Commentaries on American Law (1826-30)
Chancellor James Kent
Of Statute Law
MUNICIPAL law is a rule of civil conduct, prescribed by the supreme power in a state. It is composed of written and unwritten, or statute and common law. Statute law is the express written will of the legislature, rendered authentic by certain prescribed forms and solemnities.
It is a principle in the English law, t hat an act of parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled in any court of justice. “It is,” says Sir William Blackstone, “the exercise of the highest authority that the kingdom acknowledges upon earth.” When it is said in the books, that a statute contrary to natural equity and reason, or repugnant, or impossible to be performed, is void, the cases are understood to mean, that the courts are to give the statute a reasonable construction. They will not readily presume, out of respect and duty to the lawgiver, that any very unjust or absurd consequence was within the contemplation of the law. But if it should happen to be too palpable in its direction to admit of but one construction, there is no doubt in the English law, as to the binding efficacy of the statute. The will of the legislature is the supreme law of the land, and demands perfect obedience.1
But while we admit this conclusion of the English law, we cannot but, admire the intrepidity and powerful sense of justice which led Lord Coke, when chief justice of the K. B. to declare, as he did in Doctor Bonham’s Case,2 that the common law does control acts of parliament, and adjudges them void when against common right and reason. The same sense of justice and freedom of opinion, led Lord Chief Justice Hobart, in Day v. Savage3 to insist that an act of parliament made against natural equity, as to make a man judge in It is own case, was void; and induced Lord Chief Justice Molt to say, in the case of the City of London v. Wood,4 that the observation of Lord Coke was not extravagant, but was a very reasonable and true saying. Perhaps what Lord Coke said in his reports, on this point, may have been one of the many things that King James alluded to, when he said, that in Coke’s Reports there were many dangerous conceits of his own uttered for law, to the prejudice of the crown, parliament, and subjects.5
The principle in the English government, that the parliament is omnipotent, (toes not prevail in the United States. In this, and all other countries where there is a written constitution, designating the powers and duties of the legislative, as well as of the other departments of the government, an act of the legislature may be void as being against the constitution. It must conform, in the first place, to the constitution of the United States, and then to the subordinate constitution of its own state, and if it infringes the provisions of either, it is so far void. The courts of justice have a right, and are in duty bound, to bring every law to the test of the constitution, and to regard the constitution, first of the United States, and then of their own state, as the paramount or supreme law, to which every inferior or derivative power and regulation must conform. The constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can he no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void. The judicial department is the proper power in the government to determine whether a statute be or be not constitutional. The interpretation or construction of the constitution, is us much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law. To contend that the courts of justice must obey the requisitions of an act of the legislature, when it appears to them to have been passed in violation of the constitution, would be to contend, that the law was superior to the constitution, and that the judges had no right to look into it, and to regard it as the paramount law. It would be rendering the power of the agent greater than that of his principal, and be declaring, that the will of only one concurrent and coordinate department of the subordinate authorities under the constitution, was absolute over the other departments, and competent to control, according to its own will and pleasure, the whole fabric of the government, and the fundamental laws on which it rested. It would be perfectly idle to attempt to impose restraints upon the exercise of the legislative power, if the constitutional provisions were left without any power in the government to guard and enforce them. From the mass of powers necessarily vested in the legislature, and the active and sovereign nature of those powers; from the numerous bodies of which the legislature is composed, the popular sympathies which it excites, and its immediate dependence upon the people by the means of frequent periodical elections, it follows, that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests in society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the constitution, and trying the validity of statutes by that standard. It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights.
It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and of duty, to declare every act of the legislature made in violation of the constitution, or of any provision of it, null and void. The progress of this doctrine, and the manner in which it has been discussed and established, is worthy of notice. It had been very ably examined in the Federalist,6 and its solidity vindicated by unanswerable arguments; but it was not until the year 1792 that it seems to have received a judicial consideration.
