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whole community. The courts will take judicial notice of them without pleading." A declaration in the statute that it is public, is conclusive.

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105. Private statutes are those which concern only particular persons or classes of persons. The courts will not take judicial notice of them unless they are pleaded.

106. A declaratory statute is one which is passed in order to put an end to a doubt as to what is the common law or the meaning of another statute, and which declares what it is and ever has been.

107. A remedial statute is one which supplies such defects, and abridges such superfluities in the former law, as may have been discovered. This is done by enlarging or restraining the former law, and these remedial statutes are therefore called enlarging statutes or restraining statutes.

The term remedial statute is also applied to one which gives the party injured a remedy; in some respects such statute is a penal law.57

108. When the statute commands certain actions, and regulates the forms and acts which ought to accompany them, it is called a preceptive statute.

109. When it forbids actions which disturb the public repose, or injury to the rights of others, or crimes and misdemeanors; or when it forbids certain acts in relation to the transmission of estates, the capacity of persons and other objects, it is a prohibitive statute.

110. When it allows certain actions without commanding them; for example, when it allows any one who is competent, to make a will; such a statute is permissive.

111. Penal statutes are those which order or prohibit a thing under a certain penalty.

112. A temporary statute is one which is limited in its duration at the time of its enactment. It continues in force until the time of its limitation has expired, unless sooner repealed.

113. A perpetual statute is one for the continuance of which there is no limited time, although it be not expressly declared to be so. If, however, a statute which does not itself contain any limitation, is to be governed by another which is temporary only, the former will also be temporary and dependent upon the existence of the latter.58

114. An affirmative statute is one which is enacted in affirmative terms; such statute does not take away the common law. If, for example, a statute without negative words, declares that when certain requisites shall have been complied with, deeds shall have in evidence a certain effect, this does not prevent their being used in evidence, though the requisites have not been complied with, in the same manner they might have been before the statute was passed.59

115. A negative statute is one expressed in negative terms, and so controls the common law, that it has no force in opposition to the statute."

116. A prospective law is one which regulates the future, and is the only one which can be just, for no man can conform himself to the law which is yet unknown to him.

117. A retrospective statute is one which is made to operate upon some subject, contract or crime, which existed before its enactment.

These laws are generally unjust, and are, to a certain extent, forbidden by

5 Gorham v. Springfield, 27 Me. 58. "Brookville Ins. Co. v. Records, 5 Blackf. Ind. 170.

1 Sharswood, Blackst. Comm. 86. 1 Sharswood, Blackst. Comm. 86.

57 Espinasse, Pen. Act. 1.

58 Bacon, Abr. Statutes, (D.)

59 Jackson v. Brady, 2 Caines, N. Y. 169. 60 Brown, Parl. Cas. 72; Bacon, Abr. Statutes, (G.)

that article in the constitution of the United States which prohibits the passage of ex post facto laws, or laws impairing the obligation of contracts.

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An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. This prohibition applies only to crimes.62

The right to pass retrospective laws, subject to the exceptions mentioned, exists in the several states, if not forbidden by their own constitutions.63 And instances are to be found where the legislature have set aside a decree of a court, and opened a judgment.6

118. The constitution and laws of the respective states, if not in conflict with the constitution of the United States, are of binding force in the states respectively.

119. Laws made by lawful inferior legislative bodies usually known by the name of ordinances, have full force within their respective jurisdictions. Such are the ordinances of a municipal corporation. And general rules and orders of court, when not violating the constitution or laws, have the effect of laws in such courts.

120. The tacit laws, which derive their authority from the common consent of the people, without any legislative enactment, may be subdivided as follows:

121. The common law is a system of rules which have been used by the universal consent and immemorial practice of the people, without receiving the express authority of the legislative power. It is derived principally from two sources, the common law of England, and the practice and decisions of our own courts. No general rule has been adopted to ascertain what part of the English common law is valid and binding. To run the line of distinction is a subject of embarrassment to the courts, and the want of it a great perplexity to the student.66

It is generally binding where it has not been superseded by the constitution of the United States, or of the several states, or by their legislative enactments, or varied by custom, and when it is founded in reason, and it is consonant to the genius and manners of the people.67 Into the common law have been grafted many principles derived from other systems.

