THis word Statute is more general than an Act of Parlia­ment here in Eng­land, for that containeth Burgh­lees, and even very Ordinan­ces [Page 2] 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 1. 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 [Page 3] the consents to be parcel of the substance, and the Royal assent to be Forma interna & 2. 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 3. agreed unto, for a law to bind her Subjects, her self standing in Pristine liberty. And though 4. 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 [Page 4] 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 [Page 5] 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. [Page 6] Quia concurrit consensus 5. 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 [Page 7] 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 6. Baron, whose opinion I ac­count great in Law, said, that the Statute of Rutland was no [Page 8] 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 7. 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 [Page 9] 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 [Page 10] duely published; I say, Rite lata 8. 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 [Page 11] stroke which was the cause ef­ficient was pardoned.

OF Statutes, some be Ge­neral, and some Parti­cular: Those that extend to 1. 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 [Page 12] 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 2. 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 3. [Page 13] 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 4. spoken of remaineth, because some Statutes are general in [Page 14] 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 [Page 15] 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 [Page 16] 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 [Page 17] 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 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 [Page 18] 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. 5. But if the words and mind of the Law be clean con­trary, [Page 19] that Law or Statute is void. Vbi manifeste pugnant le­gis voluntas & verba, neutrum se­quendum 2. est. Verba quia non congruunt menti, mens quia non congruit verbis. As for exam­ple; A Noble-man of this Realm lately deceased, was at­tainted, 3. de facto, of High Trea­son, in Queen Mary's time, and in an Act of Parliament it was 4. 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; [Page 20] 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 [Page 21] 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.

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, 1. some are Beneficial or Graci­ous; And again, some Statutes are constitutive of new Laws, 2. some declaratory of old; some [Page 23] 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 6. to some; but if they be bene­ficial to very many, and punish a few, they are to be counted [Page 24] 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 [Page 25] 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 3. reasonable be not convertible, nor always coincident toge­ther. I know that Reason may be called the Mother of the [Page 26] 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 4. in our Law, that both [Page 27] 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.

NOw that Statutes are di­vided, let us likewise 1. 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, [Page 29] 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 2. of Parliament being ended, Functi sunt officio, and their Authority is returned to the Electors so clearly, that if they were altogether assembled [Page 30] 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.

ALl Statutes may be ex­pounded by Equity so 1. 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 [Page 32] 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 Statute of E. 3. ordaineth that no man upon pain of Impri­sonment [Page 33] should give Almes to a valiant Beggar: yet if one meet with such an one in so cold weather, and so light ap­parel, that if he have no cloaths given him, he shall die before he shall come to any Town: If a man give him Apparel, he offendeth not the Law; for there is an inward dispensation by the bond of Christian Cha­rity and Compassion.

By the Statute De frangen­tibus prisonam, It is Felony if a Prisoner break Prison; yet if the Prison-house be on fire, and the Prisoners break it, they [Page 34] are excused by the Law of Rea­son. And this is as evidently true, as it is manifest that the Law punishing Blood-shed is not against the Barber or Sur­geon that letteth Blood in ex­ercise of his Faculty, for the health of man; and that the Statute Demalefactoribus in par­cis, Meaneth not to punish any but unlawful Hunters, and not such as have leave to shoot at a Deer, and shooting hit a Pale or Tree.

Furthermore, to exceed the limits of Epicaia, some Statutes 2. are ampliative of the Common [Page 35] Law, reforming matters need­ful in the Commonwealth, and supplying a defect in the Com­mon Law. As the Statute that giveth Action against the War­den of the Fleet, for suffering to go at large any Prisoner, there being by judgment, at the suit of any Party, by Bail, Main­prise or Baston, without agree­ing with the Parties, and to re­cover the value of the debt at the Keepers hands: This is extended to all Sheriffs, and Gaolers, or Keepers of Prisons; Yet some think this Reforma­tion to be drawn from the Sta­tute [Page 36] of Westminster the 2d. gi­ving Auditors power to im­prison Accomptants found in Arrearage; but from whether­soever Statute the Reformation proceedeth, common utility and necessity requiring that those that are justly condemn­ed, should be safely kept to satisfie the Law, and that the negligence or lewdness of Gaolers, or other Officers, should not make the grave judgments of the Sages of the Law clusory, and the hope of Suitors frustrate, upholdeth this dilatation. But in all Expo­sitions [Page 37] by Equity, there must be parity or minority of Rea­son, and good judgment of e­vident utility publick, and ne­cessity for supplying defects in the Law; and it would be u­tility or necessity proved o­therwise than by circuit of ar­gument, or far borrowed cir­cumstance, that is to say, plain and evident.

