sure to result from a latitude of construction so considerable as we find to exist; and I, therefore, attempt, with great deference for the able and learned magistrates who are practically engaged in the administration of justice, to frame the following rules as those which ought to govern in this department of our science.

The intention of the legislature should control absolutely the action of the judiciary; where that intention is clearly ascertained, the courts have no other duty to perform than to execute the legislative will, without any regard to their own views as to the wisdom or justice of the particular enactment.*

The means of ascertaining that intention, are to be found in the statute itself, taken as a whole and with all its parts,-in statutes on the same subject, antecedent jurisprudence and legislation, contemporaneous and more recent exposition, judicial construction, and usage; and to the use of these means, and these alone, the judiciary is confined. No other extrinsic facts are in any way to be taken into consideration.

It is not until these means fail, and until the attempt to ascertain the legislative intent is hopeless, that the judiciary can with propriety assume any power of construing a statute, strictly or liberally, with reference either to the particular character of the statute, or to

* "No principle is more firmly established, or rests on more secure foundations, than the rule which declares, when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the legislature shall be intended to mean what they have plainly expressed, and consequently no room is left for construction;" "resort is not permitted to extrinsic facts to ascertain the meaning of a statute otherwise clear."-Per Goldthwaite, J., in Bartlett vs. Morris, 9 Porter Ala. 268, 269. See this case, also, with reference to the point that the title of a statute may explain what is doubtful, but cannot control what is contained in the body of the act.

their own ideas of policy or equity. Where the meaning of the statute, as it stands, is clear, they have no power to insert qualifications, engraft exceptions, or make modifications, under the idea of providing for cases in regard to which the legislature has omitted any specific provisions.

In cases where the intent of the legislature is ambiguous, and the effort to arrive at it is hopeless, and in these cases only, does the power of construing a statute strictly or liberally exist; and in regard to its exercise, as of discretionary power generally, no other rule can be laid down than that it must be exerted under the guidance of learning, fidelity, and practical sagacity.

In regard to the cases where statutes are held to be directory, the greatest difficulty exists; and in these there appears no mode of obviating it until legislative enactments shall be framed so as to specify with precision the consequences intended to follow upon a disregard of their provisions.

To the practiced mind these rules may at first sight appear useless or trivial; but perhaps they will not be so considered on a careful consideration of the labyrinth of cases in which we have been wandering, and on observing the difficulty of obtaining or of giving a clue to its dark and tortuous passages. That difficulty appears to me mainly to arise from the abuse of the power of strict and liberal construction, to which our attention cannot be too often called.

The idea that an act may be strictly or liberally construed, without reference to the legislative intent, according as it is viewed either as a penal or a remedial statute, either as in derogation of the common law or a beneficial innovation,-is, in its very nature,

delusive and fallacious. Every statute may be said to have two aspects: if it be severe in regard to an individual, it is beneficial to the community; if it punishes crime, it also prevents fraud; if it infringes on some venerable rule of the ancient law, it also introduces more simple, rapid, and less expensive modes of procedure; so that every act is capable, if this doctrine be admitted, of being construed in two ways diametrically opposed to each other, according to the temper of the magistrate to whom the task is confided.

Again, the same act will be differently viewed under different circumstances. The acts diminishing the severity of imprisonment for debt, will be at one time looked upon as loose and profligate enactments, impairing the rights of creditors; and at another as laws in favor of freedom and humanity. The usury laws will be at one period regarded as salutary restraints on the rapacity of capitalists, and at another as absurd restrictions on the commercial dealings of mankind; so that, if construed according to the different lights in which they are viewed, the same laws will be differently interpreted at different times, and even in different places at the same time.

The inconsistences and discrepancies, as they now exist, do, in truth, too often arise from a desire, often an unconscious one, to substitute the judicial for the legislative will; and they can only be corrected by adhering to the cardinal rule that the judicial functions are always best discharged by an honest and earnest desire to ascertain and effect the intention of the lawmaking body.*

* See the opinion of Chief Justice Edwards, in Hardin vs. Owings, 1 Bibb, 215 Kentucky,-a case on the form of an appeal bond,—for a clear and forcible statement of the evils resulting from the loose notions of construction which have heretofore prevailed.

The Intention of the Legislature.-We have had repeated occasion to make use of this term in the course of the two last chapters, and it may not be amiss here to analyze the phrase more closely than has been done in the text. Where, then, in what minds, can the intent of a given legislative act be found, and how can its existence be proved? The question is asked as an abstract one, and without reference to any technical rule of any kind.

In regard to the general purport, or object, or intention of an act, no difficulty presents itself. If an act be passed to make a railroad, or to raise troops, no doubt can arise that every member of the majority which votes for the bill, concurs in the intention to accomplish the general object of the laws, viz.-to make the road, or to raise the levies. But in regard to the particular meaning of particular phrases or clauses-those out of which all the difficulties of construction grow-the case is very different. Take for instance the statute forbidding sheriffs to buy at sales on executions issued to them (ante, p. 304), which has been construed to mean, "excepting in cases where sheriffs are plaintiffs,"-or the statutes authorizing all persons to make wills (ante, p. 303), and which has been construed not to include married women,- -or any still nicer cases. Did the legislature in these cases mean to exclude sheriff-plaintiffs, or to include married women? What was the legislative intent?

In seeking for an answer, many things are to be considered. In the first place, the intention is to be found in the acts of the majority, and the objects or purposes of those voting against the bill are to be left out of view. Of those who voted for the bills, how many considered the precise question,— as that a sheriff might be a plaintiff? How many knew any thing of the rule of the common law, that married women are incompetent to make wills? How is it to be known in the case of the sheriffs' statute, that some one or more of the majority, even if they considered that a sheriff might be a plaintiff, did not intend, having this in their minds, to make an arbitrary and peremptory rule, like the statute of frauds, to prevent collusion or perjury. Again, if the clause be inserted by amendment, is the majority who voted for the amendment the same as the majority who voted for the bill? Amendments are very frequently voted for by members hostile to a bill, for the purpose of defeating it, and yet the bill passes. Again, a committee reports a bill with one object, and it is completely or partially altered by amendments in its passage through the legislative body. These considerations, moreover, all apply to two bodies, thereby doubling the difficulty of arriving at the real intention of the lawmaking power.

Illustrations of this kind might be extended almost indefinitely. They appear to me to be quite sufficient to show that even if the utmost latitude of proof was allowed, if reports and journals were consulted, if even the members themselves were put on the stand, it would be utterly impossible

in the great majority of cases to prove what the intent of the legislative body actually was in framing or inserting any given particular clause or provision.

These considerations are not without practical weight. They go to show the only safe rule to be, that the legislative intent must be taken as expressed by the words which the legislature has used, that all attempts by any kind of evidence to get at a legislative meaning different from that embodied in the words of the enactment, would from the nature of things prove illusory and vain; that interpretation in these cases is necessarily conjecture, tending to assume the shape of mere arbitrary discretion; and that construction should be strictly confined to cases of ambiguity or contradiction. "I hold that in respect to the intention of the legislature, where the language of the act is explicit, the courts are bound to seek for it in the words of the act, and are not at liberty to suppose that they intended any thing different from what their language imports."-Mr Senator Porter, in The Supervisors of Niagara vs. The People, 7 Hill, 511.