CHAPTER X.

SECTION 1.-STRICT CONSTRUCTION-PENAL LAWS.

THE rule which requires that penal and some other statutes shall be construed strictly, seems to depend on the reasonable expectation that, when the Legislature intends so grave a matter as the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in "cloudy "and dark words" only (a), but will express it in terms reasonably plain and explicit. It does not require or justify that suspicious scrutiny of the words, or those hostile conclusions from their ambiguity or from what is left unexpressed, which characterise the judicial interpretation of affidavits in support of ex parte applications (b), or of magistrates' convictions, where the ambiguity goes to the jurisdiction (c). Nor does (a) 4 Inst. 332.

(b) See ex. gr. Perks v. Severn, 7 East, 194; Fricke v. Poole, 9 B. & C. 543.

(c) See R. v. Davis, 5 B. & Ad. 551; R. v. Jones, 12 A. & E. 684; per Coleridge J. in R. v. Toke, 8 A. & E. 227; per cur.

it allow the imposition of a restricted meaning on the words, for the purpose of withdrawing from the operation of the statute a case which falls both within its scope and the fair sense of its language. This would be to defeat, not to promote, the object of the Legislature (a); to misread the statute and misunderstand its purpose (b); and no construction is admissible which would sanction an evasion of an Act (c). But it requires that the language shall be so construed, that no cases shall be held to fall within it, which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment (d). If the Legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which fall within the mischief intended to be prevented, it is not competent to a Court to extend them (e). It is immaterial, for

in Lindsay v. Leigh, 11 QB. 465; and R. v. Stainforth, Id. 75; Fletcher v. Calthrop, 6 QB. 880.

(a) Bac. Ab. Stat. I. 9 ; R. v. Hodnett, 1 TR. 101.

(b) Per Martin B. in Nicholson v. Fields, 31 LJ. Ex. 236, 7 H. & N. 710, and Bramwell B. in Foley v. Fletcher, 3 H. & N. 781.

(c) Per cur. in U. S. v. Wiltberger, 5 Wheat. 95; U. S. v. Gooding, 12 Wheat. 460;

American Fur Co. v. U. S., 2 Peters, 367; U. S. v. Coombs, 12 Peters, 80; U. S. v. Hartwell, 6 Wallace, 395.

(d) Per Best C. J. in Fletcher v. Sondes, 3 Bing. 580; Bracey's Case, 1 Salk. 348; R. 2. Harvey, 1 Wils. 164; Dawes v. Painter, Freem. K. B. 175; Scott v. Paquet, LR. 1 PC. 552; Ellis v. M'Cormick, LR. 4 QB. 271.

(e) Per Lord Tenterden in Proctor v. Manwaring, 3 B. & A. 145.

this purpose, whether the proceeding prescribed for the enforcement of the penal law be criminal or civil (a).

The degree of strictness applied to the construction of a penal statute depends in great measure on the severity of the statute. When it merely imposes a pecuniary penalty, it would seem to be construed less strictly than where the rule is invoked in favorem vitæ. The principle was more rigorously applied in former times, when the number of capital offences was one hundred and sixty or more (b); when it was still punishable with death to cut down a cherry-tree in an orchard, or to be seen for a month in the company of gipsies (c). An indictment for the capital felony of assaulting a person at a certain time and place, and feloniously cutting or feloniously robbing him, was then fatally bad, because not alleging that the cutting or the robbing was done then and there; while a similar omission in an indictment for the misdemeanour of a common assault was considered immaterial (d). Lord Hale mentions that a statute of Edward 6, which made the stealing of horses, in the plural, a capital offence, gave rise to a doubt, which it was thought necessary to remove by enactment in the

(a) Henderson v. Sherborne, 2 M. & W. 236; Nicholson v. Fields, 7 H. & N. 810; The Bolina, 1 Gallison 83, per Story J.

(b) 4 Bl. Comm. 18. According to Sir S. Romilly, it was, in

his time, two hundred and thirty.

(c) 4 Bl. Comm. 4.

(d) 2 Hale, 178, R. v. Bank, Cro. Jac. 41; R. v. Francis, 2 Stra. 1015.

following session of Parliament, whether it included the theft of one horse only; the doubt resting on the slender foundation, that an earlier Act spoke of stealing any horse," in the singular number (a). Perhaps the same spirit may be found in the more modern decisions, that an enactment which made it felony to "stab, cut, or wound," did not reach the case of biting off a nose or a finger, because the injury thus inflicted was not caused by an instrument (b); nor that of breaking a collar-bone, when the skin was not broken (c).

A strict construction requires, at least, that no case shall fall within a penal statute which does not comprise all the elements which, whether material or not, morally, are in fact made to constitute the offence as defined by the statute. Thus, the Coventry Act, 22 & 23 Car. 2, which made capital the infliction, with malice aforethought and by lying in wait, of a variety of disfiguring or disabling bodily injuries, was held not to include any such outrage, however malicious and deliberate, when not preceded by a lying-in-wait with the intent of committing it (d). And it was much doubted whether a person who inflicted such injuries with intent to murder, and

(a) 2 Hale, 365.

(b) R. v. Stevens, 1 Moo. C. C. 409; R. v. Harris, 7 C. & P. 446; Comp. R. v. Shadbolt, 5 C. & P. 504; R. v. Waltham, 3

Cox. 442.

(c) R. v. Wood, 4 C. & P.

381.

(d) 1 Hawk. 108n. See also v. Child,4 C. & P. 442.

not merely to maim and disfigure, fell within the Act (a).

An Act which made it penal to personate “any person entitled to vote," would not be violated by personating a dead voter (b). It would be different if the offence were personating a person "supposed "to be entitled to vote" (c). A penalty imposed on a man who ran away, leaving his wife and children chargeable, or whereby they became chargeable, would not be incurred by his simple desertion, without the intent that his family should become chargeable to the parish (d). A statute which imposed a penalty on unqualified persons who did any act appertaining to the office of proctor for fee or reward, would not apply to acts which, though usually performed by proctors, were not of strict right incident to their office, such as preparing the documents necessary for obtaining letters of administration, where there was no contest (e). An Act which punishes the obtaining of any "money or valuable "security" by a false pretence, is not violated by obtaining "credit on account," by a false pretence (ƒ).

(a) So held per Lord King and Yates J. in R. v. Coke, 1 East, P.C. 400; dubit. Willes J. and Eyre B. See also R. v. Williams, Id. 424.

(b) Whiteley v. Chappell, LR. 4 QB. 147.

(c) R. v. Martin, R. & R. 324.

(d) Reeves v. Yeates, 1 H. & C. 435, 31 LJ. MC. 241; Sweeny v. Spooner, 3 B. & S. 329, 32 LJ. MC. 82.

(e) Stephenson v. Higginson, 3 HL. 638.

(f) R. v. Wavell, Ry. & Moo. 224.

R