statute, and another construction can be adopted, which harmonizes 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 permitted 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 contemplation 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 natural and fair interpretation of them. In short, the spirit and the reason are derived principally from examining the whole text, and not a single passage; from a close survey of all the other means of interpretation, and not from mere private reasoning as to what a wise or beneficent legislature might or might not intend. Cases, indeed, may readily be put, which are so extreme, that it would be difficult to believe that any rational legislature could intend what their words are capable of including. But these cases furnish little ground for practical reasoning, and are exactly of that class, where, from the generality of the words, they are capable of contraction or extension, according to the real objects of the legislature. These objects once ascertained, the difficulty vanishes. This natural, and sometimes necessary limitation upon the use of words in a law, we often call construing them by their equity. In reality, nothing more is meant, than that they are construed in their mildest, and not in their harshest sense, it being open to adopt either. 9. For the same purpose, in the common law, regard is often had to antecedent and subsequent statutes upon the same subject; for, being in pari materia, it is natural to suppose, that the legislature had them all in their view in the last enact ment, and that the sense which best harmonizes with the whole, is the true sense. 10. For the like reason, words and phrases in a statute, the meaning of which has been ascertained (especially in a statute on the same subject), are, when used in a subsequent statute, presumed to be used in the same sense, unless something occurs in it to repel the presumption. 11. As a corollary from the two last rules, it is a maxim of the common law, that all the statutes upon the same

subject, or having the same object, are to be construed together as one statute; and then every part is to be taken into consideration. 12. Another rule is, to construe a statute as a whole, so as, if possible, or as nearly as possible, to give effect, and reasonable effect, to every clause, sentence, provision, and even word. Nothing is to be rejected, as void, superfluous or insig nificant, if a proper place and use can be assigned to it. 13. If a reservation in a statute be utterly repugnant to the purview of it, the reservation is to be rejected; if the preamble and the enacting clauses are different, the latter are to be followed. But the reservation may qualify the purview, if consistent with it, and the preamble control the generality of expression of the enacting clauses, if it gives a complete and satisfactory exposition of the apparent legislative intention. 14. The common law is also regarded, as it stood antecedently to the statute, not only to explain terms, but to point out the nature of the mischief, and the nature of the remedy, and thus to furnish a guide to assist in the interpretation. In all cases of a doubtful nature, the common law will prevail, and the statute not be construed to repeal it. 15. Hence, where a remedy is given by statute for a particular case, it is not construed to extend so as to alter the common law in other cases. 16. Remedial statutes are construed liberally; that is, the words are construed in their largest sense, so far as the context permits, and the mischief to be provided against justifies. By remedial statutes, we understand those whose object is to redress grievances, and injuries to persons, or personal rights and property, in civil cases. Thus, statutes made to suppress frauds, to prevent nuisances, to secure the enjoyment of private rights, are deemed remedial. 17. So statutes are to be coustrued liberally which concern the public good; such as statutes for the advancement of learning, for the maintenance of religion, for the support of the poor, for the institution of charities. 18. The gen eral rule is, that the sovereign or government is not included within the purview of the general words of a statute, unless named. Thus, a statute respecting all persons generally, is understood not to include the king. He must be specially named. But, nevertheless, in statutes made for the public good, which are construed liberally, the king, although not named, is often included by implication. 19. On the other hand, penal statutes, and statutes for the punishment of

crimes, are always construed strictly. The words are construed most favorably for the citizens and subjects. If they admit of two senses, each of which may well satisfy the intention of the legislature, that construction is always adopted which is most lenient. No case is ever punishable, which is not completely within the words of the statute, whatever may be its enormity. No language is ever strained to impute guilt. If the words are doubtful, that is a defence to the accused; and he is entitled, in such a case, to the most narrow exposition of the terms. This rule pervades the whole criminal jurisprudence of the common law, and is never departed from under any circumstances. It is the great leading principle of that jurisprudence, that men are not to be entangled in the guilt of crimes upon ambiguous expressions. But it is not to be understood, that the statute is to be construed so as to evade its fair operation. It is to have a reasonable exposition, according to its terms; and, though penal, it is not to be deemed odious. 20. Private statutes, also, generally receive a strict construction; for they are passed at the suggestion of the party interested, and are supposed to use his language. 21. Statutes conferring a new jurisdiction, and, especially, a summary jurisdiction contrary to the general course of the common law, are construed strictly. They are deemed to be in derogation of the common rights and liberties of the people under the common law, and are on that account jealously expounded. There are many other rules, of a more special character, for the construction of statutes, which the extreme solicitude of the common law to introduce certainty, and to limit the discretion of judges, has incorporated into its maxims. But they are too numerous to be dwelt upon in this place. They all, however, point to one great object-certainty and uniformity of interpretation; and no court would now be bold enough, or rash enough, to gainsay or discredit them. On the contrary, it is the pride of our judicial tribunals constantly to resort to them for the purpose of regulating the necessary exercise of discretion in construing new enactments. The legislative power of a government is generally coëxtensive with its sovereignty; and therefore embraces every thing which respects the concerns of the society. But it is in fact employed, if not universally, at least generally, in mere acts of amend ment and supplement to the existing laws and institutions. Its office is ordinarily.

