Application and extension of laws

X. The narrowness of human prudence cannot foresee all the cases that time may produce. Whence new cases, and cases omitted, frequently turn up. And for these there are three remedies or supplies; viz., 1, by proceeding upon analogy; 2, by the use of precedents, though not yet brought into a law; and 3, by juries, which decree according to conscience and discretion, whether in the courts of equity or of common law.

XI. 1. In cases omitted, the rule of law is to be deduced from similar cases, but with caution and judgment. And here the following rules are to be observed: Let reason be esteemed a fruitful, and custom a barren thing, so as to breed no cases. And therefore what is received against the reason of a law, or where its reason is obscure, should not be drawn into precedents.

XII A great public good must draw to itself all cases omitted; and therefore, when a law remarkably, and in an extraordinary manner, regards and procures the good of the public, let its interpretation be full and extensive.

XIII. It is a cruel thing to torture the laws, that they may torture men; whence penal laws, much less capital laws, should not be extended to new offences. But if the offence be old, and known to the law, and its prosecution fall upon a new case not provided for by law, the law must rather be forsaken than offences go unpunished.

XIV. Statutes that repeal the common law, especially in common and settled cases, should not be drawn by analogy to cases omitted; for when the republic has long been without an entire law, and that in express cases, there is little danger if cases omitted should wait their remedy from a new statute.

XV. It is enough for such statutes as were plainly temporary laws, enacted upon particular urgent occasions of state, to contain themselves within their proper cases after those occasions cease; for it were preposterous to extend them in any measure to cases omitted.

XVI. There is no precedent of a precedent; but extension should rest in immediate cases, otherwise it would gradually slide on to dissimilar cases, and so the wit of men prevail over the authority of laws.

XVII. In such laws and statutes as are concise, extension may be more freely allowed; but in those which express particular cases, it should be used more cautiously. For as exception strengthens the force of a law in unaccepted cases, so enumeration weakens it in cases not enumerated.

XVIII. An explanatory statute stops the current of a precedent statute; nor does either of them admit extension afterward. Neither should the judge make a superextension where the law has once begun one.

XIX. The solemnity of forms and acts admits not of extension to similar cases: for it is losing the nature of solemnity to go from custom to opinion, and the introduction of new things takes from the majesty of the old.

XX. The extension of law is easy to after-cases, which had no existence at the time when the law was made: for where a case could not be described because not then in being, a case omitted is deemed a case expressed, if there be the same reason for it.