Customs form a part of the common law. A custom is a usage which has acquired the force of law. It derives its binding authority from the tacit consent of the legislature and the people; it follows, therefore, that there can be no custom in relation to a matter regulated by statute. Law cannot be established or abrogated, except by the sovereign will; but this will may be expressed, or implied or presumed, and whether it manifests itself by words or by acts is of little consequence.

To make a good custom, it must be public, peaceable, uniform, general, continued, reasonable and certain. It then acquires the form of law.

Customs are general or particular. By general custom is meant the common law itself, by which proceedings and determinations in court are guided. Particular customs are those which affect the inhabitants of some particular districts only.

122. The Roman or civil law has furnished many rules, and is constantly supplying the common law with maxims which appear there without any

61 Fletcher v. Peck, 6 Cranch, 138.

62 Story, Const. 8 1339.

63 Hess v. Werts, 4 Serg. & R. Penn. 364; Watson v. Mercer, 8 Pet. 88; Satterlee v. Matthewson, 2 Pet. 413.

Calder v. Bull, 3 Dall. 386.

65 Braddee v. Brownfield, 2 Watts & S. Penn. 271.

66 Kirby, Conn. Pref.

67 United States v. Wonson, 1 Gall. C. C. 20; James and Catherine, Baldw. C. C. 554; Parsons v. Bedford, 3 Pet. 446.

acknowledgment of their paternity. This law is the source of wisdom, from which many of our judges have drawn with unsparing hands, to adorn their judgments. The proceedings of the courts of equity, and many of the admirable distinctions which manifest their wisdom, flow from this source. And from this great storehouse the courts of admiralty have borrowed most of the laws which govern in admiralty cases. The civil law is to be found in the Institutes of Justinian, the Pandects, the Novels, and the Code, and their numerous commentators.

123. The Canon law is a system of Roman ecclesiastical law, relative to such matters as the church of Rome either has or pretends to have jurisdiction over. Many of the rules of this system have been adopted by the English ecclesiastical law, and they have been incorporated into ours. Perhaps all, or at least a great number of rules relating to administrations, wills, and marriages, have been derived from the ecclesiastical law.69

124. Those laws which regulate civil matters between individuals, are called civil laws, in contradistinction to those which regulate criminal matters, and provide for the repression and punishment of crimes, which are called criminal laws.

125. Those which form a system of customs acknowledged and taken notice of by all commercial nations, are called the law merchant. These customs constitute a part of the general law of the land; and, being part of that law, their existence cannot be proved by witnesses, but the judges are bound to take notice of them ex officio.70

126. Municipal law has been already considered."

127. Martial law is that military rule and authority which exists in time of war, and is conferred by the laws of war, in relation to persons and things under and within the scope of active military operations, in carrying on the war, and which extinguishes or suspends civil rights and the remedies founded upon them, for the time being, so far as is necessary in order to the full accomplishment of the purposes of the war. It is also the application of military government to persons and property within its scope according to the laws and usages of war, to the exclusion of the municipal government.72

128. Those laws are immutable which are founded on the laws of nature, and if ever altered by men, are not binding, because the laws of God are superior to all human laws.

129. An arbitrary law is one made by the legislator, simply because he wills it, and is not founded in the nature of things; such law, for example, as the tariff law, which may be high or low.

130. Laws enacted by the government of the United States, duly constituted, are national or domestic laws. These have a binding force over the whole country, as will be shown hereafter.

The laws of each state are obligatory on all persons in the state, but do not extend beyond their territorial jurisdictions. Considered with regard to their connection with each other, the states are foreign to one another.

131. The laws of a foreign country are said to be foreign laws. They have no force to regulate any thing out of their jurisdiction; but sometimes contracts are made in a foreign country, which are broken in this, and a remedy

Bouvier, Law Dict., Civil Law. By the phrase Civil Law, is meant the whole body of Roman jurisprudence promulgated by Justinian and his successors. This does not include the Jus Ante-Justinianeum, a part of which was composed of the Laws of the Twelve Tables. Walker, Inquiry, 26, 27.

1 Sharswood, Blackst. Comm. 82; Bouvier, Law Dict., Canon Law. "See Beawes, Lex Merc.; Cain. Lex Merc. Am.; Pardessus, Dr. Comm.

" Before, 11.

"See N. A. Review, Oct. 1861. article by Prof. Joel Parker.

is sought here. In such case, the matter in dispute is to be adjudicated in this country by the law of the country where the contract was made."

