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within the statute; while if the law be, that for a certain offence & man shall lose his right hand, and the offender hath had his right hand before cut off in the wars, he shall not lose his left hand, but the crime shall rather pass without the punishment which the law assigned, than the letter of the law shall be extended.a

A penal law then, shall not be extended by equity; that is, things which do not come within the words, shall not be brought within it, by construction. The law of England does not allow of constructive offences, or of arbitrary punishments. No man incurs a penalty unless the act which subjects him to it, is clearly both within the spirit and the letter of the statute imposing such penalty. "If these rules are violated," said Best, C. J., in the case of Fletcher v. Lord Sondes, b "the fate of accused persons is decided by the arbitrary discretion of judges, and not by the express authority of the laws."


But, still, the intent is to be regarded; which is a primary rule, and that occasioned it to be said, that "equity knows no difference between penal laws and others.' The question is, does a case come within the meaning of the words? Thus, the enactment that made killing a master, treason, was held to include a mistress. c If the statute 1 Ed. 6, had been, that he, that should steal one horse, should be ousted of his clergy, then there had been no question at all if a man had stolen more horses than one, but that he had been within the statute; for omne majus continet in se minus. d

Neither is it true, as it has been sometimes put, that the Court, in the exposition of penal statutes, are to narrow the construction. e "We are to look to the words in the first instance," said Buller, J., in R. v. Hodnett, f "and where they are plain, we are to decide on them. If they be doubtful, we have then to have recourse to the subject matter."

In construing penal statutes, we must not, by refining, defeat the obvious intention of the Legislature. Thus, on the Bribery Acts, to satisfy the term "procuring," it is necessary that the vote should be actually given: but as to "corrupting," that is not necessary; the corruption has been held complete, without the vote being given.g

By another restrictive rule of construing penal statutes, if general words follow an enumeration of particular cases, such general

a Bacon's Maxims, 58, 59.

e Hard. 208; Plowd 86.

e Per Buller, J.

g 3 Burr. 1235.

b 3 Bing. 580.

d Bacon's Maxims, 59.

ƒ1 T. R. 96.

NOTE 36.-The same statute may be regarded as penal in one part or aspect, and demand strict construction, and in another part be liberal interpretation. Fish v. Fisher, 2 John Cas. 89. 65. Millend v. Lake, Ontario R. R. Co., 9 How. R. R. B. R. Co., 5 Barb. 454.

remedial, and require a Smith v. Moffat, 1 Barb. 238. Warner v. Hadner

words are held to apply only to cases of the same kind as those which are expressly mentioned. By the 14 Geo. 2, c. 1, persons who should steal sheep, or any other cattle, were deprived of the benefit of clergy. The stealing of any cattle, whether commonable, or not commonable, seems to be embraced by these general words, " any other cattle," yet they were looked upon as too loose to create a capital offence. By the 15 Geo. 2, c. 34, the legislature declared that it was doubtful to what sort of cattle the former act extended besides sheep, and enacted and declared that the act was meant to extend to any bull, cow, ox, steer, bullock, heifer, calf and lamb, as well as sheep, and to no other cattle whatsoever. Until the Legislature distinctly specified what cattle were meant to be included, the judges felt that they could not apply the statute to any other cattle but sheep. The legislature by the last act says, that it was not to be extended to horses, pigs, or goats, although all these are cattle. a Yet horses are cattle within the Black Act,b and bulls are not cattle within 3 Geo. 4, c. 71. c An instance of a statute penal upon particular persons, being taken stricti juris, was before mentioned in the statute de malefactoribus in parcis, not extending to those offending in forests. d So a curate of an augmented curacy (by Queen Anne's bounty) was held not to be liable to the penalties of the 21 Hen. 8, c. 13, for non-residence. e "If we had the power of Degislation," said Lord Kenyon in that case," perhaps we should think it proper to extend the penalties created by the statute of Hen. 8, to all benefices with cure of souls; but as it is our duty to expound, and not to make acts of parliament, we must not extend a penal law to other cases than those intended by the legislature, even though we think they come within the mischief intended to be remedied. The words of the statute of Hen. 8, are, 'Beneficed with any parsonage,' or 'vicarage;' but this is neither a parsonage, nor a vicarage. For wise purposes, augmented curacies are made perpetual cures and benefices, by a subsequent statute, 1 Geo. 1, in order that such curates may be perpetual corporations; but the act does not go on to say that they shall be considered as parsonages or vicarages; if it had, the former law would have extended to them. These curates are still bound by the canon law to reside on their benefices; but I do not think that they are liable to the penalties of the statute of Hen. 8, for non-residence."

