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tainly think that the present case comes within the mischief intended to be remedied by the statute of 8 Anne, c. 14, sec. 1, and I should have been better satisfied if it could be brought within the fair construction of the words of that enactment. But I think we should be attributing too comprehensive a meaning to the words of the statute. Holroyed, J. said: "This case does not appear to have been contemplated by the legislature, although it may perhaps be within the mischief which they intended to remedy by 8 Anne, c. 14."(a) Mr. Dwarris says: "The result is, that to bring a case within the statute, it should be not only within the mischief contemplated by the legislature, but also within the plain, intelligible import of the words of the act of parliament."(b)

(a) Brandling v. Barrington, 6 B. & C. 475.

(b) Dwarris, 711.

CHAPTER XVII.

OF EQUITABLE CONSTRUCTION OF PENAL STATUTES.

§ 723. In the preceding chapter we considered the doctrine of equitable construction generally. In the next succeeding chapter we shall proceed to the consideration of the rules of construction which prevail in reference to penal statutes. The design of the present chapter will be to consider how far equitable construction may be applied to penal statutes. We start with the position, that as a general rule, penal statutes are to be construed strictly. A penal statute is one which imposes a penalty or forfeiture for the doing or omitting to do a given act. By penal statutes, strictly speaking, are meant not only such as impose a penalty or forfeiture on such as transgress the provisions therein contained, but also such as give a summary remedy in derogation of the common law, or in derogation of rights of property, or one which takes away the estate of a citizen, or imposing disabilities upon persons. It is important, in the outset, that we should clearly understand the reasons why a penal statute should be construed strictly. Under the civil law, the distinction, as we have seen, was between things odious and those not odious. At common law it seems to be that the law does not allow of constructive offences or of arbitrary punishment; hence it is highly proper that it should be a fundamental rule that no man shall incur a penalty, unless the act which subjects him to it is clearly both within the letter and spirit of the statute imposing the penalty. It has been

law.(a)

very justly remarked by an English jurist, that if these rules are violated, the fate of accused persons is decided by the arbitrary discretion of judges, and not by the express authority of law. (a) It is not, however, always true that all statutes of a penal character are to be regarded as exclusively penal, for a penal statute may also be a remedial law, (b) or it may be penal in one part and remedial in another.(c)

§ 724. In the application of the rules of construction to statutes which partake of this two-fold character, it is of great importance to keep this distinction in view, and to discriminate between the 'parts of a statute which are penal and those which are remedial. It has been said that in England an act of parliament that only gives a remedy to the party aggrieved, shall not be construed as a penal statute.(d)

§ 725. Another limitation of the rule that penal statutes are to be construed strictly, should also be observed, which is, that while they are to be strictly construed, yet they are not to be construed so strictly as to defeat the obvious intention of the legislature, and the words are not to be so narrowed down as to exclude cases which those words, in their ordinary adaptation, or in that sense in which the legislature obviously used thein, would comprehend. (e) But in order to authorize a detemination that a case is within the intention of the legislature, the language used must clearly anthorize the construction. For it would be an extremely dangerous and unjust rule to carry the principle, that a case that is within the mischief of a statute is

(a) Best, J. Fletcher v. Lord Sanders, 3 Bing. 580; 1 Stev. Elec. L. 29. (b) 3 Wils. 126.

(c) Day, 702.

(d) 1 Wils. folio, 412; see also Black. R. 1226.

(e) The United States v. Wiltberger, 5 Wheat. 76 to 94.

within its provisions, so far as to punish a crime not enumerated within the statute, because it was of equal atrocity, or of a kindred character with those named in the act, or to apply a penal statute to previous acts, unless such construction was unavoidable from the language used. (a) Hence the rule that penal statutes are to be construed strictly, means simply this-that they ought not to be extended, by their spirit or equity, to other offences than those which are clearly prescribed and provided for. But this rule does not prevent an inquiry by the court into the intention of the legislature.(b) No court ought to conjecture that an act not expressly forbidden, and which is in itself innocent, might be a preliminary step to a violation of the law, and ought therefore to be punished, for the purpose of affecting the legislative intention; such a construction would transcend the powers of a court, and would be creating instead of applying a rule already made.(c)

§ 726. The rule that penal statutes are to be construed strictly when they act on the offender, and inflict a penalty, admits of some other qualifications. In the construction of statutes of this description, it has often been held that the plain and manifest intention of the legislature ought to be regarded a statute which is penal to some persons, provided it acts beneficially generally, may be equitably construed, even in cases of felony, courts have regarded the intention of the legislature. Hence, where an act is couched in general terms in the plural, it has been held to include a thing in the singular number of the same denomination as is stated in the act. An instance of the kind has obtained under the statute of Geo. 2, which enacted that it should be

(a) See The United States v. Hall, 6 Cranch, 171 to 174. (b) The Enterprise, 1 Paine C. C. R. 32.

(c) See 7 Cranch, 61.

Viner

felony to steal any bank notes. On an indictment under this act, it has been adjudged felony to steal one bank note. Viner says: "The rule that penal statutes must be construed strictly, may be adopted with this qualification, "that it does not apply to those cases where the object of the statute is to prevent a general mischief, although it may be held good in cases of laws that are penal as to particular persons, but not if made for the public good and the peace and safety of the realm ;"(a) and this qualification of the rule seems to have been recognized, in principle, in the decision of our own courts in several cases. In Sickles v. Sharp, hercafter referred to, it was distinctly recognized. Woodworth, Justice, in the case of The People v. Bartow,(b) says, “That although a penal statute is to be construed strictly, the court are not to disregard the plain intent of the legislature. Among other things, it is well settled that a statute which is made for the good of the public ought, although penal, to receive an equitable construction. Vaugh. 179,(c) the rule is also recognized that statutes that are made for the public good are to be so expanded as to attain their end."

In

§ 727. In the case of the Schooner Harriet, (d) Mr. Justice Story laid down the rule, that penal statutes were to be construed strictly, and cases within the like mischiefs are not to be drawn within a clause imposing a prohibition or forfeiture, unless the words clearly comprehend the case; yet all the provisions thereof must be taken together, and interpreted according to the import of the words, and not by the mere divisions into sections, so as to give effect to the object and intent of the statute. And that all statutes relating to the same subject-matter

(a) 19 Vin, 521.
(b) 6 Cow. R. 293.

(c) 1 Strange, 253, 258.

(d) 1 Story, 255,

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