seeking the meaning of statutes constantly go back to see what is the unwritten or otherwise prior law; with which "lock and key," says Coke, they "set open the windows of the statute." Otherwise their search after the statutory meaning would be vain. To illustrate,

§ 7. Prior law and statute combining.- Every statute, as just said, combines and operates with the entire law whereof it becomes a part; so that, without a discernment of the original mass, one can form no correct idea of the action of the new element. As, if the provision is, "that he who steals another's watch shall be imprisoned in the penitentiary five years,” it combines with the prior law as follows. A babe of two years seizes the watch and throws it into the fire. Here is an act, not speaking now of the intent, apparently within the statutory terms. No exception in favor of babes is written in the enactment. So, if we do not look to the prior law, the babe must go to the penitentiary. But the unwritten law had already provided that no child under seven years of age shall be the subject of criminal prosecution. By interpretation, therefore, the statutory provision is limited by this one of the common law,— a consequence quite impossible to be seen by a man who does not know the common law. Again, if a person of mature years. and well-balanced judgment does this thing to another's watch, does he steal it? The answer turns on the meaning of the verb "to steal." It is a word of ancient and common use in indictments for larceny. And, as the statute is a law, we know its language to be legal; so that this word "steal" has here the same meaning as in indictments for larceny at the common law. And thus we are remitted to the question, not perhaps quite settled, whether or not the taking, to constitute larceny, must be lucri causa. Here is an obscurity arising from the not quite settled condition of the common law. But,

8. Obscurities. There are other obscurities; as,Whether statute or common law give way. If, at the point of contact between the common law and a statute, the former is plain, still not always will it be interpreted to limit the latter, though, as just seen, it sometimes will be. The very object of

12 Inst. 308. And see Harbert's Case, 3 Co. 116, 136.

2 Crim. Law, I, § 368.

3 Crim. Law, II, §§ 842-848.

4 See Bishop, First Book, § 482.

the statute may be to control the unwritten law on the particular question; then, of course, it must prevail. Here is one of the main difficulties of interpretation. In subsequent parts of this volume, rules will be given as helps in this difficulty, while yet no rules can make plain everything of this sort under all circumstances. One's general knowledge of the science of legal doctrine, and power to balance things throughout the entire system of law, will then come into special service. Again,

§ 9. Meaning of statute.- The particular terms of a statute may not have acquired an exact legal meaning; then not unfrequently it will be in doubt. Or the arrangement of the sentences may be such as to leave uncertain some question concerning what was intended. In circumstances like these, rules will furnish some help, but more will come from one's general knowledge of the language, and of the entire law in its scientific combinations.

§ 10. Statute modifying statute.- Thus far we have contemplated the prior law chiefly as unwritten. But some of the greatest difficulties occur where enactment has been piled on enactment, nothing is in terms repealed, but this year a statute is added to what was written last year, and so from year to year,— and, while plainly the later law repeals by construction the earlier in part, it as plainly does not in whole; yet where the repeal begins and where ends is the question. While interpretation does what it can in such cases, it cannot be uniform; for, the judges being men, they will necessarily, like other men, see things differently in cases of doubt and uncertainty.

4

CHAPTER IL

THE DIFFERENT SORTS OF WRITTEN LAWS AND THEIR ORDER OF PRECEDENCE.

§ 11. Jurisdiction of laws.-Laws, like courts, have their jurisdictions beyond which they are of no effect. Thus the statutes of one state are not of force in another,' nor do those of the United States bind in the states persons and things within the exclusive sphere of state sovereignty. But, to the extent to which they do not overstep their jurisdictions,

Order of precedence - How chapter divided.— The laws, with us, have their rules of precedence and comparative force. The unwritten ones give place to the written. The order of the written, in which also they will be discussed in this chapter, is as follows: I. The constitution of the United States; II. Treaties; III. Acts of congress; IV. The constitutions of the several states; V. State statutes; VI. By-laws of municipal corporations."

1 Succession of Bofenschen, 29 La statutes of the state. 6th. Provincial An. 711. acts that were in force and binding on the 14th day of May, 1776, so far as they are not contrary to the constitution, laws and form of government of the state. 7th. The common law of England and such of the statute laws as were usually in force before the Revolution, with the foregoing limitation." Flint River Steamboat Co. v. Foster, 5 Ga. 194, 204, [48 Am. D. 248.]

In a Georgia case, Lumpkin, J., observed: "The laws of Georgia may be thus graduated, with reference to their obligation or authority: 1st. The constitution of the United States. 2d. Treaties entered into by the federal government before or since the adoption of the constitution. 3d. Laws of the United States made in pursuance of the constitution. 4th. The constitution of the state. 5th. The

§ 11a. All are "laws."- All these are, in legal language,

1

"laws." Thus,

Constitution. A written constitution of the state or United States is a "law.” 992 And

Treaty. So also is, under the constitution of the United States, a treaty. Likewise

Statute. A statute, whether of a state or of the United States, is a law.

And

By-law-Ordinance.-A municipal by-law, otherwise termed a city or town ordinance, is, as the name imports, a law."