The Statute De donis condi­tionalibus, hath but three kinds of intails specified; and yet there are divers other founded upon the equity thereof, though the Statute have not every [Page 38] mans good word; but as the Doctor and Student rehear­seth, is calumniated of divers as brought in of self-love and singularity, by those Lords and Gentlemen that were then in the Parliament-House, for ad­vancement of their Blood, and perpetuation of their Honours and Names, yet are all those extensions received lovingly and generally: And seeing it not without some mans refra­gation so well born out and allowed, I cannot think the contrary, but that when more plain and evident utility pub­lick, [Page 39] and necessity for sup­plying defects in the Law, shall be ready to warrant expositi­ons, by equity they will be al­lowed: For if all Estates tail­ed, were Fee-simple Condi­tional, as they were before that Statute, men would think the Law as good and perfect as now it is, and as godly, leaving liberty, for the time, to the Possessor, to bestow his Land in Fee, as God should move his heart, which many times would be better than upon his own Blood degenerated from ancient Virtue. Nevertheless, [Page 40] these enlargements of this Sta­tute, De donis conditionalibus, are quietly retained, and lo­vingly embraced, because they have the surer, that is to say, the abler sort to maintain them; for commonly every man pos­sessed of any good thing, be it Land, or whatsoever else is dear to man, thinketh that Law to have good savour and relish, that conveyeth and con­ducteth the same to his Poste­rity.

The Statute of circumspecte agatis, nameth only the Bishop of Norwich, and his Clergy, and [Page 41] yet appertaineth to all the Bi­shops in England; and is so taken of all men without ex­ception, which I suppose to be for the causes above recited; that is, because it maketh to publick good; that is, to concord between the Gover­nours Spiritual and Temporal, and to the quiet of the Subjects generally, containing a distin­ction in very main points of the Jurisdiction Ecclesiastical from the Temporal.

Moreover some Statutes are 3. expounded by Equities, to reach to things of Vicine na­ture [Page 42] and condition; and some­times, because the one cometh in lieu of the other, and the things lie under the same neces­sity of Reformation that the cases expressed are under; and therefore the Statute that saith, that the Executor that first cometh by distress, shall be taken, is extended to Admini­strators. The Statute of Westm. 2. cap. 3. saith, Admittantur heredes vel illi ad quos spectat re­versio, and by equity of the same he in the remainder is received. The Statute of 13 R. 2. giveth receipt for faint [Page 43] pleading, and is extended to faint defending. The Statute of Acton Burnell saith, If Pray­sers prize Goods too high, they should take them by the price, this is construed to reach to extenders of Land. The Statute of Westm. 2. that giveth, Cui in vita, is extend­ed to Cui ante divortium. The Statute of E. 3. That Execu­tors shall have Action of Tres­pass, De bonis asportatis in vita testatoris, is extended to Ad­ministrators. The Statute of Glouc. cap. 7. is, that where Tenant in Dower alieneth, he [Page 44] in reversion shall have Writ, In casu proviso, and by the equi­ty thereof, tenant by the cour­tesie, tenant for term of life, alien in reversion have Writs of Entry, In casu consimili. The Statute of Glouc. cap. 1. is, that the Disseisee shall re­cover damage against every one that is found tenant after the Disseisin, and by the equi­ty thereof Writ of Intrusion is founded.

Sometimes Statutes are ex­pounded by Equities, because, 4. Law and Reason, repugn to the open sense of the words, [Page 45] and therefore they are reform­ed to consonance of Law and Reason. The Statute of 25 E. 3. That by exception of non tenure of parcel, no Writ shall abate, reacheth not to things intire, as a Mannor, for non tenure of any parcel of a Manor, abateth the whole Writ, because a man by former Law may not demand any intire thing without foreprise of such parcel as is not in the Tenants possession, and therefore the Statute is understood of things several, as of Acres, Perches, and such like. The Statute of [Page 46] Westm. 2. of Cessavit, saith, Fiant brevia de ingressu heredi petentis super heredem tenentis, & super eos quibus alienata fuerint hujus­modi tenementa. And yet if the Demandant die, the Heir shall not have the Cessavit, whereby they should be recovered, be­cause the Arrearages come not to the Heir in right. The Sta­tute of Glouc. ordaineth, That if Tenant by the courtesie ali­en, and against the Heir gar­ranty be pleaded, if he have Assets, to him in Fee-simple, descended from the same An­cestor, he shall be barred; but [Page 47] 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 [Page 48] 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 [Page 49] 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 [Page 50] 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 [Page 51] 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 [Page 52] 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 [Page 53] 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 5. 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 [Page 54] 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 [Page 55] 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 [Page 56] 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 [Page 57] 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 7. either bring forth some new thing, or is declaratory of for­mer [Page 58] 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, [Page 59] 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 intent of the former, for [Page 60] 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 [Page 61] 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, 8. 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 [Page 62] 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.

STatutes Penal, may be, and 1. 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, [Page 64] 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 [Page 65] 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 [Page 66] 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 2. 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 [Page 67] 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, [Page 68] 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 [Page 69] 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 [Page 70] 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 3. 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 [Page 71] 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 [Page 72] 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 4. 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 [Page 73] 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 [Page 74] the Statute of Attaints, and the Statute of 32 H. 8. of buying Titles, are not ex­pounded by Equities. But 5. Fyneux, Chief Justice in King Henry the Seventh's time saith, That touching Attaints, there was yet further reason why they should not 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.

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 [Page 76] those Statutes which are grie­vously 1. 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 [Page 77] 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 [Page 78] 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 [Page 79] 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 [Page 80] 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 2. 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 [Page 81] 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 3. be done in a form must be strictly taken touching the ob­servance of the Form and cir­cumstance specified, and there­fore [Page 82] 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 [Page 83] persons named, and no other, may correct and amend it in any other Court. For Statutes 4. 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 [Page 84] 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 5. 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 [Page 85] 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.