"If these rules are violated," said Best, C. J., (in the case of Fletcher v. Lord Sondes, 3 Bing. 580,) "the fate of accused persons is decided by the arbitrary discretion of the judges, and not by the express authority of the laws."

But still the intent is to be regarded: which is a primary rule; and that occasioned it to be said that equity knows no difference between Penal Laws and others. The question is, Does a case come within the meaning of the words? Thus the enactment that made killing a master treason, was held to include a mistress. Hardres, 203; Plowd. 85.

If the statute 1 Edw. VI. had been that he that should steal one horse should be ousted of his clergy, then there would have been no question if a man had stolen more than one horse, according to the rule of the Civil Law, In eo quod plus sit semper inest et minus, L. cx., ff. De Reg. Jur. And it is a maxim of the Civil Law that the accused person is looked upon with more favour than the accuser. Gajus says, Favorabiliores rei potius quam actores habentur, L. xxv., ff. De Reg. Jur. Thus President Faber, in his comment on that law, shows that, according to the laws of the Romans and of the Athenians, where the judges were equally divided as to the innocence or guilt of the prisoner, he was acquitted. And the rule of the Canon Law is, that where the rights of the parties are doubtful, Reo favendum est potius quam actori. The famous rule of our law, taken from the Civil Law, Actore non probante reus absolvitur is applicable to the doctrines which I have just been explaining.

The Canon Law respecting the interpretation of penal statutes agrees with the English Law; and, as well for the sake of the very lucid explanations to be found there, as because of the use of the Canon Law in expounding canons, and statutes of colleges and other bodies of that nature, it is worth while to look into the works of the canonists where they treat of this matter, especially Anacletus Reiffenstuel, lib. i., tit. ii., sect. xvii.

Where the Penal Law is plain, this strict interpretation is not used. In Rex v. Hodnett, 1 Term Rep. 96, Mr. Justice Buller said, "We are to look to the words in the first instance, and where they are plain, we are to decide on them. If they be doubtful, we are then to have recourse to the subject-matter." We must follow the meaning of the words and the obvious intention of the legislature. Thus, on the bribery acts, to satisfy the term "procuring," the vote must be actually given; but it is otherwise with regard to the word "corrupting," for the corruption is complete, though no vote be actually given, 3 Burr. 1235, The case cited above, from Blackstone's Commentary, where the words "sheep or other cattle" were held to be too loose to create a

capital offence, except in the specified case of stealing sheep, is also grounded on another rule, namely, that if general words follow an enumeration of particular cases, such general words are held to apply only to cases of the same kind as those expressly included. Dwarris (p. 636) observes on this case, that until the legislature distinctly specified what cattle were meant to be included, the judges felt that they could not apply the statute to any other cattle but to sheep. By the 15th Geo. II. c. 34, the legislature declared that it was doubtful to what sorts of cattle the former act extended besides sheep, and enacted and declared that the act was meant to extend to any bull, cow, ox, steer, bullock, heifer, calf, and lamb, as well as sheep, and to no other cattle whatsoever. The legislature, by the same act, declared that it was not to extend to horses, pigs, or goats, although all these are cattle. Yet horses are cattle within the Black Act, and bulls are not cattle within the 3rd Geo. IV. c. 71.

It appears, therefore, that the judges were by no means over scrupulous in refusing to include any but the specified beasts-sheep, under the general words cattle. As it turned out, the intention of the legislature was not extended to all the beasts included in the common, or even in the legal, description of cattle.

Acts imposing a burthen on the public must also be construed strictly; so that any ambiguity will be interpreted in favour of the subject. And so Lord Tenterden held, in Tomkins v. Ashby, 6 Barn. & Cress. 541; and Lord Ellenborough, in Warrington v. Tarbut, 8 East, 242. And on analogous principles Lord Ellenborough, in Gildwit v. Gladstone, 11 East, 675, which was an action for dock dues, said, "If words will admit of different meanings, it will be right to adopt that which is more favourable to the interest of the public, and against that of the company; because the company, in bargaining with the public, ought to take care to express distinctly what payments they are to receive; and because the public ought not to be charged, unless it be clear that it was so intended." And Lord Tenterden, in the Dock Company at Kingston-upon-Hull v. Browne, 2 Barn. & Adol. 58; and Lord Chief Justice Tindal, in Parker v. The Great Western Railway, Law Jour. 1844; 7 Scott, New Rep. 835; laid down the same principle.

It is important to observe that Lord Ellenborough, in the case of Gildwit v. Gladstone, just cited, gives as one of his reasons, that the company, in bargaining with the public, ought to take care to express distinctly what payments they are to receive. This is somewhat different from the principle of the rule given by Lord Coke, Co. Litt. 36. a. Verba chartarum fortius accipiuntur contra proferentem. A deed shall be construed most strongly against the grantor. The public

are the grantors of the dues in the case under consideration, yet the act is construed in favour of the public. But Lord Ellenborough looked upon the company as bargaining with the public and stipulating for the dues; and he followed the rule verba interpretantur contra proferentem, on which indeed Lord Coke's rule is founded. And he decided according to the rule of the Civil Law, verba contra stipulatorem interpretanda sunt; and for the same reason, namely, quia stipulatori liberum fuit verba late concipere; because he who stipulated was at liberty to use extensive words, and he should have expressed clearly what he stipulated for. And so it is laid down by Coleridge, J., in Howard v. Gossett, Carrington & Marshman, 380, that it is a maxim in the construction of pleadings, that everything shall be taken most strongly against the party pleading. And so it is in the Civil and Canon Law.

