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The question next presents itself as to the effect of the repeal of a repealing statute. The rule of the common law is, that the unqualified repeal of a repealing statute, substituting no other provisions in place of those repealed, revives the orig. inal statute; and this is generally received in this country.* The principle has been applied in New York to the resolutions of school districts to lay taxes. In Massachusetts, also, it has been held, that the repeal of a repealing statute revives the original act; and that the doctrine is the same where the repeal is effected by implication only. But in Ohio, and Illinois, statutes have been passed abolishing the rule of the common law.** If a repealing statute and part of the original statute be repealed by a subsequent act, the residue of the original statute is revived.††

We have thus far considered the attributes and incidents of statutes, so far as they do not depend on any ambiguity of their own language. We are now better prepared to consider those cases where it is necessary to call in the aid of judicial construction or interpretation. But before quitting this branch of our subject, I permit myself a short digression in order to take no tice of the relation of statutes to the law of copyright. It was originally considered, in England, that the crown had a prerog ative copyright in the Bible and Common Prayer Book, the Statutes of the realm, the Almanacs, and the Latin grammar; and the sovereign grauted, by letters patent, the exclusive right of printing these works. In regard to the statutes, the doctrine has been vindicated on the ground of the necessity of some responsibility for correct printing, and because the laws can only be obtained from the rolls of Parliament, which are within

ing to reduce to intelligibility the ill-digested legislation of their Lordships' House."

In New York, the Revisors of 1830 prepared a very careful general repealing act; 3 R. S. 130, act of December 10, 1828; in which it is enacted by

§ 5. "That the repeal of any statutory provision by this act, shall not affect any act done, or right accrued or established, or any proceeding, suit, or prosecution, had or commenced in any civil case previous to the time when such repeal shall take effect; but every such act, right, and proceeding shall remain as valid and effectual as if the provision so repealed had remained in force." See, also, the subsequent sections of the act, and People v.

Livingston, 6 Wend. 526; Bradstreet v. Clarke, 4 Wend. 211; and Lansing v. Caswell, 4 Paige, 519.

*Case of the Bishops, 12 Co. 7; 2 Inst. 686; Doe v. Naylor, 2 Blackford, 32; M'Nair v. Ragland, 1 Dev. & Bat. Eq. Cases, 525; Wheeler v. Roberts, 7 Cowen, 536; Finch v. M'Dowall, 7 Cowen, 537; Commonwealth v. Churchill, 2 Met. 118.

Gale v. Mead, 4 Hill, 109.
Hastings v. Aiken, 1 Gray, 165.
14th February, 1809.

19th January, 1826.

** 1 Kent Com. 466.

++ Doe dem. Broughton v. Gully, 9 B. & C. 344, 354.

the authority of the crown. Originally, the copies of the stat utes of the kingdom were transmitted to the sheriff, who caused them to be publicly read in the county courts. When the introduction of printing produced an increased demand for the laws, and at the same time facilitated the supply, the laws were published by the patentee of the crown; and this exclusive right was not only repeatedly recognized in the earlier cases, but carried so far as to embrace the Reports, Year Books, and Rolle's Abridgment. These latter pretensions have been abandoned, but the exclusive title of the crown to the publication of the statutes has been sustained; and the sole right to print the laws in England, is now held to be vested in the sov ereign and his patentee, who shares it, however, in consequence of certain ancient grants, with the universities of Oxford and Cambridge. But it seems to be settled, that the statutes may be printed by others than those claiming under a patent, provided the publication is accompanied by bona fide notes.†

Of the English doctrine of prerogative copyright, there is, it is believed, no trace in this country. The laws, whether of the Union or of the States, may be published by any one; though, generally, the editor of a newspaper is appointed by the Government as State printer, who publishes the first regular copy of the federal or State statutes. In regard to the decisions of the Supreme Court of the United States, it has been determined that, under the act of Congress by which an official reporter is appointed, there can be no copyright in the written opinions of the court; but that the reporter may have a copyright in his own marginal notes, and his arrangement of the arguments of counsel.

Several of the State Constitutions contain provisions on this subject. In California the Constitution declares, that, "the Legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as it may deem expedient; and all laws and judicial decisions shall be free for publication by any person." The Constitution of Iowa provides, that "no law of the General Assembly, of a public nature, shall take

*Baskett v. The University of Cambridge, 1 W. Black. 105, 121; Baskett v. Cunningham et al. 1 Black. 370; Manners v. Blair, 3 Bligh. 391, 402; Curtis on Copyright, 116, 128. Maugham on Copyright, p. 106; 2 Evan's Statutes, 19, note li.

Wheaton v. Peters, 8 Peters, 591, 668;
Gray v. Russell, 1 Story, 11.

Constitution, Art. vi. § 12.
Art. iv, § 27.

*

effect until the same shall be published and circulated in the several counties of the State, by authority. If the General Assembly shall deem any law of immediate importance, they may provide that the same shall take effect by publication in newspapers in the State." The Constitution of Wisconsin declares, that "the Legislature shall provide, by law, for the speedy publication of all statute laws, and of such judicial decisions, made within the State, as may be deemed expedient. And no general law shall be in force until published." The Constitution of Michigan declares,† that "the Legislature shall not establish a State paper. Every newspaper in the State, which shall publish all the general laws of a session within forty days of their passage, shall be entitled to receive a sum not exceeding fifteen dollars therefor. The Legislature shall provide for the speedy publication of all laws of a public na ture, and of such judicial decisions as it may deem expedient. All laws and judicial decisions shall be free for publication for any person." In New York, the Constitution provides, that "the Legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as it may deem expedient. And all laws and judicial decisions shall be free for publication by any person."