By the stat. 2 Jas. 1, c. 22, searchers of leather, appointed under that act, are authorized to seize leather insufficiently dried, in order to carry it before other officers, called triers. They are liable to an action for seizing that which is sufficiently dried, though in their judgment it is not so, and though they are subject to a penalty for allowing leather which is insufficiently dried. The act of parlia

a 3 Bing. 581.

b 2 W. Bl. 723

c Ex parte Hill, 3 C. & P. 225.

d Pl. Com. 124, a.

e Jenkinson v. Thomas, 4 T. B

ment only authorizes the searchers to seize goods of a certain denomination; the goods in question in that case were not of that description. a "7


Tumbling is not an entertainment of the stage disallowed within the words of 10 Geo. 2, c. 28. "This is a penal act of parliament, and we cannot," said Lord Kenyon, "extend it to entertainments that did not exist when the statute was made, though, perhaps, it is desirable that the prohibitions should be extended," &c. b

The stat. 9 Ann. c. 10, s. 40, inflicts a penalty on persons who wilfully open or detain letters after they have been delivered at the post-office. There are words at the end of the clause creating the forfeiture, which show that the legislature intended to restrain the operation of the general words, "no person, or persons," to those employed in the post-office; and it was held accordingly.c When a good thing and a void thing, are put together in the same grant, the common law makes such a construction that the grant shall be good for that which is good, and void for that which is void.d But according to Hobart, e followed by Wilmot, J., in Collins v. Blantern, f where an instrument is void in part by the statute law, it is void for the whole. "The statute law is like a tyrant; where he comes he makes all void; but the common law is like a nursing father, makes only void that part where the fault is, and preserves the rest." Thus sheriffs' bonds are only authorized to be taken with a certain condition, and therefore if they are taken with any other condition, they are void in toto, and cannot stand good in part only.g

But this rule which is one of rigour, does not apply to different and independent covenants in the same instrument, which may be good in part, and bad in part. Thus, in Mowys v. Leake, h where a rector had granted an annuity out of his benefice, which was void by the statute 13 Eliz. c. 20, which says, "that all chargings of benefices with any person shall be utterly void," he was yet held liable upon his personal covenant to pay it, contained in the same deed, and Lord Ellenborough afterwards said: "The case of Mowys and Leake is founded on admirable good sense and sound law: the court there held that it did not affect the personal covenant to pay the rent-charge, but only defeated the security of such rent-charge upon the living."

a Warne v. Varley, 6 T. R. 443. b R. v. Handy, 6 T. R. 286.

d Per Hutton, J. Ley's Rep. 79.

f 2 Wils. 351.

c Martin v. Ford, 5 T. R. 101.

e Hob. Rep. 14.

g Per Lawrence, J., in Kerrison and Cole, 8 East, 231; and see Morgan and Others v. Horseman and Others, 3 Taunt. 241.

h 8 T. R. 411.

i Kerrison v. Cole, 8 East, 234.

NOTE 37.—A statute giving a penalty, implies a prohibition of that act rendered penal, and an act committed against it is consequently void, and amounts to no legal defence. Hallett v. Novion, 14 John. 273; Mitchell v. Smith, 1 Binn. 110.

And the court adopted the same construction in a later case upon the ship registry act, where a bill of sale transferred a ship by way of mortgage, without reciting the certificate of registry. The words of the act 26 Geo. 3, c. 60, s. 17, are, that "the bill, or other instrument of sale, shall be utterly null and void to all intents and purposes,"-if the certificate of registry be not truly recited therein. It was held that the object of the act was sufficiently answered by holding void so much of the instrument as was meant to convey the property in the ship, "that part of it only which operated as a bill of sale;" and that the mortgagor might be sued upon his personal covenant contained in the same instrument for the repayment of the money lent. For, to go further than to hold that the transfer shall be void, and to vacate the collateral covenant for the payment of the money lent, would be going beyond the reason and object of the legislature, in order to work injustice.

