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XVII. ON THE PRINCIPLES OF LEGAL INTERPRETATION, WITH REFERENCE ESPECIALLY TO THE INTERPRETATION OF WILLS.

BY F. VAUGHAN HAWKINS, ESQ.

[Read May 21, 1860.]

IN bringing the subject of the present paper under the notice of this Society, it may be well to state, that by the Principles of Interpretation I mean the theoretical, rather than the practical, principles: the principles of the Science rather than of the Art. There is obviously both a science and an art of Interpretation. The business of the art is to collect and furnish practical rules and maxims for performing the process of Interpretation, in relation to this or that class of writings upon which it may have to be exercised. The business of the science is to analyse the nature of the process itself of Interpretation, and to discover, by a deductive method, the principles on which it rests, and in conformity with which the proceedings of the art are or ought to be regulated. It is the latter function with which the following observations are concerned; and although I cannot hope to convey a complete sketch of the theory of Interpretation within the limits of this paper, I may be able to lay a foundation on which such a theory may be built.

It would be a waste of time to enlarge on the importance of the scientific study of Interpretation as a branch of law; but it is surprising to find, when one's attention has been called to the subject, how completely it has been broken up into separate divisions, how little light one part of the subject has been allowed to throw upon any other, and how an entirely distinct art has grown up for the interpretation of each of the different classes of documents which most frequently require it, all applying unconsciously the same principles, but each refusing to acknowledge its obligations to the rest. Jurisprudence itself is defined by Heineccius to be the art of interpreting the laws: "habitus practicus leges recte interpre

Juris Civilis

tandi, applicandique rite speciebus quibusvis obvenientibus (a)." (a) Elementa Treaties, contracts, statutes, deeds and wills-each of these sec. 26. kinds of writings have developed a separate set of axioms and canons of construction, while taken together they present an immense mass of materials for constructing the science of interpretation, which has been so imperfectly studied in comparison with the art. Take, for instance, the English law of the interpretation of wills, of which my thesis makes especial mention. The art of interpretation has here been carried to no inconsiderable perfection, and a remarkable uniformity of decision, even in the most perplexing cases, is in practice attained. Nevertheless it is a branch of the law almost impossible to systematize in its present state, owing to the fact that the principles which have to be applied, and which are practically understood and acted on with tolerable correctness, have never been clearly laid down and exhibited in their relation to each other, but are enunciated in so many ways, with more or less incompleteness, and with such varying but always imperfect modes of expression, that the interpretation of an obscure will generally gives rise to an apparent conflict of opposing principles on the most elementary questions of the science of interpretation, and judges in delivering their opinions frequently think it necessary to examine afresh into the truth of the most fundamental axioms, and even come to seemingly opposite conclusions upon them. The practical result is that the ratio decidendi is almost impossible to ascertain or to express succinctly, and this branch of the law presents an aggregate of something like 20,000 cases capable of being cited as authorities, the number increasing annually by hundreds, and the bulk of cases individually increasing rather than diminishing: a state of things which might, I venture to think, be materially altered by a more accurate knowledge of the real nature of the process involved in the interpretation of a will, of the methods employed in it, and of the limits which bound it.

The system of interpretation which comes nearest to a scientific system is that of the Civil Law, based on the Roman Law; and it is advisable to say a few words in passing

on the reasons which, in my opinion, prevent that system from being a convenient basis on which to ground the analytical consideration of the subject on which I am about to enter. The Civil law system of Interpretation is derived almost entirely from the methods used in the interpretation of Roman written laws. Now, the interpretation of laws in the Roman system of jurisprudence is, I need hardly mention in this Society, highly peculiar. That system extended the limits of logical or inferential Interpretation in a way certainly not applicable to any other class of legal documents than laws, and not to laws even, under a judicial system of a different kind from the Roman. The controversy between the Sabinians and Proculeians, between the logical and grammatical school of interpreters, may appear at first sight to be, and is sometimes referred to as being, identical with that which may be called the fundamental antithesis in legal interpretation generally-the opposition between intention and expression, between the letter and the spirit ;-but it is in reality something more than this: it is a constitutional rather than a legal problem, and resolves itself into the consideration of the proper line of demarcation to be drawn between the functions of the legislator and the judge. That the rules and maxims derived from the interpretation of Roman laws are not applicable to legal documents generally, is forcibly shown by the remark of (a) Syst des Savigny (a), who says that the excellence of a Roman law lay in Rechts, Sec. its being neither too plain nor too obscure, but expressed in a sort of middling obscurity, "Auf einem schmalen Raume mittelmässiger Dunkelheit," a phrase which sounds ironical, and is manifestly appropriate only to writings which, like Roman laws, and perhaps the sayings of some philosophers, are made avowedly with a view to being interpreted, and not to legal writings in general, which, it will be admitted on all hands, ought to be so plain as not to require interpretation. Hence the Civil Law distinctions of literal, mixed, and rational, restrictive, and extensive interpretation, and the like, are, I think, too special to be taken as the framework of an analysis of interpretation generally, although some of the problems in the subject have never been better discussed by the Roman

