11. Custom of the country, where the law was made, supplies the deficiency of words.

12. In dubious cases, the fairer interpretation is to be adopted. "Everywhere, especially in law, equity is to be considered."-Dig. L. 50, Tit. 17 90, 192, 200.

13. That which is probable, or customary, is preferable to that which is less so, wherever obscurity exists.

14. If two laws conflict with each other, that must yield the effect of which is less important; or, that is to be adopted by the adoption of which we approach nearest to the probable or general intention of the legislator. Specific rules, adopted for the protection of private individuals, must be followed.

15. The more general the character of the law is, the more we ought to try strictly to adhere to the precise expression. Without it, it would be a wavering instead of a stable rule, and we must presume that the words have been the better weighed. Many considerations, however, may exist, which would oblige us to follow a different course; e. g., the cruelty of a law, its antiquity, and consequent unfitness.

16. If any doubt exists in penal laws or rules, they ought to be construed in favor of the accused; of course, without injury to any one else.

17. In cases of doubt between the authority and an individual, the benefit of the doubt, all other reasons being equal, ought to be given to the individual, not to the authority,-for the State makes the laws, and the authority has the power; yet it is subversive of all good government, peace, and civil morality, if subtlety is allowed to defeat the wise object of the law, or if a morbid partiality for an evil-doer guides the interpreter.

18. The weak (hence the individual arraigned by the State) ought to have the benefit of doubt; doubt ought to be construed in mercy, not in severity. A law may be rendered milder, but not more severe.-Lieber's Hermeneutics, p. 172.

Copious extracts from the writers on the civil law in regard to the subject of this note, will be found in the 12th chapter of Mr. Smith's work on Statutes.

Mr. ROBERT PHILLIMORE, in his very able and useful work upon International Law, devotes a chapter (part v., Chapter viii.) to the subject of the Interpretation of Treaties. He arranges the principles and rules appertaining to this subject, under three heads.

Authentic Interpretation; or, the exposition supplied by the lawgiver himself.

Usual; or, that founded on usage and precedent.

Doctrinal; or, that founded on a scientific exposition of the terms of the instrument-this being subdivided into, 1. Grammatical, and 2. Logical Exposition.

The learned and sagacious SAVIGNY, in his recent work on Contracts, remarks that, with respect to agreements, the principles of interpretation to be found in the Civil Law-which are substantially those of Vattel and Domat-are of a very general and superficial character, and scarcely afford any aid, beyond that which an intelligent and dispassionate consideration of each particular case would furnish. His words are as follows:

"Für die Auslegung nun in Anwendung, auf die meisten Fälle dieser letzten lassen sich durch greifende Grundsätze der Auslegung nicht wohl aufstellen. Auch sind die meisten Aesserungen der Römischen Juristen herüber von einem sehr allgemeinen Character, und ziemlich auf der Oberfläche liegend, so dasz sie in zweifelhaften Fällen nicht leicht weiter führen werden, als wohin die besonnene Erwägung des einzelnen Fälles ohnehin führen musste. Folgende Aussprüche werden diese Behauptung anschaulich machen, und zur Ueberzeugung bringen."-Das Obligationen Recht, ii. 189.

I refer to this with satisfaction, as it goes to confirm what has been said in the text as to the practical utility of these minute and precise Codes of Interpretation.

See also Mr. Justice STORY's criticisms on Vattel's Rules of Interpretation.-Story on the Cons., vol. i., p. 291.

CHAPTER VII.

OF STRICT CONSTRUCTION, AND OF LIBERAL OR EQUITABLE CONSTRUCTION.

The line separating judicial construction from judicial legislation-Strict construction, and liberal or equitable construction-Statutes when strictly construed-Statutes conflicting with a constitution or fundamental lawStatutes prescribing forms of procedure, modes of proof and of practiceStatutes of frauds-Statutes of wills-Statutes of limitations-Statutes in derogation of the Common Law-Penal statutes-Revenue laws-Usury laws-Statutes granting franchises and corporate powers-Statutes granting exemptions from general burthens-Statutes authorizing summary judicial proceedings-Statutes authorizing summary administrative proceedings Statutes of explanation-The stamp acts-Statutes giving costsStatutes when to be liberally or equitably construed-Remedial statutesEquity of a statute-When statutes treated as directory merely-General

Rules.

