their eftates for any term of years, till prevented by the 
ftatute 13 Eliz. before-mentioned: this was therefore a 
retraining ftatute. 
Secondly, The rules to be obferved with regard to the 
eonftruftion of ftatutes are principally thefe which follow. 
x. There are three points to be confidered in the con- 
ftruftion of all remedial ftatutes ; the old law, the mif¬ 
chief, and the remedy : that is, how the common law 
ilood at the making of the aft ; what the mifchief was, 
for which the common law did not provide; and what re¬ 
medy the parliament hath provided to cure this mifchief. 
And it is the bufinefs of the judges fo to conftrue the aft, 
as to fupprefs the mifchief and advance the remedy. Let 
us inftance again in the fame reftraining ftatute of 13 
Eliz. c. 10. By the common law, eccleiiaftical corpora¬ 
tions might let as long leafes as they thought proper ; the 
mifchief was, that they let long and unreafonable leafes, 
to the impoverilhment of their fucceflors ; the remedy 
applied by the ftatute was by making void all leafes by 
eccleiiaftical bodies for longer terms than three lives, or 
twenty-one years. Now' in the conftruftion of this fta¬ 
tute it is held, that leafes, though for a longer term, if 
made by a bilhop, are not void during the bilhop’s con¬ 
tinuance in his fee ; or, if made by a dean and chapter, 
they are not void during the continuance of the dean ; 
for the aft was made for the benefit and protection of the 
fuccefior. The mifchief is therefore fufficiently fupprefled 
by vacating them after the determination of the intereft 
of the granters; but the leafes, during their continuance, 
being not within the mifchief, are not within the remedy. 
2. To make a penal law realonable and juft, two con¬ 
ditions are neceflary, and two proper. It is r.cccjjary that 
the law Ihould be adequate to its end ; that, if it be ob¬ 
ferved, it (hall prevent the evil againft which it is direfted. 
It is, fecondly, neceflary that the end of the law be of 
fuch importance as todeferve the fecurity of a penal fanc- 
tion. The other conditions of a penal law, which, 
though not abfolutelv neceflary, are to a very high degree 
proper, are, that to the penal violation of the law there 
are many temptations, and that of the phyfical obfervance 
there is great facility; for, if temptations were rare, a 
penal law might be deemed unneceflary; and, on the 
other hand, if the duty enjoined by the law were of dif¬ 
ficult performance, omiflion, though it could not be jus¬ 
tified, might admit of confiderable excufe. 
3. A ftatute, which treats of things or perfons of an 
inferior rank, cannot by any general words be extended to 
thofe of a fuperior. So a ftatute, treating of “ deans, pre¬ 
bendaries, parfons, vicars, and others having fpiritual pro¬ 
motion. is held not to extend to bilhops, though they 
have fpiritual promotion ; deans being the higheft perfons 
named, and bifliops being of a (till higher order. 
4. Penal ftatutes mull be conftrued ltriftly. Thus, the 
flat, x Edw. VI. c. iz. having enabled that thofe who are 
convifted of ftealing korfes (hould not have the benefit of 
clergy, the judges conceived that this did not extend to 
him who {hould Ileal but one horfe, and therefore procured 
a new aft for that purpofe in the following year. And, 
to come nearer to our own times, by the flat. 14 Geo. II. 
c^6. ftealing (beep, or other cattle, was made felony with¬ 
out benefit of clergy. But thefe general words, “or other 
cattle, “being looked upon as much too loofe to create a 
capital offence, the aft was held to extend to nothing but 
-mere fneep. And therefore, in the next feflions, it was 
found neceflary to make another ftatute, 15 Geo. II. c. 34. 
extending the former to bulls, cows, oxen, fleers, bul¬ 
locks, heifers, calves, and lambs, by name. 
5. Statutes againft frauds are to be liberally and benefi¬ 
cially expounded. This may feem a contradiftion to the 
laft rule; mod ftatutes againft frauds being in their con- 
fequences penal. But this difference is here to be taken ; 
■where the ftatute afts upon the offender, and inflifts a 
penalty, as the pillory or a fine, it is then to be taken 
ftriftly; but, when the ftatute afts upon the offence, by 
/ettiiig afide the fraudulent tranfaction, here it is to be 
Vol. XII. No. 837, 
conftrued liberally. Upon this footing the ftatute of 13 
Eliz. c. 5. which voids 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. 
