from the mistakes and unadvised determinations of unlearned (or even learned) Judges, or from any other cause whatsoever. And this being done, either by enlarging the common law where it was too narrow and circumscribed, or by restraining it *where it was too lax and luxuriant, hath occasioned [*87] another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason: clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law; therefore it was thought expedient, by statute 5 Eliz. c. 11, to make it high treason, which it was not at the common law: so that this was an enlarging statute.(15) At common law also spiritual corporations might lease out their estates for any term of years till prevented by the statute 13 Eliz. before mentioned: this was therefore, a restraining statute.

Secondly, the rules to be observed with regard to the construction of statutes are principally these which follow.

1. There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy.(e) Let us instance again in the same restraining statute of 13 Eliz. c. 10: By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors; the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives, or twenty-one years. Now in the construction of this statute, it is held that leases, though for a longer term, if made by a bishop, are not void during the bishop's continuance in his see: or, if made by a dean and chapter, they are not void during the continuance of the dean; for the act was made for the benefit and protection of the successor.(f) The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the grantors; but the [*88] leases, during their continuance, being not within the mischief, are not within the remedy.

2. A statute, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior. So a statute, treating of "deans, prebendaries, parsons, vicars, and others having spiritual promotion," is held not to extend to bishops, though they have spiritual promotion, deans being the highest persons named, (16) and bishops being of a still higher order.(g) 3. Penal statutes must be construed strictly.(17) Thus the statute 1 Edw. VI, c. 12, having enacted that those who are convicted of stealing horses should (f) Co. Litt. 45. 3 Rep. 60. 10 Rep 58.

(e) 3 Rep. 7 Co. Litt. 11. 42.

(g) 2 Rep. 46.

(15) [This statute against clipping the coin hardly corresponds with the general notion either of a remedial or an enlarging statute. In ordinary legal language remedial statutes are contradistinguished to penal statutes. An enlarging or an enabling statute is one which increases, not restrains, the power of action, as the 32 Hen. VIII, c. 28, which gave bishops and all other sole ecclesiastical corporations, except parsons and vicars, a power of making leases, which they did not possess before, is always called an enabling statute. The 13 Eliz. c. 10, which afterwards limited that power, is, on the contrary, styled a restraining or disabling statute. See this fully explained by the learned commentator, 2 Book, p. 319.]

This statute is since repealed.

(16) See to the same point, Hall v. Byrne, 1 Scam. 140; Lyndon v. Standbridge, 2 H. and N. 51. (17) See United States v. Wiltberger, 5 Wheat. 76; Melody v. Reab, 4 Mass. 473; Jones v. Estis, 2 Johns. 379; Sprague v. Birdsall, 2 Cow. 419; Myers v. Foster, 6 Cow. 567; Pike v. Jenkins, 12 N. H. 255; Daggett v. State, 4 Conn. 61; Hall v. State, 20 Ohio, 7; Cushing v. Dill, 2 Scam. 461; Chase v. N. Y. Central R. R. Co., 26 N. Y: 523; State v. Lovell, 23 Iowa, 304; U. S. v. Athens Armory 35 Ga. 344. The rule that penal statutes shall be construed strictly, means only that they are not to be so extended, beyond the legitimate import of the terms used therein, as to embrace cases or acts not clearly described by such words, and so as to bring them within the prohibition or penalty of such statutes. Rawson v. State, 19 Conn. 292.

not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but one horse, (18) and therefore procured a new act for that purpose in the following year. (h) 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 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, 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 general words to a gift made to defraud the queen of a forfeiture. (i)

[*89]+

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. (20) 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 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 Å. 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 king. (k)

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

(i) 3 Rep. 82.

(*) 1 Rep. 47.

(18 [Lord Hale thinks that the scruple 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 instance, it was enacted by the 32 Hen. VIII, c. 1, that no person convicted of burning any dwelling houses should be admitted to clergy. But the reason of the difficulty in this case was, because the statute of 37 Hen. VIII, c. 8, was expressly penned in the singular number, If any man do steal any horse, mare, or filly; and then this statute, thus varying the number, and at the same time expressly repealing all other exclusions of clergy introduced since the beginning of Hen. VIII, it raised a doubt whether it were not intended by the legisla ture to restore clergy where only one horse was stolen. 2 H. P. C. 365.

