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speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to arise from the offence.15 But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience.(m)

I have now gone through the definition laid down of a municipal law; and

(m) Lex pure poenalis obligat tantum ad poenam, non item poenam. (Sanderson de conscient. obligat. prad. viii. & 17, ad culpam: les poenalis mixta et ad culpam obligat, et ad 24.)

16 This is a doctrine to which the editor cannot subscribe. It is an important question, and deserves a more extensive discussion than can conveniently be introduced into a note. The solution of it may not only affect the quiet of the minds of conscientious men, but may be the foundation of arguments and decisions in every branch of the law. To form a true judgment upon this subject, it is necessary to take into consideration the nature of moral and positive laws. The principle of both is the same,-viz., utility, or the general happiness and true interests of mankind, “atque ipsa utilitas justi prope mater et aqui."

But the necessity of one set of laws is seen prior to experience; of the other, poste rior. A moral rule is such, that every man's reason, if not perverted, dictates it to him as soon as he associates with other men. It is universal, and must be the same in every part of the world. Do not kill, do not steal, do not violate promises, must be equally obligatory in England, Lapland, Turkey, and China. But a positive law is discovered by experience to be useful and necessary only to men in certain districts, or under peculiar circumstances. It is said that it is a capital crime in Holland to kill a stork, because that animal destroys the vermin which would undermine the dykes, or banks, upon which the existence of the country depends. This may be a wise law in Holland; but the life of a stork in England would be of no more value than that of a sparrow, and such a law would be useless and cruel in this country.

By the laws of nature and reason, every man is permitted to build his house in any manner he pleases; but, from the experience of the destructive effects of fire in London, the legislature, with great wisdom, enacted that all party-walls should be of a certain thickness; and it is somewhat surprising that they did not extend this provident act to all other great towns. (14 Geo. III., c. 78.)

It was also discovered, by experience, that dreadful consequences ensued when seafaring people, who returned from distant countries infected with the plague, were permitted immediately to come on shore and mix with the healthy inhabitants. It was, therefore, a wise and merciful law, though restrictive of natural right and liberty, which compelled such persons to be purified from all contagion by performing quarantine. (Book iv., 161.).

He whó, by the breach of these positive laws, introduces conflagration and pestilence, is surely guilty of a much greater crime than he is who deprives another of his purse or his horse.

The laws against smuggling are entirely juris positivi; but the criminality of actions can only be measured by their consequences; and he who saves a sum of money by evading the payment of a tax does exactly the same injury to society as he who steals so much from the treasury, and is therefore guilty of as great immorality, or as great an act of dishonesty. Or, smuggling has been compared to that species of fraud which a man would practise who should join with his friends in ordering a dinner at a tavern, and, after the festivity and gratifications of the day, should steal away and leave his companions to pay his share of the reckoning.

Punishments or penalties are never intended as an equivalent or a composition for the commission of the offence; but they are that degree of pain or inconvenience which is supposed to be sufficient to deter men from introducing that greater degree of inconvenience which would result to the community from the general permission of that act which the law prohibits. It is no recompense to a man's country for the consequences of an illegal act that he should afterwards be whipped, or should stand in the pillory, or lie in a jail. But in positive laws, as in moral rules, it is equally false that omnia peceata paria sunt. If there are laws (such as the game-laws) which, in the public opinion, produce little benefit or no salutary effect to society, a conscientious man will feel, perhaps, no further regard for the observance of them than from the consideration that his example may encourage others to violate those laws which are certainly beneficial to the community. Indeed, the last sentence of the learned judge upon this subject is an answer to his own doctrine; for the disobedience of any law in existence must be presumed to involve in it either public mischief or private injury. It is related of Socrates


have shown that it is "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong;" in the explication of which I have endeavoured to interweave a few useful principles concerning the nature of civil government, and the obligation of human laws Before I conclude this section, it may not be amiss to add a few observations concerning the interpretation of laws. When any doubt arose upon the construction of the Roman laws, the

usage was to state the case to the emperor in writing, and take his opinion upon it This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes is not only endless, bat affords great room for partiality and oppression. The answers of the emperor were called his reo : scripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished by every rational civilian from those general constitutions which had only the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us, had once resolved to *abolish these rescripts, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise, (n) and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of thé law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf) which forbade a layman io lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon.