In Hayburn’s Case, which came before the Circuit Court of the United States for the district of New York, in April, 1791, the judges proceeded with the utmost delicacy and caution to declare an act of congress, assigning ministerial duties to the circuit courts, to be unconstitutional. The court laid down the position, that congress cannot constitutionally assign to the judicial power any duties which are not strictly judicial; and that the act in question was not obligatory upon the court. But they nevertheless proceeded voluntarily and ex gratia as commissioners to execute the duties of the act.
In Pennsylvania and North Carolina, the circuit courts of the United States, within those districts equally held the act not binding upon them, because the legislature had no right or power to assign to them duties not judicial; but they were not so accommodating as the Circuit Court of New York, for they declined to act under the law in any capacity.7
In 1792, the Supreme Court of South Carolina, in the case of Bowman v. Middleton,8 went further, and set aside an act of the colony legislature, as being against common right and the principles of Magna Carta, for it took away the freehold of one man and vested it in another, without any compensation, or any previous attempt to determine the right. They declared the act to be ipso facto void, and that no length of time could give it validity. This was not strictly a question arising upon any special provision of the state constitution, but the court proceeded upon those great fundamental principles which support all government and property, and which have been supposed by many judges in England to be sufficient to check and control the regulations of an act of parliament. The next case in which the power of the judiciary to disregard or set aside a statute for being repugnant to the constitution, was one that came before Judge Paterson, at Philadelphia, in April, 1795.9 He asserted the duty of the court, and the paramount authority of the constitution, in remarkably clear and decided language. That was a case of an act of Pennsylvania, which he held to be unconstitutional, and not binding. He insisted, that the constitution was certain and fixed, and contained the permanent will of the people, and was the supreme law, and paramount to the power of the legislature, and could only be revoked or altered by the authority that made it; that the legislature was the creature of the constitution, and owed its existence to the constitution, and derived its powers from the constitution, and all its acts must be conformable to it, or else they will be void.
The same question afterwards arose before the Supreme Court of South Carolina, in the case of Lindsay v. The Charleston Commissioners;10 and the power of the legislature to take private property for necessary public purposes, as for a public street, was freely discussed; and though the judges were equally divided on the question whether it was a case in which the party was entitled to compensation, those who held him so entitled, held also, that the law was unconstitutional and inoperative, until the compensation was made. The judges, in exercising that high authority, claimed to be only the administrators of the public will, and the law was void, not because the judges had any control over the legislative power, but because the will of the people, declared in the constitution, was paramount to that of their representatives expressed in the law.
Hitherto, this question, as we have seen, was confined to one or two of the state courts, and to the subordinate, or circuit courts of the United States. But, in Marbury v. Madison,11 the subject was brought under the consideration of the Supreme Court of the United States, and received a clear and elaborate discussion. The power and duty of the judiciary to disregard an unconstitutional act of congress, or of any state legislature, were declared in an argument approaching to the precision and certainty of a mathematical demonstration.
The question, said the chief justice, was, whether an act repugnant to the constitution, can become a law of the land, and it was one deeply interesting to the United States. The powers of the legislature are defined and limited by a written constitution. But to chat purpose is that limitation, if those limits may at any time be passed? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited, and acts allowed, are of equal obligation, If the constitution does not control any legislative act repugnant to it, then the legislature may alter the constitution by an ordinary act. The theory of every government, with a written constitution, forming the fundamental and paramount law of the nation, must be, that an act of the legislature repugnant to the constitution is void. If void, it cannot bind the courts, and oblige them to give it effect; for this would be to overthrow, in fact, what was established in theory, and to make that operative as law which is not law. It is the province and the duty of the judicial department, to say what the law is; and if two laws conflict with each other, to decide on the operation of each. So, if the law be in opposition to the constitution, and both apply to a particular case, the court must either decide the case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law. If the constitution be superior to an act of the legislature, the courts must decide between these conflicting rules, and how can they close their eyes on the constitution and see only the law?
