CHAPTER II.

GENERAL INTERPRETATION OF STATUTES. PUBLIC AND PRIVATE STATUTES. MANNER OF AUTHENTICATION OF STATUTES. DIS TINCTION BETWEEN AMERICAN AND ENGLISH STATUTES. OF LEGISLATIVE POWER-ENGLISH AND AMERICAN. OF JUDICIAL POWER

THE Consideration, and the interpretation of American statutes, enacted under written constitutions which limit the legislative power, presents another, and a distinct branch of law for examination, not known to the law of England, and is not therefore, necessarily treated of by Dwarris and other English writers. Particular rules of interpretation, laid down by distinguished authors on municipal and civil law, as well in England as elsewhere, including American law, will be found in a subsequent chapter. Before proceeding to the general consideration of the different divisions and characteristics of statutes, a few general rules for their interpretation may not be inappropriate.

Professor Lieber in his work on "Legal and Political Hermeneuties,"a lays down this sound proposition; "that the very basis of all interpretation is, that no sentence or form of words can have more than one true sense." So that a statute enacted by the legislature, like the utterances of an individual, or of any other body of individuals, in the use of words, does so, to convey some certain meaning; and to find their precise meaning, is the whole object of interpretation. If words used, are so employed, that they are capable of two meanings, equally sensible, it amounts to such an absurdity, that it is equivalent to having no meaning at all. "Even if a man use words, from kindness or malice, in such a way that they may signify one or the other thing, according to the view of him to whom they are addressed, the utterer's meaning is not two-fold; his meaning is, simply, not

a Chap. 4, § 2.

to express his opinion." This principle of interpretation, may with equal propriety, be carried into a statute, where from its letter, such must be held to be its design.

In no case of human life in which we are called upon to act, to apply rules, or to understand what others say, can we dispense with common sense, and good faith; a but they are peculiarly requisite in interpretation, because its object is, to discover something that is doubtful, obscure, veiled; which, therefore, may admit of different explanations. If without common sense we may make even of strict syllogism, an instrument, apparently, to prove absurdities, how much more are those two ingredients of all honesty, necessary in interpretation. Common sense and good faith, are the leading and principal characteristics of all interpretation. The object must not be, to bend, twist, or shape the text until it can be forced into the mould of preconceived ideas; but simply and solely, to fix upon the true sense, whatever that may be.

Good faith in interpretation, means, that we conscientiously desire to arrive at truth; that we honestly use all means to do so; and that we strictly adhere to it; when known to us, it means, the shunning of subterfuges, quibbles and political shuffling; it means that we take words fairly as they were meant.

If good faith be not the guiding star to direct in the construction of solemn instruments, like constitutions and statutes, no human wisdom can devise an instrument of this character that may not be interpreted so as to effect any thing but that for which it was intended. We gain nothing by verbosity, or a minute enumeration of details; for the instrument, especially if it be a constitution, is to embrace all branches, and to hold good for many generations. If we attempt then to detail for every thing before hand, we only impede, fetter and obstruct. This has been fully proved by experience; if on the other hand the instrument contains only the great principles and general outlines of the power conferred, then faithless interpretation has free play. Constitutions are useful and indispensible for the clear understanding of citizens on the most important subjects affecting their rights; to give them a fair and intelligent knowledge of the all important elements of their rights to civil liberty; of the relation

Liebers Political Ethics, vol. I, Book 1, chap. 8.

of the citizen to society in the aggregate, the State; and to furnish an independent judiciary a fulcrum, to rest its lever upon against laws hostile to that true relation of the individual to the State; laws, which might otherwise oppress him.

"It is not constitutions that make liberty. Liberty is not secured by a certain number of words written on parchment. The parchment, with its ink upon it, may be eaten by the worms; it may be torn to shreds by any daring hand; but if an independent judiciary shall pronounce the solemn expression of its true spirit, as the law of the nation, or of the State, the living words of their judicial interpretation, shall be perpetuated."a

Let all such judicial determinations bear the impress of good faith, with liberal views of construction in favor of civil liberty. "Let everything that is in favor of power be closely construed; everything in favor of the security of the citizen, and the protection of the individual, be liberally and comprehensively interpreted; for the simple reason, that power is power, and therefore able to take care of itself, as well as tending by its nature to increase, while the citizen may need protection."

