[*32]

in her Majesty's High Court of Chancery, within four calendar months next and immediately after the date of the said letters-patent, then the said letters-patent should become void. By an act of Parliament, 4 & 5 Vict. c. 1, subsequently obtained, which recited that *letters-patent had been granted to the plaintiff; that the specification was enrolled within six months, instead of being enrolled within four months of the date thereof, as required by the letters-patent; that such non-enrolment had arisen from inadvertence and misinformation; and that it was expedient that the patent should be rendered valid to the extent thereinafter mentioned; it was enacted, that the letters-patent should, during the remainder of the term, be considered, deemed, and taken to be as valid and effectual, to all intents and purposes, as if the specification thereunder so enrolled by the plaintiff within six months after the date thereof, had been enrolled within four months. In case for infringement of the patent by the defendant, who had himself obtained letters-patent for a bona fide improvement upon the plaintiff's invention prior to the passing of the said act of Parliament, and at a time when the plaintiff's patent had ceased to have any validity, by reason of its non-enrolment; it was held that the act of Parliament in question operated as a complete confirmation of the plaintiff's patent, although such a construction imposed upon the defendant the hardship of having his patent destroyed by an ex post facto law.1

The preceding may perhaps be considered a strong, but is by no means a solitary instance of a statute being held to have a retrospective operation. Thus, the plaintiff sued in Hilary Term, 1829, for a debt which had accrued due more than six years previously: it was held that the stat. 9 Geo. 4, c. 14, which came into operation on the 1st January, 1829, precluded him from recovering on an *oral promise to pay the debt made by defendant in Febru[*33] ary, 1828.3 In this case the action was brought after the statute had begun to operate; but the same principle was applied where the action was brought before, though not tried till after, the

1 Stead v. Carey, 1 C. B. 496.

2 See as to stat. 2 & 3 Vict. c. 37, s. 1, Hodgkinson v. Wyatt, 4 Q. B. 749; as to stat. 6 & 7 Vict. c. 73, s. 37, Brooks v. Bockett, 16 L. J., Q. B. 178. Quære, whether stat. 9 & 10 Vict. c. 66, is retrospective: vid. Reg. v. Justices of Middlesex, 16 L. J., M. C. 135.

3 Towler v. Chatterton, 6 Bing. 258. See also Bradshaw v. Tasker, 2 My. & K. 221; Fourdrin v. Gowdey, 3 My. & K. 383.

statute came into force. There are, moreover, several authorities for extending remedial enactments to inchoate transactions, yet these appear to have turned on the peculiar wording of particular acts, which seemed to the Court to compel them to give the law an ex post facto operation.3 We may also, in connexion with this part of the subject, observe, that, where an act of Parliament is passed to correct an error by omission in a former statute of the same session, it relates back to the time when the first act passed, and the two must be taken together, as if they were one and the same act, and the first must be read as containing in itself in words the amendment supplied by the last."

The injustice and impolicy of ex post facto3 or retrospective legislation are yet more apparent with reference to criminal laws, than to such as regard property or contracts; it would, as observed by Mr. Justice Blackstone, be highly unreasonable, after an action is committed, then for the first time to declare it to have been a crime, and to inflict a punishment upon the person who has committed it, because it was impossible that the party could foresee that an action, innocent when it was done, would be afterwards converted into guilt by a subsequent law; he had therefore *no cause to abstain [*34] from it, and all punishment for not abstaining must, of consequence, be cruel and unjust. With reference, therefore, to the operation of a new law, the maxim of Paulus,' adopted by Lord Bacon, applies, nunquam crescit ex post facto præteriti delicti œstimatio, the law does not allow a later fact, a circumstance or matter subsequent, to extend or amplify an offence: it construes neither penal laws nor penal facts by intendment, but considers the offence in degree as it stood at the time when it was committed.

In illustration of the evils which may result from a violation of the general rule, which we have been considering as to nova constitutio, we may, in conclusion, refer to a very recent and important case, where it was held that an order of the Court of Review, con

9

1 Kirkhaugh v. Herbert, and an anonymous case, cited 6 Bing. 265.

2 See the cases cited, argument, 6 A. & E. 946, and supra (c).

3 Judgment, 6 A. & E. 951. See Burn v. Carvalho, 1 A. & E. 895.

4 2 Dwarr. Stats. 685.

5 As to the meaning and derivation of this expression, see note, 2 Peters's R. (U. S.) 683.

61 Bla. Com. 46; 2 Dwarr. Stats. 680, 681.

7 D. 50. 17. 138. 1.

8 Bac. Max., reg. 8; 2 Dwarr. Stats. 685.

9 Judgment, Smallcombe v. Olivier, 13 M. & W. 87.

firmed by the Lord Chancellor, for annulling a fiat in bankruptcy, does not invalidate the previous proceedings under the fiat, unless the annulment were on some ground which rendered the fiat originally void. The Court of Exchequer, in delivering judgment in this case, adverted to several startling consequences which would result from the doctrine contended for by the plaintiff, viz., that the order had a retrospective operation. "If," they observed, "the bankrupt does not duly surrender at the time required by the statutes, he is guilty of a felony, now punishable by transportation for life, and which, until lately, was capital; and yet what is contended for is, that, before conviction, it is in the power of the Lord Chancellor to convert that which was a capital felony into a perfectly innocent act. Again, while the fiat *is in force, if the bankrupt has omitted

to surrender, and has so committed felony, it may become [*35]

