assize, it is good, for two days are sufficient at common law, and when the statute is affirmative it does not toll the common law.* So, it is said that a statute authorizing a tenant in fee simple to lease for twenty-one years, would not restrain him from making a lease for sixty years; for this power he had at common law, and there are no negative words.+ So, where a remedy is given by an affirmative statute, if a remedy previously existed at common law, and is not prohibited by express words, it is not taken away, but the party has his election. Thus, it has been held in this country, that where a statute authorizing the erection of a mill-dam, provided a summary mode of appraising and paying the damages resulting from such erection, that the common-law redress by action nevertheless still remained.§ If, on the other hand, the statute does not merely affix a new penalty but introduce new rights, then there can be no doubt that the statutory remedy must be strictly followed. new power be given by an affirmative statute, to a certain person, by a particular designation, although it be an affirmative statute, still all other persons are in general excluded from the exercise of the power, since expressio unius est exclusio alterius. Thus, if an action founded upon a statute be directed to be brought before the justices of Glamorgan in Sessions, it cannot be brought before any other person or in any other place. So by the Scotch law, "stat * Dwarris, p. 474; 2 Inst. 200; Bro. Parl. pl. 70. † Dwarris, p. 475. ‡ Dwarris, p. 474. If a § Crittenden vs. Wilson, 5 Cow. 165. See also, Livingston vs. Van Ingen, 9 J. R. 507; Bardan vs. Crocker, 10 Pick. 383. Lang vs. Scott, 1 Black, Ind. 405; Almy vs. Harris, 5 J. R. 175. T11 Rep. 59, Foster's Case, 64. utory provisions cannot be supplied by 'equipollents.'" But the designation of a certain person to whom a new power is given, does not exclude another person who was by a precedent statute authorized to do it, from doing the same thing.t Negative Statutes are so called because they are penned in negative terms,-as the statute of Marlbridge, which is "Non ideo puniatur dominus per redemptionem," and Magna Charta, " Nullus capiatur aut imprisonetur." In regard to these, the rule is that if a subsequent statute, contrary to a former, have negative words, it shall operate as a repeal of the former; and a negative statute controls and takes away any commonlaw right or remedy previously existing. "The different operation of affirmative and negative statutes," says Mr. Dwarris, is thus illustrated:-" If a statute were to provide that it should be lawful for tenant in fee simple, to make a lease for twenty-one years, and that such lease should be good, this affirmative statute could not restrain him from making a lease for sixty years; but the lease for twenty-one years would be good, because it was good by the common law, and to restrain him it ought to have words negative,-as that it shall not be lawful for him to make a lease for above twenty-one years; or, that a lease for more shall not be good." So, an affirmative statute does not repeal a precedent affirmative statute, and if the substance of both may stand together, they should both be enforced. So, the statute 23 Elizabeth, c i. which gave £20 per month against any recusant, did not take away the *Alison's Practice. † 11 Rep. 39, Foster's Case, ib. 64; Dwarris, p. 478. Bro. Parl. pl. 72. § Page 475. penalty of 12d for every Sunday, given by statute 1 Elizabeth, c. ii.* The next head is that of Remedial Statutes.-Remedial acts are those made from time to time to supply defects in the existing law, whether arising from the inevitable imperfection of human legislation, from change of circumstances, from mistake, or any other cause. The object is sometimes effected by imposing restrictions, in which case the statute is a restraining or disabling statute; sometimes by granting powers, in which case it is an enabling or enlarging statute.+ Penal Statutes.-Penal statutes are acts by which a forfeiture is imposed for transgressing the provisions of the act. A penal law may also be remedial, and a statute may be penal in one part and remedial in another. We shall have occasion hereafter to notice the incidents of penal statutes, but we may here mention the general principle that a penalty implies a prohibition, though there are no prohibitory words in the statute.§ Repealing Statutes are revocations of former statutory enactments; and the effects of the repeal of laws, * Dwarris, 474, 11 Rep. 63. + Dwarris, p. 478. In illustration of this decision and distinction, Mr. Dwarris says,-“ A statute which gave bishops and other sole ecclesiastical corporations (except parsons and vicars) a power of leasing which they did not possess before, viz. Stat. 32 Henry VIII. c. xxxviii. was an enabling statute. The Stat. 13 Elizabeth, c. x. which afterwards limited that power, is on the contrary a disabling statute."-Dwarris, p. 479. +1 Wils. 126. § Griffith vs. Wells, 3 Denio, 226. | Mr. Dwarris says, p. 478, "Repeal acts are revocations of former statutory laws authorizing and permitting the parties to whom the repeal extends, to forbear from acts which they were before commanded to do. Hence they are often named permissive laws; or, more briefly, permissions." This, however, seems a very narrow definition of a repeal act. It we shall have occasion to notice hereafter, when we come to speak of the Incidents of Statutes.* It may be useful to close this branch of our subject by stating briefly the division of statutes according to the continental jurists, with a brief sketch of their general nature and distinctive qualities. But it is necessary to premise, that by statutes the civilians do not mean merely the positive legislation which in England and America is known by the same name, viz. Acts of Parliament and of other legislative bodies, as contradistinguished from the common law, but the whole municipal law of the state, from whatever source emanating. Sometimes the word is used by civilians in contradistinction to the Roman Imperial Law, which they sometimes style, by way of eminence, "The Common Law," since it constitutes the general basis of the jurisprudence of all continental Europe, modified and restrained by local customs and usages, and positive legislation. Paul Voet says, "Sequitur jus particulare, seu non commune, quod uno vocabulo usitatissimo, STATUTUM dicitur, quasi statum publicum tuens. Merlin says, "Ce term statut, s'applique en general à toutes sortes des lois et des reglements; chaque disposition d'une loi est un statut,—qui permet, ordonne, ou defend quelque chose. Statutes are divided by the civilians into personal, real, and mixed. Personal statutes are those which act upon the person directly, as their subject or object; would be difficult, for instance, to find any permission contained in the act repealing the general bankrupt law of the United States. * Mr. Dwarris, in his very valuable work, makes one class of statutes to consist of those which are void. It seems hardly proper to make a class of statutes which are in the eye of the law no statutes at all; and we shall consider this subject under another head, when speaking of the restrictions upon Legislative Power. fixing and determining its state and condition, as with reference to birth, legitimacy, freedom, majority, &c., without mentioning things or property, except incidentally. These personal statutes are of general force and obligation everywhere. Real statutes are those which have for their direct object or motive, things or property, whether movable or immovable, and independently of the personal state of the proprietor or possessor; as laws which concern the disposition which one may make of what belongs to him, while living or by his will. Mixed statutes affect both persons and property, and ⚫ constitute a third class, which it has been found necessary to admit; there being so many statutes which are neither purely personal nor purely real, or in regard to which it is doubtful whether the personal or real characteristics prevail. The rules for distinguishing the several kinds, and the application of these rules to the particular case, are much discussed and controverted by the civilians, who have treated the subject with their accustomed learning, acumen, and metaphysical subtlety. In iis definiendis mirum est quam sudant doctores. But this subject has been so fully discussed in that which is perhaps the greatest monument of the intellect and the labors of the late Mr. Justice Story, that I will here only refer to the "CONFLICT OF LAWS." It would encumber the text too much to go at length into any antiquarian discussion as to the history of the early legislation of this country; but I cannot refrain from giving, in this note, a brief sketch of the mode in which the first laws of at least one of the Colonies were framed. The State of Massachusetts has, with a commendable liberality and respect for its early history, recently (1853-1855) published, in six handsome 4to. volumes, the legislative records of the Colony, from 1628 to 1686. |