Year: 1868

courts were to be dispensed with, and not
sooner. The abrogation of them, and the
| institution of the new mode of commit
ment, are contemporaneous in enactment
and inseparable parts Of the new law.
Whenever this law was to take effect as
to the commitment, it also took effect as to
the examining courts; and so long az this
| law could not affect or alter the commit
ment for examination, its legal concomitant
or incident-the examing court-was unre-
pealed. Upon what commitment, then, was
this act of April 27, 1867, designed to ope-
rate There seems to me but one reasona-
| BILE answer: upon commitments occurring
on or after the lSt dayof July, 1867. Any
other answer would seem to involve the
absurdity of conforming by way of antici-
patton to law not in operation. And if it
does not apply to an anterior commitment
for examination it would be incongruous
and inconsistent to attribute to it n retro
active repeal of the legal consequence of
such commitment in the appointment of the
examining court.'' Il" In this view Of the act


we are justified in restricting its operation
TO cases of commitment after its COM
mencement, and excluding therefrom pre-
existing cases of commitment for examina-
ton"


The Legislature must have anticipated
the effect of the new law upon pending
prosecutions. They had before their eyes
in the Code the general chapter of Repeal,
CCXVI., page SCI, whereby such repeal


was not allowed "to affect any prosecution,
suit, or proceeding, pending on the day OF
its commencement, except that the proceed
ines thereafter shall conform, as far as prac-
ticable, to the provisions Of this act.' They
made no provision against the contlngen-
cies happening in this case, because there
was embodied in the Code canon of sta
tutory construction which directly applied
to this case and was designed to remove
all such difficulties. Chapter l6, section Is,
provides that " no new law shall be con-
| strued to repeal a former law as to any
| right accrued or claim arising under the
| former law, or in any manner whatever to
affect any right accrued Or claim arising
| before the new law takes effect save only
! that the proceedings thereafter had shall
conform, so far as practicable, to the laws IN
force at the time Of such proceeding" &c.
| This language is too broad and comprehen-
| size to be confined to cases of repeal by i'm
| plication or constructive repeal. Its mean
ing is that the rights which we're inherent
in the proceedings should be preserved at
all hazards, and that the proceedings should
only conform to the new law when such
change would not affect or impair these
rights.


The history of this provision shows that
it was designed to meet the contingencies
consequent upon change Of proceedings
| whether criminal or civil, so as to furnish
y rule by which prosecutions or suits might
| proceed under former law though repeat
ed, with the special saving therein stated
| The constitutional inhibition as to err posi-
,facto laws applies to crimes and punish
ments, not to proceedings in court. AT the
time Of Phillips's arrest the justice was
| bound to act under the old law. 1t was his
duty to proceed as soon as he could with
| the examination of witnesses, &c. That
law also required the justice to commit
| Phillips for examination aud not for trial.


The act Of the justice, then, in sending
| The prisoner to an examining court was
plainly regular and uuexceptionable. But
it seems this court convened on the I'd OF
July, 1867, after the repeal Of the chapter
authorizing such court or such trial


How, then, was the prisoner affected by
this state Of things? While | do not pre-
tend that it was incumbent upon him to as
sumo any, the slightest, responsibility In
giving direction 10 his trial, l do hold that
this examination was an advantage or prl-
vilege to him which in certain event he
was allowed to waive. 1t was q substantial
one."


The question whether the abrogation of
examining courts should be allowed to af-
feet the rights or claims of the accused to
such trial, arising from his commitment
for examination under the former repealed
| law, is then discussed. 1t has already been
shown that these ri0hts or claims might at
tach to criminal as we'll as civil proceed
ings. If so, they were preserved from the
operation Of the repeating law. The only
difficulty is whether the claim Of the ac-
cused to the preliminary examination is
such Q right as was meant to be preserved
| to him by this rule Of statutory construc-
| ton. The court is o. the opinion that
it is. IT. then, the prisoner had insist
ed on the I'd of July to his claim to this
trial by virtue of the former law, could it
have been legally or rightfully refused TO
him? If the Commonwealth had chosen to
disband the examining court because an
nulled by the act Of April, 1867, would it
not have violated this principle of con-
struction and injuriously affected the claims
of the prisoner? 1t was for the Common
wealth, without any appeal to the prisoner
or any presumption from his silence, to
take her own course with the trial. She
mas done so she has accorded to him the
privilege Of this trial; and has thus re-
solved whatever doubt rested upon the
case in the prisoners favor, as she was
bound TO do. The case would have been
different if the accused had chosen to
deny the authority Of this examination,
and asked to be committed for trial IN the
county court and in such event doubtless
the same consideration would have dictated
| compliance with his request, and displayed
the propriety of conforming the proceedings
to the new law. But no such step was
taken by him, and the Commonwealth was
left free to resolve whatever doubt might
be alleged to exist in the matter in favor
Of the prisoner, as she did. Hence 1t
must be admitted he has no cause of COM
plant under the circumstances. The re-
suit is that ne was legally remanded to the
circuit court for trial.


But when he got there, did the require
ment of conforming to the laws then in
force demand his remitment to the county
court? It is not said that his silence or
acquiescence in the examining court
estopped him from thereafter objecting to
its jurisdiction or the legality of his re-
manding. But in pronouncing upon the
rightfulness OF his arraignment In the cir
cult court Judge Riyes insists that it is
material to consider that he raised no ques-