I

3. PENAL ftatutes must be conftrued ftrictly. Thus the ftatute Edw. VI. c. 12, having enacted that those who are convicted of stealing horfes fhould not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horfe (18), and therefore procured a new act for that purpofe in the following year h. And, to come nearer our own times, by the ftatute 14 Geo. II. c. 6. ftealing fheep, or other cattle, was made felony without benefit of clergy. But these general words, " or other cattle," being looked upon as much too loofe to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next feffions, it was found neceffary to make another statute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, fteers, bullocks, heifers, calves, and lambs by name.

4. STATUTES against frauds (19) are to be liberally and beneficially expounded. This may feem a contradiction to the laft rule;

h 2 & 3 Edw. VI. c. 33. Bac. Elem. c. 12.

(18) Lord Hale thinks, that the fcruple of the judges did not merely depend upon the words being in the plural number, because no doubt had ever occurred respecting former statutes in the plural number; as, for inftance, it was enacted by the 32 Hen. VIII. c. 1. that no perfon convicted of burning any dwelling houfes fhould be admitted to clergy. But the reafon of the difficulty in this cafe was, because the ftatute of 37 Hen. VIII. c. 8. was exprefsly penned in the fingular number; If any man do fteal any horfe mare, or filly; and then this ftatute thus varying the number, and at the fame time exprefsly repealing all other exclufions of clergy introduced fince the beginning of Hen. VIII, it raised a doubt, whether it were not intended by the legislature to restore clergy where only one horse was stolen. 2 H. P. C. 365.

(19) Thefe are generally called remedial ftatutes. And it is a fundamental rule of construction, that penal ftatutes fhall be conftrued ftrictly, and remedial ftatutes fhall be conftrued liberally. It was one of the laws of the twelve tables of Rome, that whenever there was a queftion between liberty and flavery, the prefumption

H4

INTROD. rule; most statutes against frauds being in their confequences penal. But this difference is here to be taken: where the ' ftatute acts upon the offender, and inflicts a penalty, 'as the pillory or a fine, it is then to be taken ftrictly: but when the ftatute acts upon the offence, by fetting afide the fraudulent tranfaction (20), here it is to be conftrued liberally. Upon

prefumption should be on the fide of liberty. This excellent principle our law has adopted in the conftruction of penal statutes : for whenever any ambiguity arifes in a ftatute introducing a new penalty or punishment, the decifion fhall be on the fide of lenity and mercy; or in favour of natural right and liberty: or, in other words, the decifion fhall be according to the ftrict letter in favour of the fubject. And though the judges in fuch cafes may frequently raife and folve difficulties contrary to the intention of the legiflature, yet no further inconvenience can refult, than that the law remains as it was before the ftatute. And it is more confo. nant to principles of liberty, that the judge fhould acquit whom the legiflator intended to punith, than that he should punith whom the legiflator intended to difcharge with impunity. But remedial ftatutes must be conftrued according to the fpirit; for in giving relief against fraud, or in the furtherance and extension of natural right and juftice, the judge may fafely go beyond even that which exifted in the minds of those who framed the law.

(20) And therefore it has been held, that the fame words in a ftatute will bear different interpretations according to the nature of the fuit or profecution inftituted upon them. As by the 9 Ann. c. 14. the flatute againft gaming; if any perfon fhall lofe at any time or fitting 107. and fhall pay it to the winner, he may recover it back within three months; and if the lofer does not within that time, any other perfon may fue for it, and treble the value befides. So where an action was brought to recover back fourteen guineas, which had been won and paid after a continuance at play, except an interruption during dinner, the court held the ftatute was remedial, as far as it prevented the effects of gaming, without infiicing a penalty, and therefore in this action, they confidered it one time or fitting; but, they faid, if an action had been brought by a common informer for the penalty, they would have conftrued it ftrictly in favour of the defendant, and would have held, that the money had been loft at two fittings. 2 Bl. Rep. 1226.

this footing the ftatute of 13 Eliz. c. 5. which avoids all gifts

of goods, &c. made to defraud creditors and others, was held to extend by the general words to a gift made to defraud [89] the queen of a forfeiture 1.

