it was in force, unless some special provisions be made for that purpose by statute. § 773. In one case,(a) the question was, whether a saving clause in a repealing act saved cases subject to criminal punishment, and it was held it did not. Mr. Justice Story, in delivering the opinion of the court, says: "By the nineteenth section of the act of March, 1809, it is enacted, 'that the act laying an embargo on all ships and vessels in the ports and harbors of the United States, and the several acts supplementary thereto, shall be, and the same are hereby repealed from and after the end of the next session of Congress.' By this clause, (had it stood alone,) the whole embargo acts, together with all their penalties, forfeitures, fines and ishments, would, after the next session, have been swept away, unless they had been passed in rem adjudicatum. Of course, every prosecution therefor depending before any court would have been quashed." pun § 774. In another case,(b) the defendants were indicted for a misdemeanor, for disinterring a dead body on the 20th February, in the year 1831, contra formam statuti. The defendant pleaded nolo contendere, and afterwards moved in arrest of judgment, for the following reasons: first, because the offence charged in the indictment, in violation of the statute, passed March 2d, 1814, was repealed by the statute 28th February, 1831, without any saving or excepting clause whatever; and second, because no offence now known by the laws of the commonwealth is therein described. Shaw, C. J. delivered the opinion of the court. He says: "This indictment cannot be maintained consistently with the decision of the court last year in the case of Commonwealth (a) The United States v. Mann, 1 Gallison, 181. v. Cooley.(a) In that case it was held, that the statute of 1814, containing a series of provisions in relation to the whole subject-matter of the disinterring of dead bodies, had expressed, and by necessary implication repealed the provisions of the common law on the same subject. It is clear that 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 a judgment, unless the law be in force at the time of the indictment and judgment. If the law ceases to operate, by its own limitation or repeal, at any time before judgment, no judgment can be given. Hence it is usual, in every repealing law, to make it operate prospectively only, and to insert a saving clause preventing the operation of the repeal, and continuing the repealed law in force, as to all pending prosecutions, and often as to all violations of the existing law already committed." Mr. Justice Cowen(b) also sanctioned the doctrine, that where a statute repeals a former one, which imposes a penalty, or which confers jurisdiction, the right to the penalty becomes extinguished, even though a prosecution for it had been previously commenced, and that if the repeal take effect after the conviction, the judgment was thereby arrested.(c) § 775. It has been said as a general rule, the effect of repealing statute varies according to its nature and object and the circumstances of the case. The following propositions, we think, are fairly deducible from the cases bearing upon the subject we have had under consideration. 1. If the right acquired under a statute, be in the nature of a contract, or a grant of power, a repeal will (a) 10 Pick. 37. (b) Butler v. Palmer, 1 Hill R. 324. (c) See also Stoever v. Immell, 1 Watts, 258; Road in Hatfield, 4 Yeates, 392. not divest interest acquired, or annul acts done under it 2. If the legislature ex mero motu by a statute give an individual property belonging to the state, and he accept it, then it becomes a gift executed, and the legislature cannot reform the gift any more than an individual could, under similar circumstances; hence a repeal of such a statute after the actual acceptance, would not deprive the donee of the property. 3. If a penal statute be repealed, after acts done in violation of it, the violator is not subject to punishment under it after the repeal. Hence if all crimes or penalties should at once be repealed no offender could be thereafter punished. 4. Where a statute restraining a man's natural rights, or his use of his property is repealed, he is restored to those rights as before the law was passed. (a) 5. Where a statute gives a right in its nature not vested but remaining executory, if it does not become executed before a repeal of the law it falls with it, and cannot thereafter be enforced. § 776. Where a statue imposes a new penalty for an offence, it repeals by implication so much of the former statute as establishes a different penalty. This rule has been adopted, and it has been said, where the legislature impose a second penalty for an offence, whether smaller or larger than the former one, a party cannot be allowed to sue on the one or the other at his option.(b) In one case (c) the question arose, whether the act of 1838, c. 157, was so far inconsistent with the revised statutes of Massachusetts, c. 47, sec. 3, as to operate as a repeal of the former by implication. The revised statutes imposed a penalty of twenty dollars for persons violating the provisions (a) See James v. Dubois, 1 Harr. 285. (b) Nichol v. Squires, 5 Pick. R. 168. (c) Commonwealth v. Kimball, 21 Pick. R. 375. of the statute relating to excise, and the act of 1838 imposed a penalty of not more than twenty dollars, nor less than ten dollars, for a violation of that act. The latter act provided, that the provisions of all laws in force inconsistent with that act were repealed, and there was no saving clause. The act of 1838 had been construed as prohibiting any person not licensed from selling wine, brandy, &c.; the latter prohibited the same thing except wine. The former prohibited sales less than twentyeight gallons; the latter, sales less than fifteen gallons. The court said, these two statutes, passed at different times, concerning the present case; the former prohibits the forbidden act under a penalty of twenty dollars for each offence; the latter prohibits the same act on pain of forfeitiug not more than twenty dollars, nor less than ten dollars for each offence. The former is absolute and imperative, the latter allows a latitude of discretion. It appears to the court, that the one is essentially and substantially inconsistent with the other. That the latter statute, by prohibiting the same act under a lower penalty, though no negative words were used, did in effect declare that it shall not be punished by the higher penalty, and therefore the acts were inconsistent; that the penalties, as they stood in the two acts, were equally inconsistent. The former enacted that the offence should be punished by a penalty of twenty dollars. The latter declared that the same offence should not necessarily be punished by a penalty of twenty dollars, but by such penalty not more than twenty dollars nor less than ten dollars, as the court should direct. That the provision of the former act by which the penalty was fixed, was inconsistent with the provision of the latter, and by the terms of the latter repealed. § 777. In the case last cited it will be perceived, that the repeal was held to result from the terms of the latter act, and hence did not involve the question how far one statute operates as a repeal of another by implication. On that point, however, Shaw, Ch. J., says: "Where one statute is enacted in the same terms as a former one, without a repealing clause, and without any change of provisions, it may perhaps be well maintained that one is no repeal of the other, and that both are in force. Such a case will seldom happen, because a case can hardly be supposed, in which the legislature would have a motive to pass a new law without some intent to change the existing law. But a case may be supposed, where, for the purpose of reducing several statutes into one, upon the same subject, the precise provisions of an existing statute may be embodied in a new one. In such case, it might well be maintained, that a later act would not repeal a former one, so as to prevent a judgment from being passed upon an offence committed before the date of the latter, but upon which no judgment had passed, at the time of its enactment. But every statute is a repeal of all former ones by implication, so far as it is contrary and repugnant thereto, without a repealing clause." It has also been held, that where a statute imposing a penalty for an offence for the benefit of any person who may sue for it, and a subsequent statute is passed, giving the benefit of the penalty to the party injured, increasing the amount of such penalty, that the latter act will operate as a repeal of the former one. And that upon the ground, that it seemed clearly the intention of the legislature to revive the penal sanction of the act, and to provide severer means to enforce the penalty, and that where such a design clearly appears, the former statute thus revised must be considered no longer in force, though not expressly repealed. That the provisions of the act, so far as it went to fix the penalty and prescribe by whom it might be enforced, was an entire substitution of the original act, and operated as |