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
be taken for Equities because former Laws or former Statutes left them not altogether unpunished whose Opinion I think to stand good at this day CHAP. VII Of Statutes that must be taken strictly NOw to speak of Statutes that are taken strictly it may be briefly done for all must be taken within the compass of their own words which have not some warrant by Law or by good reason to be taken by Equities And yet to handle this matter somewhat more specially I agree that those Statutes which are grievously Penal and those that derogate from the Common Law and those that save not in their general disposition persons commonly in all Laws favoured as Infants Femes Covert Men beyond the Seas Men in service of their Prince such as are imprisoned such as are of Non sane memory must be strictly taken except there be especial Warrant to take them by Equities Likewise those Statutes that go to the abridgment of Fines because they are devised for general repose and secure contentment which amplifieth every good gift that God giveth to man As the Statute of Westm. 2. concerning intailed Lands saith Si finis super hom tenementa levetur sit ipso jure nullus Here nullus is restrained to the right of the intail and finis is aliquis to other intents for it is discontinuance of the possession The Statute of 32 H. 8. cap. 33. ordaineth That no dying seised of a Disseisor shall toll the entry of him that right hath except the Disseisor had peaceable possession by the space of five years yet if an Infant Abator die seised within five years he in the reversion or the remainder cannot enter The Statute of Glouc. cap. 3. saith In like manner be not the Heirs of the Feme after the death of the Father and Mother barred of Action to demand the Heritage of his Mother whereof no Fine was levied These words whereof no Fine was levied are not suffered to go at large to corroborate a Fine levied by the Father only but is restrained to a Fine levied by Father and Mother The Statute of 32 H. 8. against those that buy Titles shall not be expounded by Equity neither the Statutes that give Attaints The Statute De malefactoribus in parcis is not extended Ad malefactores in forestis The Statute of Westm. 2. cap. 40. ordaineth That where the Baron alieneth the Land of the Feme Non differatur secta mulieris post obitum viri sui per minorem aetatem haeredis qui warrantizari debet This haeredis might extend to the Heir of any Alienee but it is restrained to the Heir of the Baron only and if the Heir of any other Alienee be under age the Suit shall not stay Every private Statute must be taken strictly especially if it be penal Therefore if a Statute be that all Estates of Land to a certain man made shall be void to him and to his Heirs and an Estate is made to him and to his Feme and the Feme survive his and her son shall inherit as Heir unto her for Statutes private and particular Customs are in like degree and as Civilians say Statutum consuetudo pari passu ambulant And therefore if there be a custom in some place that an Infant may make Feoffement at 15 years of age as I take it some such custom is in England this shall not be extended to a release to be made by an Infant in that place by force of that custom All Statutes appointing a thing to be done in a form must be strictly taken touching the observance of the Form and circumstance specified and therefore the Statute that giveth power to Auditors to commit to the next Gaol Accomptants found before them in Arrerages saying Per testimonium Auditorum mittantur proximae Gaolae is strictly taken both in the number so that one Auditor cannot commit and in the Gaol so that he must be sent unto the next Gaol though it be in another County The Statute of 21 E. 3. provideth that error in the Exchequer shall be corrected and amended before the Chancellor and Treasurer and therefore the persons named and no other may correct and amend it in any other Court. For Statutes in the affirmative imply a negative when they be constitutive of new Law and there is no Law nor Statute beforehand to the contrary thereof but where there is a former Statute or Law contrariant it is not taken away by implying a negative in an affirmative as 27 H. 8. Wales was united to England and 34 35 H. 8. Authority was given to the Justices in Wales affirmatively giving them Jurisdiction to try all Penal Statutes This taketh not away the Authority that Judges had before in other of her Majesties Courts And though some say that a Statute in the affirmative defeateth nothing yet am I not of their mind for the cause and reason aforesaid And further because I know the Statute of 21 H. 8. gave the King the possessions of