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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 But some of the greatest difficulties occur where enactment has been piled on enactment, nothing is in terms repealed, but this year a statute is added to what was written last year, and so from year to year, and, while plainly the later law repeals by construction the earlier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.
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,1 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, "laws."
Constitution.- A written constitution of the state or United States is a "law." 2 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.
2 R. 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
§ 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 3 shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." 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, that— Superior 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.
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. Hodg
son, 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
§ 13a. By whom expounded and enforced (Distinguished from statute).- A treaty differs greatly in some respects from a statute. If parties, under the latter, acquire rights, they go to the courts to obtain them, and from their determination thereon there is no appeal to any other department of the government. Hence the courts are necessarily the exclusive ex
relative to the Transmission of Real Estate to Aliens," published in 1871: "Whether the treaty-making power of the general government is competent to enter into stipulation with foreign powers, affecting the transmission of real estate and other matters generally considered to be of state cognizance, has been made a question in the supreme court of the United States. Though that tribunal had previously recognized as the supreme law of the land the treaty of 1794 with England, by which, according to Attorney-General Cushing, 'all impediment of alienage was absolutely leveled to the ground despite the states' (Fairfax v. Hunter, 7 Cranch, 603), yet in the case of Frederickson v. S., 23 How. (U. S.) 445, it abstained, even though the question before it referred merely to personal property, from expressing an opinion as to the competency of the government of the United States to regulate, by treaty, testamentary dispositions or laws of inheritance within the states." Pages 45-47. Now, the constitution of the United States declares treaties to be supreme over state laws and constitutions in just the same words as it declares itself to be. How, then, can there be doubt? And, in point of authority, in the last case before me on the subject, the supreme court of the United States held that our treaty with the Swiss Confederation superseded the Virginia state laws of inheritance. Said Swayne, J., in delivering the opinion: "In Chirac v. Chirac, 2 Wheat. 259, it was held by this court that a treaty
with France gave to her citizens the right to purchase and hold land in the United States, removed the incapacity of alienage, and placed them in precisely the same situation as if they had been citizens of this country. The state law was hardly adverted to, and seems not to have been considered a factor of any importance in this view of the case. The same doctrine was reaffirmed touching this treaty in Carneal v. Banks, 10 Wheat. 181, and with respect to the British treaty of 1794, in Hughes v. Edwards, 9 Wheat. 489. A treaty stipulation may be effectual to protect the land of an alien from forfeiture by escheat under the laws of a state. Orr v. Hodgson, 4 Wheat. 453. By the British treaty of 1794,
all impediment of alienage was absolutely leveled with the ground, despite the laws of the states. It is the direct constitutional question in its fullest conditions. Yet the supreme court held that the stipulation was within the constitutional powers of the Union. Fairfax v. Hunter, 7 Cranch, 608, 627. See Ware v. Hylton, 3 Dall. 199, 242;' 8 Opin. Att. Gen. 417. Mr. Calhoun, after laying down certain exceptions and qualifications which do not affect this case, says:
Within these limits all questions which may arise between us and other powers, be the subject-matter what it may, fall within the treatymaking power and may be adjusted by it.' Treat. on the Const. and Gov. of the U. S. 204." Hauenstein u Lynham, 100 U. S. 483, 489, 490.