This great question may be regarded as now finally settled; and I consider it to be one of the most interesting points in favor of constitutional liberty, and of the security of property in this country, that has ever been judicially determined.12 We never had any doubt or difficulty in this state, in respect to the competency of the courts to declare a statute unconstitutional, when it clearly appeared to be so. Thus, in the case of The People v. Platt,13 the Supreme Court held, that certain statutes affecting the right of Z. Platt, and his assigns, to the exclusive enjoyment of the river Saranac, were in violation of vested rights under his patent, and so far the court held them to be unconstitutional, inoperative, and void. The control which the judicial power of this state had, until the year 1823, over the passing of laws, by the institution of the council of revision, anticipated, in a great degree, the necessity of this exercise of duty. A law containing unconstitutional provisions, was not likely to escape the notice and objection of the council of revision; and the records of that body will show, that many a bill that had heedlessly passed the two houses of the legislature, was objected to, and defeated on constitutional grounds. The records to which I refer are replete with the assertion of salutary and sound principles of public law and constitutional policy, and they will forever remain a monument of the wisdom, firmness, and integrity of the council.
A statute, when duly made, takes effect from its date when no time is fixed, and this is now the settled rule. It was so declared by the Supreme Court of the United States in Matthews v. Zane,14 and it was likewise so adjudged in the Circuit Court in Massachusetts in the case of the brig Ann,15 I apprehend, that the same rule prevails in the courts of this state, and that it cannot be admitted that a statute shall, by any fiction or relation, have any effect before it was actually passed. A retroactive statute would partake in its character of the mischief of an ex post facto law, as to all cases of crimes and penalties; and in every other case relating to contracts or property, it would be against every sound principle. It would come within the reach of the doctrine, that a statute is not to have a retrospective effect; and which doctrine was very much discussed in the case of Dash v. Vankleeck,16 and shown to be founded, not only in English law, but on the principles of general jurisprudence.
The English rule formerly was, that if no period was fixed by the statute itself, it took effect by relation, from the first day of the session in which the act was passed, and which might be some weeks, if not months, before the act received the royal sanction, or even before it had ever been introduced into parliament.17 This was an extraordinary instance of the doctrine of relation working gross injustice and absurdity; and yet we find the rule declared, and uniformly adhered to, from the time of Hen. VI.18 All the judges agreed, in the case of Partridge v. Strange, in the 6 Edw. VI.19 that the statute was to be accounted in law a perfect act from the first day of the session; and all persons were to be punished for an offense done against it after the first day of the session, unless a certain time was appointed when the act should take effect. In the case of The King v. Thurston,20 this doctrine of carrying a statute back by relation to the first day of the session, was admitted in the K. B.; though the consequence of it was to render an act murder, which would riot have been so without such relation. The case of the Attorney General v. Panter,21 is another strong instance of the application of this rigorous and unjust rule of the common law, even at so late and enlightened a period of the law as the year 1772. An act for laying a duty on the exportation of rice thereafter to be exported, received the royal assent on the 29th of June 1767, and on the 10th of June of that year, the defendants had exported rice. After the act passed, a duty of 115 pounds was demanded upon the prior exportation, and it was adjudged in the Irish Court of Exchequer to be payable. The cause was carried by appeal to the British House of Lords, on the ground of the palpable injustice of punishing the party for an act innocent and lawful when it was done; but the decree was affirmed, upon the opinion of the twelve judges, that the statute, by legal relation, commenced from the first day of the session. The K. B. also, in Latless v. Holmes,22 considered the rule to be too well settled to be shaken, and that the court could not take notice of the great hardship of the case. The voice of reason at last prevailed, and by the statute of 33 Geo. III. c. 13. it was declared, that statutes are to have effect only from the time they received the royal assent, and the former rule was abolished, in the words of the statute, by reason of “its great and manifest injustice.”
