The English rule formerly was, that if no period was fixed by the statute itself, it took effect by relation, from the first day of the session in which the act was passed, and which might be some weeks, if not months, before the act received the royal sanction, or even before it had been introduced into Parliament. (d) This was an extraordinary instance of the doctrine of relation, working gross injustice and absurdity; and yet we find the rule declared and uniformly adhered to, from the time of Henry VI. (e) All the judges agreed, in the case of Partridge v. Strange, in the 6th Edward VI., (f) that the statute was to be accounted in law a perfect act from the first day of the session; and all persons were to be punished for an offence done against it * 457 after the first day of the session, unless a certain time was appointed when the act should take effect. In the case of The King v. Thurston, (a) this doctrine of carrying a statute back by relation to the first day of the session was admitted in the K. B. ; though the consequence of it was to render an act murder which would not have been so without such relation. The case of The Attorney-General v. Panter (b) is another strong instance of the application of this rigorous and unjust rule of the common law, even at so late and enlightened a period of the law as the year 1772. An act for laying a duty on the exportation of rice thereafter to be exported, received the royal assent on the 29th of June, 1767, and on the 10th of June of that year the defendants had exported rice. After the act passed, a duty of one hundred and

the acts alluded to, post, ii. 23, 24.) The powers of government in this country are distributed in departments, and each department is confined within its constitutional limits. The power that makes is not the power to construe the law. That latter trust belongs to the judicial department exclusively. Kent, Ch. J., in Jackson v. Phelps, 3 Caines, 69; Ogden v. Blackledge, 2 Cranch, 272; Jones v. Wootten, 1 Harr. (Del.) 77; Field v. The People, 2 Scam. (Ill.) 79; Cotton v. Brien, 6 Rob. (La.) 115. When Lord Bacon composed his admirable aphorisms, De Fontibus Juris, he assumed the proposition that declaratory statutes communicated an interpretation that was as efficacious as if it had been contemporary with the passage of the statute. But in his age, the partition of power among departments was not accurately understood, or precisely defined, or constitutionally limited; and he held, notwithstanding, that they ought not to be passed, except in cases in which a retrospective operation to a statute would be just, leges declaratorias ne ordinato nisi in casibus ubi leges cum justicia retrospicere possint. Bacon's Works, vii. 450, Aphorism 51.

(d) 4 Inst. 25.

(e) 33 Hen. VI. 18; Bro. Exposition del Terms, 33.

(f) 1 Plow. 79.

(a) 1 Lev. 91.

(b) 6 Bro. P. C. 553.

fifteen pounds was demanded upon the prior exportation, and it was adjudged, in the Irish Court of Exchequer, to be payable. The cause was carried by appeal to the British House of Lords, on the ground of the palpable injustice of punishing the party for an act innocent and lawful when it is done; but the decree was affirmed, upon the opinion of the twelve judges, that the statute, by legal relation, commenced from the first day of the session. The K. B., also, in Latless v. Holmes, (c) considered the rule to be too well settled to be shaken, and that the court could not take notice of the great hardship of the case. The voice of reason at last prevailed; and by the statute of 33 Geo. III. c. 13, it was declared that statutes are to have effect only from the time they receive the royal assent; and the former rule was abolished, to use the words of the statute, by reason of "its great and manifest injustice." y1

There is a good deal of hardship in the rule as it now stands, both here and in England; for a statute is to operate from *458 the very day it passes, if the law itself does not * establish the time. It is impossible in any state, and particularly in such a wide-spread dominion as that of the United States, to have notice of the existence of the law, until some time after it has passed. It would be no more than reasonable and just, that the statute should not be deemed to operate upon the persons and property of individuals, or impose pains and penalties for acts done in contravention of it, until the law was duly promulgated. The rule, however, is deemed to be fixed beyond the power of judicial control, and no time is allowed for the publication of the law before it operates, when the statute itself gives no time. Thus, in the case of The Brig Ann, (a) the vessel was libelled and condemned for sailing from Newburyport, in Massachusetts, on the 12th of January, 1808, contrary to the act of Congress of the 9th of January, 1808, though it was admitted the act was not known in Newburyport on the day the brig sailed. The court admitted that the objection to the forfeiture of the brig was founded on the principles of good sense and natural equity; and that unless such time be allowed as would enable the party, with reasonable dili(c) 4 T. R. 660.

