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ready help as the following Index and Abridgment, which he confi dently expects will, on trial, prove to have been compiled with care and accuracy, for on these depends its usefulness.

Its phraseology is that of the Statutes: and if his endeavours but accomplish what the title-page proposes, the size, which with less trouble might have been doubled (it being easier to copy than to compress), instead of condemning may, on the contrary, prove its highest commendation.

Some Acts and Bye-Laws of very limited application are omitted; these, it was considered, would but enlarge the work without proportionate advantage.

An epitome of the crimes and offences triable by indictment is given. In the Appendix will be found the "Petty Sessions Act," with such notes and observations thereon as were considered useful, or called for by recent legislation; this Act, being the consolidation of the duties of Magistrates, and the machinery for regulating their proceedings under almost all other Statutes, is indispensable; without it any work on the office of Magistrates would be incomplete. The principal sections of the "Towns Improvement Act," the "Police Clauses Act," the "Law of Evidence," and the substance of other useful and important Statutes are added.

As to the practice in proceedings before Justices, it was not deemed necessary to incumber the work or the practitioner with any lengthened introductory observations on the subject; there is in reality no place for such. The officer of the Court will prepare all forms and afford the requisite information, and anything else which may be learned or known without experience or actual practice will be found in the Petty Sessions Act.

What was considered useful is introduced under each particular head, the design being to supply all requisite information, to leave nothing in obscurity where clearness is expected, and at the same time, keep the whole within proper limits.

CORK, February, 1863.

H. H.

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PRINCIPLES and ESTABLISHED MAXIMS TO BE OBSERVED in the CONSTRUING of STATUTES and ADMINISTRATION of the Law.*

Where a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall.

The rules even of grammar and logic are overlooked, when the intention of the parties is evident, but opposed to the compliance with these rules: this also applies to the construing of Acts of Parliament, mala grammatica non vitiat chartam.

If the expression be dubious, the sense must be derived from the intent, and if the intent be dubious, it must be derived from the express words. If both be dubious, no rational interpretation can be formed; but if both be clear, but adverse to each other, the intent shall prevail.

The meaning and intention of the law should be collected from the several parts of the Act taken together, or from a single part when not opposed to the collected sense. Also from the occasion of enacting it, ascertained by the history of the times, and an attentive retrospect of previous regulations relative to the same object, as well as of the nature of the Act, whether it be remedial or penal, and other circumstances.†

The law presumes a man to be innocent until the contrary is proved, or appears from some stronger presumption.

When a man commits an unlawful act, unaccompanied by any circumstances justifying its commission, it is a presumption of law that he has acted advisedly, and with an intent to produce the consequences which have ensued.

Maxims or established principles are said to be of use in bringing disputes to a conclusion, by silencing obstinate wranglers and cavillers, whom any one is excused from longer arguing with, when they deny these general principles that are received by all reasonable men. But men are allowed to oppose and resist evident truth till they are baffled, i. e., till they are reduced to contradict themselves, or some established principle which they themselves cannot but own to be true, and cannot be receded from by either side.

"The interpretation of the statute law is not different from the interpretation of every other thought expressed in language; as for instance is expressed in Philology. But its particular character shows itself when we decompose it into its constituent parts. Thus we may distinguish in it four elements: a grammatical, a logical, an historical, and a systematical. The grammatical element of interpretation has for its object the words, which procure the passage or transition of the thought of the legislator, into our thought: it consists therefore in the explanation of the language of the statute, used by the legislator. The logical element proceeds upon the dismemberment or decomposition of the thought; and also upon the logical relation, in which its individual parts stand to each other. The historical element has for its object, the state or condition of the rules of law existing at the time of the statute, enacted for the legal relation in question. Finally, the systematical element refers to the internal connecting link, which binds together all the institutions and rules of law, into one grand vast unity. This connected whole had hovered or floated before the eyes of the legislator, as well as the historical, and we shall know his thoughts then only completely, when we make it clear to ourselves, in what relation this statute stands to the whole system of law, and how it will effectually act upon the system. With these four elements, the investigation into the contents and import of the statute is complete." Savigny, System, Reddie's Science of Law.