There is a good deal of hardship in the rule as it now stands, both here and in England; for a statute is to operate from the very day it passes, if the law itself does not establish the time. It is impossible, in any state, and particularly in such a wide spread dominion as that of the United States, to have notice of the existence of the law, until some time after it has passed. It would be no more than reasonable and just, that the statute should not be deemed to operate upon the persons and property of individuals, or impose pains and penalties for acts done in contravention of it, until the law was duly promulgated. The rule, however, is deemed to be fixed beyond the power of judicial control, and no time is allowed for the publication of the law before it operates, when the statute itself gives no time. Thus, in the case of the brig Ann,23 the vessel was libeled and condemned for sailing from Newbury port in Massachusetts, on the 12th of January, 1808, contrary to the act of congress of the 9th of January, 1808, though it was admitted the act was not known in Newbury port on the day the brig sailed. The court admitted that the objection to the forfeiture of the brig was founded on the principles of good sense and natural equity; and that unless such time be allowed as would enable the party, with reasonable diligence, to ascertain the existence of the law, an innocent man might be punished in his person and property, for an act which was innocent for aught he knew, or could, by possibility, have known, when he did, it.24
The code Napoleon25 adopted the true rule on this subject. It declared, that laws were binding from the moment their promulgation could be known, and that the promulgation should be considered as known in the department of the imperial residence one day after that promulgation, and in each of the other departments of the French empire, after the expiration of the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place.
If the statute be constitutional in its character, and has duly gone into operation, the next inquiry is respecting its meaning; and this leads us to a consideration of the established rules of construction, by which its sense and operation are to be understood.
There is a material distinction between public and private statutes, and the books abound with cases explaining this distinction in its application to particular statutes. It is sometimes difficult to draw the line between a public and private act, for statutes frequently relate to matters and things that are partly public and partly private. Generally speaking, statutes are public; and a private statute may rather be considered as an exception to a general rule. It operates upon particular individuals, or upon private persons. It is said not to bind or include strangers in interest to its provisions, and they are not bound to take notice of a private act, even though there be no general saving clause of the rights of third persons. This is a safe and just rule of construction; and it was adopted by the English courts in very early times, and does great credit to their liberality and spirit of justice.26 It is supported by the opinion of Sir Matthew Hale in Lucy v. Levington,27 where he lays down the rule to be, that though every man be so far a party to a private act of parliament, as not to gainsay it, yet he is not so far a party as to give up his interest. To take the case stated by Sit Matthew Hale, suppose, a statute recites, that whereas there was a controversy concerning land between A. and B., and enacts that A. shall enjoy it, this would not bind the interest of third persons in that land, because they are not strictly parties to the act, but strangers, and it would be manifest injustice that the statute should affect them. This rule, as to the limitation of the operation of private statutes, was adopted by the Supreme Court of this state, and afterwards by the Court of Errors, in Jackson v. Catlin.28 Private statutes are likewise placed under another limitation. The courts of justice are bound, ex officio, to take notice of public acts without their being pleaded, for they are part of the general law of the land, which all persons, and particularly the judges, are presumed to know; but they are not bound to take notice of private acts, unless they be specially pleaded, and shown in proof, by the party claiming the effect of them.
The title of the act, and the preamble to the act, are, strictly speaking, no parts of it. They may serve to show the general scope and purport of the act, and the inducements which led to its enactment. They may, at times, aid in the construction of it; but generally they are very loosely and carelessly inserted, and are not sate expositors of the law. The title frequently alludes to the subject matter of the act only in general or sweeping terms, or it alludes only to a part of the multifarious matter of which the statute is composed. The title, as it was observed in United States v. Fisher,29 when taken in connection with other parts, may assist in removing ambiguities where the intent is not plain; for when the mind labors to discover the intention of the legislature, it seizes every thing, even the title, from which aid can be derived. So, the preamble may be resorted to in order to ascertain the inducements to the making of the statute; but when the words of the enacting clause are clear and positive, recourse must not be had to the preamble. Notwithstanding that Lord Coke30 considers the preamble as a key to open the understanding of the statute, Mr. Barrington, in his Observations on the Statutes,31 has shown, by many instances, that a statute frequently recites that which was not the real occasion of the law, or states that doubts existed as to the law, when, in fact, none had existed. The true rule is, as was declared by Mr. J. Buller in Crespigny v. Wittenoom32 that the preamble may be resorted to in restraint of the generality of the enacting clause, when it be inconvenient if not restrained, or it may be resorted to in explanation of the enacting clause if it be doubtful. This is the whole extent of the influence of the title and preamble in the construction of the statute. The true meaning of the statute is generally and properly to be sought from the body of the act itself. But such is the imperfection of human language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms as to secure it from ambiguous expressions, and from all doubt and criticism upon its meaning.
