Negative Statutes (a) are so called because they are penned in negative terms, as the statute of Marl bridge, 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 common-law right or remedy previously existing.* "The dif ferent operation of affirmative and negative statutes," says Mr.

* Bro. Parl. pl. 72.

(a) Affirmative implying a Negative.—If a thing is limited to be done in a particular form or manner, it excludes every other mode, and affirmative expressions introducing a new rule imply a negative. District Township, &c. v. Dubuque, 7 Clarke (Ia.) 262; New Haven v. Whitney, 36 Conn. 373. A provision that associates shall become a corporation when a certain certificate is filed, excludes corporate powers at any preceding time. Childs v. Smith, 55 Barb. 45. A grant of lands to Indians, prescribing how they may sell, prohibits any other mode of sale. Smith v. Stevens, 10 Wall. 321. But a power in a charter authorizing directors to mortgage the corporate franchises to secure bonds, does not negative other methods of securing them Uncas Nat. B'k v. Rith, 23 Wisc. 339; nor does an affirmative statute giving the court power to authorize guardian to sell, etc., show that he had not the right to sell without such license. Wallace v. Holmes, 9 Blatch. C. C. 65.

Expressio unius.—Where a statute assumes to specify the effects of a certain provision, it is to be taken that no others were intended. Perkins v. Thornburgh, 10 Cal. 189; as e. g. where a statute has undertaken to enumerate the cases in which interest may be recovered. Watkins v. Wassell, 20 Ark. 410. In Pembroke v. Epsom, 44 N. H. 113, from a proviso saving pending suits, it seems to have been inferred that existing causes of action were also saved. Where a grant contained several restrictions, and a subsequent amendatory statute gave the franchise in general terms, and repealed all inconsistent acts, with a saving clause as to one of the restrictions, it was held that all the other restrictions were repealed. McRoberts v. Washburn, 10 Minn. 23. Where, in the body of a Constitution, it is provided that certain specified officers shall hold until successors are chosen and qualified, but there is no general provision to that effect, a similar general provision as to holding over, found in the schedule to the Constitution, was applied only to officers in office at the adoption of the Constitution. State v. Taylor, 15 Ohio N. S. 137. But if there is some special reason for mentioning one, and none for mentioning the other, the absence of any mention of the latter will not operate as an exclusion. Brown v. Buzan, 24 Ind. 194. A provision in a statute that a failure to give a prescribed notice shall not invalidate an election, does not imply that all the other prescribed formalities must be complied with in order that the election shall not be void. Taylor v. Taylor, 10 Minn. 107.

The enumeration of certain acts which shall be taken as an appearance in a cause was held not to exclude other methods of appearing. State v. McCullough, 3 Nev. 202. And see Leake v. Blasdel, 6 Nev. 40; Commonwealth v. Cancannon, 3 Brewst. 344; People v. Ingham County, 20 Mich. 95, 103.

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 stat ute, and if the substance of both may stand together, they should both be enforeed. So, the statute 23 Elizabeth, c. i, which gave £20 per month against any recusant, did not take away the 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 The object is sometimes effected by imposing restric tions, 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.

cause.

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.T

Repealing Statutes are revocations of former statutory enact ments; ** and the effects of the repeal of laws, we shall have

* Page 475.

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 v. Wells, 3 Denio, 226. ** Mr. Dwarris says, p. 478: "Repeal acts

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 legisla tion 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, 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 are revocations of former statutory laws au- pealing the general bankrupt law of the thorizing and permitting the parties to whom United States. 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 would be difficult, for instance, to find any permission contained in the act re

* 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 Legis lative Power.

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. "Records of the Governor & Company of the Massachusetts Bay, in New England, printed by order of the Legislature, edited by Nathaniel B. Shurtleff." They are extremely valuable, and throw great light not only on the character but the formation of the laws of the infant State. The early and constant attention to the subject of legislation, the care shown and the modes devised to secure a representation of all the interests to be provided for, the intermixture of the "Word of God" with their temporal administration, and the eminently equal and republican nature of the whole proceedings, are of great interest with reference to the formation of some of the earliest institutions of our empire.

