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Statutes may be cumulative

common law, does not necessarily repeal such prior statute or absorb such portion of the common law. It may be that the structure of the statute and the conditions under which it was passed may show that its object was merely to give a cumulative remedy. Of cases of this class we have numerous illustrations in statutes passed giving specific remedies for nuisance; which statutes, as has been already noticed, have been held not to repeal prior statutes or to absorb the common law bearing on the same topic.2

There

At com

mon law, repeal of

repealing

statute

§ 627. It has been held that at common law the repeal of a repealing statute revives the original statute which the intermediate statute repealed. can be no question that the repeal of a statute that operated to modify or extinguish certain portions of the common law leaves the common law as it revives original was before the adoption of the repealed statute. statute. There seems, also, no reason why, when a section of a code is repealed, and then the repealing statute is repealed, the code in its pristine force is not to be regarded as restored. The question which arises when an insulated statute is repealed, and then the repealing statute is repealed, is one mainly of construction. It may be that, taking the whole legislation into consideration, it will appear that the first statute was repealed because it was an anachronism, or was in conflict with popular temper and policy, as was the case in England with the old statutes imposing heavy penalties on dissenters and papists; and it may be that the repealing statutes were statutes imposing mitigated penalties in the same line. If so, it would be unreasonable to suppose that the repeal of the repealing statutes revived the original statutes. On the other hand, when a statute altering a common law punishment of a particular class of common law crimes is repealed by a statute giving a lesser punishment, it would be equally unreasonable to hold that

1 See supra, §§ 617, 623.

School Trustees v. Trenton, 30 N. J.

2 See discussion in Whart. Crim. Eq. 667; Wilson v. Herbert, 41 N. J. Law, 8th ed., § 26. L. 454; see Van Riper v. Parsons, 40 N. J. L. 123; People v. Wintermute, 1 Dak.Ter. 63.

3 Com. v. Churchill, 2 Metc. 118; Hastings v. Aiken, 1 Gray, 163; Public

in question

the repeal of the latter statute left the offence without any punishment assigned to it by law. This is not what the legislature could have intended, and the inference in such case may be that the effect of the repeal is simply to do away with the modified penalty of the intermediate statute, and to restore the penalty of the original statute.1 In England the knot in such cases is cut by 13 & 14 Vict., c. 21, which provides that where any act repealing in whole or in part any former statute is itself repealed, such last repeal shall not revive the act or provisions before repealed, unless words be added for that purpose; and that where any act shall be made repealing in whole or in part any former act, and substituting provisions instead of those repealed, such repealed provisions shall remain in force till those substituted shall come into operation by force of the last-made statute. But it may be doubted whether the first clause of this statute is not likely to produce frequent failures of justice, and whether such failures can be prevented in any way other than by making the question of revival of repealed statutes one of construction.3

When

clauses

§ 628. When the clauses of a statute conflict, then the last controls and overrides that which precedes it, so far as there is a conflict. But a clause in which a matter is treated in detail will prevail, irrespective of order, over a clause in which it is only incidentally referred to. And when it is plain that the location of the clauses of a section are not based on the principle that the last

conflict the last is operative.

'See Wade v. Industrial School, 43 Md. 178; People v. Wintermute, 1 Dak. Ter. 63.

2 Similar statutes have been adopted in several jurisdictions in the United States. See 1 Kent's Com., 466.

That, where a repealing statute is limited as to time of operation, the expiration of this time revives the statute that is repealed, see Collins v. Smith, 6 Whart. 294. See Barry's Petition, 12 R. I. 51. As to distinctive law in New Jersey, see Wilson v. Her

bert, 41 N. J. L. 454. That the repeal of a declaratory statute revives the common law, see Gray v. Obear, 54 Ga. 231; contra, State v. Slaughter, 70 Mo. 484; Cf. Lamb v. Schottler, 54 Cal. 319.

4 Brown v. Clegg, 16 Q. B. 681; Gibbons v. Brittenum, 56 Miss. 232; Ryan v. State, 5 Neb. 276; Albertson v. State, 9 Neb. 429.

6 State v. Trenton, 38 N. J. L. 64; Long v. Culp, 14 Kan. 412; Kansas R. R. v. Wyandotte, 16 Kan. 587.

clause is the summary of the section, or occupies a revisory relation to the section, then the logical meaning of the whole section is to be sought for irrespective of any inference drawn from mere location.1

Division in

sections

cal effect.

§ 629. The division of a statute in sections has no necessary logical effect, even where there is a statute providing that every distinct topic in a statute is to be in a distinct section. In old times, in England, there has no logiwere no sections in the statutes. Subsequently the practice of dividing into sections was introduced by editors of statutes, and then by draughtsmen, but the object was simply to prevent a statute from becoming so unwieldy as to obscure to the eye its component parts. If the sections are independent, and may be regarded as following each other in order of time, then the last section prevails, as does the last clause, over those which precede. But unless this be the case, they are all to be construed together. When the division in sections is a distinctive part of the statute, then a section can be repealed without affecting the rest of the statute; and, in some jurisdictions, a particular section of a bill may be vetoed without affecting the rest of the bill."

3

§ 630. Statutes, to sum up the positions taken in the preceding pages, are dependent on the judiciary, as follows:

I. For recognition. This involves two questions: (1) As to whether the statute was duly passed;5 (2) as to whether, assuming it to have been duly passed, it is constitutional in whole or in part.

