not supersede the old.1 This is clear; but, where the change is the reverse of this, the same result does not necessarily follow. Thus, in Alabama it was held that, where the new law provided a less penalty for an offense of a higher grade than the old, it superseded the old."

§ 172. Separate crimes of one transaction.- How far, under our constitutions, it is competent for legislation to make separate crimes of one transaction, providing for each its distinct punishment, this is not the place to inquire.3 But, to the extent to which this can be constitutionally done, there is no repugnance between statutes which so provide. Therefore the one does not necessarily repeal the other.'

§ 173. As to offense in distinction from punishment.Discarding the exceptional doctrine, peculiar to a limited number of our tribunals," which holds a mere revision of laws, where there is no repugnance, to operate as a repeal of whatever of the old is within the scope of the new, we shall find the instances rare wherein a statute will by implication repeal the prior law, statutory or common, concerning the offense alone, as distinguished from the punishment. If the old and new are identical, there is no occasion for adjudging a repeal, since certainly they are not repugnant. If they vary from each other, there is still no reason in ordinary circumstances for deeming them repugnant. Numerous shades and degrees of offense may, in the nature of things, and as transactions ordinarily are, attach to a single act; and, if the legislature by separate statutes has provided for more than one of these, no just reasons can forbid all to stand." But,

8174. Felony and misdemeanor.- Because of the different natures, under the common-law rules, of felony and misdemeanor, their different punishments, and the diverse modes of proceeding against the offender, the same act cannot be both the one and the other. Therefore if a statute elevates to a

1Ante, SS 164, 169. And see S. v. Taylor, 2 McCord, 483; Rex v. Waddington, 1 B. & C. 26; Knowles v. S., 3 Day, 103; Com. v. Pegram, 1 Leigh, 569; Allen v. Com., 2 Leigh, 727; Taylor v. S., 7 Humph. 510.

2Smith v. S., 1 Stew. 506. And see

S. v. Jones, 5 Ala. 666; S. v. Flanigin, 5 Ala. 477.

3 Crim. Law, I, §§ 1060-1066.

4 U. S. v. Nelson, 1 Abb. (U. S.) 135. 5 Ante, SS 158-162.

6 Ante, §§ 163d, 163e.

7 See cases cited ante, §§ 154-164; Com. v. Herrick, 6 Cush. 465.

felony what before was a misdemeanor, or creates a misde meanor of what was before a felony, the old law is gone by reason of the repugnance, and the offender can be indicted only under the new.1

1 Reg. v. Button, 12 Jur. 1017, 1021; Rex v. Robinson, 2 East, P. C. 1110, 1114, 1115, 2 Leach, 749; Rex v. Walford, 5 Esp. 62; S. v. Wright, 4 Mc Cord, 358; Burton v. Watkins, 2 Hill (S. C.), 674; S. v. Dick, 2 Murph. 388; Warner v. Com., 1 Pa. St. 154, [44 Am. D. 114;] Rex v. Cross, 1 Ld. Raym.

190

711; s. a. nom. Rex v. Crosse, 12 Mod. 634; Rex v. Pim, Russ. & Ry. 425; Hayes v. S., 55 Ind. 99. [The doctrine of merger applies only when the precise act, viewed in respect of its precise consequences, is in question. St. Louis v. Lee, 8 Mo. Ap. 598.]

CHAPTER XX.

THE CONSEQUENCES FOLLOWING ACTUAL AND ATTEMPTED REPEALS.

§ 174a. Introduction.

175-180.

General doctrine.

181-187. Specific questions.

§ 174a. Complications of doctrine.- Our written constitutions render, we shall see in this chapter, repeals in some circumstances practically impossible; as, where they would divest vested rights. Complicated with this condition of the law are some nice common-law doctrines relating to the effect of conceded repeals. We shall not undertake to separate these two classes of cases under their distinct heads, but

How chapter divided. We shall consider, I. The general doctrine; II. Specific questions.

I. THE GENERAL DOCTRINE.

§ 175. Right and remedy distinguished.-Both in the nature of things and in adjudication, there is a distinction between what pertains to the right and what to the remedy. And our entire law is separable into these two classes.

2

Concerning each.- Rights are the product of the legal rule as prevailing when and where the facts transpired; and, when vested, they do not change with changes in the law. Remedies are governed by the law of the place in which the rights are sought to be enforced or their violation avenged, as existing at the time when the proceedings are carried on and the judgment is rendered.

