Nos. 22, 23.—Heydon's Case; Bruce (Lord Henry) v. Ailesbury (Marquess of). — Notes. BLACKBURN, J., in Reg. v. Castro (1874), L. R. 9 Q. B. 360, 43 L. J. Q. B. 105, 30 L. T. 320, 22 W. R. 187; per MANISTY, J., in Harding v. Preece (1882), 9 Q. B. D. 281, 51 L. J. Q. B. 515, 47 L. T. 100, 31 W. R. 42; per Lord SELBORNE, L. C., in Bradlaugh v. Clarke (1883), 8 App. Cas. 354, 52 L. J. Q. B. 505, 48 L. T. 681, 31 W. R. 677.

It may be questioned whether the Courts have invariably acted up to the enlightened principles of the resolutions in Heydon's Case; or whether the judicial mind, as an interpreter of the legislative, is entirely free from a tendency to perversity. It would be easy to illustrate this remark, if it were worth while to collect all the decisions which the Interpretation Act, 1889, has been found necessary to counteract. Perhaps the decisions under the old Foreign Enlistment Act (before the Act of 1870) are not free from this criticism. See Attorney-General v. Sillem (1863, 1864), 2 H. & C. 431, 33 L. J. Ex. 92.

AMERICAN NOTES.

Heydon's Case is cited in Endlich on Interpretation of Statutes, p. 35, and fortified by reference to Maus v. Logansport, &c. R. Co, 27 Illinois, 77; People v. Greer, 43 ibid. 213; Woods v. Mains, 1 Greene (Iowa), 275; Cumberland County v. Boyd, 113 Penn. St. 52; Sibley v. Smith, 2 Michigan, 486; Winslow v. Kimball, 25 Maine, 493; Berry v. Clary, 77 ibid. 482; Alexander v. Worthington, 5 Maryland, 471; Tonnele v. Hall, 4 New York, 140; Ruggles v. Illinois, 108 United States, 526; Crawfordville, &c. Co. v. Fletcher, 101 Indiana, 97; Keith v. Quinney, 1 Oregon, 361; Orndoff v. Turman, 2 Leigh (Virginia), 200; 21 Am. Dec. 608; Preston v. Drew, 33 Maine, 558; 54 Am. Dec. 639; Parvin v. Wimberg, 130 Indiana, 561; 30 Am. St. Rep. 254.

But these cases also hold that if the language is plain and unmistakable there is no room for interpretation, and the directions of the statute, if constitutional, must be effectuated. Welch v. Wadsworth, 30 Connecticut, 149; 79 Am. Dec. 236; Tynan v. Walker, 35 California, 634, 95 Am. Dec. 152; Bloxham v. Consumer's E. L. Co., 36 Florida, 519; 29 Lawyers' Rep. Annotated, 507; Shellenberger v. Ransom, 31 Nebraska, 61; 28 Lawyers' Rep. Annotated, 564.

"What is within the intention of the makers of a statute is within the statute, though not within the letter; and that which is within the letter of a statute, but not within the intention of the makers, is not within the statute, it being an acknowledged rule in the construction of statutes that the inten tion of the makers ought to be regarded." State v. Boyd, 2 Gill & Johnson (Maryland), 374, cited in Mayor v. Root, 8 Maryland, 95; 63 Am. Dec. 692; People v. Utica Ins. Co., 15 Johnson, 353; 8 Am. Dec. 243; Rutledge v. Crawford, 91 California, 526; 25 Am. St. Rep. 212; Tracy v. Troy, &c. R. Co., 38 New York, 433; 98 Am. Dec. 54.

A statute may be extended or restrained by an equitable construction, and a case out of the mischief intended to be remedied by a statute may be

Nos. 22, 23.- Heydon's Case; Bruce (Lord Henry) v. Ailesbury (Marquess of). - Notes.

construed to be out of the purview, though it be within the words of the statute. Blakeney v. Blakeney, 6 Porter (Alabama), 109; 30 Am. Dec. 574.