It is an established rule in the exposition of statutes, that the intention of the lawgiver is to be deduced from a view of the whole, and of every part of a statute, taken and compared together. The real intention, when accurately ascertained, will always prevail over the literal sense of terms. When the words are not explicit, the intention is to be collected from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. These rules, by which the sages of the law, according to Plowder33 have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the approbation of ages.
The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to betaken in a technical sense. A saving clause in a statute is to be rejected when it is directly repugnant to the purview or body of the act, and could not stand without rendering the act inconsistent and destructive of itself.34 Lord Coke, in Alton Wood’s case,35 gives a particular illustration of this rule, by a case which would be false doctrine with us, but which serves to show the force of the rule. Thus, if the manor of Dale be by express words given by statute to the king, saving the right of all persons interested therein, or if the statute vests the lands of A. in the king, saving the rights of A., the interest of the owner is not saved, inasmuch as the saving clause is repugnant to the grant; and if it were allowed to operate, it would render the grant vain and nugatory. But there is a distinction in some of the books between a saving clause and a proviso in the statute, thong the reason of the distinction is not very apparent. It was held by all the barons of the exchequer, in the case of The Attorney General v. The Governor and Company of Chelsea Water Works,36 that where the proviso of an act of parliament was directly repugnant to the purview of it, the proviso should stand and be held a repeal of the purview, because it speaks the last intention of the lawgiver. It was compared to a will, in which the latter part, if inconsistent with the former, supersedes and revoked it. But it may be remarked, upon this case in Fitzgibbon, that a proviso repugnant to the purview of the statute, renders it equally nugatory and void as a repugnant saving clause; and it is difficult to see why the act should be destroyed by the one, and not by the other, or why the proviso and the saving clause, when inconsistent with the body of the act, should not both of them be equally rejected. There is also a technical distinction between a proviso and an exception in a statute. If there be an exception in the enacting clause of a statute; it must be negatived in pleading; but if there be a separate proviso, that need not.37 Several acts in pari materia, and relating to the same subject, are to be taken together, and compared in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule was declared in the case of The Earl of Ailesbury v. Patterson;38 and the rule applies, though some of the statutes may have expired, or are not referred to in the other acts. The object of the rule is to ascertain and carry into effect the intention; and it is to be inferred, that a code of statutes relating to one subject, teas governed by one spirit and policy, and was intended to be consistent and, harmonious in its several parts and provisions. Upon the same principle; whenever a power is given by a statute, every thing necessary to the making of it effectual, or requisite to attain the end, is implied. Quando lex aliquid concedit concedere videtur et id, perquod devenitur ad illud.
Statutes are likewise to be construed in reference to the principles of the common law, for it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely required. This has been the language of the courts in every age; and when we consider the constant, vehement, and exalted eulogy which the ancient sages bestowed upon the common law, as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction. It was observed by the judges, in the case of Stowell v. Zouch,39 that it was good for the expositors of a statute to approach as near as they could to the reason of the common law; and the resolution of the barons of the exchequer, in Heydon’s case,40 was to this effect. For the sure and true interpretation of all statutes, whether penal or beneficial, four things are to be considered: What was the common law before the act; what was the mischief against which the common law did not provide; what remedy the parliament had provided to cure the defect; and the true reason of the remedy. It was held to be the duty of the judges to make such a construction as should repress the mischief, and advance the remedy.
