CHAPTER XVIII. OF THE CONSTRUCTION OF PENAL STATUTES. §738. PENAL statutes are to receive a strict interpretation. Under the denomination of penal statutes, within this rule, are included not merely such as inflict a penalty, or which ex vi termini work a forfeiture, but it extends to statutes which give a summary remedy,(a) or those made in favor of corporations, or individuals, in derogation of common right,(b) or those made in derogation of the common law,(c) or in derogation of rights of property, or disability of persons, or that takes away the estate of a citizen,(d) or statutes which impose restrictions upon trade or common occupations, or which levy an excise or tax on the citizen,(e) or a statute introductive of a new principle of common law. (f) The rule that penal statutes shall be construed strictly, is subject to some qualifications; they should not be construed against the manifest intention of the legislature, or so as to involve an absurdity.(g) (a) Bennet v. Ward, 3 Caines' R. 259. (c) Melody v. Read, 4 Mass. R. 471; Gibson v. Jenny, 15 id. 205; Commonwealth v. Knapp, 9 Pick. R. 496; Wilbur v. Crane, 13 id. 284; Lock v. Miller, 3 Stew. & Port. 13. (d) Sharp and others v. Spier, 4 Hill's R. 76; Smith v. Spooner, 3 Pick. R. 229; Wales v. Stetson, 2 Mass. R. 146; 9 Gill & J. 479. (e) Sewall v. Jones, 9 Pick. R. 412. (f) Eayre v. Earle, 3 Halstead, 359. (g) Commonwealth v. Loring, 8 Pick. R. 370; Read v. Davis, id. 514; Melody v. Read, 4 Mass. R. 471; Broadwell v. Conger, 1 Penn. 210. § 739. The general words of a penal statute must be restrained for the benefit of him against whom, the penalty is inflicted. It is a maxim of the common law, that receditur a placitis juris potius, quam injuria et delicta maneant impunita, but this applies only to positive maxims, placita juris, rather than regulæ juris.(a) It is said, if the rule be one of the higher sort of maxims, that are regulæ rationales, and not positive, then the law will rather endure a partial offence to escape without punishment than violate such a rule. Of this latter kind (regulæ rationales) is the rule that penal statutes shall not be taken by equity. Thus a statute having enacted that those who were convicted of stealing "horses," should not have the benefit of clergy, was held held not to extend to him that should steals but "one horse ;" and to remedy this defect a new act was passed to provide for such a case.(b) § 740. By another restrictive rule of construing penal statutes, if general words follow an enumeration of particular cases, such general words are held to apply only to cases of the same kind as those which are expressly mentioned. Thus, where by a statute persons who should steal sheep, or any other cattle, were deprived of the benefit of clergy;—the stealing of any cattle, whether commonable or not commonable, seems to be embraced in these general words, " any other cattle," yet they were looked upon as too loose to create a capital offence.(c) § 741. Penal stautes are taken strictly and literally only in the point of defining and setting down the fact and the punishment, and not generally, "in words that are but circumstances and conveyances in the putting of the case." Thus under a statute that gave an action of (a) Stephens Law of Elect. vol. i. p. 28; Bacon's Maxims, 51. (b) Id. pp. 28, 29. (c) Id. p. 29. waste against him that holds pro termino vitæ vel annorum; if a man holds but for one year he is within the statute. While if the law be, that for a certain offence a man shall lose his right hand, and the offender hath had his hand cut off in the wars, he shall not loose his left hand, but the crime shall rather pass without the punishment which the law assigned, than the letter of the law be extended.(a) § 742. Reference to some of the cases in which the general rules in reference to the construction of penal statutes will now be referred to in illustration of the general doctrine on this subject. In Sprague v. Birdsall,(b) Birdsall sued Sprague for money had and received, founded upon the fact, that the defendant had crossed the Cayuga Lake on the ice, commencing to cross six miles from the Cayuga Bridge, and having passed off the lake within sixty rods of the bridge. bridge. The Cayuga Bridge Comany was incorporated in 1797, and extended by amendment to 75 years. The second section of the act enacted, that it should not be lawful for any person or persons to erect any bridge, or establish any ferries, within three miles of the bridge erected by the company, neither should it be lawful for any person or persons, after it was erected, to cross the lake within three miles without paying toll; but persons might pass and repass in their own boats without being subject to toll. The questions in the case were: 1st, whether this was a crossing within three miles within the act; 2nd, if so, whether crossing on the ice subjected the defendant to toll. Savage, Ch. J., held, that the act conferred upon the company certain privileges, and restrained the right of the citizen. It was in a measure penal, and ought to (a) Bacon's Maxims, 58, 59; Stephen's Elec. Law, 29. (b) 2 Cowen, 419. be construed strictly. In the construction of satutes made in favor of corporations or particular persons, and in derogation of common right, care should be taken not to extend them beyond their express words, or their clear import. They could not take away a common. law right, unless their intention was manifest, and where not remedial were not to be extended even by equitable principles. It could not be supposed the legislature intended such a crossing as this. By the proviso, every person was at liberty to cross in his own boat. The object of the legislature seemed to have been, that all persons who were compelled to resort to the aid of others in crossing, should cross the bridge, and pay toll accordingly. They did not intend to compel those who had the means of crossing independent of the bridge, to cross on the bridge and pay toll. § 743. In another case,(a) an action of debt was brought for a penalty, under ch. 44, 1 R. L. 223, which was an act to prevent horse racing. The first section declared all racing and running, pacing and trotting for a bet, &c., common and public nuisances, and offences against the state, and that all concerned should be punished by fine and imprisonment. The second section enacted, that the owner of every horse used in horse racing, with his privity or permission, whereon bets were laid, should forfeit for every race the value of such horse. The penalty was claimed on the ground that the defendant, on the 23d November, 1822, owned a mare, which was on that day employed in trotting, by his privity and permission, with a horse of the plaintiff's, on which stakes were laid and bets pending by defen dant. It was insisted that although the term trotting was not used, as the statute was passed for the public (a) Van Valkenburgh v. Torry, 7 Cowen, 252. construed equitably. Savage, Ch. J., held, good, though penal, it should be Trotting was within its mischief. that the action could not be sustained for the penalty. Penal statutes were to be construed strictly. Before the passing of this act, the running or trotting of horses for a wager was a lawful amusement, and so far from subjecting those concerned to any punishment, courts enforced the payment of the wager. The legislature had however declared those acts nuisances, and persons offending might be indicted under the first section of the act and punished in the manner provided by it. The second section had added to former punishment for racing, a forfeiture of the value of the horse. That if it intended to punish those who trotted horses with a superadded penalty it was easy to have said so. The decisions that penal statutes should receive an equitable construction, so that cases not named may be included in the penalty, rested on the ground that the law-makers could not set down every case in express terms, but that rule did not apply when all offences are enumerated, and a distinction is made in the punishment. When an additional penalty is imposed upon one only, the rule expressio unius exclusio alterius applied. (a) § 744. Coolidge v. Williams, (b) was an action on the case brought to recover treble value for fish taken within the limits of Watertown, under a statute 1797, sec. 75, which gave the power to certain towns, of which Watertown was one, to regulate the time, place and manner of taking fish within their limits, and to sell the right of taking. Section three declared, that if any person other than those to whom said right was sold should take any fish, such person so offending should forfeit and pay (a) Van Valkenburgh v. Torry, 7 Cowen, 252. (b) 4 Mass. 140. |