For the same reason says Mr. Lieber,a ought we always to be ready to construe comprehensively, in favor of the independence of the judiciary, and against the executive, because, it is all important that the judiciary be independent, while it has none of those many influential means of the executive; no pageantry; no honors to bestow; no salaries to dispense; no army, navy, or grants of land at their disposal. It rests only on opinion, a mighty power indeed, in an honest and faithful administration of its department of the government. Hence it should be shielded."

All new laws, though penned with the greatest technical skill, and passed upon the fullest and most mature deliberation, are considered as more or less obscure and equivocal until their meaning be fixed and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of the objects and the imperfection of human faculties; the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment, the use of words is to express ideas. Perspicuity, therefore, requires not a Lieber's Political Hermeneuties, chap. 6, § 10.

b Id

only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas. Hence it must happen; that however accurately objects may be discriminated in themselves; and however accurately the discrimination may be considered; the definition of them may be rendered inaccurate; by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. "When the Almighty himself condescends to address mankind in their own language, His meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated."a

Here then are three sources of vague and incorrect definitions; indistinctness of the object, imperfection of the organ of conception, and inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity.

No human wisdom can prepare a law in such a form, and in such simplicity of language, as that it shall meet every possible complex case that may afterward arise. Whatever skill and forethought the most profound of human law-makers may have called to his aid, it will be found that even such law-giver, though he may possess the highest of intellectual gifts, will not possess grasp of mind enough to draw up a constitution, or an enactment so perfect at the time it is drawn, that no doubtful case shall not afterwards arise as to its meaning. And as time wears on, and the wants and habits of society become changed, as they ever will change with the progressive march of intelligence, especially in a land enjoying the blessings of civil and religious freedom; the interpretations, suitable to a past age, will become more and more impracticable to the present, as to all new questions.

These are propositions so well confirmed by experience, that statesmen and lawyers now agree upon the wisdom of preparing such instruments with general outlines, in language clear and easily understood, rather than of attempting minute details, how

a Federalist, No. 36.

ever elaborately extended; the tendency of which is found in experience to contract, and often to confuse the expression of intent. It is found to be far easier to obtain the intent of the legislator, when laws are brief and clear, and to rely upon good faith and common sense for their construction, than to be embarrassed at every step with details, which prevent the application of general principles, because the specific case has not been enumerated and singled out by the law-makers. It is, however, a well known maxim of jurisprudence, that the certainty of the law, is next in importance to its justice. By certainty of the law is meant, that it be well defined, known, and unchangeable, and also that its penalties fall with unerring certainty upon those who deserve them.

It has been shown that it is impossible to word laws in such a manner as to absolutely exclude all doubt, or to allow us to dispense with construction, even if they were worded with absolute (mathematical) precision, for the time for which they were made; because things and relations change, and because different interests conflict with each other. The very object of general laws, is to establish general rules beforehand; for if we would attempt to settle each case, according to the views, which, with the momentary interest it might itself suggest, we would establish at once the most insufferable tyranny or anarchy. This inherent generality, however, is likewise the reason why the application of laws require construction, since most cases occurring are of a com plex character. It is in vain, therefore, to believe in the possibility of forming a code of laws absolutely distinct, like mathe matical theories. All that true wisdom requires is to make laws as distinct and perfect as possible, following both the dictates of reason and the suggestions of experience, and carefully to establish rules of interpretation and construction, or legal hermeneutics.a

"Yet it is my settled conviction, that the clearest possible laws are an incalculable blessing to a community extending much farther than merely to the avoiding of unnecessary litigation, whilst obscure or unnecessarily intricate laws are a very curse to a nation, and serve to unite the lawyers into a compact, formidable and privileged class."b