both came from the same hand, so they are both found together in the same writing."

"Cotemporary practice, is a circumstance which is connected with a law in time, and not only in time but in place too; for it consists in what was usually done in the place where the law was made, at or near the time of making it."

DOMAT'S RULES.

Domat's rules of law and of interpretation are appropriately selected to follow those of the preceding authors. We do not copy them in full, but extract such portions of them, as will be found useful in this connection, from Vol. 1, Cushing's edition, beginning at page 108. He says:

"Laws ought to be written to the end that the writing may fix the sense of the law, and determine the mind to conceive a just idea of that which is established by the law, and that it be not left free for every one to frame the law as he himself is pleased to understand it. We may, therefore, distinguish two ideas, which the words law and rule form in our minds. One, is the idea of what we concieve to be just, without making any reflection on the terms of the law; the other is the idea of the terms of the law; and according to this second idea, we give the name of rule or law, to the expression of the lawgiver."

"Laws are of two sorts; one is of those which flow from the law of nature and equity, and the other is of such as derive their origin from the positive law, which is otherwise called human and arbitrary laws, because they have been established by men."

"The rules of the law of nature, are those which God himself hath established, and which He communicates to mankind by the light of reason. These are the laws which have in them a justice that cannot be changed; which is the same at all times, and in all places; and whether they are set down in writing or not, no human authority can abolish them, or make any alteration in them."

"Arbitrary rules, are all those that have been established by men, and which are such, that without offending natural equity, they may either prescribe one thing, or a thing quite different." "All laws ought either to be known, or at least laid open to

the knowledge of all the world, in such a manner, that no one may with impunity, offend against them, under pretence of ignorance. Thus, the natural law being truth that is unchangeable; the knowledge of which is essential to reason, nobody can pretend ignorance of it, since they cannot say that they are destitute of common reason, which makes this law known. But arbitrary laws have not their effect till the lawgiver has done all that is possible to make them known; and this is done, by the ways that are commonly practiced for the publication of these kinds of laws; and after they are promulged in due from, it is presumed that they are known to every body, and they oblige as well those who pretend ignorance of them, as those who know them."

"The laws of nature being highly just, and their authority always the same, they determine equally all that is to come, and all that is past which remains undecided."

"Laws restrain and punish not only what is evidently contrary to the sense of their words, but likewise everything that is directly or indirectly against their intent, although it seem to have nothing contrary to the terms of the laws, and also that everything that is done in fraud of the law, and to elude it."

"If any case could happen that were not regulated by some express and written law, it would have for a law, the natural principles of equity; which is the universal law that extends to everything."

"It happens in two sorts of cases, that it is necessary to interpret the laws. One is when we find in a law some obscurity, ambiguity, or other defect of expression; for in this case, it is necessary to interpret the law in order to discover its true meaning. And this kind of interpretation is limited to the expression, that it may be known what the law says. The other is, when it happens that the sense of a law, how clear however it may appear in the words, would lead us to false consequences, and to decisions that would be unjust, if the laws were indifferently applied to everything that is contained within the expression. For in this case, the palpable injustice that would follow from this apparent sense, obliges us to discover by some kind of interpretation, not what the law says, but what it means; and to judge by its

meaning, how far it ought to be extended, and what are the bounds that ought to be set to its sense."

"This principle of interpreting the laws by equity, does not only respect the laws of nature, but reaches likewise to arbitrary laws, they being all of them founded upon the laws of nature. If they are natural laws, we are to reconcile them by the extent and limits of their truth, if arbitrary, we are to fix their equity by the intention of the lawgiver."

"All rules, whether natural or arbitrary, have their use; such as is assigned to every one of them by universal justice, which is the spirit of them all. Thus the application of laws is to be made, by discerning what it is that this spirit demands; which, in natural law, is equity; in arbitrary laws, the intention of the law giver. It is in this discerning faculty, that the science of the law does chiefly consist."

"If a rule of natural justice being applied to a case that it seems to embrace, shows a result contrary to equity, we are bound to conclude that the rule has been improperly applied, and that the case should fall under some other law."