The greater the publicity that is given to the statute law, of course, the better; but, notwithstanding these constitutional enactments of so many of the States, it appears to me not diffi cult to prove that our governments should retain some control over the publication of the judicial decisions of their courts. The publication of decisions in individual cases may, indeed, with propriety, be left free; but the publication of collections of reports is a matter too immediately connected with legisla tion to be left without any supervision whatever. As it is now, we are, in some of the States, flooded with reports of cases, a great many of which are entirely trivial, or only tend to increase the uncertainty and perplexity of the law, and greatly to augment the labor of all those concerned in the administration of justice. Our reports are our law, and the publication of reports is, in fact, the enactment of laws.

Art. vii, § 21.

Art. iv, §§ 35 and 36.

+ Art. vi, § 22.

CHAPTER V.

OF THE BOUNDARIES OF LEGISLATIVE AND JUDICIAL POWER.

Division of Legislative and Judicial Functions in England.-Bills of Attainder.— Division in this Country.-Disputed Power of Judiciary, Independently of Interpretation and Constitutional Limitation. -What is a Law ?-Power of the State Legislatures Examined.-Retrospective Laws.-Result of the Examination. -Judicial Power of Construing Doubtful Provisions of Written Law.-History of its Exercise in England.-In France.-Present Condition of the Law on the Subject. Power of the Judiciary to Enforce Constitutional Restrictions.

HAVING endeavored, in the preceding pages, to give a general idea of the sources of our jurisprudence, of the classification of laws, and of their various parts and incidents, we now approach the subject of the construction of statutes in doubtful cases. But some preliminary considerations still present themselves. Before entering on the details of interpretation, it is indispensable to have as correct an idea as is practicable of the division of power in the political systems which derive their origin from the great English sources; in other words, to understand, if possible, the precise boundaries of the legislative and judicial functions.* The questions which we are now about to consider have no place in absolutely despotic governments; where all power is centered in a single hand, there now, as under the absolute forms of the later Roman government, the will of the sovereign makes, applies, modifies, and interprets the law: quod principi placet, legis habet vigorem. The Emperor Justinian, in a rescript to his prefect, Demosthenes, uses this language: "We declare the imperial construction of laws, whether made on petition or in suits, or in any way whatever, to be absolute and final. For if the sovereign alone can make laws, he alone should interpret them; why else, when questions

*Part of Mr. Dwarris' eleventh chapter, pp. 694 to 712, is devoted to a very intelligent treatment of this subject. "The boundaries of legislation and of judicial interpretation sought to be ascertained." He puts it, however, after the discussion of the rules of construction. It

seems to me that a correct notion of the divis ion of power should precede the consideration of the exercise of the power. This part of Mr. Dwarris' eleventh chapter is reprinted by Mr. Smith, and forms his tenth chapter on Legislation and Judicial Interpretation.

have arisen in litigated controversies, have they been brought to us? and why, too, have judicial doubts reached our ears, if interpretation does not proceed from us alone? Who, indeed, is competent to solve the enigmas of the law, except he to whom alone the power of legislation is conceded? These absurd cavilings are, therefore, to cease, and the emperor to be regarded the only interpreter, as he is the only maker of laws."* Under a system of government which breathes this spirit, all rules of interpretation, indeed, disappear. The questions upon the consideration of which we are now entering, can only present themselves under those forms of government the effort of which is to establish liberty by regulating the exercise of power. The first step in this regulation consists in the divis ion of authority; and just in proportion to the restraints imposed upon absolute and arbitrary acts of government by the careful distribution of authority, just in that proportion does the science of jurisprudence acquire form and certainty; just in that proportion do the law and its ministers rise in influence and importance.

It is familiar to the student of history that, from an early period, the functions of the English government have been, like those of our own, distributed between the legislative, the judicial, and the executive branches of the system; out of this division arise the questions that we now proceed to consider.

Definimus, autem, omnem imperatorum legum interpretationem, sive in precibus, sive in judiciis, sive alio quocumque modo factam, ratam et indubitatam haberi. Si enim in præsenti leges condere soli imperatori concessum est, et leges interpretari solo dignum imperio esse oportet; cur autem ex suggestionibus procerum, si dubitatio in litibus oriatur, et sese non esse idoncos vel sufficientes ad decisionem litis illi existiment, ad nos decurratur, et quare omnes ambiguitates judicium, quas ex legibus oriri evenit, aures accipiunt nostræ, si non a nobis interpretatio mera procedit? Vel quis legum ænigmata solvere, et omnibus aperire idoneus esse videbitur, nisi is cui soli legislatorem esse concessum est? Explosis, itaque, his ridiculosis ambiguitatibus, tam conditor quam interpres legum solus imperator juste existimabitur.Cod. de Legibus, Lib. i, Tit. xiv, § 12. Such was the language that the master of the ancient world could, with impunity, make use of Christendom now happily offers no parallel, unless, indeed, it be Russia.

Terræ populi omnes ad aquilonem positi, libertatem quamdam spirant. - Bodin de Reipub. Lib. i, cap. viii, p. 117; ed. 1591.

We are to recollect, says Mr. Grote, that the division of powers into legislative, executive, and judicial, and especially of the two latter, is quite of modern origin. The archon of Athens was a judge as well as an administrator. The Roman kings and the consuls, before the appointment of the prætors, sat as magistrates, as well as ruled as executive officers; and, in modern Europe, the same confusion of powers is to be found.-History of Greece, vol. v, ch. xlvi, pp. 477 and 478.

It would be curious accurately to investigate the results of the division. The community has doubtless gained; but has not the individual lost? Were not the Roman or Grecian public men, who alternately conducted every branch of affairs, more accomplished and complete personages than our moderns, subdivided as we are, into generals, admirals, ministers, diplomatists, and orators?

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