divers Colledges in such state as they then were and though the possessions of some of them came not to the Kings hands three or four years after nevertheless all the Leases granted between the time of the Statute and the Kings entry are void by this Statute So that this affirmative defeateth with great reason for when the Statute had settled in the King the right title and interest of those Lands that appertained to those Colledges it was great reason that the Leases of other men out of whom the right was passed away and devested should be void and of no force Books Printed for Richard Tonson MArches Actions for Slanders and Arbitraments the first being a Collection under certain Heads what Words are actionable in the Law and what not Where an Action De Scandalis Magnatum will lie and of the nature of a Libel The other shewing what Arbitraments are good in Law and what not with all sorts of Presidents for the same and variety of Pleadings And also certain Queries with the Books cited Pro Con very useful for Students in the Law By J. M. of Grays-Inn Barist Price bound 3 s. Reports or New Cases taken in the 15 16 17 and 18 years of King Charles the First By Jo. March of Grays-Inn Barist Price bound 3 s. 6 d. Transactions in Chancery both by Practice and Presidents with the Fees thereunto belonging and also special Orders in ordinary Cases By William Tothil late one of the Six Clerks Price bound 1 s. 6 d. The Courtiers Calling Shewing the ways of making a Fortune and the Art of living at Court according to the Maximes of Polity and Morality in two parts The first concerning Noble Men the second concerning Gentlemen by a person of Honour Price bound 1 s. 6 d. Lately Published The Art of making Love or Rules for the Conduct of Ladies and Gallants in their Amours Price bound 1 s. Don Carlos Prince of Spain a Tragedy as it is acted at the Dukes Theatre written by Thomas Otway Price 1 s. Titus and Berenice A Tragedy as it is acted at the Dukes Theatre with a Farce called the Cheats of Scapin Price 1 s. The Portugal History or a Relation of the Troubles that happened in the Court of Portugal in the years 1667 and 1668 In which is to be seen that great Transaction of the Renunciation of the Crown by Alphonso the Sixth The Dissolution of his Marriage with the Princess Maria Frances Isabella of Savoy The Marriage of the same Princess to his Brother the Prince Don Pedro now Regent of the Realm of Portugal and the Reasons alledged at Rome for the dispensation thereof By S. P. Esquire Price bound 2 s. 6 d. All sold by Richard Tonson at his Shop under Grays-Inn Gate next Grays-Inn Lane FINIS 1. 2. 3. 4. 5. 6. 7. 8. 1. 2. 3. 4. 5. 2. 3. 4. 1. 2. 6. 3. 4. 1. 2. 1. 2. 3. 4. 5. 7. 8. 1. 2. 3. 4. 5. 1. 2. 3. 4. 5.
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
intent of the former for all those Leases for the most part exceeded 21 years The Statute of Glouc. cap. 3. saith In like manner be not the Heirs of the Feme after the death of the Father and Mother barred of Action to demand the Heritage of his Mother whereof no Fine was levied These words no Fine are taken for no lawful Fine that is to say levied both by Father and Mother for else it had been without any operation for a Fine levied by Father only was void before and therefore that the Statute might bring forth some good fruit it is expounded as before is said Likewise if a Statute in common sense of the letter corrrect one person whereas it is intended to chastise another it must be reduced to the true meaning of the Makers As the Statute Depannis against Fore-stallers made 25 E. 3. saith That the Goods and Cattels by Fore-stallers bought shall be forfeited to the King If the Buyer therefore agree with the Seller here the penalty might lie upon the Seller who peradventure never sold to a Fore-staller before and the Fore-staller might go free if the Goods might be taken away as forfeited so soon as the Buyer and Seller were agreed And therefore to satisfie the extent of the Law which is to punish the Fore-staller agreement executed is taken which is agreement and payment and not agreement executory which is before payment CHAP. VI. That some Statutes Penal may be expounded by Equities STatutes Penal may be and commonly have been taken by Equity so far forth as the exposition applieth to favour and benignity or to the propagation of a good Law supplying a former defect in the execution of Justice for the Exposition is not Penal but serveth to the impenalling of rigorous Law in some points according to the Rule Odia restringi convenit In the restraint of rigour there is greater favour than in some Statutes favourable or giving men priviledg or preheminence for these do but increase a man's good Estate