but the leases, during their continuance, being not within the mischief, are not within the remedy.

2. A STATUTE, which treats of things or perfons of an inferior rank, cannot by any general words be extended to thofe of a fuperior. So a ftatute, treating of "deans, pre"bendaries, parfons, vicars, and others having fpiritual pro"motion," is held not to extend to bifhops, though they have fpiritual promotion; deans being the highest perfons named, and bishops being of a ftill higher orders.

I

3. PENAL ftatutes must be conftrued ftrictly. Thus the ftatute i Edw. VI. c. 12. having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horfe, and therefore procured a new act for that purpofe in the following year". And, to come nearer our own times, by the ftatute 14 Geo. II. c. 6. stealing fheep, or other cattle, was made felony without benefit of clergy. But thefe 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 fheep. And therefore, in the next feflions, it was found necessary 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 are to be liberally and beneficially expounded. This may feem a contradiction to the laft rule; moft ftatutes 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 strictly: but when the ftatute acts upon the offence, by fetting afide the fraudulent tranfaction, here it is to be conftrued liberally. Upon this footing the ftatute of 13 Eliz. c. 5. which avoids all gifts of goods &c. made to defraud creditors and others, was

g 2 Rep. 46.

h2 & 3 Edw. VI. c. 33. Bac. Elem. c. 12.

held to extend by the general words to a gift made to defraud the queen of a forfeiture i

5. ONE part of a statute must be so conftrued by another, that the whole may (if possible) fland: 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 shall hold it for his term of three years, and afterwards it fhall go to the king. For this interpretation furnishes matter for every clause 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 vefts 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 vests abfolutely in the king *.

7. WHERE the common law and a statute differ, the common law gives place to the ftatute; and an old ftatute 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 neceffarily 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 express, yet neceffarily implies a negative, and virtually repeals the former. For if twenty marks be made qualification fufficient, the former statute which requires twenty pounds is at an end'.

i3 Rep. 82. * I Rep. 47.

1 Jenk. Cent, 2. 73.

But

But if both ads be merely affirmative, and the substance fuch that both may stand 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-feffions, and a latter law makes the fame offence indictable at the aflites; 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 shall be indictable at the affifes, and not elsewhere.

8. IF a ftatute, that repeals another, is itself repealed afterwards, the firft 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 express 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 subfequent parliaments bind not. So the ftatute 11 Hen. VII. c. 1. which directs, that no person for affifting a king de facto fhall be attainted of treason 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 legislature, being in truth the fovereign power, is always of equal, always of abfolute authority: it acknowledges no fuperior upon earth, which the prior legislature must have been, if it's ordinances could bind a fubfequent parliament. And upon the fame principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining claufes, which endeavour to tie up the hands of fucceeding legislatures. "When you repeal the

11 Rep. 63. 4 Inft. 325

• 4 Inft. 43.

law

"law itself, fays he, you at the fame time repeal the prohi"bitory clause, which guards against such repeal P."

10, LASTLY, acts of parliament that are impoffible to be performed are of no validity: and if there arife out of them collaterally any abfurd consequences, manifeftly contradictory to common reason, they are, with regard to thofe collateral confequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reafon 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 constitution, that is vefted with authority to control it: and the examples ufually alleged in fupport 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 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 difregard 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 cause should arise in which he himself is party, the act is conftrued not to extend to that, because it is unreasonable that any man should determine his own quarrel 9. But, if we could conceive it poffible for the parliament to enact, that he should try as well his own caufes as those of other perfons, there is no court that has power to defeat the intent of the legiflature, when couched in fuch evident and express words, as leave no doubt whether it was the intent of the legislature or no.

THESE are the feveral grounds of the laws of England: over and above which, equity is also frequently called in to

P Cum lex abrogatur, illud ipfum abrogatar, quo non cam abrogari oporteat. 1. 3. ep. 23.

98 Rep. 118.

affift,

affift, to moderate, and to explain them. What equity is, and how impoffible in it's very effence to be reduced to stated rules, hath been fhewn in the preceding fection. I shall therefore only add, that (besides the liberality of sentiment with which our common law judges interpret acts of parliament, and fuch rules of the unwritten law as are not of a pofitive kind) there are alfo peculiar courts of equity established for the benefit of the subject; to detect latent frauds and concealments, which the procefs of the courts of law is not adapted to reach; to enforce the execution of fuch matters of truft and confidence, as are binding in confcience, though not cognizable in a court of law; to deliver from fuch dangers as are owing to misfortune or overfight; and to give a more specific relief, and more adapted to the circumstances of the cafe, than can always be obtained by the generality of the rules of the pofitive or common law. This is the business of our courts of equity, which however are only converfant in matters of property. For the freedom of our conftitution will not permit, that in criminal cafes a power fhould be lodged in any judge, to conftrue the law otherwife than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot fuffer more punishment than the law affigns, but he may fuffer lefs. The laws cannot be ftrained by partiality to inflict a penalty beyond what the letter will warrant; but, in cafes where the letter induces any apparent hardship, the crown has the power to pardon.