Churchilll v. Blackburn , 1 Va. Col. Dec. 137 ( 1753 )

Anno, 1772. an Act of Assembly passed restraining the Inhabit’ts of Virginia from planting for every Labourer above 16 years old more than 6000 Tob’o plants, and for every Male Labourer above ten and under 16. more than 3000. the Act Appoints tellers of all Tobacco planted and the Method of telling, and gives them a Power to cut up the overplus and Annexes several Penalties

It directs that all Masters of Family’s and Housekeepers shall deliver to the Justice appointed to take the list of Tithables a true account of the Names of every Person above ten and under 16. allowed by this Act to make Tobacco And distinguish in their Lists of Tithables what Persons make Tobacco Then Enacts, That every Master of a Family and Housekeeper failing so to do shall forfeit and pay 500wt of Tobacco [137] and if any Person shall List or enter with the Justice any Person under 16. years as a Tithable or that is under 10 years or above that age or any Person as a Labourer in his Crop who is not employed therein. In either Case the Person so offending shall forfeit and pay 500wt of Tobacco for every such Person so falsly entered or Listed

Then comes a Clause in these words “ And if any Master, “ Mistress or Overseer shall refuse to give a just and true Ac- “ count of the Names of the several Persons by this Act Intitled “ to plant Tob’o on their Plantations and to shew all the Tobacco “ planted thereon to the Persons appointed to view the same, “ every Master, Mistress or Overseer, so refusing or giving a “ false account shall forfeit and pay 500wt of Tobacco for every “ Person above 10 years old imployed in making Tobacco on “ such Plantation that year

Thomas Machen a teller under this Act Exhibits an Information against Mr. Churchill for 500wt of Tobacco forfeited by the first Branch of the Act for Listing Doll as a Tithable when she was under 16. And upon that Information has obtained a Verd’t and Judgm’t in the County Court

Blackburn the Pit. Exhibits another Information upon the last Clause for 24-OOOwt of Tob’o being 500wt of Tob’o for every Person above 10 years upon the Defend’ts Plantation in that year for Listing the same Negr. Doll as a Tithable when she was under 16. and upon that Information has obtained a Verd’t and Judgment in the County Court for 6500wt Tobacco

This Judgment Mr. Churchill has appealed from and surely it shall be reversed

The only Question is Whether the Deft, shall be Subject to the Penalty of 500wts of Tobacco upon the Information of Machen and to this much greater Penalty of 500wts of Tobacco for 48 Persons above 10 years old Employed that year upon his Plantation upon the Information of the Pit. for the same offence viz. Listing Negro Doll as a Tithable

If this Clause upon which the Pits. Information is grounded had stood single and were construed Literally, as it must, being a Penal Law it might be a Question whether this Case wou’d be within it, For tho’ it may be Argued, that the words (or giving a false Account) may extend to a false Account of the age, Yet being restrained to the first part of the Clause it can be strictly Construed only a false Account of the Names and not of the Ages

But as our Case is the point need not be Laboured, because the Offence the Deft, is charged with, Listing a Person as a Tithable who was under 16 is specially mentioned in the same Clause and a small Penalty is annex’d to it which without doubt the Legislature thought adequate

So that if one part of the Act be Expounded by the other there will remain no pretence of Argument that the Deft, shall first be charged with [138] a small Penalty by the special Clause, and then with this very great Penalty by the general one

The plain meaning of the two Clauses taken together is this, If a Master List any Person a Tithable that is under 16. or one above 10, that is not so, or a Labourer in the Crop who is not Employed in it he forfeits 500wt. of Tob’o

And if he gives an Account of Persons as employed upon his Plantation in making Tob’o that are not employed at all upon that Plantation or perhaps are not in being, then he is Subjected to the great Penalty of 500wt of Tobacco for every Person above 10 years old Employed in making Tob’o that year upon such Plantation

And there is great reason that the Penalty should be greater in one Case than the other, For mistaking the age of a Person may proceed from a defect in the Memory or misinformation as it happened in this Case And listing one Actually employed about the Business of a Plantation as a Labourer in Tobacco who is not really so is a less degree of Deceit than giving in the Names of Persons he is not Master of

