statute was not, properly speaking, a penal one; it neither created an offence, prescribed punishment, or altered the mode of trial, it merely changed the venue. The latter consideration probably had great influence on the mind of Mr. Justice Bronson, who in all cases has ever been found in favor of a strict construction of penal laws and constitutional provisions, and hostile to any thing bordering upon judicial legislation.

§756. The numerous cases we have cited sufficiently define the rules which govern in the construction of penal statutes, and the qualifications and limitations to the rule, that in general they are to be construed strictly. From the frequency of questions arising out of this general doctrine, we have deemed it important to annote very fully the leading cases in this country, where this rule has come under consideration, and so far to present the circumstances under which they arose, as to give the reader a clear understanding of instances in which it has been applied, and the qualifications under which such application has been made, and thus obviate a necessity of a resort to the reported cases on this subject.

CHAPTER XIX.

OF THE REPEAL OF STATUTES.

757. IF laws and statutes seem contrary to one another, it is by some supposed that the latter one will abrogate or repeal the former. This rule, however, has its qualifications. In such cases, if by interpretation they may stand together, they shall so stand; and if two laws only so far disagree or differ as that they may, by any other construction, both stand, they will both be upheld; for whenever this can be done, the rule that subsequent laws abrogate prior ones does not apply, and the last law will not operate as a repcal of the former. (a) When it is not manifestly the intention of the legislature that a subsequent act shall control the provision of a former act, the subsequent shall not be construed as having such an operation, even though the words, taken strictly and grammatically, would repeal the former act.(b)

§ 758. It may be laid down as a general rule, that it is deemed against the policy of the law to favor repeals by implication; and positive enactments are not to be construed as interfering with pre-existing contracts, rights of action, or suits of a civil nature not penal in their consequences, unless the intent thus to interfere has been expressed in the enactment. It is upon this principle that our courts have held, that the only effect the revision of

(a) Canal Co. v. Railroad Co. 4 Gill & John. 6. (6) Ibid. 6.

our statutes had upon offences previously committed was, that the proceedings in the subsequent prosecution of such offences must be conducted according to the provisions contained in the Revised Statutes. (a) Where those statutes instituted one action for another—such, for instance, as ejectinent for the writ of dower-the revision only affects the form and mode of proceeding in such suits; and even in this respect the latter does not affect the mode of conducting suits which were commenced previous to the time they went into operation; and we have seen, in a previous chapter, that whenever a person has a right to sue at common law, and a remedy is likewise given by an affirmative act, without a negative expressed or implied of the action at common law, it does not take away the common law remedy, and the party may, at his election, avail himself of either.(b)

§ 759. We have seen, that where a right is granted by a statute, and a subsequent statute gives a forfeiture or penalty for the violation of that right, such forfeiture or penalty is cumulative to the remedy provided at common law, in cases of the violation of the statute right, when the statute itself is silent.(c) But inchoate rights generally derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute. It is otherwise, however, in regard to such civil rights as have become perfected far enough to stand independent of the statute; or, in other words, such as have ceased to be executory, and have become executed.(d) As a general rule, it is undoubtedly true, an act of the legisla ture annulling contracts, or creating new exceptions and defences, should be so construed as not to affect con

(a) The People v. Phelps, 5 Wend. R. 10. (b) 10 John. R.; see also 5 John. R. 175. (c) 9 Ibid. 507.

(d) Butler v. Palmer, 1 Hill R. 324.

tracts or rights of action vested and existing at the time of its enactment. (a) Statutes modifying a remedy of a party should be so construed as not to affect actions commenced before such acts were passed. But the two last rules obtain only in cases of positive enactments, and they will be found not to arise under repealing clauses, and are founded upon the well settled rule that statutes are not to have a retrospective operation, or ex post facto effect, unless declared to be so by express words or positive enactments, and even then subject to the qualification stated by us in sec. 533.

§ 760. The rule that vested civil rights, acquired under a law, are not affected by a repeal, is founded in good sense and reason, is consonant to the fundamental principles of natural justice, and has been derived from the civil law. We have stated in sec. 161 the clear and succinct view of this subject laid down in Taylor's Civil Law, to which our readers will do well to refer to in this connection.

§ 761. Puffendorf says the law itself may be disannulled by the author, but the rights acquired by virtue of that law while in force must still remain. He however adds:"Suppose it were a law, that as a man disposed of his possessions by will, so the right to them. should stand; yet it would be unreasonable to take away from one person what fell to him by will while the former law was in use and vigor." Mr. Justice Cowen, in speaking of the effect of a repeal upon inchoate rights, I understand the rule of the writers on the civil law perfectly to agree with that acted on by our own courts in all their decisions ancient and modern. Those writers

says,

(a) See Gilmore v. Shooler, 2 Mod. 310; Dash v. Van Kleek, 7 John. R. 477; Couch v. Jeffries, 4 Burrow, 2460-2; Churchill v. Crease, 2 M. & P. 415; S. C. 5 Bing. 177; Tenington v. Hargreave, 3 M. & P. 137, 143; S. C. 5 Bing. 489.

speak of rights which have arisen under the statute not being affected by the repeal, but the context shows at once what kind of rights they mean. The amount of the whole comes to this, that a repealing clause is such an express enactment as necessarily divests all inchoate rights, which had arisen under the statute which it destroys. These rights are but incidents to the statute, and fall with it, unless saved by the express words in the repealing clause;" after citing from Bracton and the Institutes the maxim, " Nova constitutio futuris formam imponere debet non præteritis," and in reference to the quotation from Puffendorf, he adds:-" Here the right had so passed as to be not only vested, but to stand entirely independent of the statute."

§ 762. In Fletcher v. Peck,(a) the rule is recognized, that where a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights, and that a party to a contract, although it might be a sovereign state, could not pronounce its own deed invalid. In another case,(b) the same principle was recognized, and it was held, that where an act of the legislature had declared that certain lands which should be purchased for the Indians, should not thereafter be subject to any tax, it constituted a contract which could not be rescinded by a subsequent law. Indeed rights thus vested under laws amounting to a contract are, under our government, rendered sacred and inviolate under the federal constitution.

§ 763. Where a right of property or the nature of its enjoyment, has become vested under a contract between parties, as a joint tenancy created by contract, an act abolishing such estates prospectively does not operate to change the nature of the estate existing at the time, and

(a) 6 Cranch, 88.

(b) The State of New Jersey v. Wilson, 7 Cranch, 164.