of this description, wherein every man, by common consent, gives up that right for the sake of justice and the general good." In the familiar instance likewise of an act of Parliament, for promoting some specific object or undertaking of public utility, as a turnpike, navigation, canal, railway, or paving act, the legislature will not scruple to interfere with private property, and will compel the owner of the land to alienate his possessions on receiving a reasonable price and compensation for so doing; but such an arbitrary exercise of power1 is indulged with caution; the true *principle [*4] applicable to all such cases being, that the private interest of the individual is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance. The courts, therefore, will not so construe an act of Parliament as to deprive persons of their estates and transfer them to other parties without compensation, in the absence of any manifest or obvious reason of policy for so doing, unless they are so fettered by the express words of the statute as to be unable to extricate themselves, for they will not suppose that the legislature had such an intention.3 And, as was observed in a recent case, where large powers are entrusted to a company to carry their works through a great extent of country without the consent of the owners and occupiers of land through which they are to pass, it is reasonable and just, that any injury to property which can be shown to arise from the prosecution of those works should be fairly compensated to the party sustaining it." In accordance with the general principle under consideration, it was held, that, where the commissioners appointed by a paving act occasioned damage to an individual, without any excess of jurisdiction on their part, neither the *commissioners nor the paviors acting under them were liable to an action, the act of Parlia [*5] 1 See per Lord Eldon, C., 1 My. & K. 162. Judgment, Tawney v. The Lynn and Ely Railway Company, 16 L. J., Chan., 282; Webb v. Manchester and Leeds Railway Company, 4 My. & Cr. 116, where the principles on which Equity will exercise its jurisdiction over companies invested with compulsory powers are considered. The proper mode of construing such acts will be explained hereafter. 1 Bla. Com. 139; 1 Steph. Com. 154. See Judgment, Simpson v. Lord Howden, 1 Keen, 598, 599; Lister v. Lobley, 7 A. & E. 124. 3 See per Lord Abinger, C. B., Stracey v. Nelson, 12 M. & W. 540, 541; per Alderson, B., Doe d. Hutchinson v. Manchester and Rosendale Railway Company, 14 M. & W. 694; Anon., Lofft, 442; R. v. Croke, Cowp. 29; Clarence Railway Company v. Great North of England Railway Company, 4 Q. B. 46. 4 Judgment, Reg. v. The Eastern Counties Railway Company, 2 Q. B. 359; Blakemore v. Glamorganshire Canal Company, 1 Mylne & K. 162. ? ment under which the commissioners acted not giving them power to award satisfaction to the individuals who happened to suffer; and it was observed, that some individuals suffer an inconvenience under all such acts of Parliament, but the interests of individuals must give way to the accommodation of the public,'-privatum incommodum publico bono pensatur.2 We shall hereafter have occasion to consider more minutely the general principles applicable to the interpretation of statutes passed with a view to the carrying out of undertakings calculated to interfere with private property. We may, however, observe, in connexion with our present subject, that the extraordinary powers with which railway and other similar companies are invested by the legislature, are given to them "in consideration of a benefit which, notwithstanding all other sacrifices, is, on the whole, hoped to be obtained by the public;" and that, since the public interest is to protect the private rights of all individuals, and to save them from liabilities beyond those which the powers given by such acts necessarily occasion, they must always be carefully looked to, and must not be extended further than the legislature has provided or than is necessarily and properly required for the purposes which it has sanctioned.3 It is, moreover, important to observe the distinction which exists between public and private Acts of Parliament, with reference to the obligations which they impose. "Where an act of Parliament, in express terms, or by necessary implication, empowers an individual or individuals to take or interfere with the property or rights of another, and, [*6] upon a sound construction of the act, it appears to the Court that such was the intention of the legislature-in such case it may well be the duty of the Court, whose province it is to declare, and not to make the law, to give effect to the decrees of the legislature so expressed. But, where an act of Parliament merely enables an individual or individuals to treat with property of his or their own, for their own benefit, and does not, in terms, or by necessary implication, empower him or them to take or interfere with the property or rights of others, questions of a very different character arise;" and here the distinction above mentioned becomes material, for public acts, it is said in the books, bind all the Queen's subjects; but of 1 Plate Glass Company v. Meredith, 4 T. R. 794. See Sutton v. Clarke, 6 Taunt. 29; Alston v. Scales, 9 Bing 3. 2 Jenk. Cent. 85. 3 Per Lord Langdale, M.R., Colman v. Eastern Counties Railway Company, 16 L. J. Chan., 78. private acts of Parliament, meaning thereby not merely private estate acts, but local and personal,' as opposed to general public acts, "it is said, that they do not bind strangers, unless by express words or necessary implication the intention of the legislature to affect the rights of strangers is apparent in the act, and whether an act is public or private, does not depend upon any technical considerations (such as having a clause or declaration, that the act shall be deemed a public act), but upon the nature and substance of the case." From the principle under consideration, and from the very nature of the social compact on which all municipal law is founded, and in consequence of which every man, when he enters into society, gives up a part of his natural liberty,3 result those laws which, in certain cases, authorize the infliction of penalties, the privation of liberty, and even the destruction of life, with a view to the future [*7] prevention of crime, and to insuring