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new act for that purpose in the following yearh. And, to come nearer our own times, by the statute 14 Geo. II. c. 6. stealing sheep, or other cattle, was made felony without benefit of clergy. But these general words, “or other cattle,” being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found necessary to make another statute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs by name.

4. STATUTES against frauds (19) are to be liberally and beneficially expounded. This may seem a contradiction to

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

clergy where only one horse was stolen. 2 H. P. C. 365. And it has since been decided, that where statutes use the plural number, a single instance in such cases will be comprehended ; as the statute 2 Geo. II. c. 25. s. 9. enacts, that it shall be felony to steal any bank notes, and it has been adjudged to be felony to steal one bank note. Leach 1. Nassel's Case.

(19) These are generally called remedial statutes. And it is a fundamental rule of construction, that penal statutes shall be construed strictly, and remedial statutes shall be construed liber. ally. It was one of the laws of the twelve tables of Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent prin. ciple our law has adopted in the construction of penal statutes : for whenever any ambiguity arises in a statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy; or in favour of natural right and liberty: or, in other words, the decision shall be according to the strict letter in favour of the subject. And though the judges in such cases may fre.. quently raise and solve difficulties contrary to the intention of the legislature, yet no further inconvenience can result, than that the law remains as it was before the statute. And it is more consonant to principles of liberty, that the judge should acquit whom the legislator intended to punish, than that he should punish whom the legislator intended to discharge with impunity. But remedial

the last rule ; most statutes against frauds being in their consequences penal. But this difference is here to be taken : where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly : but when the statute acts upon the offence, by setting aside the fraudulent transaction (20), here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5. which avoids all gifts of goods, &c. made to defraud creditors and others, was held to extend by the gene- [89] ral words to a gift made to defraud the queen of a forfeiturei.

5. One part of a statute must be so construed by another, that the whole may (if possible) stand : ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, saving the right of A; and A has at that time a lease of it for three years : here A shall hold it for his term of three years, and afterwards it shall go to the

i 3 Rep. 82.

statutes must be construed according to the spirit: for in giving relief against fraud, or in the furtherance and extension of natural right and justice, the judge may safely go even beyond that which existed in the minds of those who framed the law.

(20) And therefore it has been held, that the same words in a statute will bear different interpretations according to the nature of the suit or prosecution instituted upon them. As by the 9 Ann. c. 14. the statute against gaming ; if any person shall lose at any time or sitting 101. and shall pay it to the winner, he may recover it back within three months; and if the loser does not within that time, any other person may sue for it, and treble the value besides. So where an action was brought to recover back fourteen guineas, which had been won and paid after acontinuance at play, except an interruption during dinner, the court held the statute was remedial, as far as it prevented the effects of gaming, without inflicting a penalty, and therefore, in this action, they considered it one time or sitting; but they said, if an action had been brought by a common informer for the penalty, they would have construed it strictly in favour of the defendant, and would have held, that the money had been lost at two sittings. ? Bl. Rep. 1226.

king. For this interpretation furnishes matter for every clause of the statute 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, saving the right of all persons whatsoever ; or vests the land of A in the king, saving the right of A: in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation ; and therefore the saving is void, and the land vests absolutely in the kingk...

7. WHERE the common law and a statute differ, the common law gives place to the statute, and an old statute gives place to a new one. And this upon a general principle of universal law, that “leges posteriores priores contrarias abrogant:" consonant to which it was laid down by a law of the twelve tables at Rome, that “ quod populus postremum jussit, id jus ratum esto.But this is to be understood, only when the latter statute is couched in negative terms, or where its matter 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 twenty pounds a year; and a new statute afterwards enacts, that he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the for

mer statute which requires twenty pounds is at an [90] end". But if both acts be merely affirmative, and the

substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indict. able at the quarter-sessions, and a latter law makes the same offence indictable at the assizes; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either :

k 1 Rep. 47.

1 Jenk., Gent. 2. 73.

unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assizes, and not elsewherem

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

9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs that no person for assisting a king de facto, shall be attainted of "treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason ; but will not restrain or clog any parliamentary attaindero. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of succeeding legislatures. “When you repeal “ the law itself, says he, you at the same time repeal [91] “ the prohibitory clause, which guards against such 16 repeal p."

10. Lastly, acts of parliament that are impossible to be performed are of no validity: and if there arise out of them collaterally any absurd consequences, manifestly contradic. tory to common reason, they are, with regard to those collateral consequences, void (21). I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, that is vested with authority to control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable ; there the judges are in decency to conclude that this consequence was not foreseen 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 causes, that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel. But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no.

m 11 Rep. 63. n 4 Inst. 325. o 4 Inst. 43.

VOL. 1.

p Cum lex abrogatur, illud ipsum abro. gatur, quo non eam abrogari oporteat. 1. 3. ep. 23.

q8 Rep. 118.

(21) If an act of parliament is clearly and unequivocally expressed, with all deference to the learned Commentator, I conceive it is neither void in its direct nor collateral consequences, however absurd and unreasonable they may appear. If the expression will admit of doubt, it will not then be presumed that that construction can be agreeable to the intention of the legislature, the consequences of which are unreasonable; but where the signification of a statute is manifest, no authority less than that of parliament can restrain its operation.

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