I. THE CONSTITUTION OF THE UNITED STATES.

§ 12. Supreme.-The constitution of the United States is, within its sphere, to use its own term, "supreme." While it remains unaltered, it is subject to no power above it, for there is none. It binds the people who made it, equally with all else within its jurisdiction. All laws, in whatever form or from whatever source proceeding, contrary to it, are void.

1 Crim. Law, I, §§ 1-3.

2R. R. Co. v. McClure, 10 Wall. 511; Board of Public Schools v. Patten, 62 Mo. 444; Pacific R. R. Co. v. Maguire, 20 Wall. 36; Farmers' Bank v. Gunnell, 26 Grat. 131; Medical College v. Muldon, 46 Ala. 603; Daily v. Swope, 47 Miss. 367; S. v. Weston, 4 Neb. 216; Lehigh Valley R. R. Co. v. McFarlan, 4 Stew. Ch. 706. See Cox v. S., 8 Tex. Ap. 254, [34 Am. R. 746.]

Effect. There are constitutional provisions which, from the special nature of the case, cannot have practical effect until legislation has lent its aid. S. v. Dubuclet, 28 La. An. 698; post, § 14.

3 Const. U. S., art. 6; The Cherokee Tobacco, 11 Wall. 616; Hauenstein v. Lynham, 100 U. S. 483; Taylor v. Morton, 2 Curt. C. C. 454.

4 Wells v. Buffalo, 14 Hun, 438; Lacey v. Waples, 28 La. An. 158; Albrecht v. S., 8 Tex. Ap. 216, [34 Am. R. 737;] Monroe v. S., 8 Tex. Ap. 343; S. v. Moore, 13 Vroom, 208; Jones v. Perry, 10 Yerg. 59, [30 Am. D. 430.]

5 Jones v. Fireman's Fund Ins. Co., 2 Daly, 307; S. v. Williams, 11 S. C. 288.

6 Const. U. S., art. 6.

7 Dodge v. Woolsey, 18 How. (U. S.) 331,347; Vanhorne v. Dorrance, 2 Dall. 304, 308; [Stockton v. R. R. Co., 32 Fed. R. 9.]

8 Id.; Calder v. Bull, 3 Dall. 386, 399; Dartmouth College v. Woodward, 4 Wheat. 518, 625; Livingston v. Moore, 7 Pet. 469; Craig v. Missouri, 4 Pet. 410, 464; Green v. Biddle, 8 Wheat. 1; [Moore v. S., 43 N. J. L. 203, 39 Am. R. 558. Ex post facto laws are held to be unconstitutional, but laws regulating rules of procedure will be upheld. Duncan v. Missouri, 152 U. S. 371; Murphy v. Com., 172 Mass. 264, 43 L. R. A. 154, 52 N. E. R. 505. Laws changing the rules of evidence and rendering that admissible which was inadmissible at the time of the arrest of the accused are not unconstitutional. Thompson v. Missouri, 171 U. S. 380. The rule that the legislature may alter rules of procedure at its

II. TREATIES.

§ 13. Complications and distinctions.- Treaties are, in some respects, as to their nature and the jurisdiction to interpret them, distinguishable from the other laws. Therefore, on the subject of their precedence, there are peculiarities and complications of doctrine, admonishing us to caution.

Nature Constitutional provisions.- By the law of nations, a treaty is a mutual pledge of faith between sovereign powers.1 Such, therefore, we must deem it to be in our governmental system; and, under the constitution of the United States, it is also law. The words are, that, among other things, "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state' shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."4 The president has the "power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur." Thereupon "the judicial power shall extend to all cases in law and equity arising under treaties made or which shall be made."6 The states are forbidden to enter into treaties. One plain deduction is, thatSuperior to state laws.-A treaty is superior both to the constitution and to the statutes of a state; and to it, in a case of conflict, they must yield. Of course, a treaty, to have this effect, must be within the treaty-making power. But

pleasure must be taken in a reasonable sense, and a statute which may alter in a substantial manner the position of the accused, even if it is possible that it might operate more beneficially than the prior law, will be held unconstitutional. Thompson v. Utah, 170 U. S. 343.]

1 Vattel, Law of Nations, b. 2, ch. 12; Story, Const., § 1818; [Ex parte Cooper, 143 U. S. 472.]

2 Ante, § 11a.

Blandford v. S., 10 Tex. Ap. 627; [Baker v. Portland, 5 Saw. 566.]

4 Const. U. S., art. 6.

5 Const. U. S., art. 2, § 2.

6 Const. U. S., art. 3, § 2.

7 Const. U. S., art. 1, § 2.

8 Ware v. Hylton, 3 Dall. 199; Baker v. Portland, 5 Saw. 566; Gordon v. Kerr, 1 Wash. C. C. 322; Fisher v. Harnden, 1 Paine, 55; Succession of Mager, 12 Rob. (La.) 584, 588; Succession of Dufour, 10 La. An. 391; Succession of Prevost, 12 La. An. 577; P. v. Gerke, 5 Cal. 381; Fellows v. Blacksmith, 19 How. (U. S.) 366; Orr v. Hodgson, 4 Wheat. 453. It is believed that the doctrine of the text is correct, both in reason and authority, beyond controversy. Still the late William Beach Lawrence said in a brochure on "Foreign Treaties of the United States in Conflict with State Laws