Page images
PDF
EPUB

but the 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, pre“ bendaries, parsons, vicars, and others having spiritual promotion," is held not to extend to bifhops, though they have spiritual promotion ; deans being the highest persons named, and bishops being of a still higher orders,

3. Penal statutes must be construed strictly. Thus the statute 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 hors, and therefore procured a new act for that purpose in the following year". 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 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

6 2 Rep. 46.

h 2 & 3 Edw. VI. c. 33. Bac. Elem. Co Y2.

helt

5. One part of a statute must be so construed by another, that the whole may (if possible) fand : 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 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 veits land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A in the king, faving 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.

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 contra" rias abrogant :consonant to which it was laid down by a law of the twelve tables at Rome, that quod populus poftremum juffit, id jus ratum efto.But this is to be understood, only when the latter statute is couched in negative terms, or where it's 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 fufficient, the former statute which requires twenty pounds is at an end'.

[merged small][merged small][ocr errors][merged small]

But if toth ads 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 indietable at the quarter-fessions, and a latter law makes the same offence indictable at the allites; here the jurisdiction of the fessions 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 aslıses, and not elsewhere '.

[ocr errors]

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 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".

9. Acts of parliament derogatory from the power of subfequent parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs, that no person for assisting a king de fazło 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 fuperior upon earth, which the prior legislature must have been, if it's ordinances could þind 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 legiilatures. “ When you repeal the

[ocr errors][merged small][merged small][merged small][merged small][merged small]

“ law itself, says he, you at the same time repeal the prohi66 bitory clause, which guards against such repeal P.”

10, LASTLY, acts of parliament that are impossible to be performed are of no validity: and if there arife out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those 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 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 subverlive 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 quarrela. 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 legiilature or no.

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. What equity is, and how impossible in it's 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, tha crown has the power to pardon.

4 8 Rep. 118.

Cum lex abrogatur, illud ipfum abrogator, quo non eam abrogari oporteat. l. 3. ep. 23.

aflift,

« PreviousContinue »