In the construction of statutes, the sense which the contemporary members of the profession had put upon them, is deemed of some importance, according to the maxim that contemporanea expositio est fortissima in lege. Statutes that are remedial, and not penal, are to receive an equitable interpretation, by which the letter of the act is sometimes restrained, and sometimes enlarged, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy. This may be illustrated in the case of the registry acts, for giving priority to deeds and mortgages, according to the dates of the registry. If a person claiming under a registered deed or mortgage had notice of the unregistered prior deed when he took his, and procured the registry of it in order to defeat the prior deed, he shall not prevail with his prior registry, because that would be to counteract the intent and policy of the statutes, which were made to. prevent, and not to uphold frauds.
If an act be penal and temporary by the terms or nature of it, the party offending must be prosecuted and punished before the act expires. Though the offense be committed before the expiration of the act, the party cannot be punished after it has expired, unless a particular provision be made by law for the purpose.41 If a statute be repealed, and afterwards the repealing act be repealed, this revives the original act;42 and if a statute be temporary and limited to a given number of years, and before the expiration of the time it be continued by another act, it was formerly a question under which statute acts and proceedings were to be considered as done. In the case of The College of Physicians,43 it was declared, that if a statute be limited to seven years, and afterwards by another statute be made perpetual, proceedings ought to be referred to the last statute, as being the one in force. But this decision was erroneous, and contrary to what had been said by Popham, Ch. J. in Dingley v. Moor,44 and all acts, civil and criminal, are to be charged under the authority of the first act. Thus, in the case of Rex v. Morgan,45 on an indictment for perjury, in an affidavit to hold to bail, it was laid to have been taken by virtue of the statute of 12 Geo. I., which was a temporary law for five years, and which was afterwards, and before the expiration of it, continued by the act of 5 Geo. II, with some alterations. Lord Chief Justice Hardwicke said, that when an act was continued by a subsequent act, every body was esteemed to say the first act was not in force; and as the act in question was not altered in respect to bail, the offense was properly laid to have been done against the first act. In Shipman v. Henbest,46 the King’s Bench held, that if a statute be permitted even to expire, and be afterwards revived by another statute, the law derives its force from the first statute, which is to be considered as in operation by means of the revival. If, however, a temporary act be revived after it has expired, the intermediate time is lost, without a special provision reaching to the intermediate time.
If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there he no prohibitory words in the statute. Lord Holt, in Bartlett v, Viner,47 applied this rule to the case of a statute inflicting a penalty for snaking a particular contract, such as a simoniacal or usurious contract; and he held, that the contract was void under the statute, though there was a penalty imposed for making it. Whether any other punishment can be inflicted than the penalty given by the statute, has been made a serious question. The Court of K. B, in Rex v. Rotinson,48 laid down this distinction, that where a statute created a new offense, by making unlawful what was lawful before, and prescribed a particular sanction, it must be pursued, and none other; but where the offense was punishable at. common law, and the statute prescribed a particular remedy, the sanction was cumulative, and did not take away the common law punishment, and either remedy might be pursued. The same distinction had been declared long before;49 and the proper inquiry in such cases is, was the doing of the thing, for which the penalty is inflicted, lawful or unlawful before the passing of the statute? If it was no offense before, the party offending is liable to the penalty, and to nothing else.
There are a number of other rules, of perhaps minor importance, relative to the construction of statutes, and it will be sufficient to observe, generally, that the great object of the maxims of interpretation, is to discover the true intention of the law; and whenever that intention can be indubitably ascertained, and it be not a violation of constitutional right, the courts are bound to obey it, whatever may be their opinion of its wisdom or policy. But it would be quite visionary to expect, in any code of statute law, such precision of thought and perspicuity of language, as to preclude all uncertainty as to the meaning, and exempt the community from the evils of vexatious doubts and litigious interpretations. Various and discordant readings, glosses, and commentaries, will inevitably arise in the progress of time, and, perhaps, as often from the want of skill and talent in those who comment, as its those who make the law. Though the French codes, digested under the revolutionary authority, are distinguished for sententious brevity, there are numerous volumes of French reports already extant. upon doubtful and difficult questions arising within a few years after those codes were promulgated.50
The Emperor Justinian, in one of the edicts which he published in confirmation of the authority of the Pandects, and prefixed to that work, expressly prohibited the civilians of his time, and those of fill future ages, from writing any commentary upon his laws.51 The history of Justinian’s reign shows the folly and absurdity of this attempt to bar all future innovation. Greater changes took place in a few years in the laws and jurisprudence of Justinian, said Montesquieu, than in three hundred years of the French monarchy, immediately preceding his time; and those changes were so incessant and so trifling, that the inconstancy of the emperor can only be explained by having recourse to the secret history of Procopius, where he is charged with having sold equally his judgments and his laws.52
1. 1 Blacks. Com. 91, 160, 185. Christian’s note to 1 Blacks. Com, 41.