I HAVE in the preceding chapter, endeavored to state the general rules of construction with regard to the means to be employed, for the purpose of solving doubts in regard to the true intent of a given legisla tive act. We have now to consider a very different class of cases. There are, as have been already observed, many cases of ambiguity or irreconcileable contradiction, where all aids fail and the task of arriving at the intent of the legislator may be said to be hopeless. Still, the doubt is to be resolved, the case to be decided, the statute to be interpreted and applied; and the functions of the judge in these cases necessarily approach those of the legislator. There are again other cases of great apparent hardship, where the statute is on its face sufficiently intelligible, but where its provi

sions are sweeping and arbitrary, and where its literal operation and application involve really innocent parties in great suffering and, it may be, remediless disaster. Out of these cases has grown the idea already stated, that the judiciary have the right to make a distinction between different statutes, or classes of statutes; and that while some are to be strictly construed and rigidly enforced according to their letter, others are to be liberally expounded and to be molded and interpreted according to judicial notions of policy or equity.

This branch of our subject is one of the most important in the whole range of jurisprudence; for while on the one hand it is proper, and indeed indispensable to the intelligent administration of justice, that the judiciary should, to a certain extent, possess and exercise this power, still, on the other, it is one extremely liable to abuse; and, indeed, it has been so much abused as at times almost to obliterate the important line between the judicial and legislative functions. "Equitable constructions," say the Supreme Court of Massachusetts, "though they may be tolerated in remedial and perhaps some other statutes, should always be resorted to with great caution, and never extended to penal statutes or mere arbitrary regulations of matters of public policy. The power of extending the meaning of a statute beyond its words, and deciding by the equity and not the language, approaches so near the power of legislation that a wise judiciary will exercise it with reluctance, and only in extraordinary cases."*

* In this case, the statute declared that if a citizen had an estate, which should be appraised at a certain sum, and be assessed thereon, he should obtain a settlement; and it was held that mere residence and possession of the

I shall endeavor briefly to state what I suppose to be the true principles of our law in connection with this subject, and then, by an examination of the adjudged cases, illustrate how far the correct rule has been observed, and how far departed from.

The duty of the legislature is to make the law, or a general rule for all cases; that of the judge, to declare and apply the law to particular instances. When a

estate would not give a settlement, where the appraisement and assessment had not been made. Monson vs. Chester, 22 Pick. 385.

Bentham's hostility to the usurpations of the judiciary, is expressed at once with his usual force of thought and peculiarity of language; he says, "A statement of the instances in which the authority of Parliament has been, and continues to be, trampled upon by its sworn servants, might fill volumes upon volumes.”—Bentham's Evidence, vol. ii. chap. xxv. p. 395.

"An equal degree of contempt for the authority of the legislator is manifested by every application of the principle of nullification. On a former occasion, the principle of nullification was considered in its character of an engine of fraud; in respect of its particular and more immediate effects on each particular occasion, to the prejudice of the party having right on its side. On the present occasion, the character in which it presents itself to view, is that of an engine of usurpation."-Evidence, vol. iv. p. 402.

"On the part of the judge, the mass of substantive law in question being the work of the legislator, every application made of the principle of nullification is a contempt, an act of insurrection against the authority of his constitutional superior. Condition, extension, limitation, modification, exception, expressions interconvertable (expressions in effect the same), by the legislator; none at all annexed, none at any rate to the effect in question. To this declaration of the will of the legislator-the genuine and lawful legislator-the judge, by help of the principle of nullification, attaches exceptions of his own at pleasure. To the extent of these exceptions, the will of the legislator is in effect frustrated, the law repealed."-Evidence, vol. iv. chap. xxv. p. 403.

"For thus it is that on pretense of being declared, laws upon laws, laws fighting with laws, are made throughout the manufactory of common, that is of judge-made law. That B may receive warning (warning which it is neither designed or expected should ever reach him), A must first have been consigned to distress or ruin. Gulphs by the side of gulphs cover in its whole expanse; the field of jurisprudential law; nor can any of them take its chance of being closed, till the property or liberty of some involuntary Curtius has been thrown into it.-Evidence, vol. ii. chap. ii. p. 28.