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the king and his heirs, saving the right of all persons whatsoever or vests the land of A in the king, saving the right of A: in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king.**

7. Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon 9 the general principle laid down in the last section,9 that, "leges posteriores priores contrarias abrogant." But this is to be understood, only when the latter statute is couched in negative terms, or by its matter9 necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards enacts, that he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end.1 ? But if both acts be merely affirmative, [90] and the substance such that both may stand together, here the latter does k 1 Rep. 47.

1 Jenk. Cent. 2. 73.

9 The ninth reads "a general principle of universal law," and adds after the Latin quotation, "consonant to which it was laid down by a law of the twelve tables at Rome that quod populus postremum jussit, id jus ratum esto." (This last passage is transferred from p. 60, arte.)

9 The ninth reads, "or where its matter is so clearly repugnant that it."

8 Previously "comes and says."

*Quoted, 27 Cal. 9

+ Cited, 4 Dall. App. 6, 7; 6 Conn. 141; 1 Ohio, 11; 10 Humph. 79; 1 South. 53.

+-+ Quoted, 9 Wall. 690; 43 N. H. 418; 12 Allen, 433; 24 Conn. 589; 3 Zab. 41; 3 Hen. & M. 211; 1 Gall. 153.

- Quoted, 14 Ga. 398.

+-* Quoted, 7 Fla. 255; 8 Fla. 486.

2- Quoted, 10 Pa. St. 448; 2 Beasl. (N. J. Eq.) 291; 17 Ga. 300.

not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter-sessions, and a latter law makes the same offence indictable at the assises; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either:** unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assises, and not elsewhere.m

8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII., declaring the king to be the supreme head of the church, were repealed by a statute 1 & 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express words of revival in queen Elizabeth's statute, but these acts of king Henry were impliedly and virtually revived."

9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs, that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth,? which the prior legislature must have been, if its ordinances could bind

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*** Quoted, 6 Mo. 604; 35 Cal. 608; 7 Nev. 247.

+ Quoted, 21 Pick. 502; 1 Gray, 165; 66 N. Y. 4; 67 N. Y. 117; Hemp. 260; 60 Iowa, 63.

#Cited, 104 Mass. 448; 47 Ind. 288. Quoted, 64 Pa. St. 181; 1 Green, C. E. 364; 1 Ohio St. 586; 5 Ohio St. 420.

? Cited, 1 Wis. 451.

8 a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. "When you repeal the [91] law itself, says he, you at the same time repeal the prohibitory clause, which guards against such repeal." [Note 34, page 237.]

10. Lastly, acts of parliament that are impossible to be performed are of no validity:* and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power9 that can control it and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at p Cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat. l. 3. ep. 23.

8 In previous, "the present."

9 The ninth edition adds here, "in the ordinary forms of the constitution, that is vested with authority to," in place of "that can."

Quoted and criticised, 5 Ga. 194; 48 Am. Dec. 253, by Lumpkin, J.; 3 Dall. 266, 399, by Iredell. J.; 1 Cold. 347; 4 Conn. 209, 223; 10 Am. Dec. 128; 4 Conn. 479; 13 N. Y. 431. Cited, 1 N. H. 259; 1 Munf. 204; 2 Yeates, 147; 5 Mo. 168; Bright. N. P. 396; 9 Tex. 605 5 Hill, 361; 1 Nott & McC. 400; 3 Binn. 431; 5 Ill. 282.

**Quoted, 5 Ga. 201; 4 Ala. 400.

† Cited, 7 Port. 416.

- Quoted, 35 Ga. 297.

-† Quoted and approved, 1 Halst. 282.

liberty to expound the statute by equity, and only quoad hoc disregard it.* Thus if an act of parliament gives a man power to try all causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel. But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.* [Note 35, page 238.]

These are the several grounds of the laws of England: over and above which, equity is also frequently called in to [92] assist, to moderate, and to explain them. What equity is, and how impossible in its very essence to be reduced to stated rules, hath been shewn in the preceding section. I shall therefore only add, that 4 (besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind) there are also peculiar9 courts of equity established for the benefit of the subject, to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, that can always be obtained by the generality of the rules of the positive or common law. This is the q 8 Rep. 118.

*Cited, 2 Ala. 592.

4 In the first three editions, this passage read as follows: "that there are courts of this kind established for the benefit of the subject, to correct and soften the rigor of the law, when through its generality it bears too hard in particular cases; to detect and punish

business of our courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.*

NOTES OF THE AMERICAN EDITOR.

(26) I stile these parts of our law leges non scriptæ, because their original institution and authority are not set down in writing as acts of parliament are, page 64.

Written and unwritten law, when accurately considered is rather a division of laws than of the law. It can be predicated, with the greatest exactness, of each distinct rule of law, that it belongs either to the written or to the unwritten class; but the distinction is of little or no value in its relation to the entire mass. The written and unwritten parts of the law are not distinct in character from each other in any other respect, than that which the term denotes, and no general assertion of much value can be made with regard to the contents of either. Whenever a new statute is passed, certain parts latent frauds, which the law is not minute enough to reach; to enforce the execution of such matters of trust and confidence as are binding in conscience, though perhaps not strictly legal; to deliver from such dangers as are owing to misfortune or oversight; and in short to relieve in all such cases as are bona fide objects of relief." (The change made here by the commentator is significant. He had at first treated the chancellor's jurisdiction as identical with the equitable interpretation explained in the second section, page 62.) He now shows that the peculiar courts of equity have a jurisdiction quite beside that interpretation and distinct from it: and thus anticipates in part the change made in Serj't Stephen's New Commentaries, page 84, as a substitute for this account of equity.

Cited, 4 Ala. 396; 38 Ala. 666; 40 Ala. 481.

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