Statutes depend on judiciary

for recognition, for hension, for

compre

application.

II. For comprehension.—This, also, involves two questions: (1) Interpretation of particular words; (2) construction of the entire statute.7

1 Ebbs v. Boulnois, L. R., 10 Ch. Ap. 479.

2 Supra, § 628.

R. v. Threlkeld, 4 B. & Ad. 229; Sedgwick on Stat., 96. That a subsequent section repeals a prior, see Gibbons v. Brittenum, 56 Miss. 232; Albertson v. State, 9 Neb. 429.

Blake v.

v. Morrow, 26 Mo. 131; State v. Ingersoll, 17 Wis. 631.

Supra, § 603.

5 Supra, §§ 606-7. 1 Supra, § 604.

Mr. Wilberforce, in the first chapter of his book on statute law, treats this topic in detail. He begins by quoting Brackett, 47 Me. 28; State Bacon's statement in his proposal for

III. For application to the concrete case.-This can only be effected by the judiciary.' Laws as issued by the legislature are asymptotes which, until applied by either executive or judiciary, cannot touch real life so as to compel obedience. And under a constitutional government, in which the functions of executive and judiciary are duly separated, the ultimate power of application and enforcement is with the judiciary. The executive may order the execution of a law. But the power of revising this order, and releasing parties arrested in pursuance of it, remains, unless in a state of war, with the courts.

amending the laws of England (Bacon's Works, Montagu's ed., v. p. 346): "There are more doubts that rise upon our statutes, which are text law, than upon the common law, which is no text law." "The experience of nearly three centuries," Mr. Wilberforce proceeds to say, "has fully justified this saying, and shows the prophetic insight of its author;" citing dicta to the same effect in R. v. Skeen, Bell's C. C. 134, and O'Flaherty v. McDowell, 6 H. L. C. 179, and other cases. The following is quoted from Bramwell, L. J.: "People who draw acts of parliament are very commonly found fault with by those who never drew up an act themselves. I suppose it is impossible to foresee all the difficulties that will arise, and to use exactly precise words -to say nothing of the difficulties under which acts are drawn up." R. v. Monck, L. R. 2 Q. B. D. p. 552. "It seldom happens," says Cleesby, B., "that the framer of an act of parliament has in contemplation all the cases which are likely to arise, and the language, therefore, seldom fits every possible case."

Scott v. Legg, L. R. 2 Ex. D. 42. Mr. Wilberforce (p. 4) on this point quotes Lord Campbell's reference to "an ill-framed enactment, like too many others, putting judges in the embarrassing situation of being bound to make sense out of nonsense, and to

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Aside from the inherent difficulty in the finding, even by the most skilful and experienced of draughtsmen, of adequate words in framing a statute, it must be remembered that few bills pass the legislature as they come from the draughtsman's hands. Some illconsidered change is made in committee or on the floor of the house, by which the symmetry of the whole statute is deranged. A blunder of this kind in a judicial opinion is readily corrected. But in a statute it cannot be corrected except by new legislation, which is not only dilatory, but is exposed to the same casualties as the legislation it attempts to cure. This is not a serious objection to legislation considered as tentative and progressive. But it imposes obstacles almost insuperable in the way of fixity of codification. Supra, § 114.

1 Supra, §§ 30, 114.

INDEX.

[THE FIGURES REFER TO SECTIONS.]

ABATING NUISANCE, right of, 5.

ABOLITION OF SLAVERY, declaratory of public sentiment, 584.
ACCESSION, territory may be acquired by, 151.

ADAMS, JOHN, theory of "evolution" of liberty, 19.
ADMINISTRATORS, applicatory law as to, 338.
ADMIRALTY JURISDICTION, nature of, 523.
ADMIRALTY LAW is the law of the sea, 36.
its limits under Federal constitution, 523.

ADOPTION, by what law effected, 291.
ADVICE, does not constitute a law, 2.

of senate, meaning of, 311, 596, 613.

AFRICAN RACE, provisions as to naturalization of, 435.

suffrage granted to, 592.

AFRICAN SLAVE-TRADE, internationally prohibited, 181, 280, 452.

ALIEN RESIDENTS, subject to local law, 178.

ALIENS, entitled to equal civil rights with citizens, 436.

international rights of, 261.

position of, under constitution of the United States, 431.
ALLEGIANCE, no longer held to be perpetual, 177.

limitations of, under constitution of the United States, 431.

AMBASSADORS, accredited only to sovereign, 138.

authority to negotiate treaties, 158. See ENVOYS, MINISTERS.
AMENDMENT OF CHARTER, power reserved of, 491.
AMENDMENTS TO CONSTITUTION, how to be adopted, 400.
validity of adoption of those as to reconstruction, 400.
inferences to be drawn from provisions as to, 373, 401.

AMERICA, common law of, whence derived, 64.

discovery of, effect of, on international law, 126.

AMERICAN LAW, history of, 19 et seq., 108 et seq.

evolution of, 2, 19 et seq.

AMNESTY, president has power of, 507.

ANALYTICAL SCHOOL of jurisprudence, 6.

ANGLO-SAXON law, authority of, 66.

ANNEXATION, effect of, on laws of annexed country, 153-4.
territory may be acquired by, 151.

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