that act, although strictly it did not excuse him, they thought it right that he should have a pardon. a

Such is still the operation of the new law, a later fact, a circumstance of matter subsequent, the law does not allow to extend or amplify an offence, "though laid together with the beginning, it should seem to draw it to a higher nature." Estimatio præteriti delicti ex postremo facto nunquam crescit. "The law," says Bacon, "construeth neither penal laws nor penal facts by intendment, so as to be aggravated by matter subsequent; but considereth the offence in degree, as it standeth at the time when it is committeth. Therefore, if a man deliver goods to one to keep, and after retain the same person into his service, who afterwards goeth away with his goods, this is no felony by the statute 21 H. 8, because he was no servant at that time." b

10

An act of parliament made to correct an error by omission in a former statute of the same session, relates back to the time when the first act passed, and the two must be taken together, as if they were one and the same act, and the first must be read as containing in itself, in words, the amendment supplied by the last; therefore, goods exported before the second act passed, but only shipped on board before the first passed, were held liable to duties subsequently imposed on the exportation of goods. A case certainly of extreme hardship; and admitted by the then Chief Baron, c to resemble the Attorney General v. Panter, which, he added, notwithstanding its hardship, is certainly good law. d But then it should be remembered that the provoking injustice of the former case occasioned that law, however "good," to be altered. The relation in bankruptcy has been greatly curtailed in its extent and operation; e the relation of statutes, though restrained by the 33 Geo. 3, c. 13, is still capable of working extensive mischief and injustice. The mischief, however, is greatly obviated, as was before observed, where the statute provides that the law shall not have any operation till after a definite and extended period; as was the case with the stat. 9 Geo. 4, c. 14, commonly called Lord Tenterden's act, and the stat. 1 Wm. 4, c. 70, for the more effectual administration of justice in England and Wales.

a Bacon's Maxims, 39, 40.

c Atty General v. Pougett, 2 Price 381. e Fowler v. Chatterton, 6 Bing. 203.

b Thompson, C. B.

d Eden's Bankrupt Law, 260.

NOTE 10.—A statute which imposes a punishment for acts specified, which were not, or may not have been punishable when the acts were committed, and for all acts that add new punishment is within the constitutional inhibition against the passage of ex post facto laws. Matter of A. H. Garland, 32 How. U. S. R. 241. So also, a law which makes an act punishable in a manner in which it was not punishable when committed, or which increases the original punishment, is er pas! facto and void. Shepherd v. The People, 25 N. Y. 406.

By stat. 48 Geo. 4, c. 136, where any bill shall be introduced into any session of parliament, for the continuance of any act which would expire in such session, and such act shall have expired before the bill for continuing the same shall have received the royal assent, such continuing act shall be deemed to have effect from the date of the expiration of the act intended to be continued, except it shall be otherwise provided in such continuing act. But nothing therein contained shall extend to affect such person with any punishment, penalty, or forfeiture, by reason of anything done contrary to the provisions of the act continued, between the expiration of the same, and the date at which that continuing the same shall receive the royal assent.

CHAPTER VII.

GENERAL, QUALIFIED AND PARTICULAR RULES RELATING TO THE CONSTRUCTION OF STATUTES.

HAVING enumerated the various kinds of acts of Parliament and distributed them according to the most received and most satisfactory division of statutes,-having investigated minutely their nature, form, parts, qualities, authority, and relation,-it is next proposed to consider the rules for their interpretation

The rules of exposition as to grants and pleadings, that "Verba fortius accipiuntur contra proferentem;" "Verba aliquid operari debent:" "Verba cum effectu sunt accipienda: Divinatio non interpretatio est, quæ omnino recedit a litera," &c., are rules which have no place at all a in acts of Parliament, which are not words of parties; neither in devises and wills, upon several reasons. Words of parties in deeds or grants are taken most strongly against the contractor, because men are supposed sufficiently careful not to prejudice their own interests by the too extensive meaning of their words. Acts of Parliament are not within the reason of the rules. The case is the same with some of the reasons for those maxims which obtain with respect to wills. It is said that the last will of a party is to be favorably construed, because the testator is inops consilii. "This we cannot say of the legislature," obserbed Lord Tenterden, (when lamenting that the last bankrupt act should have been framed with so little attention to the consequences of of some of its provisions,) "but we may say that it is 'magnas inter opes inops."" b

The construction of a statute indeed, like the operation of a devise, depends upon the apparent intention of the maker, to be collected either from the particular provision or the general context; acts of Parliament and wills ought to be alike construed, according to the intentions of the parties that make them; so far, instead of a dissimilarity, there is a resemblance.