It has since been decided that, where statutes use the plural number, a single instance will be comprehended. The 2 Geo. II, c. 25, enacts, that it shall be felony to steal any bank notes; and it has been determined, that the offence is complete by stealing one bank note. Hassel's Case, Leach, Cr. L. 1.]

(19) [These are generally called remedial statutes; and it is a fundamental rule of construction that penal statutes shall be construed strictly, and the remedial statutes shall be construed liberally. 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 principle 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 favor of natural right and liberty; or, in other words, the decision shall be according to the strict letter in favor of the subject. And though the judges in such cases may frequently 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 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 beyond even that which existed in the minds of those who framed the law.]

(20) Shrewsbury v. Boylston, 1 Pick. 105; Opinion of Judges, 22 Pick. 571; Atty. General v. Detroit & Erie Plank Road Co., 2 Mich. 138; Leversee v. Reynolds, 13 Iowa, 310; People v. Draper, 15 N. Y. 532.

But

7. Where the common law and the statute differ, the common law gives place to the statute; and an old statute gives place to a new one. (21) And this upon a general principle of universal law, that "leges posteriores, priores contrarias abrogant; (22) 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." 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 former statute which requires twenty pounds is at an end. (7) But, if both acts be merely affirmative, and the sub[*90] stance 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 indictable 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: unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assizes, and not elsewhere. (m)

8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. (23) 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 1 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. (n)

(21) State v. Norton, 3 Zab. 33; Moore's Lessee v. Vance, 1 Ohio, 10; State v. Miskimmons, 2 Ind. 440.

But where the new statute does not in terms repeal the old law, the two will stand together so far as effect can be given to both. Repeals by implication are not favored. Naylor v. Field, 5 Dutch. 287; Bowen v. Lease, 5 Hill, 221; State v. Berry, 12 Iowa, 58; Dodge v. Gridley, 10 Ohio, 177; McCool v. Smith, 1 Black, 459; New Orleans v. Southern Bank, 15 La. An. 89; Wyman v. Campbell, 6 Port. 219; State v. Bishop, 41 Mo. 16; Furman v. Nichols, 3 Cold. 432; Couley v. Calhoun Co., 2 W. Va. 416.

A statute which makes an innovation on the established principles of the common law must be strictly construed. McQueen v. Middletown Manuf. Co., 16 Johns, 7; McClusky v. Cromwell, 11 N. Y. 593; Souter v. Sea Witch, 1 Cal. 162; Gilson v. Jenney, 15 Mass. 205; Rue v. Alter, 5 Denio, 119; Wilber v. Crane, 13 Pick. 290; Sibley v. Smith, 2 Mich. 486; Esterly's Appeal, 54 Penn. St. 192; Hearn v. Ervin, 3 Cold. 399.

So must statutes in derogation of common right. Sprague v. Birdsall, 2 Cow. 419; Bridgewater &c. Plank Road Co. v. Robbins, 22 Barb. 662; Wright v. Briggs, 2 Hill, 77; Sharp v. Spier, 4 Hill, 76; Smith v. Spooner, 3 Pick. 229; Sewell v. Jones, 9 Pick. 412.

So must statutes granting exclusive privileges. Cayuga Bridge Co. v. Magee, 6 Wend. 85; Mohawk Bridge Co. v. Utica and S. R. R. Co., 6 Paige, 554; Young v. McKenzie, 3 Kelly, 31. And charters of incorporation are to be construed most strongly against those who claim rights under them, and most favorably to the public. Pennsylvania R. R. Co. v. Canal Commissioners, 21 Penn. St. 22; Commonwealth v. Pittsburgh &c. R. R. Co., 24 Penn. St. 159; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 93; Bradley v. N. Y. and N. H. R. R. Co., 21 Conn. 306; Camden and Amboy R. R. Co., v. Briggs, 2 N. J. 623.

(23) Mr. Tucker remarks of this maxim, that it is to be understood as relating only to laws made by a legislature possessing equal or superior powers to that by which the first law was made. Thus the congress of the United States may alter, amend, repeal or annul any of its own acts, but should congress attempt to pass a law contrary to the constitution of the United States, or should the state legislature make a similar attempt against it, or against the state constitution, such acts, though clothed with all the forms of law, would not be law, nor repeal in any manner what was established by a higher authority, to wit, that of the people. Yet the people, whenever they see fit, may make any alterations in the constitution which they may deem necessary to their happiness and the prosperity of the nation. But to this it should be added that the people, in making changes in the constitution, or in establishing a new one, must observe such rules as they have laid down to govern their action in the premises, in the constitution as it stands.