yl Tomlinson v. Bullock, 4 Q. B. D. 230. A proclamation by the President was held to go into effect when signed and

(a) 1 Gall. 62.

sealed, in Lapeyre v. United States, 17 Wall. 191. See also United States v. Norton, 97 U. S. 164.

gence, to ascertain the existence of the law, an innocent man might be punished in his person and property for an act which was innocent, for aught he knew, or could by possibility have known, when he did it. (b)

The Code Napoleon (c) adopted the true rule on this subject. It declared that laws were binding from the moment their promulgation could be known, and that the promulgation should be considered as known in the department of the imperial residence one day after that promulgation, and in each of the other departments of the French empire* after the expiration of * 459 the same space of time, augmented by as many days as there were distances of twenty leagues between the seat of government and the place. The New York Revised Statutes (a) have also declared the very equitable rule that every law, unless a different time be prescribed therein, takes effect throughout the state on, and not before, the 20th day after the day of its final passage. (b)

If the statute be constitutional in its character, and has duly gone into operation, the next inquiry is respecting its meaning; and this leads us to a consideration of the established rules of construction, by which its sense and operation are to be understood.

4. Acts, Public and Private. There is a material distinction between public and private statutes, and the books abound with cases explaining this distinction in its application to particular statutes. It is sometimes difficult to draw the line between a public and private act, for statutes frequently relate to matters and things that are partly public and partly private. The most comprehensive, if not the most precise, definition in the English books is, that public acts relate to the kingdom at large, and private acts concern the particular interest or benefit of certain individuals or of particular classes of men. (c) Generally speaking,

(b) Judge Livingston, in 1810, held that the embargo law of December, 1807, did not operate upon a vessel which sailed from Georgia on the 15th January, 1808, before notice of the act had arrived. 1 Paine, 23.

(c) Art. 1.

(a) Vol. i. 157, sec. 12.

(b) By the Revised Statutes of Massachusetts, in 1836, it is the thirtieth day after, and by the constitution of Mississippi, as declared in 1833, it is sixty days thereafter. [See Bishop on Written Laws for similar provisions in other states.]

(c) Dwarris on Statutes [2d ed. 464]; Gilbert on Ev. 39. [See Holland on the Form of the Law, London, Butterworths, 1870, passim, esp. p. 163.]

statutes are public; and a private statute may rather be considered an exception to a general rule. It operates upon a particular thing or private persons. It is said not to bind or include strangers in interest to its provisions, and they are not bound to take notice of a private act, even though there be no general saving clause of the rights of third persons. This is a safe and just rule of construction; and it was adopted by the English courts in very early times, and does great credit to their liberality and spirit of justice. (d) y1 It is supported by the opinion of Sir Matthew Hale, in Lucy v. Levington, (e) where he lays down the rule to be, that though every man be so far a party to a private

act of Parliament as not to gainsay it, yet he is not so far *460 a party as to give up his interest. To take the case stated

*

by Sir Matthew Hale, suppose a statute recites that whereas there was a controversy concerning land between A and B, and enacts that A shall enjoy it, this would not bind the interest of third persons in that land, because they are not strictly parties to the act, but strangers, and it would be manifest injustice that the statute should affect them. This rule, as to the limitation of the operation of private statutes, was adopted by the Supreme Court of New York, and afterwards by the Court of Errors, in Jackson v. Catlin. (a) It is likewise a general rule, in the interpretation (d) 37 Hen. VI. 15; Bro. Parliament, pl. 27; Boswell's Case, 25 & 26 Eliz., cited in Barrington's Case, 8 Co. 138, a.

(e) 1 Vent. 175.

1 McKinnon v. Bliss, 21 N. Y. 206; Earl of Shrewsbury v. Scott, 6 C. B. N. S. 1, 157. But if a private act in positive and express terms proposes to affect and does affect the rights of parties not before the legislature, a court of law is bound to give effect to the provision. 6 C. B. N. s. 157-160; Edinburgh Railway

yl Local and Special Laws. As to when courts will take notice of, see Aiton v. Stephen, 1 App. Cas. 456; Perry v. New Orleans, &c. R. R. Co., 55 Ala. 413. Local and special legislation is forbidden by constitutional provision in many states. Van Riper v. Parsons, 40 N. J. L. 1; People v. Harper, 91 Ill. 357; cases infra. For further discussion as to what constitutes special legislation, see Van Riper v. Par

(a) 2 Johns. 263; 8 Johns. 520, s. c. Co. v. Wauchope, 8 Cl. & Fin. 710, 724. It is noticeable that in ultra vires cases the English courts are sometimes careful to state that the act of incorporation in question is a public act, of which all are bound to take notice. East Anglian Ry. Co. v. Eastern Counties Ry. Co., 11 C. B. 775, 811.

sons, 40 N. J. L. 123; Sutterly v. Camden Common Pleas, 41 N. J. L. 495; Wheeler v. Philadelphia, 77 Pa. St. 338; Kerrigan v. Force, 68 N. Y. 381.

