mere inadvertence in legislation, the kingdom was left for a time entirely destitute of its bankrupt law. The court was pressed for a construction which might avert so great a general evil. But Lord Tenterden said: "We are not at liberty to break in upon the general rule;" though he admitted that it was very unfortunate that an act of so much importance should have been framed with so little care. In a previous case, Best, C. J. said, that on the 1st of September all former acts were entirely got rid of (a) In a subsequent case, a struggle was made to save a deposition, as evidence, which had been taken to support a commission of bankruptcy under the former statute,(b) but which deposition did not happen to have been enrolled as that section required, in order to make it admissible. It was, in all other respects, completely under the former statute; but the party inadvertently omitted the act of enrolment, till after the repealing clause took effect. And the court held, that no right remained even to enrol, although the repealing act provided the like power of enrolment in proceedings under itself. In short, after much consideration, the court declared that the clause operated as a simple repeal; and Lord Ch. J. Tindall laid down the rule applicable to such a case. He said: "I take the effect of a repealing statute to be, to obliterate it (the statute repealed) as completely from the records of the parliament as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law."(c)

§ 766. It will be perceived that the rule laid down in

(a) Meiggs v. Hunt, 12 Moore, 357, 359; S. C. 4 Bing. 213.

(b) 5 Geo. 2, ch. 30, sec. 14.

(c) Rey v. Goodwin, 4 Moore & Payne, 341, 351.

this and several other cases, has no respect whatever to the circumstance that the repealed statute was either of a criminal or jurisdictional character. Nor is it perceived why, in cases of civil rights, an exception is not just as practicable in favor of a jurisdiction given to enforce the right as to the right itself. On authority, then, at least, no rights arising under the repealed statute can be saved, except by express reservation in the repealing statute, or where those rights have been perfected, by taking every step which depended, for its force, on the former act.

The

§ 767. Dwarris expresses the result of the cases in this way: "When an act of parliament is repealed, it must be considered-except as to those transactions passed—closed, as if it never existed."(a) The meaning of the exception is illustrated by an older case. statute 1 and 2 Phil. & Hen. allowed devises to spiritual corporations, and such a devise was made and took effect. The subsequent repeal of the statute by 1 Eliz. ch. 1, was held not to affect the right of the devisee.(b) It would not, however, have been so, had the testator lived till the 1 Eliz. had been passed.

§ 768. In The People v. Livingston, a creditor had in August, 1829, acquired a right to redeem, under a certain form under the then statute of executions, which by an enactment in 1828 was to be repealed from and after the 31st December, 1829. The repealing statute substituted a new form of redemption. Savage, Ch. J. said, that an attempt, after the 31st of December, to redeem after the old form, was nugatory. The right to redeem, in a certain form, being inchoate, and not expressly reserved by the repealing statute, it was held to have died with the old law, at the close of the year 1829. This decision

(a) Dwarris on Statutes, 676.

(b) Jenk. Cent. 233, case 7.

seems to have been in exact conformity with the principle of the English cases.

$769. The doctrines we have been considering were applied in the case of Butler v. Palmer,(a) which arose under a redemption act. In that case the act relative to redemption, passed May 12, 1837, gave a right of redemption at any time within a year from a sale under a mortgage. The act of April 18, 1838, repealed the former act, to take effect 1st November, 1838, and it was held that the right to redeem became extinct from the time that the act of 1838 took effect, although the sale took place before the passage of the latter act, and a year from the time of sale had not expired. In answer to the objection that a right of action and other executory rights arising under a statute were vested, and ought not to be taken away by a subsequent statute, the court say— "They are so, and a subsequent statute ought not to repeal them, though they may do it by express words, unless they amount to a contract within the meaning of the constitution. That the very terms of the defendant's proposition, when plainly stated, would seem to show that he could have had no right, in the nature of things, after the 1st November. His right to redeem depende d on a statute which he admits had no existence at the time. That the general distinction lies between those rights which are executed and those which are executory, or as it would have been expressed by the civil law makers; the jus in re, acquired under the repealed statute, and the jus ad rem so acquired, that an actual redemption would have presented an instance of the former; the mere right to redeem was an instance of the latter. A right carried into judgment, or taking the form of an express executory contract under a repealed sta

(a) 1 Hill, 324.

tute, might perhaps stand on the same grounds with the case of a devise above cited from Jenkins, and so of other rights having the means of vitality, independent of the

statute.

§ 770. Thus far we have confined our remarks almost exclusively to the effect of a repeal upon civil rights. We shall, in the next place, proceed to consider the effects of a repeal upon penalties created or given under a statute. It is a general rule, that the repeal of a law creating an offence, whether it be felony or misdemeanor, sweeps away all prosecutions against it without a saving clause for that purpose. (a) There can be no legal conviction for an offence, unless the act be contrary to law at the time it is committed; nor can there be judgment unless the law is in force at the time of the indictment and judgment. If the law ceases to operate by its own limitation, or by a repeal, at any time before judgment, no judgment can be given. This rule always prevails as it regards penalties either civil or criminal, unless the repealing clause makes it operate prospectively, only preventing the operation of the repeal, and continuing the repealed law in force, as to all pending prosecutions. (b) A reference to a few of the adjudicated cases on this last point will illustrate this rule.

§ 771. In an anonymous case,(c) the defendant was indicted for perjury under the bankrupt law. The law had been repealed before indictment. Washington, J. held-"Every offence for which a man is indicted must be laid against some law, and it must be shown to come

(a) 1 W. C. C. R. 87.

(b) 11 Pick. 350; Scott v. Commonwealth, 2 Virg. Ca. 54; State v. Cole, 2 McCord, 1; Commonwealth v. Welch, 2 Dana, 330; Road in Hatfield, 4 Yeates R. 392; Alto v. Commonwealth, 3 Virg. Cas. 382; State v. Tombeckbee Bank, 1 Stew. R. 347; Commonwealth v. Leftwick, 5 Rand. 657; Lewis v. Foster, 1 N. H. 61.

(c) 1 Wash. C. C. R. 87.

general, unwritten, The offence must

within it. Such law might be the or common law, or the statute law. not only come within the terms of such law, but the law itself must at the time be subsisting. It was a clear rule, that if a statute create an offence, and is then repealed, no prosecution could be instituted for any offence committed against the statute previous to its repeal. The end of punishment was not only to correct the offender, but to deter others from committing like offences. But if the legislature has ceased to consider the act in the light of an offence, those purposes were no longer to be answered, and punishment was then unnecessary."

§ 772. As to civil rights, the rule is, that rights acquired under or barred by an existing law, are not defeated by the repeal of the law. In an admiralty case,(a) where an appeal suspended the sentence, it was held, that if the law under which the sentence of condemnation was pronounced be repealed after sentence in the court below, and before final decree in the appellate court, no sentence of condemnation could be pronounced, unless some special provision was made for that purpose by the statute. Marshall, Ch. J. held, the court were clearly of opinion that in admiralty cases an appeal suspends the sentence altogether, and that it was not res adjudicata until the final sentence of the appellate court should be pronounced. The cause in the appellate court was to be heard de novo, as if no sentence had been passed. The court therefore held, that the cause was to be considered as if no sentence had been pronounced. It had been settled on general principles, that after the repeal of a law, no penalty could be enforced nor punishment inflicted for violation of the law, committed while

(a) Yeaton et al. v. United States, 5 Cranch, 281.