[59a] It may be worth while to observe here also how entirely this principle is acknowledged in the foundations of English law. I should indeed soon get beyond my depth, were I to attempt an analysis of this part of the subject; but I gladly avail myself of the labours of another whose pen and legal knowledge the present crisis has put in motion, to bring into juxtaposition with my own observations, one or two of the acknowledged maxims by which the construction of legal documents among us is governed. Mr. Chambers, [59b] in his recent letter to the Bishop of Salisbury, has several times referred to this subject. Thus he quotes Mr. Dwarris (himself quoting Lord Coke):—
“To know what the common law was before the making of a statute, whereby it may be seen whether the statute be introductory of a new law, or only affirmatory of the common law, is the very lock and key to open the windows of the statute. For it is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required; the law rather infers that the act did not intend to make any alteration other than what is specified, and beside what has been plainly pronounced: for if the Parliament had had that design, it is naturally said they would have expressed it.” [60a]
It appears to me that in some sense, i.e. in reference, at any rate, to posterior legislation, the pre-reformation doctrines may be called the common law of our Church; and if so, we shall readily see the analogy of the civil law, and the authoritative declaration of its rule of construction of statutes, is, that no alteration is made by subsequent enactments, but what is specified, or beside what is plainly pronounced;—that is to say, what is not “openly, plainly, and dogmatically” altered, remains as it was before. To the same purpose exactly Mr. Chambers adds another passage, stating again “the canon of construction appropriate to statutes,” and again quoting Mr. Dwarris:—
“Affirmative words do not take away the common law, former custom, or a former statute.” [60b]
And again, a little further on, citing further authorities:—
“When particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind only which precede,” [61a] so that “if a particular thing be given or limited in the preceding parts of a statute this shall not be altered by the subsequent general words of the same statute;” [61b] an observation surely of much weight to show how definitely any part of a statute must be examined, and how directly mentioned in order to its repeal, according to the usage of English law. Once more, to quote but one further passage to the same effect:—
“Unless the intention be apparent for that purpose, the general words of another and later statute shall not repeal the provisions of a former one.” [61c]
Such is the testimony from rules of English law to the principles I desire to maintain, that the pre-reformation dogmatic teaching remains to us, except where it has been “openly, plainly, and dogmatically” repealed.
I need hardly say, these extracts very inadequately represent the force of Mr. Chambers’s argument. A reference to the pamphlet itself will well repay the trouble.
[59b] A Review of the Gorham Case, by John David Chambers, M.A. Recorder of New Sarum.