reference to the restraining statute, 13 Eliz. c. 10, by the common law, ecclesiastical corporations might let on as long leases as they thought proper: the mischief was, that they let on 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(h). The mischief is therefore sufficiently suppressed by vacating these leases after the determination of the interest of the grantors; but the leases, during their continuance, being not within the mischief, are not within the remedy. Penal statutes are to be con *10. Penal statutes must be construed strictly(i); this rule being [ *102] founded on the tenderness of the law for the rights of strued strictly. individuals(k), and its regard for the personal liberty of the subject(7).(49) 11. Statutes against frauds are to be liberally and beneficially expounded. (50) This may seem in contradiction to the last rule; most statutes against (h) Co. Litt. 45; Case of Lincoln College, 3 Rep. 60; Bishop of Salisbury's Case, 10 Rep. 58. (i)Ex. gr., if the law be, that for a certain offence a man shall lose his right hand, and the offender has already lost his right hand, he shall not lose his left hand, but the crime shall rather pass without punishment. Bac. Max. 58, 59. (k) Hence the law of England does not in general "allow of offences by construction, Sprowl v. Lawrence, 33 Ala. 674; (9 Tiff.) 446; 2 Trans. App. 316; 19 N. Y. (5 Smith) 422, 433. and no case shall be holden to be reached by penal laws, but such as are within both the spirit and the letter of such laws. If this rule be violated," said Best. C. J. (Fletcher v. Lord Sondes, 3 Bing. 580), "the fate of accused persons is decided by the arbitrary discretion of judges, and not by the express authority of the laws." As to constructive treason, post, vol. iv. () Vide per Lord Abinger, C. B., Henderson v. Sherborn, 2 M. & W. 236.. Wolcott v. Pond, 19 Conn. 597; Hudler v. Golden, 36 N. Y. Statutes giving a right of appeal are always liberally construed in furtherance of justice, and such an interpretation as will work a forfeiture of such right will not be favored. Pearson v. Lovejoy, 53 Barb. 407; 35 How. 195; Converse v. Burrows, 2 Minn. 229, 240. A statute which authorizes the redemption of lands sold for taxes ought to receive a liberal and benign construction in favor of those whose estates would otherwise be devested. Dubois v. Hepburn, 10 Pet. 1, 22. (49) A penal statute is strictly construed, and is not extended by implication to cases not clearly within the letter and spirit of the act. Atlanta v. White, 33 Ga. 229; Dent v. State, 42 Ala. 514; Steel v. State, 26 Ind. 82; Hall v. State, 20 Ohio, 7; Warner v. Commonwealth, 1 Penn. St. 154; State v. Solomons, 3 Hill (S. C,), 96; Bettis v. Taylor, 8 Port, 564; Andrews v. United States, 2 Story, 202. But the construction is not to be so strict as to exclude a case which is within the words of the statute according to their ordinary acceptation; nor so as to defeat the evident intention of the legislature. United States v. Wilson, Baldw. 79; American Fur Co. v. United States, 2 Pet. 366; United States v. Wiltberger, 5 Wheat. 76; United States v. Morris, 14 Pet. 464; Commonwealth v. Loring, 8 Pick. 370; Crawford v. State, Minor, 143; Butler v. Ricker, 6 Greenl. 268; Daggett v. State, 4 Conn. 61; Sprague v. Birdsall, 2 Cow. 419. (50) Statutes which have for their object the suppression or prevention of fraud, are liberally construed for the purpose of securing such a result. A very large collection of authorities will be found in the English and American notes to Twyne's Case, in 1 Smith's Leading Cases. construed lib frauds being in their consequences penal. But a distinction is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as a fine, Statutes against it is then to be taken strictly: but when the statute acts upon the frauds are to be 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(m).(51) erally. [*103] *SECTION IV. THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. only affected The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, Ireland, BerwickThe common law upon-Tweed, or any other part of the king's dominions, except England. England only. And yet the civil laws and local customs of this territory now prevail in part or altogether, with more or less restriction, throughout many other districts; of which it will be proper to take a review, before we consider the kingdom of England itself, the original and proper subject of these laws. Wales continued independent of England, unconquered and uncultivated, in the primitive pastoral state which Cæsar and Tacitus ascribe to Britain in Wales is by stat- general, for some centuries from the time of the hostile invasions ute subjected to of the Saxons, when the ancient and Christian inhabitants of the laws of England. the island retired to those natural intrenchments, for protection from their pagan visitants. But when these invaders themselves were con (m) Twyne's case, 3 Rep. 80, where we read as follows: "Because fraud and deceit abound in these days more than in former times, it was resolved in this case by the whole Court that all statutes made against fraud should be liberally and beneficially expounded to suppress the fraud." Again În Fermor's case, 3 Rep. 77, we are told that: "If any doubt be conceived on the words or meaning of an enactment, it is good to construe it according to the reason of the common law;" and "the common law doth so abhor fraud and covin that all acts, as well judicial as others, of