not so much to create systems of laws, as to supply defects, and cure mischiefs in the systems already existing. The question is often discussed in our day, how far it is practicable to give a complete system of positive law, or a complete code of direct legislation. And, if practicable, the farther question arises, how far it is desirable, or founded in sound policy. These questions have been the subject of ardent controversy among the civilians and jurists of the continent of Europe, living under the civil law; and, as may well be supposed, different sides have been taken by men of distinguished ability and learning; and the controversy is, and probably for a long period will be, pursued with great animation and powers of reasoning. In the countries governed by the common law, and especially in England and the U. States, the same questions have of late been matter of wide discussion among the legal profession, as well as among statesmen, and a great diversity of opinion has been exhibited on the subject. It will be our object, in the sequel of these remarks, to put the reader in possession of some of the main grounds of the controversy. The legislation of no country, probably, ever gave origin to its whole body of laws. In the very formation of society, the principles of natural justice, and the obligations of good faith, must have been recognised before any common legislature was acknowledged. Debts were contracted, obligations created, property, especially personal property, acquired, and lands cultivated, before any positive rules were fixed, as to the rights of possession and enjoyment growing out of them. The first rudiments of jurisprudence resulted from general consent or acquiescence; and when legislation began to act upon it, it was rather to confirm, alter, or add to, than to supersede, the primitive principles adopted into it. We, in fact, know of no nation, or, at least, of no civilized nation, whose history has reached us, in which a positive system of laws for the exigencies of the whole society was coeval with its origin; and it would be astonishing if such a nation could be found. Nations, in their origin, are usually barbarous or rude in their habits, customs and occupations. They are scanty in population and resources, and have neither the leisure, nor the inclination, nor the knowledge, to provide systems for future use, suited to the growing wants of society, or to their own future advancement in the arts. A few positive rules suffice, for the pres

ent, to govern them in their most pressing concerns; and the rest are left to be disposed of according to the habits and manners of the people. Habits soon become customs; customs soon become rules; and rules soon fasten themselves as firmly upon the existing institutions, as if they were positive ordinances. Wherever we trace positive laws, in the early stages of society, they are few, and not of any wide extent; directions for special concerns, rather than comprehensive regulations for the universal adjustment of rights. No man can pretend that, in Asia, any such universal rules were established by positive legislation, at the origin of the great nations by which it is peopled. The instructions of Moses, as promulgated by divine authority, for the government of the Jews, are not (as every one perceives) designed for every possible exigency of contract, or right, or injury, or duty, arising in the course of the business and history of that wonderful people. They are rather positive precepts, adapted to great occasions, and to govern those concerns which respected their wants, their spiritual advancement, and their duties as the chosen people of God. The Greeks are not known to us, in their early or later history, as having had a code of universal extent. The Romans, in their early history, had few positive laws; and those seem to have been borrowed from other sources. We often, indeed, see it stated, that the common law of England was originally formed from statutes now obsolete and unknown. But this assertion is wholly gratuitous. There is no reason to suppose that, in the early history of its jurisprudence, more was done than is usual in other nations, at the same period of their progress, such as the promulgating of some leading regulations, or the forming of some great institutions for the security of the public. In fact, a great portion of the English common law is of modern growth, and can be traced distinctly to sources independent of legislation. The i commercial law of England is not two centuries old, and scarcely owes any thing important to positive legislation. In truth, the formation of codes, or systems of general law, for the government of a people, and adapted to their wants, is a business which takes place only in advanced stages of society, when knowledge is considerably diffused, and legislators have the means of ascertaining the best principles of policy and the best rules for justice, not by mere speculation and theory, but by the results of experience, and the reasoning