But it will not concern us to shew what is the meaning of this latter Clause, We shall shew from the established Rules of Law that the Deft, cannot by Construction be punished twice for the same Offence under this Act

1st. It is a Rule that one part of an Act of Parliament shall be Expounded by another and in many Cases General words shall be Restrained by the Equity of other words and shall be construed against the Letter, As in Flowers Case 5. Rep. 99. Upon the Stat. 5. Eliz. Chap. 9. ag’t Perjury, one part of the Act provides against such as Suborn Witnesses in any matter depending by Bill, Writ, Action, or Information Then there is a Clause ag’t such as Commit Perjury by such procurement

Flower was Indicted for Perjury in giving false Evidence to the Grand Jury upon an Indictment Adjudged that tho’ this last Clause be general and not restrained by any words to the particular Suit before mentioned By Bill, Writ, Action or Information Yet in good Construction this Branch shall have reference to the first and shall be Expounded by it And so one part of .the Act shall expound the other And Flower was Discharged, because Perjury by Indictment is out of the Act, vid. Co. Lit. 381.

2dly. It is a Rule that no Man .shall be punished twice for the same Offence and no Construction of an Act of Parliament can be made ag’t that rule Therefore it is the penning of all Statutes where two Penalties [139] are Annexed to be over and above the former Penalty And this is only done in Cases of repeated Commission of the Fact, Or where the Offence Admits of greater or less Degrees But lastly it is a rule that a general Clause shall not extend to things that are before Specially Comprehended And this rule takes place in Deeds as well as Acts of Parliament.

If a Man by Deed gives Land & the Premises to one and the Heirs of his Body Habendum to him and his Heirs, he has an Estate Tail and fee Simple expectant upon the Reason of this rule 8 Co. 154. and Vide Litt. Rep. 345.

In the Case of Edw’d Ettham 8. Co. 154. C. This Rule of Construction laid down, where a Deed speaks by general words and afterwards Descends to special words If the special words agree with the general Words the Deed shall be intended According to the Special words.

But a general Clause never extends to what is specially Comprehended before vid. also 2. Rol. Rep. 279. Styles 391. That the same Rule is Observed in Construing Acts of Parliaments appears in Raymond 330. Hard. 108. But a Case full to the point is that of Dr. Bonham 8. Rep. 118. b.

Hen. 8. by Charter Enacts the College of Physicians in London and Grants that no Person shall Practice in London or the Suburbs or within 7 miles without License of the College upon the Penalty of 5£ [ineligible] half to the King, half to the College.

Then the Charter Grants Supvisn Examinations, Corrections & Gubernations of all Physicians and the Punishing them for the Offences and non bone exequendo &c. so as the Punishment be by Fine & Imprisonment.

In 14. H. 8. this Charter was confirmed by Act of Parliament. Doctor Bonham Practiced Physick without License of the College. The College Summoned him, and Adjudged that he shou’d pay the Penalty.

The Doctor continued to Practice, the College Summoned him again but he made default, and for his disobedience and Contempt they amerced him 10;£. and that he shou’d be Committed, Afterwards he came before them, they asked him if he wou’d satisfy the College, he Answered that he had Practiced and wou’d Practice. For which Cause he was comitted to Prison and for this Imprisonm’t he brought his Action & recovered.

And among other points it was resolved That by the latter Clause of the Charter (which operated as an Act of Parliament by 14th of H. 8.) the Doctor shou’d not be punished by Imprisonm’t [illegible] several Reasons, two of which are That no Man should be twice punished for the same Offence [140] And that a general Clause shall not extend to what is specially provided, which is exactly this Case. The Offence for which the County Court have given Judgment against the Deft, is specially provided for in the former Clause. That Clause subjects the Deft, to the Penalty of 500wt of Tobacco, the Court below have given Judgm’t for 6500wt of Tobacco.

This Judgment is absurd and against Common Sense, and can’t possibly be affirmed in this Court, and I pray that it may be reversed And it was reversed by the whole Court except one.