I do allow the Printing of this Book Jan. 24. 1677. Francis North. A TREATISE Concerning Statutes OR Acts of Parliament And the Exposition thereof WRITTEN By Sir Christopher Hatton Late Lord Chancellour of ENGLAND LONDON Printed for Richard Tonson at his Shop under Grays-Inn Gate next Grays-Inn Lane Anno 1677. Academiae Cantabrigiensis Liber A TABLE of this TREATISE CHAP. I. What a Statute or Act of Parliament is whom it bindeth and when it beginneth to take force 1. WHat an Act of Parliament is p. 2. 2. The Royal Assent is Forma informans interna Statuti p. 3. 3. The Royal Assent bindeth not the King or Queen except they be named but standeth for a Law to bind the Subjects ib. 4. Some Statutes proceed in respect of the benefit from the Prince only some from the Subjects only and some contain benefit reciprocal but the Law conveyeth it ever from the person that hath best right to grant ib. 5. Statutes penned in the name of the King only are not his only Act p. 6. 6. A Doubt of the Statute of Rutland p. 7. 7. Statutes Commence or have Relation to the first day of that Session wherein they are made and all of them are counted simul tempore p. 8. 8. If the Cause Efficient of any offence be pardoned by Parliament the effect is pardoned p. 10. CHAP. II. A Division of Statutes 1. STatutes are General pertaining to all Subjects or particular The benefit of the General all Judges are to yield though the party crave it not But Particular Statutes are not to be taken notice of without Pleading p. 11. 2. Of Statutes some are General in Particularity some Particular in Generality p. 12. 3. All Statutes that concern the King or Queen in their Body Politick are General for they concern all Subjects because every Subject is a mystical Member of the Kings Body Politick ib. 4. Some Statutes are general in Words and particular in Intent some are particular in Words and general in Intent p. 13. 5. In dubio haec legis praesumitur esse sententia quam verba ostendunt p. 18. 6. Ubi manifeste pugnant legis voluntas verba neutrum sequendum est verba quia non congruunt menti mens quia non congruit verbis So it was in the Earl of Leicesters Case and so it hath been in divers Statutes continued by unapt words and so discontinued p. 19. CHAP. III. Another Division of Statutes 1. OF Statutes some be Beneficial and some Penal And because the most are Penal to some though Beneficial to the more part they take their Denomination of the prevalent quality p. 22. 2. Of Statutes some are Constitutive of new Laws and some Declaratory of old some go to the Abridgment and some to the Enlargement of the Law ib. 3. The Laws of England and Reasonable are not always Coincident nor Convertible neither is it otherwise in the Law Civil p. 25. 4. That our Law wanteth much of Perfection for neither the Courts of Law nor of Conscience can end all Causes but some of necessity are left to the conscience of the party p. 26. CHAP. IV. A Division of the Interpretation of Statutes 1. OF Statutes some must be interpreted after their Words and some by Equities p. 28. 2. If all the Parliament were voluntarily assembled again and not by Writ Eorum non esset interpretari statutum dubium 29. CHAP. V. Of Interpretations of Statutes according to Equities so far forth as Epicaia goeth 1. STatutes ampliative of the common Law supplying a defect therein and reforming matters needful in the Common-wealth to be reformed may be expounded by Equities p. 31. 2. Statutes may sometimes be expounded by Equities to reach to things of Vicine Nature especially if the one come in lieu of the other p. 34. 3. Some Statutes are expounded by Equities because Law and Reason repugn to the open sense of the words p. 41. 4. Law and Reason have been so effectual against the words of Statutes that even in the Princes Prerogative the words of Statutes have been controlled p. 44. 5. An Act of Parliament confirmeth all the Customs in a Town those that are against Law and Reason are not confirmed p. 53. 6. If by an Act of Parliament an Act or Deed is to be done with the Counsel or in the presence of a party or parties That party is no Judge in the Cause as in the Court of Star-Chamber none are Judges but the Lord Chancellor and Treasurer or Keeper or two of them p. 56. 7. A Statute must bring forth some new fruit and to such end it must be expounded by Equity p. 57. 8. If a Statute by the open sense punish one and intendeth another it must be expounded by Equity p. 61. CHAP. VI. That some Statutes Penal may be expounded by Equity 1. STatutes Penal may be so expounded if the Exposition tend to favour p. 63. 2. Statutes Penal that remedy a great mischief are taken by Equities p. 66. 3. Likewise if they continue recompence p. 70. 4. Statutes Penal that inflict most grievous Punishments are never expounded by Equities except the word may bear an equity it self p. 72. 5. Fineux thought that the Statutes of Attaints might not be expounded by Equities because there was some former remedy p. 74. CHAP. VII Of Statutes that must be taken strictly 1. STatutes which are grievously Penal and those that derogate from the Common Law and those that save not in their general disposition persons favourable in all Laws must be strictly taken p. 76. 