Lapas attēli

maker, and the spirit and meaning of the law, it remains to ascertain how are the intention and meaning to be collected. In the construction of a will

, the first question asked is, What was the intention of the testator? The second must always be: Has he used proper language to carry his intentions into effect? The intention of a testator, is to be collected from the words employed by himself, in his will. No surmise or conjecture of any object which the testator may be supposed to have had in view, can be allowed to have any weight in the construction of his will; unless such object can be ascertained from the plain language of the will itself. And not only ought the courts to look to the words of the will alone, to determine the operation and effect of a devise, but they ought to disregard altogether the legal consequences which may follow their construction. The judgment of a court, in expounding a will should be sim

a ply declaratory of what is in the instrument. a At the same time Courts of Law, though precluded from ascribing to a testator, any intention not expressed in his will, admit their obligation to give effect to every intention which the will, properly expounded, contains. The question in expounding a will, is not what the testator meant, as distinguished from what his words express, but simply, what is the meaning of the words.

In enforcement of this doctrine, Parke, B. said, in Doe dem. . Gwillim:b “It is often extremely difficult to say what the actual intent of a testator was. The court is to ascertain, not what the testator actually intended, but what is the meaning of the words he has used. It must be often matter of mere conjecture what he actually meant to be done, but there can be no doubt, whatever, what is the meaning of the words he has used." The doctrine was admitted and extended by Lord Denman in Rickman v. Carstairs, in which case, the Chief Justice said, “The question in this and other cases of construction of written instruments is, not what was the intention of the parties, but what is the meaning of the words they have used."

In the exposition of a statute, the intention of the Legislature may be discovered from different signs; but as a leading clue to construction to be made, it is to be collected from the words used. And while, as before stated it is a fundamental maxim that effect ought to be given to the intention and object of the framers, it must now be added, in order to give such rule its full significaation ; that it must be such an intention as the legislature have used fit words to express,

“Although the spirit of an instrument,” says Story, "is to be regarded no less than its letter, yet the spirit is to be collected from the letter.. It would be dana Wigram's Examination of Rules as to Extrinsic Evidence, Introd. p. 9. 6 5 B. & A. 129.

c Ib. 663. NOTE 3.-It is only in cases where the meaning of a statute is doubtful, that

gerous in the extreme to infer from extrinsic circumstances, that a case, for which the words expressly provide, shall be exempted from their operation, &c." a

To "try out the right intendment of a law," Lord Coke's usual course is, first to consider the true import of the words themselves, and then to refer to the old books and authors that wrote soon after the passing of the law. And this, he says, is benedicta expositio; a good and sound construction; when our ancient authors (text writers) and our year books (reports), together with constant experience (practice), do agree. b


It is this view, and chiefly, if not solely, with the object of discovering, if possible, the intention of the legislators, that, when the words of an act are obscure or doubtful, considerable stress is laid upon the light in which it was received and held by the

a Story on the Conflict of Laws, Introd. Remarks, p. 10. b 2 Inst. 11, 136, 181.

courts are authorized to indulge in conjectures as to the intention of the legisla ture, or to look to consequences in the construction of the law. When the meaning is plain and unambiguous the act must be carried into effect according to its language, or the courts would be assuming legislative authority ;* and it is not for the court to say as to such clear language, that it embraces cases not described, because no reason is seen why they were not included. Scott v, Reid, 10 Pet. 524.

NOTE 4-The best rule of interpretation to be adapted by the courts, is, to ascertain the meaning of the legislature from the words used in a statute, and the subject matter to which it relates, and to restrain its operation within narrower limits than its words import, if satisfied that the literal meaning would extend it to cases which the legislature never designed to include. Brewer v. Blougher, 14 Pet. 178.*

NOTE 5.-If by the words of a statute the intention of the legislature be improbable, the court must then giver it construction. The Hunter, Peters, C, C. R.

If, in a statute, there be a mistake apparent on its face, it may be corrected by other language in the act itself, and such mistake will not be fatal; nor will any misnomer of a person named in the act be fatal, if the person really intended can be collected from the terms of the act itself. Blanchard v. Sprague, 3 Sumner, 279. But where the descriptive words constitute the very essence of the act, unless the description be so clear and accurate as to refer to the particular object intended, and be incapable of being applied to any other, the mistake will be fatal. Id.

Statutes that are apparently in conflict, should be so construed that both may stand if possible. Johnson v. Byrd, Hempstead R. 434, and they are to be reconciled so far as they may be on any fair hypothesis, and validity given to each of them, if it can be, and is necessary to conform to usages under them, or to preserve titles to property undistributed. Beals v. Hale, 4 How U. S. R. 37.

The best, safest, and most reasonable, policy, in the American judicial departments, is, to adopt a liberal construction for statutes, and a strict construction of constitutional provisions.

* 2 Paine, 584.

contemporary members of the profession; "contemporanea expositio est fortissima in lege.” Great regard, says Lord Coke, “ought, in construing a statute, to be paid to the construction which the sages of the law, who lived about the time, or soon after it was made, put upon it; because they were best able to judge of the intentions of the makers at the time when the law was made.”

In the exposition of a statute then, the intention of a legislator may be discovered from different signs. As a primary rule it is to be collected from the words ; when the words are not explicit, it is to be gathered from the occasion and necessity of the law, the defect in the former law and the designed remedy; being the causes which moved the legislature to enact it. But in arriving at a conclusion from these last mentioned premises, the greatest care and circumspection, and the exercise of the soundest judicial discretion, are required; an attention, it will be seen, directed not only to the proper application of the rule, but to the reason upon which the rule is founded.

