statutes, comes no lower than the 31st year of Henry VI (1452), and is understood to have been printed in 1481. It is known as The Old Abridgment, and is in French.

There are one or two other, later abridg ments, also in French. The first English abridgment of the statutes, is that of John Rastell. This was first printed in the 19 Henry VIII (1527).

Petyt's great Abridgment of the Statutes belongs to the year 1542, and Pulton published an Abstract of them in 1577.

Mr. John Cay published his valuable Abridgment of the Public Statutes, 2 vols. folio, in 1739; and in 1743-1765, Mr. Owen Ruffhead published his Statutes at Large, in 9 vols. 4to. This last edition is perhaps the most convenient and satisfactory for the purposes of reference.

species, thing, or person,-as, bishops only; acts for the tolera tion of dissenters; relating only to specific traders; acts relating to only one particular place or to several particular towns, or to one or more particular counties, or to colleges only in the universities, have been in England treated as private acts.*

In this country the disposition has been, on the whole, to enlarge the limits of the class of public acts, and to bring within it all enactments of a general character, or which in any way affect the community at large. The subject has been considered, as we shall hereafter see, with reference to the provisions of the federal Constitution; and it has been held that the establishment of towns and counties and their boundaries, court houses, jails, bridges, and ferries, are all matters of public policy, and acts relating to them are of course public acts.† So, in this country, it has been intimated that acts in relation to banks are to be held public, the reasons assigned being that their bills are a legal tender unless specially objected to, and their charters concern the currency of the country. So, in Massachusetts, acts creating public corporations, whether sole or aggregate, are public statutes. | Acts, too, which although affecting only a particular locality apply to all persons, are public acts. So, an act passed for the survey of timber in the

* Dwarris on Statutes, 464; Gilb. Evidence, 39, 40; Phil. on Evidence, 238; Com. Dig. Tit. Parliament, R. 6; 4 Rep. 76, b.; Kirk v. Nowill, 1 T. R. 118; 4 Rep. 79; 4 Co. 76, a. b. 79.

Mr. Dwarris, vol. ii, p. 464, gives at length the distinction in England between public and private acts, as I have stated it in the text, and then proceeds::

"Thus the statute 21 Henry VIII, c. 13, which makes the acceptance of a second living by a clergyman an avoidance of the first, is a general law, because it concerns all spiritual persons (4 Rep. 79).

"In a general act there may be a private clause (1 Salk. 168), as in the statute 3 Jac. I, c. 5 (10 Rep. 57, b.), the clause which gives the benefices of recusants in particular counties to the University. So a statute which concerns the public revenue is a public statute; but some clauses therein may, if they relate to private persons only, be private; for a statute may be public in one part and private in another.-12 Mod. 249; 12 Mod. 613; Hob. 227; Sid. 24.

"Yet, although a statute be of a private

nature (as, if it concern a particular mystery or trade), yet if a forfeiture be thereby given to the king, it is a public statute (R. v. Buggs, Skin. 429). And a private act, if recognized by a public act, must afterwards be noticed by the courts as a general law. -2 Term Rep. 569.

"A general or public act, then, regards the whole community; special or private acts relate only to particular persons or private

concerns."

East Hartford v. Hartford Bridge Co. 10 Howard, 511; Mills v. St. Clair Co. 8 Howard, 569; Bass v. Fontleroy, 11 Texas, 698; Commonwealth v. Inhabitants of Springfield, 7 Mass. 9.

Bank of Utica v. Smedes, 3 Cowen, 662; 2 R. S. 374, § 3. In Missouri also, Douglas v. Bank of Missouri, 1, Missouri R. 20; Young v. Bank of Alexandria, 4 Cranch, 384.

Portsmouth Livery Co. v. Watson, 10 Mass. 91. But an act creating a private banking corporation, was held not to be of a "general character," in Ferguson v. Miners' &c. Bank, 3 Sneed (Tenn.) 609.

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