Again, terms of art, or technical terms, must be taken accord(*) Inst. 1, 2, 6.

(0) L. of N. and N. 5, 12, 3. that he made a promise with himself to observe the laws of his country; but this is nothing more than what every good man ought both to promise and perform; and he ought to promise, still further, that he will exert all his power to compel others to obey them. As the chief design of established government is the prevention of crimes and the enforcement of the moral duties of man, obedience to that government necessarily becomes one of the highest of moral obligations; and the principle of moral and positive laws being precisely the same, they become so blended that the discrimination be. tween them is frequently difficult or impracticable, or, as the author of “The Doctor and Student” has expressed it with beautiful simplicity, “In every law positive well made is somewhat of the law of reason and of the law of God; and to discern the law of God and the law of reason from the law positive is very hard.” 1 Dial.c. 4. An eloquent modern divine has also said, “Let the great general duty of submission to civil authority be engraven on our hearts, wrought into the very habit of the mind, and made a part of our elementary morality." Halls Sermon, Oct. 1803.-CHRISTIAN.

The morality of this position of the learned commentator has been well questioned. Its soundness as a legal principle, though it once had sway in the courts, has been since repudiated. With all the qualifications which have been cautiously annexed to it in the text,-namely, that the thing forbidden or enjoined is wholly a matter of indiffer. ence, and the penalty inflicted an adequate compensation for the civil inconvenience supposed to arise from the offence,-it must be admitted to be fraught with practical danger to society. There is a moral obligation resting on every individual to obey the laws of that community in which he lives. The breach of any known law is a violation of that obligation. If the laws be so multiplied that the citizen cannot be expected to know or understand them, then, although in the eye of the law he may not be excused,

Llegis ignorantia neminem excusat, - yet it is different in foro conscientice. This is the answer to the suggestion that such laws would be a snare to the conscience. But if the subject knows, or ought to know, the law, if he had exercised ordinary diligence, ne has no right to set up his own judgment as to the indifference of the action which the legislature has prohibited or enjoined. Every penalty implies a prohibition, even if not expressed. It is now well settled that every contract to do a thing made pensl by



iny to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited “to the princess Sophia, and the heirs of her body, being Protestants," it becomes necessary to call in the assistance of lawyers to ascertain the precise idea of the words “heirs of her body," which, in a legal sense, comprise only certain of her lineal descendants. *60]

*2. If words happen to be still dubious, we may establish their mean

ing from the context, with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament.'? Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.18 Thus, when the law statute is void as unlawful. Aubert vs. Maze, 2 Bos. & Pul. 371. Cannon vs. Bryce, 3 B. & Ald. 179. De Begnis vs. Armistead, 10 Bingh. 107. Mitchell vs. Smith, 4 Dall. 269 ; 1 Binn. 118. Elkins vs. Parkhurst, 17 Verm. 105.-SHARSWOOD.

16 If words or expressions have acquired a definite meaning in law, they must be 60 expounded. 2 M. & Sel. 230. 1 Term. Rep. 723.

