« 上一頁繼續 »
porary statute is sometimes made to continue in force, after it has ceased to operate substantially, for the purpose of supporting prosecutions against those who bave violated it during the term assigned for its continuance.
§ 430. Statutes are the declared will of the supreme power of the state, which, unless repugnant to the laws of God, and natural justice, all subjects are bound to obey. Created by the exercise of the highest authority which the constitution acknowledges, they cannot be dispensed with, altered, amended, suspended, or repealed, but by the same authority by which they were made. The life-giving principle and the death-going stroke must emanate from the same hands; for it is a maxim of the law," conveniens naturali æqitati unumquodque dissolvi eo ligamine, quo ligatum est.”
§ 431. In regard to the qualities and incidents of statutes, a statute binds all persons but such as are specially saved by it.(a) The government itself, however, is not to be restrained of a liberty, or right it had before, by the general words of a statute, if it be not named in the act, but if a statute be intended to give a remedy against a wrong:(6) to prevent fraud,(c) tortious usurpations, or the decay of religion, the government, though not named, will be bound by the act. In England, if an act of parliament do not name the king, he is bound by acts for the advancement of religion, or learning, or for providing for the poor. And if an act speak of the king generally and indefinitely, it extends to all his successors, and to a queen if the crown descend to a female.(cl)
$ 432. A statute which gives corporeal punishment, does not bind an infant, contra of other statutes, if they do not except the infant.) A statute cannot alter by
(a) And. 148, pl. 82.
(d) 12 Rep. 110.
reason of time, but the common law may, since cessante ratione cessat lex.(a) When statutes are made, there are some things which are exempted and foreprised out of the provisions thereof by the law of reason, though not expressly mentioned; thus, things, for necessity's sake, or to prevent a failure of justice, are excepted out of statutes.(6)
$ 433. Whenever an act gives any thing generally, and without any special restriction declared, or rationally to be inferred, it gives always subject to the general control and order of the common law.(c) Whenever a statute gives or provides any thing, the common law provides all necessary remedies and requisites.(d) In statutes incidents are always supplied by intendment, in other words, whenever power is given by a statute every thing necessary to make it effectual is given by implication ; for the maxim is, Quando lex aliquid concedit concedere videtur et id, per quod devenitur ad illud.(e) Thus, a statute giving an action for waste, to one as tenant for life, or for years, impliedly gives authority to him in reversion, by himself or by another, to enter to see if any waste be done.(f) Upon the same principle, in an action of waste, given by a statute repealed, against tenant in tail, after possibility of issue extinct, treble damages were held recoverable, although not mentioned :(9) for such damages were recoverable under a prior statute, by which an action of waste was given; and whenever an old action is given in a new case, all that before appertained to the action is likewise given.
(a) Dwarris on Statute, 662.
§ 434. There are certain common law maxims, that aid in the application of statutes to given cases. Quando aliquid prohibetur, prohibetur et omne, per quod devemitur ad illud. Magna Charta says, no man aliquo modo destruatur nisi, &c., by which every oppression against law, by color of any usurped authority, is forbidden, and by these words, all things by any manner of means tending to destruction are prohibited, as if a man be accused or indicted of treason or felony, his lands and goods cannot be granted to any, no not so much as by promise, before attainder; for, when a subject obtaineth a promise of the forfeiture, many times undue means and more violent prosecution is used for private lucre, tending to destruction, than the just and quiet proceedings of the law would permit.(a) Whenever the provision of a statute is general, every thing which is necessary to make such provision effectual is supplied by the common law.(b) If an offence be made felony by a statute, such statute, by necessary consequences, subjects the offender to the like attainder and forfeiture, and requires the like construction, as to those who shall be accounted accessories before or after the fact, and to all intents and purposes, as a felony at common law does.(c) Misprison of felony is as well incidental to a felony created by a statute as to one of the common law.(d)
§ 435. Let uno ore omnes alloquitur,(e) Lord Coke says: “This maxim is the pride of the English law; and it is pre-eminently so of the written law, which lays down one clear and certain rule for all descriptions of persons, and is both known and invariable. For the
(a) 5 Inst. 48. Steph. L. Elec. 14.
(e) 2. Inst. 1847.
written and statute law, being of old duly and formally promulgated to the people, could never be what Lord Bacon says of Henry the Seventh's laws, “ as a nemo scit," and of these rules of conduct no judge, producing a manuscript decision, can say, Lo! I have the law in my side pocket.”(a)
§ 436. No one can be punished without an injury or fault having been committed. Nemo punitur sinc injuria, facto sine defalto. Where a statute provided that, in case of a disseisor alienating lands, and not being able to satisfy the damages, they to whose hands the lands and tenements shall come should be charged with the damages, &c. Now, if the tenant cometh to the lands by act of law, which he cannot withstand, and where there is no act or default on him, he shall not be charged. For instance, if the disseisor aliened to A. and his heirs, and A. dieth without heirs, the law cast the land upon the lord, to the end that there may be a tenant to the præcipe. In this case, if the lord doth not take any profits of land, in a suit brought against him for the land, the lord may plead the special matter, and to discharge himself from dainage; for although he be tenant of the land, yet he is no tenant, (against bis will) within the meaning of this statute, because there is no wrong or default in him.(6)
§ 437. Actus legis nemini est damnosus. An act of law is damage to no one. Where an act for enlarg. ing the term granted to a patentee for the enjoyment of his patent, provided that in case the power, privilege, or authority granted by the letters patent should become vested in more than five persons, or their representatives, at any one time, otherwise than by devise, or succession, all liberties, privileges, &c., should cease. The paten
(a) Watkins on Conveyances, preface. Steph. Ele. L. 14. (6) 2 last.
tees having become bankrupts, it was held, that this clause applied only to an assignment by act of the party, and not to an assignment by operation of law.(a) Absoluta sententia expositere non indiget. Lord Coke says this is the case where the words are plain without any scruple, and absolute without any saving (6)
(a) Bloram and another, assignees, v. Elsce, 6 B. & C. 169. (6) 2 Inst. 533.