"If an arbitrary, or positive rule, is applied to a case which it apparently embraces, and the result is contrary to the intent of the legislator, the rule should not be applied to the case.

"But we must not consider as unjust and repugnant to equity, or the legislators intention, those decisions which appear rigorous and severe, when it is evident that rigor and severity, is the essential characteristic of the law in question; and that it could not be mitigated without impairing its effect; as for example, the law in regard to the formalities prescribed relating to the execution of wills; the severity and arbitrary character of the rule which annuls all wills where these formalities are neglected, is, in those cases an indispensable part of the law."

"If however, the severity of the law is not a necessary and indispensable part of it, but can be carried into effect by a milder interpretation and one more conformable to equity and natural justice; then this is to be preferred to the severe and strict construction."

"It follows from these rules, that the rule of interpretion is not fixed and invariable; that sometimes strictness, and sometimes a

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milder and more equitable interpretation is to be followed. Rigor becomes injustice when the law will bear an equitable interpretation, and rigor should be practiced when an equitable construction would defeat the law. This rigor or strictness is either an unjust and odious severity, contrary to the spirit of the law, or, it furnishes a just but inflexible rule. These two ideas are never to be confounded; and the strict, or equitable construction ought to be adhered to according to the rules here given."

"It is never a matter of indifference whether we apply a strict or a liberal construction. In each case we are to enquire whether the rule in question calls for a strict interpretation, or will bear a liberal one; and then decide accordingly."

"Although the strictness of law appears at first sight opposed to equity, it is nevertheless true that where it ought to be applied, it is only on account of its inherent justice. What is equitable cannot be contrary to justice; and so what is just cannot be contrary to equity."

"The obscurities, ambiguities, and other defects of expression which may render the meaning of a law doubtful, and all other difficulties in its construction and application should be resolved by the natural sense of the language, according to the nature of the subject, so as if possible at once to conform to the intent of the legislator and to equity. This is to be arrived at by the different consideration of the nature of the law, its object, its connection with other laws, the exceptions to which it may be subject, and other similar considerations."

"To arrive at the meaning of a law, we are to weigh its terms and examine its preamble, if there be one, in order to judge of its provisions by its object and the whole context, and not to limit its interpretation to what would appear different from its intention, either in a single portion of the law or in a single defective expression. We must prefer the evident meaning of the whole law, to the inconsistent meaning of a defective expression."

"If in any law we find the omission of something essential to it, or which is a necessary result of its provisions, and requisite to give the law its full effect, we may supply what is wanting but

not expressed, and extend the law to what it was manifestly intended to embrace, but in its terms does not include.”

"If the language of a law clearly expresses its meaning and intention, that intention must be carried out; but if the true sense of the law cannot be arrived at by the interpretation which may be made according to the rules here given, or the meaning be clear, and inconvenience appear to result, then we must have recourse to the sovereign to interpret, to declare, or to modify the law."

"If the provisions of a law are clear, but its object not understood, and in its application inconveniences appear to result, we are bound to presume that the law is useful and just; and its meaning and authority are to be preferred to mere abstract reasoning. Otherwise, many useful and well contrived rules would be overturned on grounds of alleged equity, or ingenious argument."

"Laws which favor what public utility, humanity, religion, freedom of intercourse, and other similar interests regard favorably, as well as those intended to favor particular individuals, ought to be interpreted with all the liberality to which these interests are justly entitled, in an equitable point of view, and ought not to be interpreted severely, nor be applied in a manner calculated to prejudice the persons intended to be favored."

"Laws. which restrain natural liberty, as those which prohibit what is not of itself illicit, or which derogate otherwise from common right; laws fixing the punishment of crimes and offences, or penalties in matters of a civil nature which prescribe formalities that seem severe; those which permit parents to disinherit children; and others of a similar character; ought not to be so interpreted as to extend their provisions to cases which they do not embrace; and, on the contrary, they should receive all practical mitigation of equity and humanity."

“If any law or custom is established for particlar reasons contrary to other rules of common right, it ought not to be applied except to those cases for which it is expressly intended.

"The grants and gifts of sovereigns are to be favorably regarded, and to have that extension to which they are entitled from the natural presumption of princely liberality, provided however,