themselves just and lawful, being mixt with fraud and deceit, are in judgment of law wrongful and unlawful. Quod alias bonum et justum est, si per vim vel fraudem petatur, malum et injustum efficitur." (51) In the revision of statutes, a mere change in the phraseology will not be construed to be a change of the law, unless that intention is apparent. People v. Deming, 1 Hilt. 271; Overfield v. Sutton, 1 Metc. (Ky.) 621; Burnham v. Stevens, 33 N. H. 247; Croswell v. Crane, 7 Barb. 191; Matter of Brown, 21 Wend. 316; Hall v. Western Transportation Co., 34 N. Y. (7 Tiff.) 284, 287; Ennis v. Crump, 6 Tex. 34. The punctuation of a statute, as printed, affords no very decisive test of construction; but may be regarded as one indication of the meaning. United States v. Railroad Cars, 1 Abb. U. S. 196. The phrase "pursuant to law," found in 10 U. S. Stat. at L. 161, must be held, on account of its punctuation, to apply to the attendance of witnesses before commissioners only. Cummings v. Akron Cement, etc., Co., 6 Blatchf. 509. For the purpose of arriving at the intention of the legislature, the courts will disregard the punctuation, or re-punctuate, if need be, to render the true meaning of the statute. Hamilton v. Steamboat R. B. Hamilton, 16 Ohio St. 428. In construing a statute, punctuation is not regarded. Cushing v. Warrick, 9 Gray, 382. verted 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 I., who may justly be styled the conqueror of Wales, the line of their ancient princes was abolished, and the king of England's eldest son became by creation their titular prince; the territory of Wales being then entirely re-annexed (by a kind of feudal resump[*104] tion) to the dominion of the crown of England (a); or as the statutum Walliæ (12 Edw. 1) expresses it, "terram Walliæ cum incolis suis, prius nobis jure feodali subjectam jam sui gratiá in proprietatis nostræ dominium obstaculis quibuscunque cessantibus totaliter et oum integritate convertit, et coronæ regni Angliæ tanquam partem corporis ejusdem annexit et univit." By this statute of Wales material alterations were made in divers parts of the laws prevailing there, so as to reduce them nearer to the English standard, especially in the forms of judicial proceedings: but there was still retained very much of their original polity; particularly the rule of inheritance, viz., that lands were divided equally among all the issue male, and did not descend to the eldest son alone(b). By other subsequent statutes the provincial immunities of the Welsh were still further abridged: but the finishing stroke to their independence was given by the 27 Hen. 8, c. 26, which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing as, and made fellow-citizens with their conquerors. A generous method of triumph, which the republic of Rome practiced with great success; till she reduced Italy to her obedience, by admitting the vanquished states to partake of the Roman privileges. This statute, 27 Hen. 8 enacts, inter alia 1. That the dominion of Wales shall be for ever united to the kingdom of England. 2. That all Welshmen born shall have the same liberties as other the king's subjects. 3. That lands in Wales shall be inheritable according to the *English tenures and rules of descent. 4. That the laws of England, and no other, shall be [*105] used in Wales. And 5. That the county of Monmouth shall become an English county. The statute 34 and 35 Henry 8, c. 26, confirms the preceding enactment, divides the principality into twelve shires, and reduces it into very much the same order in which it stands at this day, except in so far as it had a separate judicial system (c), which was abolished by the statute 1 Will. 4, c. 70. The kingdom of Scotland, notwithstanding the union of crowns on the accession of their king James VI. to the throne of England, continued a sepaLaws of Scotland rate and distinct kingdom for above a century longer. By an before the union. act of parliament (1 Jac. 1, c. 1) it was indeed declared (in support of which declaration, however, there is no historical evidence), that these two mighty, famous, and ancient kingdoms had formerly been one. And sir Edward Coke observes (d), how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their ancient laws, (a) Vaugh. 400. (b) 4 Reeves' Hist. Eng. L. 202. (c) Reeves' Hist. Eng. L. iv. 194. the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, and their customs. Upon which account he supposes the common law of each to have been originally the same; especially as their most ancient and authentic book, called regiam majestatem (e), and containing the rules of their ancient common law, is extremely similar to that of Glanvil (f), which contains the principles of English law, as it stood in the reign of Henry II. And the many diversities subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and *uncommunicating jurisdictions, and from the acts of [ *106] two distinct and independent parliaments, which in many points altered and abrogated the old common law of both kingdoms. However, sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying out the projected union: but these were afterwards overcome, and the great work was happily effected a. D. 1707; when land effected by twenty-five articles of union were agreed to by the parliaments of both nations; the purport of the most considerable being as Union of Eng land with Scot 5 Anne, c. 8. follows. That 1. On the first of May, 1707, and for ever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Great Britain. 