It

necessary for peace officers or others to use force towards him, in order to his apprehension, and, under certain circumstances, even to take away his life, if he cannot be otherwise taken. Can it be possible that the Lord Chancellor, by superseding a commission, or now by annulling the fiat, can make a man a criminal and a murderer, who, at the time of the act done, did no more than his duty?" was further observed, that the legislature could hardly be supposed to have meant to invest the Lord Chancellor with the power which it was contended he possessed-that the exercise of such a power would have the effect of divesting property from purchasers and revesting it in them again-of making acts, which were criminal when committed, become innocent, and acts which were perfectly innocent become criminal—and by thus essentially altering the character of past transactions, would be productive of evils to third persons, which it would be impossible to foresee, and against which it would be impossible to guard.1

AD EA QUÆ FREQUENTIUS ACCIDUNT JURA ADAPTANTUR.
(2 Inst. 137.)

The laws are adapted to those cases which most frequently occur.

Laws ought to be, and usually are, framed with a view to such cases as are of frequent rather than such as are of rare or accidental occurrence, or, in the language of the civil law, jus constitui

1 See the judgment, 13 M. & W. 90, 91.

oportet in his quæ ut plurimum accidunt non *quæ ex inopi[*36] nato;1 for, neque leges neque senatusconsulta ita scribi possunt ut omnes casus qui quandoque inciderint comprehendantur, sed sufficit ea quæ plerumque accidunt contineri, laws cannot be so worded as to include every case which may arise, but it is sufficient if they apply to those things which most frequently happen. Public acts, it may likewise be observed, are seldom made for one particular person, or limited to one single case; but they are made for the common good, and prescribe such rules of conduct as it is useful to observe in the ordinary occurrences of life.3

Where, for instance, a private act of Parliament, intituled," An Act to enable the N. Union Society for Insurance against Loss by Fire, to sue in the name of their Secretary, and to be sued in the names of their Directors, Treasurers, and Secretary," enacted that all actions and suits might be commenced in the name of the secretary, as nominal plaintiff, it was held that this act did not enable the secretary to petition, on behalf of the society, for a commission of bankruptcy against their debtor; for the expression "to sue," generally speaking, means to bring actions, and ad ea quæ frequentius accidunt jura adaptantur. "Taking out a commission of bankruptcy," observed Bayley, J., "is a well-known mode of recovering a debt, and if the legislature had intended to include that remedy, I should have expected to find more comprehensive words than 'to sue. A commission of bankruptcy is not ordinarily spoken of in that way."

*It is then true, that, "when the words of a law extend not

[*37] to an inconvenience rarely happening, but do to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quæ frequentius accidunt.” "But," on the other hand, "it is no reason when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom." Where, however, a casus omissus does really occur in a statute, either through the inadvertence of the legislature, or on the principle quod

1 D. 1. 3. 3. See Lord Camden's judgment in Entick v. Carrington, 19 How. St. Tr. 1061. 2 D. 1. 3. 10.

3 See Wood's Treatise of Laws, 121.

4 Guthrie v. Fisk, 3 B. & C. 178, 183. Argument, Attorney-General v. Jackson, 2 Cr. & J. 108; Wing. Max. 716. Argumentum à communiter accidentibus in jure frequens est, Gothofred, ad. D. 44. 2. 6.

5 Vaugh. R. 373.

semel aut bis existit prætereunt legislatores,' the rule is, that the particular case thus left unprovided for, must be disposed of according to the law as it existed prior to such statute-Casus omissus et oblivioni datus dispositioni communis juris relinquitur.2

*CHAPTER II.

[*38]

MAXIMS RELATING TO THE CROWN.

THE principal attributes of the Crown are sovereignty or preeminence, perfection, and perpetuity; and these attributes are attached to the wearer of the crown by the constitution, and may be said to form his constitutional character and royal dignity. On the other hand, the principal duty of the sovereign is to govern his people according to law; and this is not only consonant to the principles of nature, of liberty, of reason, and of society, but has always been esteemed an express part of the common law of England, even when prerogative was at the highest. In the pages immediately following are collected some of the more important technical rules, embodying the above general attributes of the Crown, with their meaning and qualifications.3

REX NUNQUAM MORITUR.

(Branch. Max., 5th ed., 107.)

The king never dies.

The law ascribes to the king, in his political capacity, an absolute immortality; and, immediately upon the decease* of the [*39] reigning prince in his natural capacity, the kingly dignity and the prerogatives and politic capacities of the supreme magis

I D. 1. 3. 6.

25 Rep. 38.

3 See further on the subject of this section, Mr. Chitty's Treatise on the Prerogative of the Crown, particularly chaps. i. ii. xv. xvi.; Mr. Serjt. Stephen's Com., vol. ii. pp. 494-504; Fortescue de Laud. Leg. Ang., by Amos., chap. ix.; Finch's Law, 81; Plowd. Com., chap. xi.; Bracton, chap. viii.; De Lolme, Const. of England, chap. vi.