And

brought by a public officer, a common informer, with or
without the consent of the Attorney-General, or a person
aggrieved. But " penal Act" in its wider sense includes
every statute creating an offence against the State, what-
ever the character of the penalty for the offence.
the expression "penal" as used in the international
rule that "one State will not execute the penal laws of
another," applies "not only to prosecutions and sentences
for crimes and misdemeanours, but also to all suits in
favour of the State for the recovery of penalties for any
violation of statutes for the protection of its revenue or
other municipal laws, and to all judgments for such
penalties."(d) The English Courts will examine the terms
of a foreign Act to see whether it is or is not a penal law,
and in their examination will not be bound down by the
construction put upon the Act in the State to which it
belongs, (e) otherwise an English Court might be bound to
enforce a foreign law which it deemed penal on the
strength of foreign decisions that it was not penal.

2

3.

The cause of the ambiguity is that statutes fall from Cause of the the point of view of penalty or sanction into three, and ambiguity. not into two classes, viz. :

(1) Acts enforceable by criminal remedies;

(2) Acts enforceable by civil remedies by way of damages;

(3) Acts enforceable by civil remedies in the form of penalty.

Into the third class fall those now comparatively rare Acts in which the sanction for disobedience consists in the right to sue or inform for a specific penalty by civil procedure. They fall into three subdivisions:

(a) Actions by the Attorney-General or a public official;

(b) Actions by common informers; and

(c) Actions by persons aggrieved.

(d) Wisconsin v. Pelican Insurance Society (1887), 127 U. S. 265, approved in Huntington v. Attrill (1892), 8 Times L. R. 341.

(e) Huntington v. Attrill, ubi supra.

Rules for deciding whether an Act is penal.

(a) and (b) are in substance the same. The right of a private prosecutor to proceed in a criminal case is theoretically a right to act for the Crown. The prosecutor (since the abolition of appeals) recovers nothing to himself by the prosecution, except in the case of offences under the Larceny Act, 1861. But in penal actions the common informer obtains by specific statutory provision the whole or part of the "blood money."(f)

(c) differs from an ordinary civil action only in that the sum recoverable is liquidated. It is not a penal law within the meaning of international law. (g)

The question whether an Act is or is not penal is now in civil cases material for four reasons only:

(1) With respect to discovery, inasmuch as equity practice has dealt with such actions as so far criminal in their nature as to refuse to assist the plaintiff by interrogation of the defendant;

(2) With respect to the need of leave of the Court for compromise of the action;

(3) With respect to venue, which in penal actions is usually local; (h) and

(4) With respect to the right of appeal, for if a penal action were held to be a criminal cause or matter no appeal would lie to the Court of Appeal.

With reference to criminal law it is material for the purpose of deciding whether disobedience to an Act is or is not a misdemeanour, and this question can only arise in absence of specific sanction in the Act itself.(i)

The following rules apply for deciding where statutes are or are not to be deemed penal :

(1) Prima facie, the imposition of a fine or penalty

(f) A term now used opprobriously, but surviving from the ancient Saxon law and the procedure by appeal.

(g) Huntington v. Attrill (1892), 8 Times L. R. 341.

(h) See R. S. C. 1883, Ord. 20, r. 1.

(i) See R. v. Tyler (1891), 2 Q. B. 592 (Bowen, L.J.).

or forfeiture by a statute makes the procedure criminal.(k)

Lord Fitzgerald in Bradlaugh v. Clarke (1882), 8 App. Cas. at p. 383, thus laid down the rule to be deduced from the old authorities: (1) "Where it is ordained by statute that for feasance, misfeasance, or non-feasance the offender shall forfeit a sum of money, and it is not expressed to whom he forfeits it, in all such cases the forfeiture shall be intended for the Queen, save in cases where the penalty is assessed as compensation to the party injured."

(2) That the fine, penalty, or forfeiture is payable to an individual does not per se render the remedy civil.(m)

(3) But where the penalty is recoverable by action of debt the remedy is civil.

Even in this case the action may not be compromised without the leave of the Court,(n) and a collusive action for penalties is both unlawful (0) and ineffectual.(p)

(4) In certain cases the penalty has been held to be in truth liquidated damage, and not a penalty in the stricter sense.(q)

Where an Act imposes a penalty for its contravention, the question arises whether the penalty is inflicted by way of punishment or by way of compensation for the breach. If the former, the contravention is a criminal offence, and even if the sole remedy for the offence is the statutory penalty, the contravention is none the less criminal.(r)

(k) Mellor v. Denham (1880), 5 Q. B. D. 467; R. v. Whitchurch (1881), 7 Q. B. D. 534; R. v. Paget (1881), 8 Q. B. D. at p. 157, per Field, J."; Ex parte Schofield (1891), 2 Q. B. 428.