But there is an exception to the universal validity of this rule. A foreign law, which violates the law of nature, or the laws of this country, or which opposes our national policy or institutions," will not be enforced here. 132. The laws of congress extend over all the United States. Not only those which originally formed the federal compact, but also over those which have been admitted since, whether they were formed out of the original territory, or of that acquired from France, by the treaty which ceded Louisiana to the United States; Florida from Spain; or that which was annexed by an agreement with the independent republic of Texas, and which annexation has since been recognized and sanctioned; or the additional territory which has been granted to the United States, by treaties made with Mexico; or the territory ceded by Russia.

How far the country extends into the open sea, is a question not easily solved. Though the open sea be not capable of being possessed as private property by a nation, yet the waters on the coast to a certain extent are considered as belonging to the territory. By the law of nations, this space is limited to a marine league," though a claim extending farther than this has been made by the United States.76

The constitution provides that new states may be admitted by congress into this Union; but no new state shall be formed by the junction of two or more states, or parts of states, without the consent of the legislature of the states concerned, as well as of congress."7

These states, when once established, are considered as upon an equal footing with the original states, and the laws of the Union bind them.

133. By territory is understood, in the sense in which this word is used in the constitution, that portion of the country subject, and belonging to the United States, which is not within the boundaries of any of the states, or within the District of Columbia.

The constitution directs that the congress shall have power to dispose of, and make all needful rules and regulations, respecting the territory or other property belonging to the United States.78

These territories are organized by act of congress, and have a government to make their local laws, generally having the powers which have been retained by the states; with courts established to administer justice.

134. The laws of the United States extend over all merchant ships owned by citizens of the United States, and ships of war of the United States in the open sea generally, or while lying in a foreign port or place, and also over the crews."

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135. Having taken this general view of the laws, the consideration of their application to persons, to things, and to actions, will next be the subject of inquiry. For this purpose this work will be divided into five books. In the first, we will treat of persons; in the second, of things; injuries and wrongs will be the subject of the third; in the fourth, will be explained what remedies can be had at law for injuries; and in the fifth, the nature and proceedings in equity.

73 Story, Confl. of Laws, 242.

74 Story, Confl. of Laws, 246 to 260. 75 Vattel, Dr. Civ. 1. 1, c. 23, n. 289; Chitty, Law of N. 113; Marten, Law of N. B. 1, c. 8. 6; 3 Rob. Adm. 102; 3 Hagg. Adm. 257.

76 1 Kent, Comm. 29, 30. But see Sergeant, Const. L. 219, 2d ed.

77 U. S. Const. art. 4, s. 3, n. 1.

78 U. S. Const. art. 4, s. 3, n. 2.

79 Act of Congr. Sept. 24, 1789, s. 9, 11; 1 stat. 76; act of Congr. April 30, 1790; 1 stat. 113; act of Congr. March 3, 1825, s. 5; 4 stat. 115; 1 Kent, Comm. 362, 363.

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136. Persons are divided into natural and artificial. These will be considered separately.

137. Men, women and children are called natural persons; but, in another sense, by person is meant the part which a man plays in society. In law, man and person are not exactly synonymous terms. Any human being is a man,"

Toullier has given us the derivation of the word person, which will render sufficiently clear its true meaning. He says:

"The word person, in its primitive and natural sense, signifies the mask with which actors, who played dramatic pieces in Rome and Greece, covered their heads. These pieces were played in public places, and afterward in such vast amphitheatres, that it was impossible for a man to make himself heard by all the spectators. Recourse was had to art; the head of each actor was enveloped with a mask, the figure of which represented the part he was to play, and it was so contrived that the opening for the emission of his voice made the sounds clearer, and more resounding, vox personabat: whence the name persona was given to the instrument or mask which facilitated the resounding of his voice. The name persona was afterward applied to the part itself, which the actor had undertaken to play, because the face of the mask was adapted to the age, and to the character of him who was considered as speaking, and sometimes it was his own portrait. It is in this last sense of personage, or of the part which an individual plays, that the word persona is employed in jurisprudence, in opposition to the word man, homo. When we speak of a person, we only consider the state of the man, the part he plays in society, abstractedly, without considering the individual."-Toullier, Dr. Civ. Fr. 1. 1, n. 168.

'Bouvier, Law Dict., Man.

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