The natural import of the words is to be adopted; and if technical words are used, they are in general to have assigned to them their technical sense. Ex parte Hall, 1 Pick. 261. The State vs. Smith, 5 Humph. 392. Bank vs. Cook, 4 Pick. 405. Where a word has a clear and settled meaning at common law, it ought to have the same meaning in construing a statute in which it is used. Adams vs. Turrentine, 8 Iredell, 147. Where a law is plain and unambiguous, whether expressed in general or limited terms, there is no room left for construction, and a resort to extrinsic facts is not permitted to ascertain its meaning. Bartlett vs. Morris, 9 Porter, 266. No mere misnomer in the name of a natural person or corporation is fatal to the validity of an act if the person or corporation intended can be collected from the words. Blanchard vs. Sprague, 3 Sumner, 279. The term “person" in a statute embraces not only natural but artificial persons or corporations, unless the language indicates that it was used in a more limited sense. Bank vs. Andrews, 8 Porter, 404. U.S. vs. Ammedy, 11 Wheat. 392. Where provision is made that criminal prosecutions are to be instituted "on complaint,” a complaint under oath or affirmation is implied as a part of the technical meaning of the terms. Campbell vs. Thompson, 4 Shep. 117. The word “may” always is held to mean "must" or "shall” in cases where the public interest and rights are concerned, and where the public or third persons have a claim de jure that the power delegated should be exercised. Ex parte Šimonton, 9 Porter, 390. Minor vs. Bank, 1 Peters, 64. Schuyler Co. vs. Mercer Co., 4 Gilman, 20. Turnpike vs. Miller, 5 Johns. Ch. Rep. 101. A conjunctive may be taken in a disjunctive sense: in other words, "and” may be construed to be "or." Barker vs. Esty, 19 Vermont, 131. By judicial construction, in some instances the extent and force of the term “void” when used in statutes has been limited so as to mean "voidable;” that is, to be made void by some plea or act of the party in whose favour the statutes are set up. Green vs. Kemp, 13 Mass. 515. Smith e's. Saxton, 6 Pick. 483.-SHARSWOOD.

17 But a positive enactment is not to be considered restrained by the preamble. 1 Term. Rep. 44. 4 Term. Rep. 790.3 M. & Sel. 66. Lofft's Rep. 783.–CHITTY.

18 It is an established rule of construction that statutes in pari materiâ, or upon the same subject, must be construed with reference to each other; that is, that what is clear ir. one statute shall be called in aid to explain what is obscure and ambiguous in another. Thus, the last qualification act to kill game (22 and 23 Car. II., c. 25) enacts " that every person not having lands or tenements, or some other estate of inheritance, of the clear yearly value of 1001. or for life, or having lease or leases of ninety-nine years of the clear yearly value of 1501.,” (except certain persons,) shall not be allowed to kill game. Upon this statute a doubt arose whether the words or for life should be referred to the 1001. or to the 150l. per annum. The Court of King's Bench, having looked into the former qualification acts, and having found that it was clear by the first qualification act (13 R. I. st. 1, c. 13) that a layman should have 40s. a year, and a priest 101. a year, and that, by the 1 Ja. c. 27, the qualifications were clearly an estate of inheritance of 101. a year, and an estate for life of 301. a year, they presumed that it still was the intention of the legislature to make the yearly value of an estate for life greater than that of an estate of inheritance, though the same proportions were not preserved; and thereupon decided that clergymen, and all others possessed of a life-estate, only must have 1501. a year to be qualified to kill game. Lowndes vs. Lewis, E. T. 22 Geo. III.

The same rule to discover the intention of a testator is applied to wills,-viz.: the whole of a will shall be taken under consideration in order to decipher the meaning of en obscure passage in it.-CHRISTIAN. See 5 Cowen, 421.


of England declares murder to be felony without benefit of clergy, we must re. sort to the same law of England to learn what the benefit of clergy is; and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. As to the subject matter, words are always to be understood as having a regard thereto, for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids als ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but, when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deriate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf;(p) which enacted “that whoever drew blood in the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon who opened the vein of a person that fell down in the street with a fit.

*5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the

[*61 reason and spirit of it; or the cause which moved the legislator to enact it.20 For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed to Herennius.(9) There was a law, that those who in a storm forsook the ship should forfeit all property therein; and that the ship and lading should belong entirely to those who stayed in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who, by reason (p) 1. 5, c. 12, 88.

(9) 1. 1, c. 11.

19 It may be laid down that the intention of the makers of a statute is to govern, even though the construction grounded upon such intention may appear to be contrary to the literal import of the words. Every technical rule as to the construction or form of particular terms must yield to the clear expression of the paramount will of the legislature. Wilkinson vs. Leland, 2 Peters, 661. In construing statutes, penal as well as others, an interpretation must never be adopted, which will defeat the evident purpose of the law, if it will admit of any other reasonable construction. The Emily and Caro line, 9 Wheat. 388.