In New Eng. Car Spring Co. v. Baltimore, &c. R. Co., 11 Maryland, 81; 69 Am. Dec. 181, coal-cars were held not to be "machines, erected constructed, or repaired within the city of Baltimore," within a mechanic's lien law, the Court construing the law to apply only to fixed and stationary machinery, and not to movable machinery on which the mechanic has at common law a lien for construction or repairs, observing: "There is no sound reason for imputing to the Legislature the intention of extending the operation of the lien law to cases which were not within the mischief sought to be remedied." "The meaning of the Legislature may be extended beyond the precise words used in the law, or from the reason or motive upon which the Legislature proceeded, from the end in view, or the purpose which was designed." United States v. Freeman, 3 Howard (U. S. Sup. Ct.), 557; Holmes v. Paris, 75 Maine, 559; Bennett v. Am. Ex. Co., 83 Maine, 236; 23 Am. St. Rep. 774, the last holding that a statute imposing a penalty upon any person killing, destroying, or having in his possession, between the first days of October and January, more than one moose, two caribou, or three deer, does not prohibit common carriers from having more than three deer in their possession between said days for the purposes of transportation. And so it was held “that a common carrier, having in his possession for transportation short lobsters packed in barrels, was not liable to the penalty denounced against persons who should catch, buy, or sell, or expose for sale, or possess for any purposes," such lobsters between certain days. The Court said the carrier was not bound to break open and examine packages intrusted to him for carriage: "A law requiring such strictness of examination would be an interference with the rights of shippers that would not be tolerated." The Court cited the NitroGlycerine Case, 15 Wallace (U. S. Sup. Ct.), 524, holding a carrier not liable for injury by explosives in transportation; also State v. Goss, 59 Vermont, 266, where an agent of an express company was held not liable as a seller of intoxicating liquors because he received, delivered, and took pay for them.

Frequent application of this principle is made in construing statutes concerning election ballots. For example, a statute enacts that when a ballot bears on the outside any impression, device, color, or thing, or is folded in a distinguishing manner, it must be rejected. This does not relate to mere accidental impressions, such as the offset of the fresh ink from the type from another ballot, or a piece of sealing-wax, or a stain. Rutledge v. Crawford, supra, and cases cited in note, 25 Am. St. Rep. 218.

To effect the evident purpose of a statute it may be held retroactive, although it does not so in terms direct. Connecticut M. L. Ins. Co. v. Talbot, 113 Indiana, 373; 3 Am. St. Rep. 655; People v. Spicer, 99 New York, 225; Larkin v. Saffarans, 15 Federal Reporter, 147; Excelsior M. Co. v. Keyser, 62 Mississippi, 155; Baldwin v. City of Newark, 38 New Jersey Law, 158.

The principles of construction in question are applied in this country to constitutional provisions. For example, although the constitutions of the government and the States provide that no person shall be compelled in a criminal case to be a witness against himself, yet he is not so exempt if a

Nos. 22, 23. Heydon's Case; Bruce (Lord Henry) v. Ailesbury (Marquess of). —Notes.

statute provides in a particular case that any person giving evidence against others therein shall be exempt from all prosecution and punishment for the offence in regard to which he testifies. Ex parte Cohen, 104 California, 524; 43 Am. St. Rep. 127; Counselman v. Hitchcock, 142 United States, 547; In re Chapman, 166 ibid. 661.

The most remarkable instance of statutory construction in this country is that by which a murderer is allowed to inherit the estate of his victim under the statutes of distribution and descent. That the murderer may thus take is held in Shellenberger v. Ransom, 41 Nebraska, 631; 25 Lawyers' Rep. Annotated, 561; Owens v. Owens, 100 North Carolina, 240; Deem v. Milliken, 28 Ohio Law Journal, 357; Carpenter's Appeal, 170 Penn. State, 143; 29 Lawyers' Rep. Annotated, 145; 50 Am. St. Rep. 765. The contrary was held in Riggs v. Palmer, 115 New York, 506; 12 Am. St. Rep. 819; 5 Lawyers' Rep. Annotated, 340, and substantially in Insurance Co. v. Armstrong, 117 United States, 591.