(Bacon, Abr. tit. Prerogative, B. 10, vol. 6.

(m) R. v. Paget (1881), 8 Q. B. D. at p. 157, following Hearne v. Gorton (1859), 2 E. & E. 66. See R. v. Tyler (1891), 2 Q. B. 588.

(n) See R. S. C. 1883, Ord. 50, rr. 13, 14, 15.

(0) 4 Hen. 7, c. 20.

(p) Girdlestone v. Brighton Aquarium Co. (1878), 3 Ex. D. 137, 4 Ex. D).

107.

(q) See Reeve v. Gibson (1891), 1 Q. B. 652.

(r) R. v. Tyler (1891), 2 Q. B. 598, per Kay, L.J.; cf. Musgrove v. Chun Teeong Toy (1891), A. C. 272.

(5) In certain other cases, the penalty being recoverable only by a person aggrieved, the action is deemed so far penal that discovery in aid of it is not permitted.

(6) An Act may be remedial from one point of view, and penal from another.

In Stanley v. Wharton (1821), 9 Price 301, it was argued that 11 Geo. 2, c. 19, s. 3, which enacted that "if any person shall wilfully. assist any tenant in fradulently conveying away or concealing any part of his goods, every person so offending shall forfeit and pay to the landlord double the value of the goods to be recovered by action of debt," was a penal Act. "But," said Graham, B., " this Act is clearly distinguishable from those Acts which impose penalties," and is "entirely and purely remedial." But in Hobbs v. Hudson (1890), 25 Q. B. D. 232, the same Act was held so far penal that discovery could not be obtained in an action brought upon it.

2. It is said that penal statutes must be construed strictly-i.e., that "when the Legislature imposes a penalty, the words imposing it must be clear and distinct."(s) But this rule must be read as applicable, if at all, only to penalties of a quasi-public character, and not to Acts creating penalities for infractions of general law which are in the nature of purely civil remedies.(t) The rules laid down in Heydon's case (1584), 3 Rep. 8, (u) for the construction of obscurely penned statutes are there said to apply to penal as well as to other statutes, but Pollock, C.B., stated in The Alexandra's case (1863), 2 H. & C. 509, that the penal statutes there alluded to are statutes which create some disability or forfeiture, and not such as create crimes, and added that no calamity would be greater than to introduce a lax or elastic construction of a criminal statute to serve a special but a temporary

(8) Willis v. Thorp (1875), L. R. 10 Q. B. 385 (Blackburn, J.).
(t) Vide Huntington v. Attrill (1892), 8 Times L. R. 341.
(u) Ante, p. 112.

purpose." This rule is said to be "founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the judicial department, for it is the Legislature, not the Court, which is to define a crime and ordain its punishment."(x) As to enactments creating crimes, the rule was adopted in favorem vitæ in respect of treason and capital felonies, and extended to misdemeanours.

The question was of more importance in days when there was a disposition to introduce that species of criminal equity (y) which led to the dissolution of the Court of Star Chamber. Blackstone lays down the rule thus:(z) "The law of England does not allow of offences by construction, and no case shall be holden to be reached by penal laws but such as are within both the spirit and the letter of such law." The doctrine upon which must be based the ratio decidendi of cases put upon constructive fraud (viz., estoppel by conduct), constructive notice or constructive trusts, is inapplicable to the interpretation of a statute, and especially inapplicable to enactments dealing with crime or imposing penalties. For there is no estoppel with relation to the construction of any instrument, though in particular cases the parties may be bound to adopt, for the purposes of regulating their rights or obligations, under the instrument a construction other than the true legal construction.

But at the present day the distinction between a strict Relaxation of and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. A hundred years ago," said the Court in Lyons' case (1858), Bell C. C. 38, at p. 45, " statutes were required to be perfectly precise, and resort was not had

(x) U. S. v. Wiltberger (1820), 5 Wheaton (U. S.) 76, at p. 95 (Marshall, C.J.).

(y) Vide ante, pp. 118-121, "Construction by the Equity" of a statute and see Co. Litt. (ed. Thomas), vol. i. p. 29, note Q.

(z) 1 Bl. Comm. 88 (ed. Hargr.), note (37).