the safety and well-being of the public; penal laws, however, and such as impose capital punishment, must evidently be restrained within the narrowest limits which may be deemed by the legislature compatible with the above objects, and should be interpreted by the judges, and administered by the executive, in a mild and liberal spirit. A maxim is, indeed, laid down by Lord Bacon, which will at first sight appear inconsistent with these remarks; for he observes, that the law will dispense with what he designates as the "placita juris" "rather than crimes and wrongs should be unpunished, quia salus populi suprema lex," and “salus populi, is contained in the repressing offences by punishment," and, therefore, receditur a placitis juris potius quam injuriæ et delicta maneant impunita. This maxim must, however, at the present day, be understood to apply to those cases only in which the judges are invested with a discretionary power to permit such amendments to be made, ex. gr., in an indictment, as may prevent justice from being defeated by mere verbal inaccuracies, or by a nonobservance of certain legal technicalities; and a distinction must, therefore, still be remarked between the "placita" and the "regula" juris, inasmuch as the law will rather suffer a particular offence to escape without punishment, than permit a violation of its fixed and positive rules." 1 See Cock v. Gent, 12 M. & W. 234. 2 Per Wigram, V. C., Dawson v. Paver, 5 Hare, 434, citing Barrington's case, 8 Rep. 138 a; and Lucy v. Levington, 1 Ventr. 175. 4 Bac. Max. reg. 12. 6 Bac. Max., reg. 12. 32 Steph. Com. 486. [*8] *NECESSITAS INDUCIT PRIVILEGIUM QUOAD JURA PRIVATA. (Bac. Max., reg. 5.) With respect to private rights, necessity privileges a person acting under its influence. As a general rule, the law charges no man with default where the act done is compulsory, and not voluntary, and where there is not a consent and election on his part; and, therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as in presumption of law man's nature cannot overcome, such necessity carries a privilege in itself.1 Necessity, as contemplated in the above rule, may be considered. under three different heads:-1. Necessity of self-preservation; 2. Of obedience; 3. Necessity resulting from the act of God or of a stranger.2 1. Where two persons, being shipwrecked, have got on the same plank, but, finding it not able to save them both, one of them thrusts the other from it, and he is drowned; this homicide is excusable through unavoidable necessity, and upon the great universal principle of self-preservation, which prompts every man to save his own life in preference to that of another, where one of them must inevitably perish.3 So, if a ferry-man overload his boat with merchandise, a passenger may, in case of necessity, throw overboard the goods to save his own life, and the lives of his fellow-passengers.* For the same reason, where one man attacks another, and the latter, without fighting, flies, and, after retreating as far as he safely can, until no means remain to him of escaping his assailant, then turns round and kills his assailant, this homicide is excusable, as being committed in self-defence; the distinction between this kind of homicide and manslaughter being, that here the slayer could not otherwise escape although he would,-in manslaughter he would not escape if he could. The same rule extends to the principal civil and natural relations of life; therefore, master and servant, parent and child, husband and wife, killing an assailant in the necessary defence of each other respectively, are excused, the [*9] I Bac. Max., reg. 5, cited argument, 1 T. R. 32; Jenk. Cent. 280. 2 Bac. Max., reg. 5; Noy, Max., 9th ed. p. 32. 3 Bac. Max., reg. 5; 4 Bla. Com. 186; 1 Russ. on Crimes, 3d ed. 664. 4 Mouse's Case, 12 Rep. 63. 5 Arch. Cr. Pl., 8th ed. 412; 1 Russ. on Crimes, 3d ed. 661. act of the relation assisting being construed the same as the act of the party himself.1 It should, however, be observed, that, as the excuse of self-defence is founded on necessity, it can in no case extend beyond the actual continuance of that necessity by which alone it is warranted; for, if a person assaulted does not fall upon the aggressor till the affray is over, or when the latter is running away, this is revenge, and not defence. There is also another instance of necessity, which may be mentioned,-where a man, being in extreme want of food or clothing, steals either in order to relieve his present necessities. In this case the law of England admits no such excuse as that above considered; but the Crown has a power to soften the law, and to extend mercy in a case of peculiar hardship.3 2. Obedience to existing laws is a sufficient extenuation of guilt before a civil tribunal. As, where the proper *officer exe[*10] cutes a criminal in strict conformity with his sentence, or where an officer of justice, or other person acting in his aid, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it." And where a known felony is attempted upon any one, not only the party assaulted may repel force by force, but his servant attending him, or any other person present, may interpose to prevent the mischief, and, if death ensue, the party so interposing will be justified." So, in executing process, a sheriff, it has been observed, acts as a ministerial officer in pursuance of the command he receives in the king's name from a court of justice, and which command he is bound to obey. He is not a volunteer, acting from his own free will or for his own benefit, but imperatively commanded to execute the king's writ. He is the servant of the law, and the agent of an overruling necessity; and if the service of the law be a reasonable service, he is (in accordance with the above maxim) justly entitled to expect indemnity," so long as he acts with diligence, caution, and pure good faith; and it should be 11 Russ. on Crimes, 3d ed. 662. 34 Bla. Com. 31; 1 Hale, P. C. 54. 4 Ejus vero nulla culpa est cui parere necesse sit, D. 50, 17, 169. 54 Bla. Com. 28. 2 Id. 665. 61 Russ. on Crimes, 3d ed. 670. 7 Hence, the proceeding by Interpleader, as to which see per Maule, J., Hollier v. Laurie, 3 C. B. 341, 2; and in Williams v. Crossling, 16 L. J., C. P., 112; Judgment, King v. Simmonds, 7 Q. B. 310; King v. Birch, Id. 696; Abbott v. Richards, 15 M. & W. 194; Slaney v. Sidney, 14 M. & W. 800. |