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civil law in reference to collision between laws. We would remark, however, that those rules are such as are to be observed as rules of conduct rather than as rules of construction; yet their consideration might have some degree of influence upon the mind of a court in construing contrarient statutes in part materia, or conflicting provisions in different parts of the same statute. We do not here allude to collisions between positive laws and the laws of nature, for in all such cases, according to civil law writers, the latter is deemed as paramount. By collision between two laws, we mean those cases which may occur in which it is impossible that both shall stand at the same time. Where there is but a partial conflict between two positive laws they may to a certain extent both stand, and the one must yield to the other only in those points where the repugnancy is so great that one or the other must fall. In all cases what is merely permissive if found incompatible with what is positively prescribed, must yield to the latter. The reason assigned for this is, that mere permission imposes no obligation to do or not to do; what is permitted is left to our option, we are at liberty to do it or not. But we have not the same liberty with respect to what is positively prescribed; we are obliged to do that. Nor can the bare permission in the former case interfere with the discharge of an absolute obligation in the latter, but on the contrary, that which was before permitted in general, ceases to be so in this particular instance, where we cannot take advantage of the permission without violating a positive duty. § 793. In the same manner, and by parity of reason, the law which permits ought to give way to the law which forbids, for the obvious reason, the prohibition must be obeyed; and what was in its own nature, or in general permitted, must not be attempted when it cannot be done without contravening a prohibition. The permission in that case ceases to be available. So too it is said, all circumstances being equal, the law which ordains must give way to the law which forbids. This rule, however, is qualified by the fact, “all circumstances being otherwise equal,” for many other reasons may occur, which will authorize an exception being made to a prohibitory law. The rules are general; each relates to an abstract idea, and shows what follows from that idea, without derogating the other rules. Upon this footing, it is evident that in general if we cannot obey an injunctive law, without violating a prohibitory one, we should abstain from fulfilling the former, for the prohibition is absolute in itself, whereas every precept, every injunction, is in its own nature conditional, and supposes the power, or a favorable opportunity of doing what is prescribed. Now when that cannot be accomplished without contravening a prohibition, the opportunity is wanting, and this collision of laws produces a moral impossibility of acting; for what is prescribed in general, is no longer so in the case where it cannot be done without committing an action which is forbidden.
§ 794. The date of laws furnish new reasons for establishing the exception in cases of collision. If the collision happen between two affirmative laws of different dates, that which is of more recent date claims the preference over the older one, for it is evident that since both laws emanated from the same source, the subsequent speaks the last mind of the maker, and is capable of derogating from the former. Of two laws, (all circumstances being equal,) we ought to prefer the one which is less general to that which is more definite and specific in its provisions; because that which is special admits of fewer exceptions than that which is general; it is enjoined with greater precision, and appears to have been more pointedly intended. Puffendorf gives us a familiar illustration of this rule. He says:—“One law forbids us to appear in public with arms on holidays; another law commands us to turn out under arms, and repair to our post as soon as we hear the sound of the alarm bell; the alarm bell is rung on a holiday. In such cases we must obey the latter of the two laws, which creates an exception to the former.”(a) All circumstances being equal, what is enjoined under a penalty claims a preference over what is not enforced by one; and what is enjoined under a greater penalty, over that which is enforced by a lesser, for the penal sanctions give additional force to the obligation; they prove the object in question was more earnestly desired, and the more so in proportion as the penalty is more or less severe. The application of these general rules of conduct to a question of construction to contrarient laws or statutory provisions, will readily be perceived, and they may serve to some extent as a beacon light to those upon whom is devolved the duty of construing conflicting enactmentS.
§ 795. We have in a previous chapter remarked, that statutes are divided into two classes—that of public and private acts. This distinction is important in all cases in the determination of the question as to whether an act must be specially pleaded, as it is a general rule that public acts of parliament are to be taken notice of judicially by the court, without being formally set forth; but particular or private acts, are not regarded by the judges unless formally shown and pleaded. The general description of public acts is, that they relate to or concern the interest of the public at large, or relate to a general genus in relation to things; and private acts relate to private individuals or an individual only, or which concern a particular species of such general genus or thing.
§ 796. In legal language, acts are deemed public; and general acts, which the judges will take notice of in pleading—acts concerning the king, queen or prince, or in our American states, the government and its co-ordinate departments; those concerning all prelates, nobles, and all public officers; those concerning the whole spirituality, and those which concern all officers in general; acts concerning trade in general, or any specific trade; acts which relate to all the subjects of the realm; acts concerning all persons generally, though it be a special or particular thing, such as statutes concerning assizes, or woods in forest, chases, fisheries, and private acts,
when recognized by a public act. Private acts are those which concern only a particular species, thing or person, of which the judges will not take notice without pleading them—such as acts relating to bishops only, acts for toleration for dissenters, acts relating to any particular place, or to divers particular towns, or to one or divers particular counties, or to the colleges only in the universities. § 797. In parliamentary language, another sort of distinction is also used, and some acts are called public general acts, and often others public local acts, such as church acts, canal acts, &c. These, in their objects and operations, are merely local or limited, but they are nevertheless treated as public acts, either by virtue of a special clause declaring them to be so, or because, although limited to a particular section or locality, yet they affect the public at large when acting within that section or locality, in reference to matter within the purview of the act. To this class may also be added some acts which, though public, are merely personal, such as acts of attainder, and patent acts, and all that class of acts which have for their object the security of the right of some particular individuals or class of persons, but which, in effect, are operative, and of binding force upon all the citizens generally. Other acts are called private acts, of which latter class some are local, such as enclosure acts, &c., and all that class of acts of a private character which relate to a particular locality, place or district, and some personal, such as relate to the names of particular individuals or to particular estates, as special acts of divorce, or other matters affecting only a particular person or class of persons.(a) § 798. In Holland's case,(b) it is said, “The rule of
(a) Bacon's Ab. Statutes. (b) 4 Co. 76, a.