The rules before mentioned being rules of some strictness and rigour, are qualified by other rules of more equity and humanity; as that "Verba generalia restringuntur ad habilitatem personæ vel, ad aptitudinem rei," "Verba ita sunt intelligenda ut res magnus valeat quam pereat:" "Ea est accipienda interpretatio, quæ vitio careat :" (i. e. which does not intend a wrong,) and these latter and more

a Bacon's Maxims, 51.

b 9 B. & C. 758.

benignant rules of construction seem to admit a more extended application. "For all words," says Lord Bacon, "whether they be in deeds or statutes, or otherwise, if they be general, and not express or precise, shall be restrained unto the fitness of the matter or person. As in the statute of wrecks, the provision that goods wrecked, if any live domestic creature remains in a vessel, shall be preserved to the use of the owner who shall make his claim within the space of a year, doth not extend to fresh victuals or perishable commodities; for, "in these and like cases, general words may be taken to a foreign intent, but never to an unreasonable, or impertinent, or repugnant intent."a

No doubt certain fundamental rules founded upon the universa! principles of criticism, and the grammatical sense and meaning of words, must be alike, applicable to the exposition of deeds, grants and other written instruments, and to the construction of wills and statutes.

But the philosophical inquirer into the theory of laws, may, it has been contended, ascend still higher, and extend his views beyond the most comprehensive canons of verbal criticism. "It is not the words of the law," says the ancient Plowden, "but the internal sense of it, that makes the law: the letter of the law is the body; the sense and reason of the law is the soul." b Every statute ought to be expounded, not according to the letter, but according to the meaning: qui hæret in litera, hæret in cortice." c The enlarged interpretation of a law, will penetrate the soul and spirit of a law, and reach the intent and meaning of a legislator.

Is it then, a lex legum, a general rule; an universal maxim; that in all cases, the design and intent of the framer, when it can be indisputably ascertained, shall prevail: quod verba intention inservire debent? If such be the case, as a maxim of universal jurisprudence it will be of constant application; it will extend, under partial modifications, to the interpretation of all instruments; wills, deeds and grants, equally with the construction of statutes. The subject deserves a brief and compendious examination, and will repay inquiry; for if ascertained to be well founded, it establishes a principle; it ascends to causes; "et plenius et melius est petere fontes, quam sectari rivulos." If the doctrine be unsound, it ought to be exploded; if it be only partially true, it should be qualified; and its just limits require to be discovered, defined, and distinguished.

It may be advanced then, as a proposition, more guarded than the alleged governing maxim-"the intention shall prevail;" that effect ought to be given to the intention of the parties to instruments,or to the object, spirit, and meaning of an enactment.

To take first, the case of a will. The intention of a testator, it

a Bacon's Maxims. p 52

c 11 Rep. 73.

b Eyston v. Studd, Plowd.

is always held, is to be the only guide in the interpretation of his will; and that intention when it can be ascertained, must prevail. Where the words used in a will were "all my personal estate," but it was clear the testator meant to give the real property over which he had an absolute personal power of disposition, the freehold has passed by that misdescription. a So, where it clearly appeared a testator's intention to bequeath his leaseholds and mere chattel interests, under the description of his "real estates;" such intention was carried into effect.b Nay, where the intention of a testator is clear and obvious, it has been held that it will control the legal operation even of technical words.

E contra, where the words of a will, aided by evidence of the inaterial facts of the case, are insufficient to determine the testator's meaning, the will will be void for uncertainty.c

In the construction of deeds also, although there greater regularity and strictness are required, such exposition should, if posible, be made, as is most agreeable to the intention of the grantor. "The words," said Chief Justice Wills, "are not the principal things in a deed, but the intent and design of the grantor. These are the rules laid down by Plowden, Coke, and Hale; and the law commends the astutia of the judges, in construing the words in such a manner as shall best answer the intent." d "Those judges," it is said in the Earl of Clanricarde's case, "are exceedingly commended, who are curious, and almost subtle, to invent reasons and means, to make acts according to the just intent of the parties." e

So, in the construction of instruments in general, if the meaning can be collected, the courts will give full effect to the intentions of the parties. And any words by which the intention of the parties can appear, are held sufficient, however incorrect and ngrammatically expressed, if the meaning be clear. Thus, where a note had the words: "I promise not to pay," the court held it be a promisory note. Where the condition, of the bond, was made void upon certain terms by the words of the condition, the court held that they must be taken in the same sense, as if the condition had been, that the bond itself should be void. g Where in a bargain and sale, the words "hath granted" were found without a nominative case, the court supplied the grantor, and this holding was affirmed in the House of Lords. h In a

a 11 East, 246; 16 East, 221; 6 Ad. & E. 167; id. 180.

b 1 Mylne & K. 571; 2 Russ. & M. 546.

c Wigram's Application of Extrinsic Evidence to the Interpretation of Wills, Proposition 6, p. 83.

d In Donne v. Parkhurst, 3 Atk. 136.

e Hob. 277.

7 2 Saund. 78.

f Bayley on Bills, p. 6.

h 10 Mod. 40.