LA\V, LEGISLATION, CODES. 



399 



irrelevant to remark, that in every modern govern- 

 ment, practically tree, the common law rule lias pre- 

 vailed by general consent ; and in those of the 

 American states which were formerly under the 

 civil law jurisdiction, there has been no desire ever 

 expressed to retain their own rule. On the con- 

 trary, the common law rule has been eagerly adopted. 

 It is not our purpose to enter into a review of all the 

 grounds on which the common law rule might be 

 vindicated ; but there are one or two which deserve 

 intention. In the first place, the rule has the ad- 

 vantage of producing certainty as to rights, privileges, 

 and property. In the next place, it controls the 

 arbitrary discretion of judges, and puts the case be- 

 yond the reach of temporary feelings and prejudices, 

 as well as beyond the peculiar opinions and 

 complexional reasoning of a particular judge; for 

 he is hemmed round by authority on every side. 

 In the next place, the consciousness that the de- 

 cision will form a permanent precedent, affect- 

 ing all future cases, introduces necessarily great 

 caution and deliberation in giving it. It the 

 case only were to be decided, it might be disposed 

 of upon sudden impressions, and upon circumstances 

 of hardship or compassion, or kindness, or special 

 equity. But as the principles involved in it are to 

 govern all future cases, and those principles must be 

 derived from other analogies of the law, and be con- 

 sistent with them, there are very strong restraints 

 upon the judgment of any single judge. And there 

 can be no permanent evil attendant upon any adjudi- 

 cations of this sort; for the legislative power may 

 always apply the proper amendatory corrective at 

 its will. And if the judges are actuated by corrupt 

 motives, they may be removed by impeachment. It 

 is no small proof that the system works well, that, ill 

 the course of many ages, very few decisions (com- 

 paratively speaking) have been overturned by the 

 courts themselves, and that the legislature has not 

 often found it necessary to change the rule prescribed 

 by the courts. In fact, positive laws have been 

 amended a hundred times, by the legislature, where 

 one judicial rule has been interfered with. The 

 changes which have been wrought in the fabric of 

 the laws, have not so much arisen from misapplica- 

 tion of principles by the courts, as from the new state 

 of society having rendered the old institutions and 

 laws inexpedient or inconvenient. The circum- 

 stances which have been thus alluded to, have intro- 

 duced a general and settled course of interpreting 

 the laws, in countries governed by the common law. 

 No such thing is known, in American jurisprudence, 

 as a philosophical, or historical, or practical school of 

 interpretation. There the laws are not subject to any 

 varieties of interpretation grounded upon the present 

 predominance of either of them. Certain maxims 

 were early adopted, and they have never been de- 

 parted from. Supplementary and auxiliary maxims 

 of interpretation have necessarily been introduced. 

 But, when once incorporated into the system, they 

 have been deemed conclusive and obligatory. The 

 sense of a law once fixed by judicial interpretation, 

 is for ever deemed its true and only sense. Among 

 the rules of interpretation belonging to and fixed in 

 the common law, we shall enumerate a few, some of 

 which, indeed, may be truly said to belong to the 

 universal elements of rational jurisprudence. It is, 

 perhaps, the exactness and uniformity with which 

 they are applied, by judicial tribunals, which give 

 them their principal value. 



Laws may be divided into the following classes : 

 declaratory laws; directory laws; remediallaws; and 

 prohibitory and penal laws. Declaratory laws only 

 declare what the law shall be, not what it has been, 

 w is; how it shall govern rights In future, not how 



it shall act upon the past- Directory laws are those 

 which prescribe rules of conduct, or limit or enlarge 

 rights, or point out modes of remedy. Remedial 

 laws .-ire those whose object it is to redress some 

 private injury, or some public inconvenience. Pro- 

 hibitory and penal laws are those which forbid certain 

 things to be done or omitted, under a penalty, or 

 vindicatory sanction. In the nature of things, there 

 is not any indispensable reason why the same rule 

 should be uniformly applied in the interpretation of 

 all of these different sorts of laws. We shall see 

 that the common law allows some distinction in this 

 respect. The fundamental maxim of the common 

 law, in the interpretation of statutes, or positive laws, 

 is, that the intention of the legislature is to be fol- 

 lowed. This intention is to be gathered from the 

 words, the context, the subject matter, the effects 

 and consequences, and the spirit or reason of the 

 law. But the spirit and reason are to be ascertained, 

 not from vague conjecture, but from the motives and 

 language apparent on the face of the law. 1. In 

 respect to words, they are to be understood in their 

 ordinary and natural sense, in their popular meaning 

 and common use, without a strict regard to gram- 

 matical propriety or nice criticism. But the ordinary 

 sense may be departed from, if the context or con- 

 nexion clearly requires it; and then such a sense 

 belonging to the words is to be adopted as best suits 

 the context. 2. Again : terms of art and technical 

 words are to be understood in the sense which they 

 have received in the art or science to which they 

 belong. 3. If words have different meanings, and 

 are capable of a wider or narrower sense, in the given 

 connexion, that is to be adopted which best suits the 

 apparent intention of the legislature, from the scope 

 or the provisions of the law. 4. And this leads us 

 to remark, that the context must often be consulted, 

 in order to arrive at a just conclusion, as to the intent 

 of the legislature. The true sense in which particular 

 words are used in a particular passage, may be often 

 determined by comparing it with other passages and 

 sentences, when there is any ambiguity, or intricacy, 

 or doubt, as to its meaning. 5. And the professed 

 objects of the legislature in making the law often 

 afford an excellent key to unlock its meaning. 

 Hence resort is often had to the preamble of a 

 statute, which usually contains the motives of pass- 

 ing it, in order to explain the meaning, especially 

 where ambiguous phrases are used. 6. For the same 

 purpose, the subject matter of the law is taken into 

 consideration ; for the words must necessarily be 

 understood to have regard thereto, and to have a 

 larger or narrower meaning, according as the subject 

 matter requires. It cannot be presumed, that the 

 words of the legislature were designedly used in a 

 manner repugnant to the subject matter. 7. The 

 effects and consequences must also be taken into 

 consideration. If the effects and consequences of a 

 particular construction would be absurd, and appa- 

 rently repugnant to any legislative intention deduci- 

 ble from the objects or context of the statute, and 

 another construction can be adopted, which harmo- 

 nizes with the general design, the latter is to be 

 followed. But in all such cases, where the effects 

 and consequences are regarded, they are not per- 

 mitted to destroy the legislative enactment, or to 

 repeal it, but simply to expound it. If, therefore, 

 the legislature has clearly expressed its will, that is 

 to be followed, let the effects and consequences be 

 what they may. But general expressions, and loose 

 language, are never interpreted so as to include cases 

 which manifestly could not have been in the contem- 

 plation of the legislature. 8. The reason and spirit 

 of the law are also regarded; but this is always in 

 subordination to the words, and not to control the 