6. One part of a ftatute muft be fo conftrued by ano¬ 
ther, that the whole may (if poflible) Hand ; vt res magis 
valeat quam pereat. As if land be vefted in the king and 
his heirs by aft of parliament, laving the right of A; and 
A has at that time a leail of it for three years; here A 
fhall hold it for his term of three years, and afterwards it 
(hall go to the king. For this interpretation furnifr.es 
matter for every claufe of the ftatute to work and operate 
upon. But, 
7. A faving, totally repugnant to the body of the aft, 
is void. If therefore an aft of parliament vefts land in 
tile king and his heirs, faving the right of all perfons 
whatfoever; or vefts the land of A in the king, faving 
the right of A; in either of thefe cafes the faving is to¬ 
tally repugnant to the body of the ftatute, and (if good) 
would render the ftatute of no effeft or operation ; and 
therefore the faving is void, and the land vefts abfoiuteiy 
in the king. 
8. Where the common law and a ftatute differ, the com¬ 
mon law' gives place to the ftatute; and an old ftatute 
gives place to a new one. And this upon the general 
principle laid down in the laft feftion, that leges pofieriores 
priores contrarias abrogant. But this is to be underftood 
only when the latter ftatute is couched in negative 
terms, or by its matter neceftarily implies a negative. As, 
if a former aft fays, that a juror upon fuch a trial (hall 
have twenty pounds a-year, and a new ftatute comes and 
fays he (hali have twenty marks; here the latter ftatute, 
though it does not exprefs, yet neceftarily implies, a ne¬ 
gative, and virtually repeals the former. For, if twenty 
marks be made qualification fufficient, the former ftatute 
which requires twenty pounds is at an end. But, if both 
the afts be merely affirmative, and the fubftance fuch 
that both may (land together, here the latter does not re¬ 
peal the former, but they (hall both have a concurrent ef- 
ficac)'-. If by a former law an offence be indiftable at the 
quarter feffions, and a latter law makes the fame offence 
indiftable at the affifes ; here the jurifdiftion of the fef¬ 
fions is not taken away, but both have a concurrent jurif¬ 
diftion, and the offender may be profecuted at either; un- 
lefsthe new ftatute fubjoins exprefs negative words; as, that 
the offence (hall be indiftable at the alfifes, and not elfewherc. 
9. If a ftatute, that repeals another, is itfelf repealed 
afterwards, the firft ftatute is hereby revived, without any 
formal words for that purpofe. So, when the ftatutes of 
z6 and 35 Henry VIII. declaring the king to be the fu- 
prerne head of the church, were repealed by a ftatute 1 
and z Philip and Mary, and this latter ftatute was after¬ 
wards repealed by an aft of 1 Eliz. there needed not any 
exprefs words of revival in queen Elizabeth’s ftatute, but 
thefe afts of king Henry were impliedly and virtually re¬ 
vived. 
10. Afts of parliament derogatory from the power of 
fubfequent parliaments bind not. So the flat. 11 Hen. 
VII. c. 1. which direfts, that no perfon for aftifting a king 
dc fatto (hall be attainted of treafon by aft of parliament 
or otherwife, is held to be good only as to common pro- 
fecutions for high treafon; but will * not reftrain or clog 
any parliamentary attainder. Becaufe the legiflature, 
being in truth the lovereign power, is always of equal, 
always of abfolute, authority; it acknowledges no Supe¬ 
rior upon earth, which the prior legiflature muft have 
been if its ordinances could bind the prefent parliament. 
And upon the fame principle Cicero, in his letters to At- 
ticus, treats with a proper contempt thefe reftraining 
claufes, which endeavour to tie up the hand of fucceed- 
ing legiflatures : “ When you repeal the law itfelf (fays 
he), you at the fame time repeal the prohibitory claufe 
which guards againft fuch repeal.” 
ji. Laftly, Afts of parliament that are impoftible to be 
5 C performed 
