to the use of any person who might sue, the treble value, to be recovered in an action on the case. The defendant caught fish in the Charles River, on the Cambridge side of the river, opposite to Watertown, putting in his seine on the Cambridge side, and then running out into the river over the town line, in the bed of the stream, and then drawing out the seine on the Cambridge side with the fish in it, the deepest water being on the Watertown shore, where the fish usually swam. Higher up the stream, Watertown crosses the river, and its fishing is on the same side as Charlestown. It appeared that the seine could not be conveniently carried without it was extended across the river, which the people of Cambridge had usually done. Parsons, Ch. J. held, that independent of the statute, the defendant or any person had the right to put his seine into the river from the Cambridge shore, and might have landed his fish, if he committed no trespass, on the land. That private statutes, made for the accommodation of particular citizens or corporations, ought not to be construed to affect the rights or privileges of others, unless such construction resulted from express words, or from necessary implication. But every part of the statute might have a reasonble effect, without any such construction. The object of it was to enable the towns named therein to regulate their own rights, then subsisting, and to secure themselves the benefit arising from such regulation. The defendant was fishing on the Cambridge shore, where it seemed the people were accustomed to fish, and in the accustomed manner extending his seine across the river towards the Watertown shore, but not upon it, and taken his fish to the Cambridge shore. This privilege of the defendant, it was not the intention of the statute to infringe. He might enjoy it, giving all the provisions of the statute a reasonable construction.

§ 745. In another case, (a) which was an action qui tam against the defendant for a rescous, under the statute of 1788, c. 65, in relation to rescous and pound breach, which had created a forfeiture for a rescous. By the sixth section of the act, a forfeiture of forty shillings was created to be recovered in an action of debt qui tam; a forfeiture of £5 was also created for a pound breach, and to be recovered in the same manner; and it was provided, in the case of a rescous, the party impressed might recover his damages by action on the case; and in case of pound breach, he might recover double damages by the same form of action. But it was provided, that in the last action, as well as in an action to recover damages for the rescous, the defendant should not be allowed to give in evidence the illegality of distress, to prevent the plaintiff from recovering full damages. The question raised in the case was, whether this latter provision should receive an equitable construction, so as to prevent the illegality of distress from being a bar to the action qui tam, to recover the forfeiture incurred by the rescous; it was held that it could not be thus extended. Penal statutes must be construed strictly according to the intention of the legislature, as discovered by the import of the words, and when not remedial, were not to be extended by equitable principles. Statutes were not to be construed as taking away a common law right, unless the intention was manifest. Without this provision of the statute, the defendant might plead in bar to the qui tam action, that the distress was unlawful, and this defence neither the express words nor any reasonable construction of them had taken away. This provision, when applied to an action of pound breach, was in affirmance of the common law; and probably in a popu

(a) Melody v. Read, 4 Mass. R. 471.

lar action to recover the forfeiture created by this statute for a pound breach, the same rule would apply at law without the aid of the statute. But by the express words of the statute, this defence is prohibited only in the action on the case to recover damages, either for a rescous or a pound breach. It did not extend to the qui tam action for forfeiture.

§ 746. We have already seen that the reason why penal statutes should not be extended by construction seems to be, that the law does not allow of constructive offences or of arbitrary punishment: no man incurred a penalty unless the act which subjects him to it be both within the letter and spirit of the statute imposing the penalty. It has been said, with great propriety, that if this fundamental rule was to be violated, the fate of innocent persons would be decided by the arbitrary discretion of judges, and not by express authority of law. (a) The rule seems to be well settled that a penalty must always be created by express words, and that it cannot ever be raised by implication.(b)

§ 747. In the case of The Enterprise, (c) it was said: "But while penal statutes are to receive a strict construction, nothing more is meant than that they shall not, by what may be thought their spirit or equity, be extended to offences other than those which are specially and clearly described and provided for. A court is not precluded from inquiring into the intention of the legislature. However clearly a law may be expressed, this must ever, more or less, be a matter of inquiry. A court is not, however, to arrive at this intention by mere conjecture, but is to collect it from the object which the legislature had in view, and the expressions used, which

(a) 1 Stev. El. L. 29.

(b) Jones v. Estes, 2 J. R. 379.

(c) 1 Paine's R. 32.

should be competent and proper to apprise the community at large of the rule which it is intended to prescribe for their government. For although ignorance of the law be no excuse for its violation, yet if this ignorance be the consequence of an ambiguous or obscure phraseology, some indulgence is due to it. It should be a principle of every criminal code, and certainly belongs to ours, that no person be judged guilty of an offence, unless it be created and promulgated in terms which leave no reasonable doubt of their meaning. If it be the duty of the jury to acquit where such doubt exists concerning facts, it is equally incumbent in a judge not to apply the law to a case where he labors under the same uncertainty as to the meaning of the legislature. If this be involved in a considerable difficulty from the use of language not perfectly intelligible, much circumspection becomes neeessary, especially if the consequences are so penal as scarcely to admit of aggravation. When the sense of a penal statute is obvious, consequences are not to be disregarded; but if doubtful, they are to have their weight in interpretation. It will at once be concluded that no man should be stripped of a very valuable property-perhaps of his all-be disfranchised and consigned to public ignominy and reproach, unless it be very clear that such high penalties have been annexed by the law to the act which he has committed. If these principles be correct, a court has no option where considerable ambiguity arises in a penal statute, but is bound to decide in favor of the party accused. It is more consistent with the principles of liberty that a court should acquit when the legislature intended to punish, than that it should punish when it was intended to punish with impunity."

§748. These general principles were applied in the case of The Enterprise, which was a libel for an offence, which if it consisted in any thing, it was in lading cer

tain merchandise, of the value of more than $400, on board of the schooner Enterprise in the night, without any license or permit from the collector and naval officer, and without the inspection of any officer of the revenue. The law under which it was claimed this was a forfeiture, was the supplementary embargo act passed 25th April, 1808, and the main reliance was placed upon the second section, which declared substantially, "that during the continuance, of the act laying an embargo, no. ship or vessel of the character of the Enterprise should receive a clearance, unless the lading shall be under the inspection of the proper revenue officers, subject to the same restrictions, regulations, penalties and forfeitures, as are provided by law for the inspection of merchandise imported into the United States, upon which duties are imposed, any law to the contrary notwithstanding." It was contended that this section implicated this vessel and its cargo in the same penalties which were imposed by the fiftieth section of the collection law, on the landing of goods imported contrary to its direction, which provided: "That no goods brought from a foreign port shall be unladen but in open day, between the rising and setting of the sun, except by special license from the collector and naval officer of the port, nor at any time without their permit." The penalty for an infraction of either of these directions was a forfeiture by the master and every other person knowingly concerned or acting therein, of the sum of $400, and disability of holding an office of trust or profit under the United States for a term of years not exceeding seven, the goods to be forfeited, and the vessel also if the goods at the place landed were of the value of $400. After adverting to the general principles above laid down, Livingston, Ch. J., says, "that almost every possible evasion of the law relating to the embargo had been previously guarded against by adequate sanctions, except that of loading clandestinely or by night