5. ONE part of a statute must be so conftrued by another, that the whole may (if poffible) ftand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, faving the right of A; and A has at that time a lease of it for three years: here A fhall hold it for his term of three years, and afterwards it fhall go to the king. For this interpretation furnishes matter for every claufe of the ftatute to work and operate upon. But,

6. A SAVING, totally repugnant to the body of the act, is void. If therefore an act of parliament vests land in the king and his heirs, faving the right of all perfons whatsoever; or vests the land of A in the king, faving the right of A: in either of these cafes the faving is totally repugnant to the body of the ftatute, and (if good) would render the statute of no effect or operation; and therefore the faving is void, and the land vefts abfolutely in the king *.

7. WHERE the common law and a ftatute differ, the common law gives place to the ftatute; and an old statute gives place to a new one. And this upon a general principle of univerfal law, that "leges pofteriores priores contra"rias abrogant :" confonant to which it was laid down by a law of the twelve tables at Rome, that "quod populus poftre"mum juffit, id jus ratum efto." But this is to be underftood, only when the latter ftatute is couched in negative terms, or where it's matter is fo clearly repugnant, that it neceflarily implies a negative. As if a former act fays, that a juror upon fuch a trial fhall have twenty pounds a year; and a new ftatute afterwards enacts, that he fhall have twenty marks: here the latter ftatute, though it does not exprefs, yet neceffarily implies a negative, and virtually repeals the former.

13 Rep. 82.

ki Rep. 47.

For

INTROD. For if twenty marks be made qualification fufficient, the former ftatute which requires twenty pounds is at an end'. [90] But if both acts be merely affirmative, and the fubftance fuch that both may ftand together, here the latter does not repeal the former, but they fhall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter-feflions, and a latter law makes the fame offence indictable at the affifes; here the jurifdiction of the feffions is not taken away, but both have a concurrent jurisdiction, and the offender may be profecuted at either: unless the new ftatute fubjoins exprefs negative words, as, that the offence fhall be indictable at the affises, and not elferwhere m.

8. IF a ftatute, that repeals another, is itself repealed afterwards, the first ftatute is hereby revived, without any formal words for that purpose. So when the ftatutes of 26 and 35 Hen. VIII, declaring the king to be the fupreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter ftatute was afterwards repealed by an act of 1 Eliz. there needed not any exprefs words of revival in queen Elizabeth's ftatute, but these acts of king Henry were impliedly and virtually revived ".

9. Acts of parliament derogatory from the power of fubfequent parliaments bind not. So the ftatute 11 Hen. VII. c. 1. which directs that no perfon for affifting a king de facto fhall be attainted of treafon by act of parliament or otherwife, is held to be good only as to common profecutions for high treafon; but will not reftrain or clog any parliamentary attainder. Because the legiflature, being in truth the fovereign power, is always of equal, always of abfolute authority it acknowleges no fuperior upon earth, which the prior legiflature muft have been, if it's ordinances could. bind a subsequent parliament. And upon the fame principle Cicero, in his letters to Atticus, treats with a proper con

tempt these restraining clauses, which endeavour to tie up the hands of fucceeding legiflatures. "When you repeal the "law itself, fays he, you at the fame time repeal the prohi- [ 91 ] "bitory claufe, which guards against such repeal "."

10. LASTLY, acts of parliament that are impoffible to be performed are of no validity: and if there arise out of them collaterally any abfurd confequences, manifeftly contradictory to common reafon, they are, with regard to thofe collateral confequences, void (21). I lay down the rule with these reftrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will pofitively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the conftitution, that is vested with authority to control it: and the examples usually alleged in fupport of this sense of the rule do none of them prove, that, where the main object of a statute is unreafonable, the judges are at liberty to reject it; for that were to fet the judicial power above that of the legiflature, which would be fubverfive of all government. But where fome collateral matter arifes out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this confequence was not forefeen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all caufes, that arife within his manor of Dale; yet, if a caufe fhould arife in which he himself is party, the act is P Cumiex abrogatur, illud ipfum abrogatur, quo non eam abrogari oporteat, l. 3. ep. 23.

(21) If an act of parliament is clearly and unequivocally expreffed, with all deference to the learned Commentator, I conceive it is neither void in it's direct nor collateral confequences, however abfurd and unreasonable they may appear. If the expreffion will admit of doubt, it will not then be prefumed that that construction can be agreeable to the intention of the legislature, the confequences of which are unreafonable; but where the fignification of a ftatute is manifeft, no authority lefs than that of parliament can reftrain it's operation.

conftrued