of the learned and the wise. Those codes with which we are best acquainted, are manifestly of this sort. The institutes, and pandects, and code of Justinian, were made in the latter ages of Roman grandeur--nay, when it was far on the decline, not by instituting a new system, but by embodying the maxims, and rules, and principles, which the ablest jurists had collected in different ages, and from all the various lights of reason, and juridical decision, and general experience. No man imagines that Rome, in her early history, was capable of promulgating, or of acting upon, such a system. And this system, large as it was, has no pretension to be deemed complete, even for Rome itself. It left an infinite number of human concerns undecided by its text, which were, of course, to be submitted to judicial decision, and to receive the judgment of the wise men, who should be called, from time to time, to declare the law ex æquo et bono. It may indeed be assumed, as a general truth, that the body of every system of law which has hitherto governed human society, had its origin as customary law; and if it has ever assumed the form of positive legislation, it has been to give it greater sanctity and extent, as well as greater uniformity of operation. This is certainly true in respect to the common law. That system, as administered in England and the U. States, is, as compared with the positive code, or statutes, of an immeasurably wider extent, both in its principles and its practical operation. A man may live a century, and feel (comparatively speaking) but in few instances the operation of statutes, either as to his rights or duties; but the common law surrounds him, on every side, like the atmosphere which he breathes. Returning, then, to the question before stated, it may be inquired, whether it be practicable, in a refined and civilized state of society, to introduce a positive code, which shall regulate all its concerns. That such a code could be formed in a rude or barbarous age, so as to be adapted to all their future wants and growth, in passing from barbarism to refinement, seems absolutely incredible. That it could be formed in a refined age, when learning, and large experience, and enlightened views, and a sagacious forecast, might guide the judgments of the legislature, is the point before us. In the first place, it has never yet been done by any people, in any age. The two most illustrious instances of codification are that of Justinian and that of Napoleon. Neither of these purports to

be a complete system of laws and principles, superseding all others, and abolishing all others. As far as they go, they purport to lay down positive rules to guide the judgment of all tribunals, in cases within them. But other cases are left to be decided as they may arise, upon such principles as are applicable from analogy, from reasoning, from justice, from the customary law, or from judicial discretion. A positive prohibition to decide in cases not provided for by these codes, is not contained in either. But is it possible to foresee, or to provide beforehand, for all such cases? Society is ever varying in its occupations and concerns, in its objects and its pursuits, in its institutions, its pleasures, its inventions, its intelligence, and, in short, in innumerable relations and diversities of measures and means. How is it possible to foresee, or to limit, these relations or diversities? How is it possible, especially in free governments, to reduce all human acts to the same positive elements? to prevent contracts, and obligations, and rights, and equities, and injuries, and duties, from becoming mixed up in an infinite series of permutations and combinations? Until it has been ascertained what are the utmost limits of human relations, and those limits, with all their intermediate details, can be clearly defined, in every shade of difference, how can any system of laws be adequate to provide for, or to guard them, or to fix the rights growing out of them? To suppose that man is capable of all this, is to suppose that he is omniscient, all-wise, and all-powerful; that he is perfect, or that he can attain perfection; that he can see all the future in the past, and that the past is present to him in all its relations. The statement of such a proposition carries with it its own refutation. While man remains as he is, his powers, and capacities, and acts, must forever be imperfect. But it may be said, that a positive code may be framed, and a declaration made that it shall be deemed the sole guide and rule, and that all other rules shall be prohibited. Certainly this may be done. But the effect of this would be, not to form a perfect code for all the future exigencies of society; but to declare that whatever was left unprovided for in the code, should be neither matter of right nor wrong. It would be to declare, that, as to all other transactions, now and hereafter, society should be utterly lawless; and, of course, it would be to declare, that a system confessedly imperfect, and not meeting the wants or exigencies, the

rights or the wishes of society, should still govern it. What would this be, but to provide a bad code for human concerns, which it could not measure or manage? From these considerations, we may assume it as a concession granted on all sides, that a perfect code, to regulate all present, and, a fortiori, all future concerns of any civilized society, by positive rules, applicable to them, is morally impossible. The only real question is, whether a positive code can be provided, adequate, in a general sense, to the present known wants of society. That codes may be formed, more or less comprehensive, to regulate many or few concerns, to supply defects, or to give symmetry and order to the law on particular subjects, cannot be doubted. It has been often done. Perhaps no civilized nation has ever existed, in which there was not, at the same time, a written and an unwritten law, or, in other words, a rule of positive institution and a rule of customary law. All special decrees and ordinances of the sovereign power are of the former kind. Many subjects are of such a nature as to require some positive rule, seeing that natural law cannot fix them upon any invariable basis. For example, there is nothing in the nature of things by which we can say, that land shall, in all possible states of society, descend to the possessor's heirs, or who those heirs shall be; that he shall have a right to dispose of them by testament or deed, and how that testament or deed shall be evidenced; whether bills of exchange and promissory notes shall be negotiable or not, and to what extent binding upon the parties. These subjects, in the origin of a society, must either be positively provided for, or no rights can exist (strictly speaking) until they have become, by usage, fixed in a particular form. But most nations, with whose history we are acquainted, have had many positive laws. And to suit their institutions to the exigencies of society, in all its changes, there must be ordinances_to change the old and to frame new rules. In ancient Rome, in the modern governments of continental Europe, and especially in France and in England, great alterations have, from time to time, been made in the existing system of laws. Fundamental laws have been abrogated; amendatory provisions have been established; existing rules have been methodized, confirmed, explained, and limited; and new rules prescribed for new cases. The ordinances of Louis XIV, of 1673 and 1681, on the subject of maritime and