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The law of England respecteth the effect and substance of the matter, and not every nicety of form or circumstances.

The law compels no man to impossible things.

An excuse cannot be founded on an ignorance of the law, which every man is supposed to know.

All crimes have their inception in a corrupt intent, and their consummation and issuing in a particular fact, which, though it be not the fact at which the intention of the malefactor was levelled, yet the law giveth him no advantage of the error. "It would be infinite," says Lord Bacon, "for the law to judge the causes of causes, and their impulsions, one upon another; it therefore contenteth itself with the immediate cause, and judges of acts by that alone, without looking to any further degree."

Justice shall be preferred to generosity.

Customs.-The evidence of every particular custom must be proved, before the Court will take notice of it; and when proved the next inquiry is into the legality of it, for malus usus abolendus est. To make a particular custom good, it must be ancient, that is, in use so long that the memory of man runneth not to the contrary, uninterrupted, peaceably acquiesced in, reasonable, certain, compulsory, and consistent.

The Law constrains no man to accuse himself of a crime, and every oath of testimony is imposed with this tacit reservation. It is a general rule that no one is bound to answer so as to subject himself to legal punishment, in whatever manner that punishment may arise, or whatever may be the nature of the punishment.-Accusare nemo se debet nisi Coram Deo.

No private contract or agreement prejudicial to common_right, or repugnaut to the general interest of the common wealth shall prevail in Law.

Where a statute directs or prohibits the doing of any act and no other penalty or punishment is provided, any disobedience is punishable by indictment at Common Law. It is said that the Law never speaks but to command, nor commands but where it can compel.

A statute which treats of persons or things of an inferior rank, cannot by any general words be extended to those of a superior.

Remedial Statutes are made to supply defects in the Common Law, whether arising from the general imperfection of human laws, or the mistakes and unadvised determinations of unlearned judges; and this is done by enlarging or restraining

statutes.

An Act of Parliament that imposes a penalty or inflicts a punishment is called a penal statute.

Penal Statutes are to be construed strictly, and Remedial Statutes are to be expounded liberally.

When it is said that penal statutes are to be construed strictly, the meaning is that they shall not be extended by doubtful and ambiguous words, and that the punishment shall not be increased beyond what the Law requires.

An Affirmative Statute does not take away the Common Law,-a negative does so completely, so that it cannot be afterwards made use of upon the same subject. What the Laws of England are. The Laws of England are of two kinds: the Statute or written Law, and the Common or unwritten Law. The Statute Law depends upon the will of the Legislature of the Kingdom.

Common Law is a rule of justice throughout the Kingdom, and is constituted of the Laws of nature, of nations, and of religion,-certain general customs, principles, &c.; they are called unwritten Laws, because the authority for them is not expressed and published in the same manner as the Acts of the Legislature, but they are not to be considered as merely oral, and handed down from age to age by word of mouth, for there are monuments or memorials of their existence in writing, either

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by established maxims, declaratory statutes, pleadings, reports, &c. They have grown into use and have acquired their binding force and power by immemorial usage and general reception.*

The Common Law is the same in Ireland as in England.

THE DISCRETIONARY POWER POSSESSED BY JUSTICES OF THE PEACE.

A Justice of the Peace is invested with sufficiently large discretionary powers. Positive Laws define the offences and prescribe the degree or extent of punishment. The limits are fixed, but within these he is free to exercise his discretion; that is, he is solemnly bound without fear or favour to do "equal right to the poor and to the rich after his cunning wit and power and after the laws and customs of this realm and the statutes thereof made." This is the scope of his commission and the extent of his power which it is expected he will exercise with proper discernment and a sound distinguishing judgment, within the bounds of Statute and Common Law, and the Common Law is said to be reason. Here he will need discretion, firmness and a knowledge of his duty: here he must endeavour to get rid of those scruples and doubts that are based on no solid reason, but arise from false delicacy or a dubious and irresolute conscience influenced by slight and frivolus difficulties. He is also bound to administer the Law as he finds it: and therefore, although the will of the Legislature may not always correspond with his own it does not become him, or indeed any judge, to set up in a hasty and inconsiderate manner his own will or ethical superiority to override the jurisprudence of the country.