The charter of Charles I to Sir Henry Rosewell and others, founded on the cession from the Plymouth Council, and creating the corporation called "The Governor & Company of the Mattachusett Bay in Newe England," was granted in March, 1628. It contained the following provision as to the making of laws for the new State. (Colony Records, 1, p. 16.) "And wee doe of our further grace, certen knowledg, and mere mocon, give & graunt to the Saide Governor & Company and their successors, that it shall and will be lawful to and for the Governor, or Deputie Governor & such of the Assistants & Freemen of the saide Company for the Tyme being as shall be assembled in any of their Generall Courtes aforesaide, or in any other Courtes, to be specially sumoned and assembled for that purpose or the greater part of them, (whereof the Governor & Deputie Governor and six of the assistants to be alwaies seaven) from tyme to tyme to make, ordeine & establishe all manner of wholesome and reasonable orders, Lawes Statutes & ordinnces, direccons & instruccons not contrarie to the lawes of this our realme of England as well for setting of the formes & ceremonies of government & magistracy fitt & necessary for the said plantacon & the inhabitants there & for nameing & stiling of all sortes of officers both superior and inferior which they shall finde needefull for that government and

plantacon & the distinguishing & setting forth of the severall duties powers and lymytte of every such office & place and the formes of such oathes warrantable by the lawes & statutes of this our realme of England as shalbe respectivelie ministred unto them for the execucon of the said severall offices and places, as also for the disposing and ordering of the elecons of such of the said officers as shall be annuall & of such others as shallbe to succeede in case of death or removeall & ministring the said oathes to the newe elected officers and for imposicons of lawfull fynes & mulcte, imprisonment or other lawfull correcon according to the course of other corporacons in this our realme of England and for the directing ruling and disposeing of all other matters & thinges whereby our said people inhabitante there maie be soe religiously peaceablie & civilly governed as their good life and orderlie conversacon maie wynn and incite the natives of country to the knowledg and obedience of the onlie true God & Saviour of mankinde & the Christian fayth which in our royal intencon and the adventurers free profession is the principall end of this Plantacon."

At a meeting of the company, held at London on the 30th of April, 1629, the Governor and company were directed "to make ordeyne and establish all manner of wholsome & resonable orders, laws, statutes, ordinances, directions & instrucktyons not contrary to the lawes of the Realme of England ffor the present gouernment of our plantacon and the inhabitants residinge within ye lymitts of our Plantacon; a copy of all which orders is from tyme to tyme to bee sent the Comp. in London." -Colony Records, i, p. 38.

This charter created a mere commercial company, but in 1630 the seat of government of the association was transferred to the Colony. Within four years, says Mr. Bancroft, it was determined that the whole body of the freemen should be convened to elect the magistrates; and that to them, with the deputies of the several towns, the powers of legislation should be intrusted. And thus, in the historian's expressive language, "the trading corporation was become a representative Democracy."Bancroft, i, p. 365.

I find, however, under date of 19th October, 1630, the following entry. If this be the change to which Mr. Bancroft refers, it was one of the first steps taken after the transfer of the seat of government to this country.

At a general court holden at Boston the 19th of October, 1630, "it was ppounded if it were not the best course that the ffreemen should have the Power of chuseing Assistants when there are to be chosen & the Assistants from amongst themselves to chuse a Gounr. & Deputy Gounr, whoe with the Assistants should have the power of makeing lawes and chuseing officers to execute the same. This was fully assented unto by the gen'all vote of the People and erreccon of hands."-Colony Records, i, p. 79.

A collection of the orders or laws very soon became a subject of consideration. On the 4th March, 1634, Winthrop and Bellingham appointed a committee to prepare a revision of "all orders already made," and report to the next general court.C. R. i, p. 137.

On the 6th May, 1635, the Governor, Deputy Governor, Mr. Winthrop and Mr. Dudley" are deputed by the court to make a Draught of such Laws as they shall iudge needefull for the well ordering of the plantacon & to psent the same to the Court."-C. R. i, p. 147.

On the 25th May, 1636, it was ordered (i, p. 174, 175) as follows:

"The Gounr., Deputy Gounr., Tho. Dudley, John Haynes, Rich. Bellingham Esqr. Mr. Cotton, Mr. Peters, & Mr. Shepheard, are intreated to make a draught of Lawes agreeable to the word of God wch may be the ffundamentall of this commonwealth and to present the same to the next Genall Court. And it is ordered, that in the meane tyme the magistrates and their associates shall pceede in the courts to heare and determine all causes according to the lawes nowe established & where there is noe law then as neare the law of God as they can, and for all business out of Court for wch there is noe certaine rule yet sett downe those of the standing counsell or some two of them shall take order by their best discrecon that they may be ordered & ended according to the rule of God's Word, and to take care for all military affaires till the nexte Genall Court"

On the 12th March, 1637 (C. R. i, 222) it was ordered as follows:

"For the well ordering of these plantacons now in the begining thereof, it haveing been found by the little time of experience wee have heare had that the want of