To this rule, that statutes prescribing modes of procedure are to be strictly construed, however, there exists a large class of exceptions, of which we shall speak when we consider the cases in which the positive language of enactments is treated as directory merely.

Penal Statutes.-In regard to penal statutes, we shall find the same oscillation of judicial opinion that we have already had occasion to observe in other cases and we shall notice the same difficulties and perplexities that must ever result from any attempt by the judiciary to insert exceptions in acts of legislation, or in other words practically to exercise a discretionary control over legislative provisions.

The ancient rule of our law, often reiterated, was that penal statutes were to be construed strictly. "The general words of a penal statute shall be restrained," says Mr. Dwarris, "for the benefit of him against whom the penalty is inflicted."* And this maxim in the early stages of English jurisprudence was often invoked and acted upon by the judges-partly, no doubt, from a humane desire to mitigate the rigors of the criminal law as it then stood. Thus, the stat. 1 Ed. VI. c. 12, having enacted that those who were convicted of stealing horses should not have the benefit of clergy, the judges held that this did not extend to a party guilty of stealing but one horse; and a new act was procured for that purpose. So it is said, if the law be that for a certain offense a 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 unpunished than the letter of the law be extended.

* Dwarris, p. 634.

Dwarris, p. 634; Bacon's Maxims, 58, 59.

+ Dwarris, p. 364.

"If we had the power of legislation," says Lord Kenyon, applying the penalties for non-residence, "perhaps we should think it proper to extend the penalties created by the statute of Hen. VIII. c. 13, 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."* "This is a penal act," said he again, when considering the question, whether tumblers came within the 10 Geo. II. c. 28, "and we cannot extend it to entertainments that did not exist when the statute was made, though perhaps it is desirable that the prohibitions should be extended."+ "If this rule is violated," said Best, C. J. "the fate of accused persons is decided by the arbitrary discretion of judges, and not by the express authority of the laws." So, if a penalty given by a statute is to be recovered in a court of record, this can only be done in one of the superior courts of Westminster; for, being a penal law, it must be construed strictly, and those are the courts in which the king's attorney is supposed to attend. §

And the general rule has been frequently declared in this country. So in New York, it has been said that penal statutes, in declaring what acts shall constitute an offense, and in prescribing the punishment to be

* Jenkinson vs. Thomas, 4 T. R., 666; Dwarris, p. 636.

+ Rex vs. Handy, 6 T. R. 288. See, also, Warne vs. Varley, 6 T. R. 443 Martin cs. Ford, 5 T. R. 101.

Fletcher vs. Lord Sondes, 3 Bing. 580.

§ Rex vs. Hymon, 7 T. R. 536. Walwin vs. Smith, 1 Salk. 177, 178. Cro. Eliz. 480. Noy, 62. Dwarris, 642.

inflicted, are certainly to be construed rigorously.* So, in Massachusetts also, penal statutes must be construed strictly according to the intention of the legislature as discovered by the import of the words, and when not remedial, are not to be extended by equitable principles.+

But the rule that statutes of this class are to be construed strictly, is far from being a rigid or unbending one; or rather, it has in modern times been so modified and explained away, as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment; the courts refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other, equally refusing by any mere verbal nicety, forced construction, or equitable interpretation, to exonerate parties plainly within their scope. Indeed, this was said in England at an early day. "It is not true," said Mr. J. Buller, "that the court in the exposition of penal statutes are to narrow the construction. We are to look to the words in the first instance, and where they are plain, we are to decide on them. If they be doubtful, we are then to have recourse to the subject-matter; but at all events, it is only a secondary rule."+

So the Supreme Court of the United States has said,

*The Watervliet and Turnpike Co. vs. M'Kean, 6 Hill, 616. Melody vs. Reab, 4 Mass. 473.

The King vs. Inhabs. of Hodnett, 1 T. R. 96, 101. The enactment that made killing a master, treason, was extended so as to include a mistress. Hard. 208; Plowd. 86; Dwarris, 635. So, under the English 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 to be complete without the vote being given. 3 Burr. 1235; Dwarris, p. 635.

"In expounding a penal statute, the court certainly will not extend it beyond the plain meaning of its words; for it has been long and well settled that such statutes must be construed strictly. Yet the evident intention of the legislature ought not to be defeated by a forced and overstrict construction.* We are to ascertain the true legislative intent of the words used; and that sense being once ascertained, courts of justice are bound to give effect to that intent, and are not at liberty to fritter it upon metaphysical niceties."+ "We are undoubt edly bound," says Mr. Justice Story, "to construe penal statutes strictly, and not to extend them beyond their obvious meaning by strained inferences. On the other hand, we are bound to interpret them according to the manifest import of the words, and to hold all cases which are within the words and the mischiefs, to be within the remedial influence of the statute." t

And the rule has been coupled with this reasonable modification in a large number of the tribunals of this country. So in New Hampshire, it has been said, that by the phrase strict construction, as applied to penal statutes, it is not meant that the judges will disregard the intention of the legislature; it is only intended that where there is a doubt, the judiciary will not so construe them as to inflict a punishment which the legislature may not have intended. The strict construction is only to be applied where the law is rea

* U. S. vs. Morris, 14 Peters, 464. Indictment under the acts to prohibit the slave trade. See also on this same point American Fur Company vs. the United States, 2 Peters, 358. Indictment for selling ardent spirits to Indians.

+ The Schooner Nymph, 1 Sumner, 516, 518; where "trade" was held to include "cod-fishery."

The Schooner Industry. Information for landing goods without a permit, under the revenue laws. 1 Gall. 114, 117, 118.

sonably open to question.* So in New York it is said that, "The rule that penal statutes are to be construed strictly when they act on the offender and inflict a penalty, admits of some qualification. In the construction of statutes of this description it has been often held, that the plain and manifest intention of the legislature ought to be regarded. A statute which is penal to some persons, provided it is beneficial generally, may be equitably construed." So again, So again, "Although a penal statute is to be construed strictly, the court are not to disregard the plain intent of the legislature; and it is well settled that a statute which is made for the good of the public, ought, although it be penal, to receive an equitable construction."

In a case in Massachusetts, Parker, C. J., said,

In this, as in all other statutes, if there be any ambiguity of expression, the meaning and intent of the legislature must be sought for in the statute itself, if from a consideration of other parts of it, it is capable of explanation,-and from other statutes relating to the same subject, if it be necessary to resort to any thing extrinsic in order to obtain an explanation. If a statute, creating or increasing the penalty, be capable of two constructions, undoubtedly that construction which operates in favor of life or liberty, is to be adopted; but it is not justifiable in this, any more than in any other case, to imagine ambiguities merely that a lenient construction may be adopted. If such were the

* Wilton vs. Wentworth, 5 Foster N. H., 247; Fairbanks vs. Antrim, 2 N. H. 105; Woodbury vs. Thompson, 3 N. H., 194; Pike vs. Jenkins, 12 N. H., 255.

Sickles vs. Sharp, 13 J. R., 498, 499.

We may remark that every penal statute must be intended to be "generally beneficial;" the only ground on which punishments or penalties can be inflicted on individuals is, that the community is thereby to be generally benefited.

The People vs. Bartow, 6 Cowen, 290, 293; Indictment for violating the banking law. And here again we may inquire, whether any penal `statute can be regarded as not made for "the good of the public "?