The doctrine of Lord Ellenborough, that the company were bargaining parties with the public, is in accordance with that laid down in many cases, that private acts are parliamentary contracts. The leading case on this subject is Blakemore v. The Glamorganshire Canal Company, 1 Mylne & Keene, 162. See also R. v. Cumberworth, 3 Barn. & Adol. 108, and R. v. Edge Lane, 4 Adol. & Ell. 723.

Lord Eldon, in the leading case just cited, said, "When I look upon these Acts of Parliament, I regard them all in the light of contracts made by the legislature on behalf of every person interested in anything to be done under them. And I have no hesitation in asserting that, unless that principle be applied in construing statutes of that description, they become instruments of greater oppression than anything in the whole system of administration under our constitution. Such Acts of Parliament have now become extremely numerous, and from their number and operation they so much affect individuals, that I apprehend those who come for them to Parliament, do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do, and that they shall do nothing else."

I have now explained the principal rules laid down by our Courts for the interpretation of statutes. I have done so with the object of making reference to the text-books, where all the rules with the cases adjudged upon them are to be found, easy and profitable. And I have also endeavoured to give you the chief doctrines laid down by the Roman Law, and by the jurists on the same subject, from whence the reasons of our own law can best be understood.

SEVENTH READING.

ON THE BOUNDARIES OF THE JUDICIAL POWER, AND
LEGISLATIVE INTERPRETATION.

HAVING concluded the subject of the judicial exposition of written law under the guidance of rules of construction, it seems reasonable to consider the boundaries of the judicial authority-a subject of great difficulty and importance.

I shall also advert to the interpretation of written laws, not by judges, but by the legislative power.

The fundamental principle defining the power of the judge to expound law is this-the judicial function does not extend to make law: it is restricted to applying the law, which necessarily involves the duty of interpreting the meaning of the law. Thus the Italian jurist Lampredi says, "To the office of the judges belongs the interpretation of the laws. That interpretation here means a declaration of the judge, whereby he pronounces that a particular fact regarding which a controversy exists, is (or is not) contemplated by the particular law which constitutes a general rule."

So Cicero says, Vere dici potest magistratum legem esse loquentem : legem autem mutum magistratum. And Justinian says (Inst. lib. iv., tit. xvii., princ.), "The judge must above all things take care not to decide otherwise than is provided by the laws, or constitutions, or customs :" on which passage Vinnius observes, that the judge is the minister and not the master of the law. And St. Augustine thus very neatly expresses the duty of the judge, Non licet judici de legibus judicare sed secundum ipsas. Thus Savigny observes, that the general motive of a law must not be made the basis of an interpretation showing an impropriety in the terms of the law, and rectifying it. The use of that method has a character more legislative than doctrinal, for it determines not what the law provides, but what it ought to provide.b With these principles the Law of England agrees: but here the

Cic. de Leg., lib. iii., § 1.

b Savigny, Tr. de Dr. Rom. vol. i., pp. 232, 233, 315. Paris, 1840. He observes

that the Romans did not always clearly distinguish between the interpretation and the formation of law, p. 233.

subject requires rather minute investigation. And we must separately examine their application to the Written and to the Common Law. And first of the Written or Statute Law.

We have seen that judicial power cannot give effect to an intention of the legislature not expressed. Lord Ellenborough said, in R. v. Skone, 6 East, 518, "We can only say of the legislature, 'quod voluit non dixit."" And in the case of Haworth v. Ormerod, 6 Q. B. Rep. 307, Lord Denman held the same doctrine: "If the legislature intended more, we can only say, that according to our opinion they have not expressed it."

And there are cases in which the expressed intention of the legislature is opposed to the probable intention, and the judges are obliged to sacrifice the latter to the former.

Thus, in the case of Rex v. Recorder of Bath, 9 Ad. & El. 837, the judges were (as Lord Brougham observes) obliged to decide against a right of appeal plainly intended to be given, but which was given only by reference to another act that did not give it; and they lamented that the legislature had proceeded by way of reference instead of directly telling what it meant.a

We have also seen that a casus omissus in a statute cannot be supplied by a Court of Law. The judges (as you will find in Jones v. Smart, 1 T. R. 51,) are bound to take the Act of Parliament as Parliament has made it. And Lord Coke, in 5 Rep. 38, lays it down that casus omissus et oblivioni datus, dispositioni communis juris relinquitur: a case omitted and forgotten by the legislature is left as at Common Law. And so, in the case of R. v. Barham, 8 Barn. & Cress. 104, it was held by Lord Tenterden that it is better to defeat the object of a statute than to put upon it a construction not warranted by the words of the act. And, in Notley v. Buck, 8 Barn. & Cress. 160, his Lordship said, "The words may probably go beyond the intention ; but if they do, it rests with the legislature to make an alteration; the duty of the court is only to construe and give effect to the provisions." Such is the doctrine of the Law of England, with regard to the limits of the judicial power in the interpretation and exposition of

statutes.

In the United States of America the same principles obtain; but the jurisprudence of that country contains a peculiar doctrine with regard to the relative functions and province of the legislative and the judicial powers, which well deserves our consideration.

The principle of the English Constitution, that Parliament is omnipotent, does not prevail in the United States; though, if there be