(23.) [The Bishop's Case, 12 Rep. 7; 4 Inst. 325; Tattle v. Greenwood, 3 Bing. 493; Doe v. Gully, 9 B. and C. 344; Phillips v. Hopwood, 10 B. and C. 39.

9. Acts of parliment 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 prosecution for high treason; but will not restrain or clog any parliamentary attainder. (0) 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 endeavor to tie up the hands of succeeding legislatures. "When you repeal the *law itself, (says he,) you at the same time repeal the prohibitory clause, which guards against *91 ] such repeal." (p) (24)

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 contradictory to common reason, they are, with regard to those collateral consequences, void. (25) 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. (q) 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. (26)

(0) 4 Inst. 43. (g) 8 Rep. 118. See also Harrison v. Walker, 1 Kelly, 32; Commonwealth v. Churchill, 2 Met. 118. But now in England the repeal of a repealing act does not revive the act before repealed, unless words be inserted reviving it. Stat. 13 and 14 Vic. c. 21, § 5. There are similar statutes in some of the American states. A recent act of Congress is to the same effect (July 14, 1870.)

(p) Cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat. l. 3. ep.23.

(24) A legislature cannot adopt irrepealable legislation. Bloomer v. Stolley, 5 McLean, 161; Kellogg v. Oshkosh, 14 Wis. 623; Thorpe v. R. & B. R. R. Co. 27 Vt. 149. There is a modification of this principle in the case of those statutes which are in the nature of contracts, and by which the state, for a consideration received, grants something of value, as for instance a franchise, or an exemption from taxation. Such contracts are made inviolable by the constitution of the United States. Dartmouth College v. Woodward, 4 Wheat. 518; New Jersey v. Wilson, 7 Cranch. 164.

(25) [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 the 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.]

(26) In addition to those stated in the text, it may be important to mention here another cardinal rule of construction, namely: that every statute is to be construed to operate prospectively only, unless its terms clearly imply a legislative intent that it shall have retrospective effect. Dash v. Vankleek, 7 Johns. 477; Sayre v. Wisner, 8 Wend. 661; State v. Atwood, 11 Wis. 422; Hastings v. Lane, 3 Shep. 134; Brown v. Wilcox, 14 S. and M. 127; Price v. Mott, 52 Penn. St. 315; Allbyer v. State, 10 Ohio, N. S. 588; State v. Barbee, 3 Ind. 258; Moon v. Durden, 2 Exch. 22; State v. Auditor, 41 Mo. 25; Finney v. Ackerman, 21 Wis. 268.

VOL. I.-S

57

These are the several grounds of the laws of England; over and above which, equity is also frequently called in to *assist, to moderate and to explain them. [*92] What equity is, and how impossible in its very essence to be reduced to stated rules, hath been shewn in the preceding section. I shall therefore only add, that (besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind) there are also peculiar courts of equity established for the benefit of the subject: to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of our courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.

SECTION IV.

OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.

The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only. And yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæsar and Tacitus ascribe to Britain in general, for many centuries; even from the time of the hostile invasions of the Saxons, when the ancient and Christian inhabitants of the island retired to those natural intrenchments, for protection from their Pagan visitants. when these invaders themselves were converted to Christianity, and settled into regular and potent governments, this retreat of the ancient Britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. Very early in our history we find their princes doing homage to the crown of England; till at length in the reign of Edward the First, who may justly be [*94] styled the conquerer of *Wales, the line of their ancient princes was

abolished and the King of England's eldest son became, as a matter of course, (1) their titular prince; the territory of Wales being then entirely reannexed (by a kind of feudal resumption) to the dominion of the crown of England; (a) or, as the statute (2) of Rhudland (b) expresses it." Terra Wallia

(1) [It cannot be said that the king's eldest son became prince of Wales by any necessary or natural consequence; but, for the origin and creation of his title, see page 224.]

(2) [The learned judge has made a mistake in referring to the statute, which is called the statute of Rutland, in the 10 Edw. I, which does not at all relate to Wales. But the statute of