2. Every private Statute must be strictly taken if it be Penal p. 80. 3. All Statutes appointing a thing to be done in a Form must be strictly taken touching the observance of the Form p. 81. 4. Statutes in the Affirmative imply a Negative when there is no former Law nor Statute to the contrary p. 83. 5. Some Statute in the Affirmative defeateth p. 84. CHAP. I. What a Statute or an Act of Parliament is Whom that bindeth and when it beginneth to take force THis word Statute is more general than an Act of Parliament here in England for that containeth Burghlees and even very Ordinances in Court-Leet or Court-Baron Moreover this word Statuimus perpetuitatem designat whereas Acts of Parliament do expire many of them by time But to omit the force of words and to come to the matter intended An Act of Parliament is a Law agreed upon by the King or Queen of England having Regal Authority the Lords Spiritual and Temporal and the Commons lawfully assembled which taketh strength and life by the assent Royal so that I account the rest of the consents to be parcel of the substance and the Royal assent to be Forma interna informans quae dat rei esse yet this agreement bindeth not the King or Queen except they be named if it be onerous for it must be taken as agreed unto for a law to bind her Subjects her self
standing in Pristine liberty And though Acts of Parliament be consisting of so many consents yet sometimes in respect of the benefit some of them seem to proceed from subjects only to the Prince as those of Dismes and Subsidies and some other of like nature Sometimes they seem to proceed from the Prince only as Pardons and Priviledges Confirmations of Customes and such like And some have reciprocal benefit as the Statute of 36 E 3. c. 11. ordaineth that where the Commons of the Realm had granted to the King a great Subsidy the King in consideration thereof granted that after three years nothing should be taken or demanded of the said Commons but only the ancient custom of half a mark of every sack of Wooll But to whom soever the fruit redoundeth there is no such absurdity that one person is both Agent and Patient for the Law conveigheth the thing whether it concern many or one from them or him that best right hath to give the matter passage to such as the Court is agreed should receive benefit thereof And because every mans consent in England is imployed in the persons there assembled it is a hard matter to say that wrong or error is there committed Quia concurrit consensus omnium quorum interest Yet I cannot say but an Act of Parliament may err whereof I mean to speak in more convenient place Now whereas diverse Statutes be penned in the name of the King we are not to think that the King was sole Enactor for the Statute De donis conditionalibus saith Dominus Rex perpendens necessarium utile fore in casibus predictis apponere remedium statuit quod voluntas donatoris c. Yet never was Statute with greater consent at the making nor better acceptance until this day put in practice by the subjects for it is the ground and fountain out of which flow all intailes Only I call to remembrance that when Baron Frevile and Baron Luke in the Exchequer held opinion that that Court had no jurisdiction in Common Pleas and among other Luke cited the Statute of Rutland to that purpose Sir Edward Saunders Chief Baron whose opinion I account great in Law said that the Statute of Rutland was no Statute but the Kings pleasure And therefore I forbear to conclude generally that all Statutes which are so named are written by the consent of the King and Subjects yet I know none of that kind except the Statute of Rutland be such a one The time when the Lords Spiritual and Temporal and the Commons assembled have agreed upon any Law and the Royal assent is given to the same is not the beginning of that Law for it hath Relation and is accompted to commence from the first day of that Session of Parliament and all the Acts that are concluded upon at one Session are accounted Simul tempore so that if it be not limited at what day the Statute shall begin to take force some might be offenders of the Law before it were known And saving that that it is meet to credit such men of Learning as was Justice Hales and divers other Justices I should never think that any Law positive or constitution should bind but that which is rightly ordained and also duely published I say Rite lata Lex debitò publicata And because I am in matter of Relation I add this That whensoever a general Pardon is by Parliament if the cause efficient of any offence be pardoned the effect is pardoned As for example A man was stricken before the beginning of a Parliament in the time whereunto the Pardon had relation and the party stricken died after in a time exempt fróm the benefit of the Pardon this death nevertheless was pardoned because the stroke which was the cause efficient was pardoned CHAP. II. A Division of Statutes OF Statutes some be General and some Particular Those that extend to all Subjects are General and the benefit of them the Judges in every Court are of office bound to yield to every Subject when his case before them needeth that it should so be