2. The succession to the monarchy of Great Britain shall be the same as was before settled with regard to that of England. 3. The united kingdom shall be represented by one parliament. 4. There shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed. 9. When England raises about £2,000,000 by a land tax, Scotland shall raise £48,000. 16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England, throughout the united kingdom. 18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England. But all the other laws of Scotland shall remain in force; though alterable by the parliament of Great Britain. Yet with this. caution that laws relating to public policy are alterable at the discretion of the parliament; laws relating to private right are not to be altered but for the evident utility of the people of Scotland. 22. Sixteen peers are to be chosen to represent the peerage of Scotland in parliament, and members (the *number whereof is now such as hereinafter specified), to sit in the house of commons. [*107] 23. The sixteen peers of Scotland shall have all privileges of parliament: and all peers of Scotland shall be peers of Great Britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers; except sitting in the house of lords, the privileges depending thereon, and particularly the right of sitting on the trial of a peer. 25. All laws and statutes in either kingdom, so far as contrary to or inconsistent with the terms of these articles to be void. These are the principal of the twenty-five articles of union, which are ratified and confirmed by the statute 5 Ann. c. 8, in which two acts of parliament are (e) The Scotch municipal law is to a great extent founded on the civil law, as well in criminal as in civil matters. Most of the distinctions between the Scotch law and our own are traceable to this source. Robert's Hist. of Soot. i. 43; Erskine's Inst. i. 1, s. 41. (f) 1 Reeves' Hist. Eng. L. 225. recited; the one of Scotland, whereby the church of Scotland and also the four universities of that kingdom are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of England, 5 Ann. c. 6, whereby the acts of uniformity of 13 Eliz. and 13 Car. 2 (except as the same had been altered by parliament at that time) and all other acts then in force for the preservation of the church of England, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick-upon-Tweed. And it is enacted, that these two acts "shall for ever be observed as fundamental and essential conditions of the union." Fundamental principles of the union. Upon these articles and the act of union, it is to be observed: 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again; except the mutual consent of both, or the successful assertion by either of a claim to independent national existence. 2. That whatever else may be deemed "fundamental and essential conditions," the preservation of the two churches of England and Scotland, in the same state that they were in at the time of the union, and [*108] the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be(g). 3. That therefore any alteration in the constitution of either of those churches, or in the liturgy of the church of England (unless with the consent of the respective churches, collectively or representatively given), would be an infringement of these "fundamental and essential conditions," and greatly endanger the union. 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by the imperial legislature(h), and although parliament has in many particulars thought fit to legislate for Scotland, her municipal laws in other respects continue locally in full force, whereas the common laws of England have, generally speaking, no force or validity in Scotland. Town of Berwick The town of Berwick-upon-Tweed was originally part of the kingdom of Scotland(); and, as such, was for a time reduced by king Edward I. into the possession of the crown of England: and during such its upon-Tweed. subjection, it received from that prince a charter, which (after its *subsequent cession by Edward Balliol, to be for ever united to [ *109] the crown and realm of England) was confirmed by king Edward III. with some additions; particularly, that it should be governed by the laws and usages which it enjoyed during the time of king Alexander, that is, before its (g) An act of parliament to repeal or alter the Act of Uniformity in England, or to establish episcopacy in Scotland, would nevertheless, in point of authority, be valid and binding; and, notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honourably pursued, if respectively agreeable to the sentiments of the English church, or of the kirk in Scotland. But it would be neither prudent, nor consistent with good faith to venture upon either of those steps by a spontaneous exertion of the inherent powers of parliament, or at the instance of mere individuals. VOL. I.-11 (h) When it is intended that Scotland shall not be included in an act of parliament, a special clause should be inserted for that purpose. Per Lord Mansfield, R. v. Cowle, 2 Burr. 853. (i) "Berwick was originally part of Scotland, and afterwards brought within the kingdom of England. But though it forms part of the kingdom of England, it is not within the county of Northumberland. The charter of the inhabitants of this town has been confirmed by act of Parliament, and therefore we are bound to take judicial notice of it." Per Best, C. J., Mayor of Berwick v. Shanks, 3 Bing. 461. |