2. 8 Co. 118.
3. Hob. 87.
4. 12. Mod. 687.
5. Bacon’s Works, vol. 6. p. 128.
6. No. 78.
7. 2 Dallas, 410, 411, 412.
8. 1 Bay, 252.
9. Vanhorn v. Dorrance, 2 Dallas, 304.
10. 2 Bay, 38.
11. 1 Cranch, 137.
12. See the decisions in the State Courts to the same point, in 1 N.H. Rep. 199. 12 Seg. & R. 330, 339. Charlton’s Rep. 176. 1 Har. & J. 236. 1 Hayw. 28. 2 Hayw. 310, 371. 1 Murphy, 58. 3 Dessauss, 476. 1 Rep. Con. C.S.C. 267.
13. 17 Johnson, 195.
14. 7 Wheaton, 164.
15. 1 Gallison, 62.
16. 7 Johnson, 477.
17. 4 Inst. 25.
18. 33 Hen. VI. 18. Bro. Exposition del Terms, 33.
19. 1 Plow. 79.
20. 1 Lev. 91.
21. 6 Bro. P. C. 553.
22. 4 Term, 660.
23. 1 Gallison, 62.
24. Judge Livingston, in 1810, held that the embargo law of December, 1807, did not operate upon a vessel which sailed from Georgia on the 15th of January, 1808, before notice of the act had arrived. 1 Paine’s Rep. 23.
25. Art. 1.
26. 37 Hen. VI. 15. Bro. Parliament, pl. 27. Boswell’s case, 25 and 26 Eliz. cited in Barrington’s case, 8 Co. 138. a.
27. 1 Vent. 175.
28. 2 Johnson’s Rep. 263. 8 Johnson’s Rep. 520. S. C.
29. 2 Cranch, 386.
30. Co. Litt. 79. a.
31. P. 300.
32. 4 Term, 793.
33. Plowd. Rep. p. 205.
34. Plowd. 565. 8 Taunton, 13-18.
35. 1 Co. 47. a.
36. Fittg. 195. 4 Geo. II.
37. Abbott, J. 1 Barn. & Ald. 99.
38. Doug. 27.
39. Plowd. 365.
40. 3 Co. 7.
41. 1 Wm. Blacks. Rep. 451. 7 Wheaton, 551. The same as to judicial proceedings begun under an act and not finished when it is repealed. They cannot be pursued. 1 W. Blacks. 451. 7 Yates, 392. Wharton’s Dig. 569, N. 6.
42. 2 Inst. 686.
43. Littleton’s Rep. 212.
44. Cro. Eliz. 750.
45. Str. 1066.
46. 4 Term, 109.
47. Carth. 251. Skinner, 322.
48. 2 Burr. 799.
49. Castle’s case, Cro. J. 644. Regina v. Wigg, 2 Salk. 460.
50. The Journal du Palais, presentant la Jurisprudence de la Cour de Cassation. et des Cours Royales, sur l’application de tous les Codes Francais aux questions douteuses et difficiles, had amounted, in 1818, to fifty volumes and upwards.
51. Secunda Praefatio Digestorum, sec. 21.
52. Grandeur des Romains et leur Decadence, c. 20.