fairly admit of a different meaning, it would be right to adopt that which would be most favourable to the interest of the public. . . . because the public ought not to be charged unless it is clear that it was so intended; but we think that the words here used are plain." Similarly, Stamps. with regard to the Stamp Acts, Lord Tenterden said, in Tomkins v. Ashby (1827), 6 B. & C. 542: "A stamp was not necessary in this case. Statutes imposing duties are to be so construed as not to make any instruments liable to them unless manifestly within the intention of the Legislature." So with regard to the payment of rates. Rates. Thus, in R. v. Sedgley (1831), 2 B. & Ad. 65, it appeared that, by 43 Eliz. c. 2, s. 1, occupiers of coal mines are to be rated for the relief of the poor, but no other mines are mentioned in the statute. It was argued, however, that the coal mines may be considered as having been mentioned in the statute as examples, and that in fact it was intended that the occupiers of all kinds of mines should be rated. This argument was not acceded to, and it was held that, according to the maxim expressio unius, the expression." coal mines" has the effect of excluding all other mines. Similarly, with regard to the payment of tolls. Thus, in Leeds and Liverpool Canal v. Hustler (1823) Tolls. 1 B. & C. 424, it appeared that, by 10 Geo. 3, c. 114, it is enacted that no boat of less burden than twenty tons shall pass any of the locks without paying tonnage equal to a boat of twenty tons, but no toll was imposed upon empty boats; and that, by the subsequent Act of 23 Geo. 3, c. 47, boats of greater burden than twenty tons, but carrying less than that quantity of cargo, were put upon the same footing as boats of twenty tons. But no toll was expressly imposed upon empty boats by this subsequent statute any more than it had been by the former statute. Nevertheless, it was argued that by the subsequent statute a toll upon empty boats was imposed by inference. To this argument the Court declined to accede. "Those who seek," said Bayley, J., "to impose a burden upon the public, should take care that their claim rests upon plain and unambiguous language."

(2) For con

The same rule is applied by the Scotch Courts, and is thus stated by Inglis, L.P., in Laird v. Clyde Trustees (1879), 6 Rettie (Sc.), at p. 785: “No body of statutory trustees or other persons can be allowed to levy a toll or duty unless they have unequivocal statutory authority for so doing; and in interpreting enactments imposing tolls, rates, or dues, I think the Court is bound to construe the Act according to its ordinary meaning and use."

(2) Rights cannot be conferred by mere implication from ferring rights. the language used in a statute, but there must be a clear and unequivocal enactment.(d) Thus, in R. v. Harrald (1872), L. R. 7 Q. B. 362, it appeared that by 32 & 33 Vict. c. 55, s. 9, it is enacted that whenever in Acts relating to municipal elections, "words occur which import the masculine gender, the same shall be held to include females"; and by 33 & 34 Vict. c. 93, coverture ceased to be a bar to holding property. It was contended, therefore, that the former enactment might reasonably be held to apply, not only to single, but also to married women; but it was held otherwise. "By the common law," said Cockburn, C.J., "a married woman is incapable of voting. . . . . It is quite clear that the Act of 32 & 33 Vict. had not married women in its contemplation, nor can it be supposed that the subsequent statute of 33 & 34 Vict., by which the status of married women with regard to the power to hold property has been recognised and established, and which was passed alio intuitu, has by a side wind given them political and municipal rights." (e) And the same opinion was given with reference to the eligibility of women to municipal office under the Local Government Act, 1888, in Beresford-Hope v. Sandhurst (1889), 24 Q. B. D. 79, and De Souza v. Cobden (1891), 1 Q. B. 687.

(3) To take away public or private rights.

(3) "In the construction of statutes you must not construe the words so as to take away rights which already existed before the statute was passed, unless you have

(d) Therefore, "a saving clause," as Wood, V.C., said in Arnold v. Mayor of Gravesend (1856), 2 K. & J. 574, at p. 591; 20 Jur. 13, 703, 26 L. T. O. S., 182; 27 ib. 97; 4 W. R. 478, 763, "can be taken to give any right which did not exist already."

(e) See also Chorlton v. Lings (1868), L. R. 4 C. P. 374.

plain words which indicate that such was the intention of the Legislature," said Bowen, L.J., in Re Cuno (1889), 43 Ch. D. 17.

Therefore rights, whether public or private, are not to be taken away, or even hampered,(e) by mere implication from the language used in a statute, unless, as Fry, J., said in Yarmouth v. Simmons (1878), 10 Ch. D. 527, 'the Legislature clearly and distinctly authorize the doing of something which is physically inconsistent with the continuance of an existing right." "In order to take away a right," said the Judicial Committee in Western Counties Railway Co. v. Windsor, &c., Railway Co. (1882) 7 App. Cas. 189, "it is not sufficient to show that the thing sanctioned by the Act, if done, will of sheer physical necessity put an end to the right; it must also be shown that the Legislature have authorized the thing to be done at all events, and irrespective of its possible interference with existing rights." By 51 Geo. 3, c. 115, s. 2, it is enacted that certain lords of manors may grant for public purposes any waste land of the manor, "freed and absolutely discharged from all rights of common." In Forbes v. Eccles. Comm. (1872) L. R. 15 Eq. 53, it was contended that this enactment authorized the lord to discharge the land, not only of manorial right, but also of public or customary rights. But it was held that "the fully satisfied by inter

language of the statute was preting it to mean, what indeed is the plain and natural meaning of the words used, a power to discharge the land of manorial rights. To hold otherwise would be to destroy by a side wind public rights which were not in the contemplation of the Legislature." So also it being, as Cockburn, C.J., said in R. v. Payne (1872), 1 C. C. R. 355, “a distinguishing characteristic of our criminal system that a