whether they be pleaded or not and whether the Parties crave it or not But those that are Particular all men that will have any benefit of them must plead or else the Judges are not to take notice of them Of Particular Statutes some are general in a particularity or particular in a generality as those that concern all Sheriffs all Escheators or any other sort of men and not all men some concern one or a few persons particularly All those Statutes that concern the King or Queen in their body Politick are general for they concern all Subjects Wherefore the Statute whereby the Lady Latimer being Queen as lawfully espoused to King Henry the Eighth had a distinct capacity to take give and grant of the King or to the King or of and to any other person or persons concerneth all the Subjects and is general because every Subject is a mystical Member of the King's body politick A harder matter than is yet spoken of remaineth because some Statutes are general in Words and particular in Intent some are particular in words and general in intent Of which sort I know no great number and to set down a rule for them it is very hard other than to say when the intent is proved that must be followed Ut verba serviant intentioni non intentio verbis which is allowable in all laws for the words are the Image of the law and the meaning is the substance or body of the matter but whensoever there is departure from the words to the intent that must be well proved that there is such meaning The Statute of Circumspecte agatis nameth but the Bishop of Norwich and his Clergy and it is extended and understood to belong to all Bishops in this land and is a notable boundary to distinguish the Spiritual from the Temporal Jurisdiction In the seventh year of King Edward the Sixth a Statute was made that if any Treasurer Receiver or other Minister accomptant their Deputy or Deputies receive of any person any summe of Money or other profit of or for the payment of any Fees Annuities Pensions c. more or otherwise than he lawfully might by former Statute that then the said Treasurer c. should pay for every penny otherwise taken vi s. viii d. and though the words be of any Treasurer c. yet it is not understood to belong to any other but the Kings Officers and not any other mans I busie not my self at this time much to draw such as these are under a rule and in the cases rehearsed there is pregnant reason why the one should be taken generally and the other particularly for the first hath been so taken ever since the making thereof and besides the benefit thereof agreeth as conveniently to every other Bishop and his Clergy as to the Bishop of Norwich and the second
if he have Assets to him in Fee-simple descended from the same Ancestor he shall be barred but if he have not Assets to him already descended but that after they shall descend then the Tenant shall have recovery by Writ of Judgment that shall issue out of the Roll of the Justices before whom the Plea was pleaded and by the equity of the same Statute if with Assets garranty of the Tenant in tail be pleaded where he hath not Assets but after Assets is to descend there the Tenant shall have Scire facias to have the Assets and not the Land tailed because that the Issue might after recover that from him and so the Statute giveth to the Tenant the thing aliened and to the Issue the Assets and by the equity the Issue shall have the thing aliened and the Tenant shall have the Assets and this is because that former law would not suffer the Land entailed effectually to recompence the party disherited and so the Statute should have served to little purpose or none if it had not been thus expounded 32 H. 8. A Statute was made against buying of Titles of Land which Justice Mountague in the Commentaries expoundeth thus Except such Person and Persons have been in possession thereof making a full point there or of reversion or remainder thereof making another point there or have taken the Rents or Profits thereof by the space of one year so that these words by the space of one year shall be referred only to the last clause of receiving Rents and so he in the reversion or in the remainder or he that hath been in possession though it were but an hour hath power to alien for he saith that understanding the Statute according to the letter the Baron being possessed by the space of a year in the right of his Feme Tenant in tail might make a Lease or alien and he that should enter for mortmain or by escheat or recover by any title might be restrained for a year All which is inconvenient and to avoid such inconvenience the Statute is expounded by such pointing and reference The Statute of Articuli super chartas against Champerty hindreth not the Father from infeoffing his Son and Heir And the Statute of Westm. 2. cap. 11. which saith that in Appeals it shall be inquired who be Abettors extendeth not to the Heir that abetteth his Mother Anno 5 E. 6. A Statute was made that if any Treasurer Receiver or other Minister Accomptant or Deputy or Deputies to them receive of any person any sum of Money or other Profits of or for the payment of any Fees Annuities Pensions or Warrants more or otherwise than he might by former Statutes in such cases provided that then the Treasurer c. so offending should pay for every penny or penny worth so taken by way of forfeit vis viii d. to be recovered in any of the Kings Courts c. though these words extend to all mens Officers yet they are restrained to the Kings Officers only even for the evidence of Reason for other men may be spoken with themselves especially to remedy injustice offered by their Officers and there is no Statute that limiteth the Fees of other mens Officers besides the Kings and by the Preface of the Act it may appear to be a remedy for those that the Kings Officers defrauded of their Pensions granted out of Religious houses and Justice Dyer saith that the Preface is the Key to open the intent of the Makers of Acts of Parliament and Civilians say that Cessante statuti prooemio cessat ipsum statutum for Reason hath been so forcible against the words of Statutes that even in the Princes Prerogative the words of Statutes have been controlled as the Statute of Prerogativa Regis saith Dominus Rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per servitium militare de quibus ipsi tenentes seisui fuerunt in dominico suo ut de feodo die quo obierunt de quocunque tenuerunt Yet if the Kings Tenants have Lands in Knights Service holden of the King and other Lands descending from the Mother holden of another Lord and die without Issue the Lands descending from the Mother shall not be in the Kings hands for they go to the next heir of the Mothers side and the heir of the Father shall not have them wherefore the King who is but to have the custody of the heir of the Father shall have but those Lands that to him descended and not those that went to another heir The Statute of Westm. 2. touching View which provideth that View shall not be granted in the second Writ if the Party abate the first Per exceptionem dilatoriam is restrained where it is abated by such an exception dilatory as the Court or another Tanquam amicus Curiae might abate it by An Act of Parliament confirmeth all the Customs of a Town there are some against Law and Reason those are not confirmed 3 H. 7. cap. 1. It is ordained That the Chancellor and Treasurer of England for the time being and Keeper of the Privy Seal or two of them calling to them a Bishop and a Temporal Lord of the King 's most honourable Privy Council and the two Chief Justices of the King's Bench and the Court of Common Pleas or in their absence two other Justices have Authority to examine Riots c. And it is holden that none are Judges in this Court but the Chancellor and Treasurer and Keeper or two of them and the other are but Assistants and not Judges yet it is held an error if they call not such persons as is limited by the Act for Law and Reason say Licet presentia aut consilium alicujus requiratur in aliquo actu requirens non tenetur illud sequi Finally Every Statute doth either bring forth some new thing or is declaratory of former Law and therefore every Statute must be expounded to have some good operation not as a thing needless or void The Statute of 32 H. 8. c. 13. providing that Leases for years made by Abbathies c. shall be good for 21 years only from the time of the making if so many years be by the demise lease or grant specified or else for so many years as be expressed so that the old Rent be reserved and so that the said Lease or Leases exceed not 21 years This first so that is expounded to be conditional and the second so that is but declaratory for if the old Rent be not reserved all is void through breach of the condition but the second so that the said Lease or Leases exceed not 21 years doth only limit the meaning and declare that such Leases shall be good for so long and no longer and if there be mention of more years the residue that exceed 21 are void but not the whole term and if it should be otherwise expounded the latter words would overthrow all the
is taken particularly for all the general words both because the preamble which is the key to open many Statutes as Justice Dier saith favoureth and giveth light to that exposition and other men may be spoken with themselves if their Officers abuse men though the King cannot at mens pleasures be come unto and it is chiefly ordained for Religious Persons that had Pensions of the King who were delayed and defrauded by the King's Officers and as in these cases so will there appear special reason of other Statutes in this kind or else they must be taken according to their words for as Civilians say In dubio haec legis praesumitur esse sententia quam verba ostendunt But if the words and mind of the Law be clean contrary that Law or Statute is void Vbi manifeste pugnant legis voluntas verba neutrum sequendum est Verba quia non congruunt menti mens quia non congruit verbis As for example A Noble-man of this Realm lately deceased was attainted de facto of High Treason in Queen Mary's time and in an Act of Parliament it was intended to confirm the judgment and those words were void because the Attaindor was void by mis-recital and by consequence for want of Jurisrisdiction in the Commissioners and because it was void it could not be confirmed for that which is weak may be made stronger