In Gardner v. Newark, 40 N. J. L. 297, it is said that the tendency has been to enlarge the class of public acts, and to make it apply to all acts which in any way affect the public at large. So, Village of Winooski v. Gokey, 49 Vt. 282.

of statutes limiting rights and interests, not to construe them to embrace the sovereign power or government, unless the same be expressly named therein, or intended by necessary implication. (b) There is another material distinction in respect to public and pri

(b) 1 Blackst. Comm. 261; Comyns's Dig. tit. Parliament, R. 8; The King v. Allen, 15 East, 333; The King v. Inhabitants of Cumberland, 6 T. R. 194; Story, J., 2 Mason, 314; Commonwealth v. Baldwin, 1 Watts, 54; The People v. Rossiter, 4 Cowen, 143; United States v. Hewes, U. S. D. C. for Pennsylvania, February, 1840, [Crabbe, 307.] In cases of grants by the king, in virtue of his prerogative, the old rule was said to be, that nothing passed without clear and determinate words, and the grant was construed most strongly against the grantee, though the rule was otherwise as to private grants. Stanhope's Case, Hob. 243; Turner & Atkyns B.. Hard. 309; Bro. Abr. Patent, pl. 62; 2 Blackst. Comm. 347. But the rule was and is to be taken with much qualification, and applied to doubtful cases, where a choice is fairly open without any violation of the apparent objects of the grant. This was the doctrine in Sir John Molyn's Case (6 Co. 5), where it was held that the king's grant should be taken beneficially for the honor of the king and the relief of the subject; and Lord Coke observed in that case on the gravity or wisdom of the ancient sages of the law, who construed the king's grants beneficially, so as not to make any strict or literal construction in subversion of such grants. He also observed, in his commentary on the statute of quo warranto (18 Ed. I., 2 Inst. 496, 497), that the king's patents, not only of liberties, but of lands, tenements, and other things, should have no strict or narrow interpretation for the overthrowing of them; but a liberal and favorable construction for the making of them available in law, usque ad plenitudinem, for the honor of the king. And it was always conceded in the cases, that if the grant was declared to be made ex certa scientia et mero motu, they were to be construed beneficially for the grantee, according to the intent expressed in the grant, and according to the common understanding and proper signification of the words. Alton Wood's Case, 1 Co. 40, b. In the case of Sutton's Hospital (10 Co. 27), the doctrine was, that a grant for a charitable purpose is taken most favorably for the object, and that the usual incidents to a corporation are held to be tacitly annexed to the charter.

And if the royal grant was not in a case of mere bounty or donation, but one founded upon a valuable consideration, the stern rule never applies, and the grant is expounded as a private grant, favorable for the grantee, or rather according to its fair meaning, for the grant is a contract. See a clear and full view of the ancient law on the construction of royal grants, by Mr. Justice Story, in his opinion in Charles River Bridge v. Warren Bridge, 11 Peters, 589-598. See also infra, ii. 556.

In addition to the restrictions which the common law has imposed upon the operation of private statutes, they are usually laid under special checks by legislative rules, or by law, as to the notice requisite before a private bill can be introduced. See the notice requisite on the application to the legislature of New York for private purposes. N. Y. R. S. 3d ed. i. p. 161. The constitution of New York (art. 7, sec. 9) requires the assent of two thirds of the members elected to each house, to every bill appropriating public moneys or property for private purposes. So the legislature of North Carolina is prohibited by their constitution, as amended in 1835, from passing any private law, without thirty days' previous notice of application for the law. The caution, checks, and course of proceedings, in the English Parliament, on passing private bills, are detailed at large, and with great precision and accuracy, in May's Treatise upon the Law and Proceedings of Parliament, 383-460.

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