(e) In R. v. Strachan (1872), L. R. 7 Q. B. 463, it was argued that, by virtue of 33 & 34 Vict. c. 97, sch. (Voting paper), which enacted that " any instrument for the purpose of voting by any person entitled to vote at any meeting," should be liable to a penny stamp duty, it became necessary for voting papers used at municipal elections to be stamped. "But," said Cockburn, C.J., "it can never have been the intention of the Legislature, by such an enactment as this-viz., by the use of the words ' at any meeting' in the schedule-to have altered the whole system of voting at public elections.'

prisoner on his trial can neither be examined or crossexamined," it was held in R. v. Buttle (1870), 1 C. C. R. 248, that the answers given by a person in his evidence before Bribery Commissioners were not admissible as evidence against him on a charge of perjury. "These answers," said Martin, B. (at p. 251), "were not admissible in evidence, unless the witness is deprived of his common law protection. We cannot assume that this protection is taken away unless the Legislature clearly says so, and as the statute (26 Vict. c. 29, s. 7) does not clearly say so, I think the protection is not taken away."(f) Again, it being the right of every prisoner to challenge peremptorily the jurors to the number of twenty in all cases of felony, the question arose in Gray v. R. (1844) 11 Cl. & F. 427, whether, when a new kind of felony is created by statute, that peremptory right of challenge exists with regard to this new kind of felony. It was held that it did. "A prisoner," said Tindal, C.J. (at p. 480), "is not to be deprived by implication of a right of so much importance to him, given by the common law and enjoyed for many centuries, unless such implication is absolutely necessary for the interpretation of the statute."(g) Again, it being a recognised right that, as Erle, C.J., said in Cooper v. Wandsworth (1863), 14 C. B. N. S. 180 (at p. 187), "no man is to be deprived of his property without his having an opportunity of being heard," it was laid down in that case by Byles, J. (at p. 194), that "although there may be no positive words in a statute requiring that a party shall be heard, yet a long course of decisions, beginning with Dr. Bentley's case (1722) 1 Str. 557, Ld. Raym. 1334, 8 Mod. 148 Fort. 202, established that the justice of the common law will supply the omission of the Legislature." So also with regard to the right of trial by jury. "An Act of Parliament," said Best, C.J., in Looker v. Halcomb (1827), 4 Bing.

(f) By 46 & 47 Vict. c. 51, s. 59 (1 b), the Legislature passed a fresh enactment in accordance with this decision.

(g) This dictum of Tindal, C.J., was cited with approval by the Judicial Committee in giving judgment in Levinger v. R. (1870), L. R. 3 P. C. 282, at p. 289, a case in which a similar point was raised. See this case cited below Part II. Ch. iii. on "Effect of Statutes on the Common Law."

183, at p. 188, "which takes away the right of trial by jury. . . ought to receive the strictest construction; nothing should be holden to come under its operation that is not expressly within the letter and spirit of the Act."

rights ex abun

We may sometimes find that Acts of Parliament, ex Reservation of abundanti cautela, have thought it necessary specially to danti cautela. reserve rights; as, for instance, in certain (h) of the Acts regulating the law of bankruptcy we find that the privilege of freedom from arrest belonging to peers of Parliament is specially reserved. But this special reservation was unnecessary, for, said Lord Hatherley in Duke of Newcastle v. Morris, (1870), L. R. 4 H. L. 661, at p. 671, " it is not because, ex mujori cautela, several Acts of Parliament have thought it necessary specially to reserve that privilege, that it is to be held to be abolished and annihilated in every other Act of Parliament in which it is not expressly reserved."

As a general rule, " the Legislature," as Bramwell, L.J., said in Wells v. London, Tilbury, &c., Ruil. Co. (1877), 5 Ch. D. 130, never takes away the slightest private right without providing compensation for it, and a general recital in an Act providing for the execution of public works, that it is expedient that the works should be done, is never supposed to mean that in order to carry them out a man is to be deprived of his private rights without compensation." The effect of an Act of Parliament upon a private right was much discussed in Walsh v. Secretary of State for India (1863), 10 H. L. C. 367. In that case it appeared that Lord Clive, whose representative the plaintiff was, had transferred to the East India Company a sum of money, and they had covenanted to pay out of that sum pensions to disabled officers and soldiers so long as the Company employed troops in India, and if they ceased to employ troops, the money was to be handed back to Lord Clive or his representatives. By 21 & 22 Vict. c. 106, the government of India was transferred from the

(h) 4 Geo. 3, c. 33, s. 4, and 12 & 13 Vict. c. 106, s. 66; see the argument of Sir R. Palmer in Duke of Newcastle v. Morris (1870), L. R. 4 H. L. 661. In the Palmer Act (19 & 20 Vict. c. 16) and the Central Criminal Court Act, 1834, a similar reservation is made as to the trial of peers.