those other save the Head preserve Liberty deliver from Pains Corporal and Pecuniary and sometimes also from the note of Ignominy but I cannot say of the contrary part that Laws favourable and indulgent may be straitned Quia favores convenit ampliari And I refuse to follow Cicero saying Melius est innocentem damnari quam nocentem causam non dicere For it is against all Christian Laws humane Infirmity and Corruption and mans often falls considered Moreover Pains and Penalties inflicted for Transgression are chiefly for Example sake Ut paena unius sit metus multorum the harm and damage done being many times irreparable in which case it were great folly to propose for terror any to punishment whom the Beholders should pity for that cause to be afflicted And therefore to shew what Statutes Penal may be extended by Equity I suppose most of those Statutes Penal which are devised to supply a defect in the Common Law or to remedy a great mischief in the Common-weal are extended by Equity unto cases under Majority or parity of Reason with the Statute established as may appear by the Statute of R. 2 against the Warden of the Fleet for suffering any Prisoner there being by Judgment at the suit of any Party to go out of Prison without agreeing with the party which is worthily extended to all Sheriffs and Gaolers or Keepers of Prisons for though this Act be Penal yet there is so great expediency in the enlarging thereof that all men allow it The Statute of Acton Burnell likewise before mentioned against Praysers of Goods that prized them too high is applied to extenders of Lands with divers other of that kind which I omit because it is needless to make doubt of that point Secondly I suppose that those Statutes Penal or Restrictive of the Liberty that the Law otherwise giveth to man as are in the most wise mens judgments either equally or more beneficial than they are penal may be extended by Equities as the Statute of West 2. cap. 1. saith Non habeant illi quibus tenementum sic fuit datum sub conditione potestatem alienandi abridgeth the Donees in tail from doing their pleasure with their Lands but it recompenseth them in the eye of the wise by the reservation and safe keeping thereof to the behoof of their Posterities and because here is equal good to the evil or damage that they seem to sustain this Statute is the rather extended by Equities though there be divers good reasons beside for the same for where there is but mention of the Donees it is extended to all their Heirs infinitely But some may say and that truly though this Statute be restrictive of a mans free disposition of his Lands yet it is not properly called Penal and therefore I go to another point And thirdly It is to be noted that if a Statute Penal give but recompence though the recompence be somewhat liberal it may be extended by Equities and this agreeth with the Civil Law that alloweth a Statute Penal to be extended that is Bonum animae licet damnosum rebus as the Statute of Waste saith if any make waste of that he holdeth Ex dimissione is extended to Land holden Ex legatione The Statute of 7 H. 8. cap. 1. which saith that the Defendant shall recover damages if the Plaintiff be barred in second deliverance is expounded to give the Defendant damage if the Plaintiff be non-suit The Statute of 4 H. 7. cap. 17. saith If Cestuy que use of Lands holden by Knights service die and no Will by him declared that the Lord shall have the Ward for it is counted as no Will to hinder that purpose because such uses were invented to defraud their Lords of their Wards and Wardships come in respect of Knights-Service to be done by persons thereto unable for imbecillity and tender years and are a kind of recompence And to be short there are few Statutes Penal which may not be expounded by Equities that are Beneficial to the Common-wealth or more part of good men and Penal but to a few not worthy to be favoured in such cases if it so please the Judges of the Land to agree Yet always I except those that inflict most grievous Punishments for those are never extended by severity further than their words in some sense may bear Indeed sometimes containing them within the words though in an unusual sense they are largely taken as the Statute that maketh it Treason for the Servant that killeth his Master toucheth him as grievously that killeth his Mistress making that word to serve both Sexes But the words in some sense stand always where the Penalties be very grievous and therefore the Statute of Attaints and the Statute of 32 H. 8. of buying Titles are not expounded by Equities But Fyneux Chief Justice in King Henry the Seventh's time saith That touching Attaints there was yet further reason why they should not