commercial affairs, are striking instances of this sort. The abolition of feudal tenures; the regulation of uses and charities; the allowance of last wills and testaments, made in a prescribed mode; the provisions to suppress frauds, in the statute of frauds; the registration of conveyances of lands; the negotiability of promissory notes; and, above all, the positive enactments, various and almost innumerable, in the criminal code, are illustrations of the same fact, in the history of English legislation. All these statutes furnished, to a limited extent, a code on the particular subject. And we have recently seen, in the consolidation of the criminal laws of England into a few statutes, under the auspices of sir Robert Peel, a striking instance of substantive codification of the criminal law of England, in many of its most important provisions. But the objections often urged against codes, are not meant to be applied to legislation of this sort, but to systems, which are promulgated for the government of the great concerns of nations, in all their various departments and interests. How far this can be done, has been a matter of considerable theoretical discussion. But the question has been practically answered by the celebrity of several positive codes. And among those whose success and wisdom have been most generally acknowledged, are the code of Justinian and the code of Napoleon. That either of them furnishes complete rules for all the concerns of society, or excludes the necessity of judicial interpretation, or positive legislation, cannot be affirmed. That each of them covers a vast mass of the ordinary concerns of society, and fixes, positively and clearly, a great many wrongs and rights, and points out the proper redress, in cases where rights are to be vindicated and wrongs repressed, cannot well be denied. The question, then, is fairly presented, how far codes of this sort (the only ones which, in the actual state of society, are morally possible) are desirable, and founded in sound policy. It is here, that the advocates and the opponents of codes, under the jurisprudence of the common law, meet on debatable ground. The lovers of ancient institutions, of existing laws, of customary principles, oppose codes as inconvenient and unnecessary. They hold them to be inconvenient, because they fix a stubborn rule, which shall govern future cases, instead of leaving them open to the free operations of the common law, which adapts itself to all the circumstances of

the age. They maintain, also, that codes are unnecessary; for, so far as there is any rule, it is already known in the common law; and positive legislation cannot make it more so. It is added (and it is true), that law is gradually formed, and must differ in different ages, according to the different circumstances of society; that it must be varied according to the progress or regress of a nation; that it can rarely settle comprehensive principles; and must, by degrees, thread its way through the intricacies of human actions; and that an inflexible rule might work quite as much mischief as none at all; that no legislature can make a system half so just, or perfect, or harmonious, both from want of time, and experience, and opportunity of knowledge, as judges, who are successively called to administer justice, and gather light from the wisdom of their predecessors. Most, if not all, of these suggestions, may be admitted to be correct, and yet they do not settle the controversy. In the first place, the objectors must admit, that, under the common law, there are positive statutes, which regulate many great concerns and rights of the countries governed by it. The descent and distribution of real estates, the making of last wills and testaments, the forms and ceremonies attendant upon conveyances of real estate, to say nothing of other important subjects, are, in every one of the U. States, provided for by positive statutes. Here we have a rule, which is absolute and inflexible. To say that, if found inconvenient, it may be altered, so as to suit the future interests of the particular state, is, in effect, no argument at all; for the same may be said as to any provision of a systematic code. No code is supposed to be unalterable. Again, if it be said, that the legislature may, and often does, in an early stage of society, fix great principles and institutions, and then leaves the rest to judicial decisions, and thereby shows its wisdom, the true answer is, that the same reasoning applies to all codes, however extensive, if they leave the judicial tribunals at liberty to decide upon new cases, not governed by, or necessarily included in, the terms of the code. So far as the legislature has laid down principles (whether more or less extensive is of no consequence), these govern; beyond them, all is left as before. Again, the common law is itself, as far as it goes, a system of rules. These rules are fixed, certain, and invariable, as to all cases falling within them. They are quite as unyielding as any code can be. When the common