siastical, the king's military, the king's maritime, or the king's academical laws.

LET us next proceed to the leges scriptae, the written, laws [85] of the kingdom; which are statutes, acts, or edicts, made by the king's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in parliament assembled. The oldest of these now extant, and printed in our statute books, is the famous magna charta, as confirmed in parliament 9 Hen. III.: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.

THE manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. At present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction C.

FIRST, as to their several kinds. Statutes are either general or special, public or private. A general or public act is an

b 8 Rep. 20.

The method of citing these acts of parliament is various. Many of our antient statutes are called after the name of the place where the parliament was held that made them; as the statute of Merton and Marleberge, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the articuli cleri, and the praerogativa regis. Some are distinguished by their initial words, a method of citing very antient; being used by the Jews in denominating the books of the pentateuch; by the christian church in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulls; and in short by the whole body of antient civilians and canonists, among whom this method of citation generally prevailed, not only with regard

in imitation of all which, we still call
some of our old statutes by their initial
words, as the statutes of quia emptores,
and that of circumspectè agatis. But
the most usual method of citing them,
especially since the time of Edward the
second, is by naming the year of the
king's reign in which the statute was
made, together with the chapter or
particular act, according to its numeral
order, as 9 Geo. II. c. 4. For all the
acts of one session of parliament taken
together make properly but one statute ;
and therefore when two sessions have
been held in one year, we usually men-
tion stat. 1. or 2. Thus the bill of
rights is cited, as 1 W. & M. st 2. c. 2.
signifying that it is the second chapter
or act, of the second statute, or the
laws made in the second session of par-
liament in the first year of king William
and queen Mary.

universal rule, that regards the whole community; and of [86] this the courts of law are bound to take notice judicially and ex officio; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns: such as the Romans entitled senatús decreta in contradistinction to the senatús consulta, which regarded the whole community": and of these (which are not promulgated with the same notoriety as the former) the judges are not bound to take notice, unless they be formally shewn and pleaded. Thus, to shew the distinction, the statute 13 Eliz. c. 10. to prevent spiritual persons from making leases for longer terms than twenty-one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of Chester to make a lease to A. B. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors, and is therefore a private act.

STATUTES also are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei testimonium, and for avoiding all doubts and difficulties, to declare what the common law is and ever has been. Thus the statute of treasons, 25 Edw. III. st. 5. cap. 2. doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offences which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatsoever. And this being done, either by enlarging the common law where it was too narrow and circumscribed, or [87] by restraining it where it was too lax and luxuriant, hath oc

4 Gravin, Orig. 1. § 24.

casioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law; so that this was an enlarging statute (12). At common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before mentioned: this was therefore a restraining statute.

SECONDLY, the rules to be observed with regard to the construction of statutes are principally these which follow:

1. THERE are three points to be considered in the construction of all remedial statutes; the old law; the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament have provided to cure this mischief. And it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy. Let us instance again in the same restraining statute of 13 Eliz. c. 10. By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let 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 time, 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

3 Rep.7. Co. Litt. 11.

(12) This is hardly an exact instance of an enlarging statute; it would have been more apposite to have mentioned the statute of the 32 Hen.8. c. 28. which empowers certain persons to make certain leases, which they could not do before, and to have placed it in contrast with the instance immediately following of queen Elizabeth's restraining statute.

act was made for the benefit and protection of the successor'. The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the grantors; [88] 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 pro"motion," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named, and bishops being of a still higher order".

3. PENAL statutes must be construed strictly. Thus the statute 1 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 horse, 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 session, 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 statutes act upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally.

f Co. Litt. 45. 3 Rep.60. 10 Rep.58.

2 Rep. 46.

h 2 & 3 Ed. VI. c. 53. Bac. Elem.

c. 12.

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 [89] defraud the queen of a forfeiture '.

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

66

66

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 contrarias abrogant:" consonant to which, it was laid down by a law of the twelve tables at Rome, that "quod populus postremum jussit, id jus ratum esto." 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 a qualification sufficient, the former statute which requires twenty pounds is at an end'.