heut. Röm.

50.

(b) Pro

18, sqq.

lawyers, and such passages as the well-known one in the Cecina (b), ending with the words "Quæ res igitur valuit? Cecina. Cap Voluntas: quæ si tacitis nobis intelligi posset, verbis omnino non uteremur: quia non potest, verba reperta sunt, non quæ impedirent, sed quæ indicarent voluntatem ”—will always supply a terse and striking quotation to the liberally disposed interpreter of writings of whatever kind.

It would, however, be unjust to omit, that the importance of the interpretation of treaties in international law has caused some attention to be given it by writers on that subject; and the chapter on Interpretation in Rutherforth's Commentaries on Grotius, as an analysis of the construction of language, and the chapter on the Interpretation of Treaties in Vattel, as a collection of practical maxims, are more satisfactory perhaps than any thing of a similar nature to be found elsewhere. But upon the whole it seems to me, that the subject is best approached from first principles; and I shall therefore proceed to consider what is the object and the real nature of the process of legal interpretation, by which I mean the interpretation of any document of a legal nature, as a law, a treaty, a contract in writing, a deed or a will.

It is necessary in the first place to distinguish that which takes place in the interpretation of a legal writing such as I have mentioned, from that which takes place in the interpretation of written language in the most general form. In the latter case the object is a single one-to ascertain the meaning or intention of the writer-to discover what were the ideas existing in his mind, which he desired and endeavoured to convey to us. "Interpretatio est collectio mentis ex signis maximè probabilibus," is the definition of Grotius. It is a collecting of the intent from the most probable signs or marks. The intent of the writer, the ideas existing in his mind, cannot be known to us with certainty: we can only ascertain them to a greater or less degree of probability from outward marks or signs. The language used is one set of marks or signs, whose office it is to convey the writer's meaning; but interpretation, in its most general form, is not restricted to the consideration of the single set of signs which language is, still less is it debarred from giving to those signs any mean

ing, however discovered, which may accord with the possible" or probable intention of the writer. To collect the intent is the sole object of inquiry; and the language, the written expression, is valuable only as a mark or sign of intent, a medium through which it may be collected.

In the interpretation of a legal document, however, we have not indeed a different, but an additional object of inquiry. We desire not solely to obtain information as to the intention or meaning of the writer or writers, but also to see that that intention or meaning has been expressed in such a way as to give it legal effect and validity; we desire, in short, to know what the writer meant by the language he has used, and also to see that the language used sufficiently expresses that meaning. The legal act, so to speak, is made up of two elements-an internal and an external one: it originates in intention, and is perfected by expression. Intention is the fundamental and necessary basis of the legal effect of the writing; expression is the outward formality annexed by the law, both as a condition proper to ensure due deliberation in the performance of that which is to operate by force of law, and also as a means of securing that the act itself shall be properly evidenced and authenticated. The law, I say, requires a sufficient, not a perfect, written expression. This question will have presently to be considered more in detail; for the present I assume it to be so. To the general object of inquiry, therefore, in all interpretation, the collecting of the intent, there is superadded, in the interpretation of a legal writing, the further object of seeing that there is a sufficient expression of the intent contained in the writing before us. The language or written expression is therefore valuable in a twofold sense. Towards the collecting of the intent it is, as before, valuable as a mark or sign, though not necessarily the only, or even chief, mark or sign, but it may be one among many; it is, secondly, valuable in and by itself, as a condition. of legal validity, essential to give effect to the intention. To interpret a legal writing is, therefore, first to collect the intent to discover the writer's meaning; secondly, to ascertain that that meaning is expressed sufficiently.