DESUETUDE, a technical term in the law of Scotland, signifying that repeal or revocation of a legal which is effected, not by a subsequent enactment in a contrary sense, but by the establishment of a contrary use, sanctioned by the lapse of time and the consent of the community. The corresponding term in Eng lish law is nonuser; but neither the word nor the idea attached to it is familiar to that system. The rule in England is, that a statute once formally enacted by the legislature, remains in force, however unsuited it may be to the altered conditions of society, till it be repealed by another statute. The repeal may be by implication, but here the law watches with a jealous eye. Such repeal "is to be understood," says Blackstone, " only when the matter of the later statute is so clearly repugnant that it necessarily implies a negative. As, if a former act says that a juror upon such a trial shall have an estate of 20 pounds a year; and a new statute afterwards that he shall have 20 marks—here the latter statute virtually repeals the former." So far was this principle carried, that it was formerly the rule, that if a statute repealing another was itself repealed afterwards, the first statute was revived without any formal words for that purpose. But this rule has been changed by 13 and 14 Viet. c. 21, s. 5 and 6, which enact that where any act repealing, in whole or in part, any former act, is itself repealed, such last repeal shall not revive the act or provisions before repealed, unless words be added for that purpose: and that where any act shall be made, in whole or in part any former act, and substituting provisions instead of those repealed, such repealed provisions shall remain in force till those substituted shall come into operation by force of the last made act. In Scotland, an opposite principle prevailed, and it is still held that acts of parliament made before the union may lose their force by disuse, without any express repeal, or "go into desuetude," as it is commonly said. But by D. is meant
something more than mere non-use for a period of time, however great. There must be contrary use of a positive kind, inconsistent with the statute, and of such a kind as to prove the altered sense of the community; there must, in short, be consuetudinary law in a negative sense; and the so-called D. thus amounts to a repeal of statute law by con suetudinary law. Both rules are liable to objections. The result of that followed in England has been, that statutes have remained on the statute-book without formal repeal, after their enforcement had become morally impossible. Of this it may be men tioned, as one single example, that the judicial combat was formally demanded in virtue of an unrepealed statute, and had in point of form to be conceded in the present century. See DUEL. But, since 1869, the English statutes have been weeded of all obsolete and inconsistent enactments, and a new edition has been published by authority. containing only such parts as are in force. The rule in Scotland is entirely the same as the English as to all statutes made since the union; but as regards the older Scotch statutes, the difficulty still exists in dealing with enactments more or less forgotten or violated, and in determining what constitutes such contrary use as to support the plea of desuetude. The best arrangement is now adopted, whilst retaining the Scottish rule as correct in principle, to endeavor, by purging the statute-book of all obsolete enactments, to render its practical application as limited as possible.