laft rule; most statutes against frauds being in their confequences 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 statute acts upon the offence, by setting afide the fraudulent transaction (21), here it is to be construed liberally. Upon this footing the ftatute 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 [89] to a gift made to defraud the queen of a forfeiture.i

5. ONE part of the statute must be so construed by another, that the whole may (if poffible) stand: ut res magis valeat, quam pereat. As if land be vested in the king and his heirs by act of parliament, faving the right of A; and A has at that time a lease of it for three years: here A fhall hold it for his term of three years, and afterwards it shall go i 3 Rep. 82.

to the

ftatutes must be construed according to the fpirit: for, in giving relief against fraud, or in the furtherance and extenfion of natural right and justice, the judge may fafely go even beyond that which existed in the minds of those who framed the law.

(21) And therefore it has been held, that the fame words in a ftatute will bear different interpretations, according to the nature of the fuit or profecution inftituted upon them. As by the 9 Ann. c. 14. the ftatute against gaming; if any perfon fhall lofe at any time or fitting 10l. and shall pay it to the winner, he may recover it back within three months; and if the lofer does not within that time, any other person may fue for it, and treble the value befides. So where an action was brought to recover back fourteen guineas, which had been won and paid after a continuance at play, except an interruption during dinner, the court held the statute was remedial, as far as it prevented the effects of gaming, without inflicting a penalty, and therefore, in this action, they confidered it one time or fitting; but they faid, if an action had been brought by a common informer for the penalty, they would have conftrued it ftrictly in favour of the defendant, and would have held, that the money had been loft at two fittings. 2 Bl. Rep. 1226.

king. For this interpretation furnishes matter for every claufe 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, faving the right of all perfons whatsoever; or vests the land of A in the king, faving the right of A: in either of these cafes the faving 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 abfolutely in the king. k

cr

7. WHERE the common law and a statute differ, the common law gives place to the ftatute; and an old statute gives place to a new one. And this upon a general principle of univerfal law, that "leges pofteriores priores contra"rias abrogant :" confonant to which, it was laid down by a law of the twelve tables at Rome, that " quod populus poftremum juffit, id jus ratum efto." But this is to be understood only when the latter ftatute is couched in negative terms, or where it's matter is so clearly repugnant, that it neceffarily implies a negative. As, if a former act fays, that a juror upon fuch a trial fhall have twenty pounds a-year; and a new statute afterwards enacts, that he thall have twenty marks: here the latter ftatute, though it does not exprefs, yet neceffarily implies a negative, and virtually repeals the former. For if twenty marks be made a qualification fufficient, the former ftatute which requires twenty pounds is at an end'. [90] But if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they fhall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter-feffions, and the latter law makes the fame. offence indictable at the affizes: here the jurifdiction of the feffions is not taken away, but both have a concurrent jurifdiction, and the offender may be profecuted at either:

k I Rep. 47.

1 Jenk. Cent. 2. 73.

unless

unless the new ftatute fubjoins exprefs negative words, as, that the offence shall be indictable at the affizes, and not elsewhere.

8. Ir a ftatute, that repeals another, is itself repealed afterwards, the firft ftatute is hereby revived, without any formal words for that purpose. So, when the statutes of 26 and 25 Hen. VIII., declaring the king to be the fupreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter ftatute was afterwards repealed by an act of i Eliz., there needed not any exprefs words of revival in queen Elizabeth's ftatute, but thefe acts of king Henry were impliedly and virtually revived.n

9. Acts of parliament derogatory from the power of subfequent parliaments bind not. So the ftatute 11 Hen. VII. c. I. which directs that no perfon, for affifting a king de facto, fhall be attainted of treafon by act of parliament or otherwise, is held to be good only as to common profecutions for high treason; but will not restrain or clog any parliamentary attainder°. Because the legislature, being in truth the fovereign power, is always of equal, always of absolute authority: it acknowledges no fuperior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavoured to tie up the hands of succeeding legislatures. "When you repeal the "law itself," fays he, " you at the fame time repeal the pro- [91] "hibitory clause, which guards against such repeal.” r

10. LASTLY, acts of parliament that are impoffible to be performed are of no validity: and if there arife out of them collaterally any abfurd confequences, manifeftly contradictory to common reason, they are, with regard to thofe collateral

confequences, void (22). I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the conftitution, that is vefted with authority to control it and the examples ufually alleged in fupport of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be fubverfive of all government. But where fome collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this confequence was not foreseen by the parliament; and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus, if an act of parliament gives a man power to try all causes that arise within his manor of Dale; yet if a cause should arise in which he himself is party, the act is conftrued not to extend to that, because it is unreasonable that any man should determine his own quarrel 9. But, if we could conceive it poffible for the parliament to enact, that he should try as well his own caufes as those of other perfons, there is no court that has power to defeat the intent of the legiflature, when couched in fuch evident and express words as leave no doubt whether it was the intent of the legiflature or no.

98 Rep. 118.

(22) If an act of parliament is clearly and unequivocally expreffed, with all deference to the learned Commentator, I conceive it is neither void in it's direct nor collateral confequences, however abfurd and unreasonable they may appear. If the expreffion will admit of doubt, it will not then be prefumed that that construction can be agreeable to the intention of the legislature, the confequences of which are unreasonable; but where the fignification of a statute is manifeft, no authority less than that of parliament can restrain it's operation.

THESE

THESE are the feveral grounds of the laws of England: over and above which, equity is also frequently called in to affift, to moderate, and to explain them. What equity is, [92] and how impoffible in it's very effence to be reduced to stated rules, hath been fhewn in the preceding section. I shall therefore only add, that (besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a pofitive kind) there are also peculiar courts of equity established for the benefit of the subject; to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence as are binding in confcience, though not cognizable in a court of law; to deliver from fuch dangers as are owing to misfortune or overfight; and to give a more fpecific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the pofitive or common law. This is the business of our courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cafes a power fhould be lodged in any judge, to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law affigns, but he may suffer less. The laws cannot be restrained by partiality to inflict a penalty beyond what the letter will warrant; but, in cafes where the letter induces any apparent hardship, the crown has the power to pardon.