The stat. 5 Eliz. c. 4, s. 41, says, all indentures of apprenticeship made otherwise than is by that act directed, shall be "clearly void in law to all intents and purposes whatsoever." In an action for harboring an apprentice, as such, a it was contended that many cases have determined that the objection to the validity of the indentures for want of compliance with the requisites of the act, can only be taken by the parties themselves: upon which Mansfield, C. J., observed: "The words of the 41st section certainly at first startled one. Yet there have been many cases cited, b which say, that indentures which do not conform to the act shall be only voidable, and not void. If the word voidable were applied to adults, it would be extremely strange with respect to infants, if applied to them, one can understand it. In all those cases the question arose with respect to the rights of infant apprentices; but there has been no cases cited, where the doctrine that the contract is voidable, not void, is applied to the case of a master; and it would be very wonderful if there were. But there is a ground, I think, which makes it impossible for the plaintiff to recover in this case, he not having complied with the provisions of this act, and contrary to the express provisions of the 26th section he being neither a householder, nor above the age of twentyfour; for besides the words making it void to all intents and purposes, it is in the same section further provided, that every person that shall from thenceforth take, or newly retain an apprentice, contrary to the tenor and true meaning of that act, shall forfeit and lose for every apprentice so by him taken, the sum of 10.;' so making it not only void, but unlawful." Hence it appears, that if it be doubtful whether a statute declaring an act, instrument, or a Gye v. Felton, 4 Taunt. 876.

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b Scil. R. v. St. Nicholas Ipswich, 1 Bott. 525. Winchcourt v. Winchester, Hobb. 166. Barber v. Dennis, 1 Salk. 68. R. v. Evered, 1 Bott. 530.

contract void, make it voidable only, another clause in the same statute imposing a penalty on such act, instrument, or contract, is a clear test that it is ipso facto void.

A deed by which an annuity is granted, if it be not registered, will be absolutely void for want of enrolment. The stat. 17 Geo. 3, c. 26, s. 1, declared, that "all deeds whereby annuities are granted shall be null and void to all intents and purposes, unless a proper memorial thereof be registered according to the method prescribed by the act." In the case of Crosby v. Arkwright, a Buller, J., said: "In none of the numberless cases which have arisen upon this act, has it ever been doubted but that annuity deeds, not registered conformable to the statute, were void."

Statutes made for the advancement of trade and commerce, and to regulate the conduct of merchants, ought to be perfectly clear and intelligible to persons of their description. By the use of ambiguous clauses in laws of that sort, the legislature would be laying a snare for the subject; and a construction which conveys such an imputation ought never to be adopted. Judges, therefore, where clauses are obscure, will lean against forfeitures, leaving it to the legislature to correct the evil, if there be any. With this view, the ship registry acts, so far as they apply to defeat titles and to create forfeitures, are to be construed strictly, as penal, and not liberally, as remedial laws. b

In like manner, in the revenue laws, where clauses inflicting pains and penalties are ambiguously or obscurely worded, the interpretation is ever in favor of the subject; "for this plain reason," said Heath, J., in Hubbard and Johnston, "that the legislature is ever at hand to explain its own meaning, and to express more clearly what has been obscurely expressed." "

Whenever a statute gives a forfeiture or penalty against him, who wrongfully detains or dispossesses another of his duty or interest, in that case he that has the wrong shall have the forfeiture or penalty, and shall have an action therefore upon the statute, at the common law; and the king shall not have the forfeiture in that case. And so it was adjudged in the exchequer, upon conference with other judges, in an information for the treble value for not setting out tithes, in Iclington, in the county of Cambridge.c

If an act of parliament give a forfeiture for a collateral thing, the king shall have it; but where it is given in lieu of property and

b Hubbard v. Johnston, 3 Taunt. 177.

a 2 T. R. 605.

c Co. Litt. 259 a.

NOTE 38.--Revenue laws which impose forfeitures for fraud, are not to be regarded as technically penal, so as to call for strict construction in favor of a defendant, but remedial, so as to effectuate the intent of the legislature. Cliquot's Champagne, 3 Wall. 115; Taylor v. U. S., 3 How. 197; U. S. v. Probasco, 11 Am. L. Reg. 419; U. S. v. Twenty-eight Casks of Wine, 7 Int. R. Rec. 4. Such laws are for the suppression of a public wrong, and to effect a public good.

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