All the parts of a statute—title and preamble as well as the body--may be consulted for the purpose of arriving at a knowledge of the general intention of the lawgivers. The title and preamble, however, yield always to the clear expressions of the body of the act, and are referred to as explanatory only when an ambiguity exists. Jackson vs. Gilchrist, 15 Johns. 89. Holbrook vs. Holbrook, 1 Pick. 248. Eastman vs. McAlpin, 1 Kelly, 157. Bartlett vs. Morris, 9 Porter, 266. When the language of the enacting part or body of a law is doubtful and may admit of a larger or more restricted interpre tation, the preamble may be referred to in order to determine which sense was intended by the legislature. The U.S. vs. Webster, Davies, 38. The true rule seems to be that, where an inconvenience or particular mischief would arise from giving the enacting words their broad and general meaning, they shall in that case be restrained by the preamble, but not otherwise. Seidenbender vs. Charles, 4 S. & R. 166. Lucas vs. McBlair, 12 Gill. & Johns. 1. James vs. Dubois, 1 Harring, 285.

Statutes in pari materiâ are to be construed together. Schooner Harriet, 1 Story, 51. Scott vs. Searles, 18. & M.590. Harrison vs. Walker, 1 Kelly, 32. If it can be gathered from & subsequent statute what meaning the legislature attached to the words of a former one, this will amount to a legislative declaration of its meaning. U.S. vs. Freeman, 3 How. U.S. 556. The general system of legislation upon the subject matter may be taken into view, in order to throw light upon a particular act relating to the same subject. Fort vs. Burch, 6 Barb. S. C. 60. Thus, the history of legislation, including the language of repealed statutes, may be referred to and considered. Henry vs. Tilson, 17 Verm. 479.SHARSWOOD.

* The ends contemplated are to be considered, and general words may be therety restrainerl. 3 Maule and Selwyn, 510.-Chitty.




of his disease, was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel ; but this is a merit which he could never pretend to, who neither stayed in the ship upon that account, nor contributed any thing to its preservation."

From this method of interpreting laws by the reason of them, arises what we call equity, which is thus defined by Grotius :(r) “the correction of that wherein the law (by reason of its universality) is deficient.” For, since in laws all cases cannot be foresecn or expressed, it is necessary that, when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, “ lex non exacte definit, sed arbitrio boni viri permittit.. *62]

Equity thus depending, essentially, upon the particular circumstances

of each individual case, there can be no established *rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

) De Equitate, & 3. 21 See a very sensible chapter upon the interpretation of laws in general, in Rutherforth's Institutes of Natural Law, b. ii. c. 7.-CHRISTIAN.

22 The only equity, according to this description, which exists in our government, either resides in the king, who can prevent the summum jus from becoming summa injuria, by an absolute or a conditional pardon, or in juries, who determine whether any, or to what extent, damages shall be rendered. But equity, as here explained, is by no means applicable to the court of chancery; for the learned judge has elsewhere truly said, that “the system of our courts of equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection.” Book iii. 432.—Chris

What the learned commentator here says is certainly inaccurate, if it leads to the supposition that any other rules of interpretation are applied to statutes in courts of equity than in courts of law. On the contrary, herein equity follows the law, just as it does in the construction of wills and other instruments. In England, the court of chancery often sends cases to the common law courts, in order to procure their opinion on such points. The system administered in that court differs from the common law mainly in its means of getting at the truth by enforcing a discovery by the defendant under oath, and by the peculiar remedy it affords by injunction and the decree for specific performance.

What the commentator does mean, perhaps, is what is generally termed the equity of a statute, which is in reality a compendious mode of expressing his fifth rule of interpre. tation. Those cases are said to be within the equity of a statute which, though not directly comprehended by its language, are nevertheless within the intention of the lawgiver, reached its reason and spirit.

It seems that when, had the legislature foreseen the occurrence of a particular contingency, the letter of the statute would have been enlarged to receive it, this is sufficient warrant for the courts to bring it within the spirit. Brinker vs. Prinker, 7 Barr, 23.SAARSWOOD.



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