but that which hath no subsistance cannot be corroborated Et confirmare est illud quod est firmum facere Likewise divers Statutes that should have been continued in Parliaments have been misrecited and by that occasion discontinued and dissolved Out of the Premisses ariseth the solution of one great doubt which is Whether the Parliament may err or not for it is lately declared wherein it hath erred And though there be no Court higher to convince or pronounce upon the error yet when the matter is plain every Judg may esteem of it as it is and being void is not bound to allow it for good and forcible CHAP. III. Another division of Acts of Parliament WHere there are not Essential Differences Divisive men that would use plainness in Treatises of Learning are allowed to divide more than once and so do I at this time Wherefore I say again of Statutes some be Penal some are Beneficial or Gracious And again some Statutes are constitutive of new Laws some declaratory of old some go to the abridgment of the Common Law some to the enlargement I will not stand upon defining the Members of these divisions nor shew examples for they bear their Names and Natures in their forehead so far forth as doth in this precurse and preparation to the rest of this work Only I will say with Sir Edward Saunders late chief Baron of worthy memory that all Statutes in a manner are Penal to some but if they be beneficial to very many and punish a few they are to be counted gracious taking that denomination of the prevalent quality And whereas I have said that some Statutes are constitutive of new Laws and go to the enlargement of the Common Law I cannot tell how it might be taken of some who hold the Law to be so perfect and so large as Reason is in every thing and beyond Reason a man cannot go for Reasonable is the Difference constitutive and convertible with man But our Laws are not grown to that perfection nor the grounds of Law are not all so perfect but that the contraries of some are as reasonable as our Laws As for example The law or custom of the eldest Sons inheriting the whole Land how doth the consent of the Laws of other Countries go against that and the number of such laws are many Wherefore seeing Reason must be bridled and restrained in the course of the Law the law of England and reasonable be not convertible nor always coincident together I know that Reason may be called the Mother of the Law and Maxims the Foundations in respect of the more part of the Laws and Maxims may not be denied but they may be compared and must be reconciled in every case where they seem to differ but all this negotiation bringeth us a less matter than that which Tully de legibus speaketh of Lex est summa ratio c. Neither is this defect peculiar to our law for the Civil Law saith Non omnium quae à majoribus constituta sunt ratio reddipotest And we are so far from Perfection in our Law that both our Courts of Law yea and our Courts of Conscience as the Author of the Book called The Doctor and the Student saith must leave of necessity some things that need reformation to the Conscience of the party himself and then may Acts of Parliament be made right well that are constitutive of new Laws and corrective of old CHAP. IV. A Division of Interpretation of Statutes NOw that Statutes are divided let us likewise divide their Interpretation which is of two sorts One is according to the precise words of every Statute the other according to equity For when the words express not the intent of the Makers the Statute must be further extended than the bare words but ever it must be thought that the meaning of the Makers was such when there is any proceeding other than the words bear for it were an absurd thing to make an exposition go further than either the words or the intention of the Statutaries reached unto especially seeing a great part of them are by election namely all of the Lower House and then by the law Civil the Assembly of Parliament being ended Functi sunt officio and their Authority is returned to the Electors so clearly that if they were altogether assembled again for interpretation by a voluntary meeting Eorum non esset interpretari For the Sages of the Law whose wits are exercised in such matters have the interpretation in their hands and their Authority no man taketh in hand to control wherefore their Power is very great and high and we seek these Interpretations as Oracles from their mouthes CHAP. V. Of Interpretation of Statutes according to Equity ALl Statutes may be expounded by Equity so far forth as Epicaia goeth that is an exception of the Law of God and Law of Reason from the general words of the Law of Man for such cases are taken for understood and what is understood is not out of the Law By the Law of Reason I mean as the Author of the Book called The Doctor and Student doth the Law Eternal or the Will of God known to every man by the light of natural Reason and by the Law of God I mean the Old and New Testaments not favouring their Opinions that by circuity of Argument would batter or beat down any good Law of man by colour of contrariety thereof to the Word of God when the truth in plainness of dealing is otherwise to be discerned The