The rules by which the sages of the law, according to Plowden,a have ever been guided in searching for the intention of the Legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the approbation of ages. The resolutions of the Barons of the Exchequer in Heydon's case were the following :-)

“For the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law, four things are to be discerned and considered :

“1. What was the common law before the making of the act ?

"2. What was the mischief and defect against which the common law did not provide ?

“3. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth ?

"And 4thly, the true reason of the remedy.

“It was then held to be the duty of the judges at all times, to make such construction as should suppress the mischief and advance the remedy'; putting down all subtle inventions and evasions for continuance of the mischief, et pro privato commodo; and adding force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico. "


a Plowd. Rep. p. 205.

6 3 Rep. 7. NOTE 6.-It is the duty of courts so to construe statutes, as to meet the mischief; to advance the remedy, and not to violate fundamental principles. Hart v. Cleis, 8 John. 44.

In this State the rule is, to read statutes according to the most natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. Waller v. Harris 20 Wend.561-2.

Nor is this an antiquated doctrine: it is recognized and acted upon

in modern cases. In Lyde v. Bernard, a Parke, B., said: “I admit that words may be construed in a sense different from their ordinary one when the context requires it, or when the act is intended to remedy some existing mischief, and such a construction is required to render the remedy effectual. For we must always construe an act so as to suppress the mischief and advance the remedy,"

To guard against misconception, it becomes necessary to observe in this place, that the enlarged interpretation of statutes,“to apply the remedy to the mischief;" said by Lord Coke “ to have been ever the practice of the ancient sages of the law;" expounding a statute so as to give a right of action contrary to the letter of the enactment, is not now admitted ; at least, it is said such principles of interpretation are applicable to old statues only, which were shortly worded; a topic treated hereafter.

First in importance, according to these able and experienced judges, is the consideration of what was the rule at the common law. “To know what the common law was, before the making of a statute, whereby it may be seen whether the statute be introductory of a new law, or only affirmative of the common law, is , the very lock and key to set open the windows of the statute.” 6

Further, as a rule of exposition, statutes are to be construed in reference to the principles of the common law. For it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required, The law rather infers that the act did not intend to make any alteration, other than what is specified, and besides what has been plainly pronounced; for if the parliament had had that design, it is naturally said, they would have expressed it.'

It was observed by the judges, in the case of Stowell and Zouch, that it was good for the expositors of a statute to approach as near as they could, to the reason of the common law.c The best interpretation of a statute, say other cases, is to construe it as near to the rule and reason of the common law as may be, and a 1 M. & W. 113.

b 2 Inst. 301 ; 3 Rep. 31 ; 13 Hob. 83. c Plowd. 365.

NOTE 7.-The same rule of interpretation is adopted by our courts, federal and state ; reference is had to the common law in force at the time of their passage. Mayo v. Wilson, 1 New Hamp. 55; How v. Peckham, 6 How. Pr. R. 229; Van Horne v. Dorrance, 2 Dall. 316; Rice v. M. & N. W. R. R. Co., 1 Blatch 359; Talbot v. Simpson, Peters 0. C. R. 188.

Chancellor Kent says, “this has been the language of courts in every age, and when we consider the constant, vehement and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction."


ancient sages


by the course, which that observes in other cases. a Such, indeed, has been the language of the courts in every age; and when we consider the constant, vehement, and exalted eulogy which the



the common law, as the perfection of reason," and the “best birthright and noblest inheritance of the subject,” we cannot be surprised at the great sanction given to this rule of construction, and its careful observance. b

By the stat, de donis it was enacted, that a fine levied of entailed lands, "ipso jurre sit nullus ;" yet the construction was, that such fine should not be a nullity, but only a discontinuance; because, at the common law, if a bishop, seised in right of his church, or a husband in right of his wife, had aliened by a fine, it was only a discontinuance.c

Though the assignee of tenant by courtesy or dower, is within the letter of the stat. of Gloucester, c. 5, for he holdeth in some manner for life, and the words are ou en auter maner a terme de vie ; yet no action of waste shall be brought by the heir against the assignee, but only against the tenant by courtesy or dower, these being the sole persons against whom it lay at the common law.d

When a statute alters the common law, the meaning shall not be strained beyond the words, except in cases of public utility, when the end of the act appears to be larger than the enacting words.

The stat. of Westmr. 1, c. 20, de malefactoribus in parcis et vivariis, shall not be extended to forests, because this act is in restraint of the common law.

If a statute make use of a word, the meaning of which is well known, and has certain definite sense at the common law, the word shall be expounded and received in the same sense in which it is understood at the common law.e Thus, the term "cottages” (which is used in stat. 31 Eliz. c. 7,) has the same signification there, as it had at the common law, and as is applied to it in Domesday Book. f

Secondly, The intention of the makers of a statute is some times to be discovered from the cause or necessity of making the act: hence, the direction to inquire into the mischief against which the common law had not provided. Thus, in Heydon's case, the common law was, that religious and ecclesiastical persons might have made leases for as many years as they pleased; the mischief was, that when they perceived their houses would be dissolved, they made long and unreasonable leases. Before the first Marriage Act, 26 Geo. 2, c. 33, the mischief was, that

a 1 P. Wms. 252 ; 2 Inst. 148, 301 ; 1 Sand. 240.
61 Kent's Comm. on Laws of America, 434.
c 3 Rep. 83 ; the case of Fines, Hob. 97.
6 6 Mod. 143.

d 2 Inst. 300.
f 2 Inst. 736.

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