1 Ante, § 85a.

2 Bishop, Con., §§ 567-575; Don v. Lippmann, 5 CL. & F. 1; Scott v. Seymour, 1 H. & C. 219.

3 Ante, § 85a.

May v. Breed, 7 Cush. 15, 34, [54 Am. D. 700;] Story, Confl. Laws, 556-558; De la Vega v. Vianna, 1 B.

& Ad. 284; Fergusson v. Fyffe, 8 CL. & F. 121.

5 Hale v. S., 15 Conn. 242; Lore v. S., 4 Ala. 173; S. v. Fletcher, 1 R. L 193; Davidson v. Wheeler, Morris, 238; Knoup v. Piqua Bank, 1 Ohio St. 603. [Right of appeal is purely remedial. Hale v. Grogan (Ky.), 49 S. W. R. 464.]

§ 176. Remedy (Procedure).—The procedure in a cause, whether civil or criminal, pertains to the remedy. And, subject to exceptions growing out of special reasons, it must conform to the general law of procedure prevailing at the place and time where and while the cause is instituted and progressing. In respect of past trausactions, therefore, the same as of future ones, it may be changed from time to time, at the legislative pleasure.1 Again,

Punishment — (Ex post facto).— The punishment wherewith the law visits a crime, being, as we have seen, separable from the definition of the crime,' pertains to the remedy. A statute increasing it for offenses already committed would be void as ex post facto; but, subject to this exception, a convicted prisoner may receive whatever sentence the law provides at the time it is pronounced, and no other can be imposed. Now,

3

§ 177. Repeal ends proceedings.- No court can entertain a cause without authority of law. Therefore the repeal of a statute terminates all proceedings under it." And the same rule applies to a municipal by-law. Thus,

1 Ante,§ 84,85a; Bishop, Con., §§ 571, 572; Brock v. Parker, 5 Ind. 538; Lore v. S., 4 Ala. 173; Hale v. S., 15 Conn. 242; U. S. v. Samperyac, Hemp. 118; Hickory Tree Road, 43 Pa. St. 139; R. R. Co. v. Hecht, 95 U. S. 168; Jones v. Davis, 6 Neb. 33; P. v. Essex, 70 N. Y. 228; De Mill v. Lockwood, 3 Blatch 56; Searcy v. Stubbs, 12 Ga. 437; Ralston v. Lothain, 18 Ind. 303; Read v. Frankfort Bank, 23 Me. 318; Bank of U. S. v. Longworth, 1 McLean, 35; Sutherland v. De Leon, 1 Tex. 250, [46 Am. D. 100;] Hope v. Johnson, 2 Yerg. 125; P. v. Phelps, 5 Wend. 9. See Van Valkenburgh v. Torrey, 7 Cow. 252. [Though pleadings are made under old laws, the procedure must conform to the new. First Church v. Fadden (N. Dak.), 77 N. W. R. 615.]

2 Ante, §§ 166, 167.

3 Crim. Law, I, SS 279, 281.

5 Hickory Tree Road, 43 Pa. St. 139; Thomas v. S., 3 Tex. Ap. 112; Musgrove v. Vicksburg, etc. R. R. Co., 50 Miss. 677; Smith v. Arapahoe Dist. Court, 4 Colo. 235; Miller's Case, 3 Wils. 420, 1 W. Bl. 451; Hunt v. Jennings, 5 Blackf. 195, [33 Am. D. 465;] Road in Hatfield, 4 Yeates, 392; Directors of the Poor v. R. R. Co., 7 Watts & S. 236; S. v. Lackey, 2 Ind. 285; Reg. v. Denton, 18 Q. B. 761, Dears. 3, 14 Eng. L. & Eq. 124; Com. v. Hampden, 6 Pick. 501, 508; Illinois & Michigan Canal v. Chicago, 14 III. 334; North Canal Street Road, 10 Watts, 351, [36 Am. D. 185;] Fenelon's Petition, 7 Pa. St. 173; [Wheeler v. S., 64 Miss. 462, 1S. R. 632; S. v. Williams, 97 N. C. 455, 2 S. E. R. 55; Kennedy v. Adams (Nev.), 51 Pac. R. 840. The repeal of an act giving certain

4S. v. Williams, 2 Rich. 418, [45 Am. grounds for attachment has no effect

6 Kansas City v. Clark, 68 Mo. 588.

In criminal prosecutions.- If the common or statutory law, which authorizes a prosecution and conviction for any offense, is repealed or expired' before final judgment, the court can go no further with the case. Even after verdict rendered against the prisoner, or after he has pleaded guilty, sentence cannot be pronounced; and he must be discharged. The same result follows if there is a judgment which has been vacated by an appeal or a writ of review. But after final judgment, a repeal of the law will not arrest the execution of the sentence. Again,