In looking over the following Analysis it will perhaps be observed that punishment does not always seem proportionate to guilt. To instance some cases: For the offence of open and profane cursing and swearing the penalty is ls., (if of the degree of gentleman 2s.); For hawking and selling (without license) the smallest measure of spirits the penalty is up to £100. For stealing a turkey, a goose, or any barn-door fowl, the penalty is not to exceed 20s. For taking or even pursuing (without licence) a Snipe in the "wild common of nature," where one would suppose it capable of asserting its independance by its swiftness, the penalty is £20; and so on. The Magistrate may consider that the punishment in such cases are unequal and should be inverted, but though no other answer be requisite than that such is the expressed will of the Legislature, which on the principle of general utility has a right to erect certain acts into offences—to prohibit

*The Common Law. Lord Baron says that our Laws are as mixed as our language, compounded of British, Roman, Saxon, Danish and Norman customs; and as our language is so much the richer, so the laws are the more complete. Sir Matthew Hale says that "the original of the Common Law, is as undiscoverable as the head of the Nile. Mr. Hallam, however is of opinion that our Common Law is not of that high antiquity which is generally supposed. "Our English Lawyers prone to magnify the antiquity, like the other merits of their system, are apt to carry up the date of the Common Law, till like the pedigree of an illustrious family it loses itself in the obscurity of ancient time. Even Sir Matthew Hale does not hesitate to say that its origin is as undiscoverable as that of the Nile. But though some features of the Common Law may be distinguishable in Saxon times, while our limited knowledge prevents us from assigning many of its peculiarities to any determinable period, yet the general character and most essential parts of the system were of much later growth." Middle Ages, vol. ii. chap. 8.

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and to punish them-that it is not contrary to any the great original foundations upon which all human laws depend; that the Law is to govern him and not he the Law. Still it may for his satisfaction further be remarked, that the guilt of the offender is not always to be the measure of punishment, the proper end of punishment is the prevention of Crime. The Legislature will take into account the ease and facility with which offences can be committed; the difficulty of detecting, preventing and prosecuting; the indifference of the greater portion of the community respecting some offences created by Law, while with respect to others all are ready to become detectives, and to rise in armed hostility to take summary vengeance on the malefactor-"the more deficient in certainty a punishment is, the severer it should be," but always proportioned to age, sex, condition, fortune, individual habits, and many other circumstances. The rule that should be impressed upon the mind of every Judge and Justice of the Peace is, that when anything is left to be done according to his discretion the Law intends it must be done with sound discretion and according to Law. Discretion, says Lord Coke, is "to discern between right and wrong, shadow and substance, equity and colourable gloss, and not to do according to our will and private affections." It is proper also to observe that the discretion allowed by the Law to a Magistrate, is to be exercised within prescribed bounds, and in matters clearly defined and within his jurisdiction, for, as Dr. Paley observes-" This is the alternative; either the Law must define beforehand, and with precision, the offences which it punishes, or it must be left to the discretion of the Magistrate to determine upon each particular accusation, whether it constitutes that offence which the Law designed to punish or not; which is, in effect, leaving to the Magistrate to punish or not to punish, at his pleasure, the individual who is brought before him; which is just so much tyranny. Where, therefore, the distinction between right and wrong is of too subtile or of too secret a nature to be ascertained by any preconcerted language, the Law of most countries, especially of free states, rather than commit the liberty of the subject to the discretion of the Magistrate, leaves men in such cases to themselves."- "Law of the Land," chap. iii. And of the dangers likely to result from a judicial license or discretion of this nature in the hands of any Judge, the following picture is drawn by Lord Camden: "The discretion of a Judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable."