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bases his claim upon a public statute need not plead it at all.
§ 28. Interpretation of statutes.—After a law is enacted in due form and its constitutionality is established or conceded, questions may arise as to the meaning of the law. Here the duty of interpreting the law is devolved upon the courts, whenever in an action before them the parties to the action insist upon different interpretations. Interpretation is the art of finding out the true sense of any form of words, that is, the sense which their author intended. And here let us note some of the rules of interpretation. It is not permitted to interpret what needs no interpretation. Where the intention of the law-making power is plainly manifest from a reading of the statute, that intention must prevail over the literal sense of the terms used. The intention of the lawgiver is to be deduced from a view of the whole and of every part of a statute compared together, just as a contract or a will is interpreted and the meaning of the parties ascertained by considering every part of the instrument under consideration. Where the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the object and remedy in view; and the intention is to be taken according to what is consonant to reason. The words of a statute, if of common use, are to be taken in their plain, obvious and ordinary sense. If technical words are used they are to be taken in a technical sense, unless it clearly appears from the context or other parts of the law that the words were intended to be applied in a different sense. If the technical meaning of terms is in doubt or disputed, the 'court may call to its aid those whose calling has made them acquainted or familiar with the meaning of such words. Statutes should be interpreted according to the natural and obvious import of the language without resorting to subtle or forced constructions. All the statutes of the same legislature relating to the same subject are to be taken together, for they are considered as having one object in view, and as acting on one system. So, whenever it is clear that a power is given by the statute, the court will construe it as implying the right to make it effective. It is a rule in some, but not all of the states, that statutes enacted in derogation of the common law are to be strictly construed. Remedial statutes are to be liberally construed; while penal statutes are to be strictly construed. Beccaria says: “Penal laws should be so plain that no judge should be tempted to interpret them. There is nothing more dangerous than the axiom, the spirit of the law is to be considered." If the sovereignty, the legislative power has not spoken plainly, there is no law.
§ 29. It is better thus than to allow judicial legislation concerning the lives and liberties of the subject. The disorders that may arise from a rigorous observance of the letter of the penal laws are not to be compared with those produced by the interpretation of them. Statutes against frauds are liberally construed, and the reason is that they deprive no man of his right. They inflict no punishment, they simply prevent a wrong-doer from taking or keeping what he seeks or holds by fraud. The common law gives place to a statute, and an old statute gives place to a new one.
§ 30. Where the provisions of a new statute are repugnant to the provisions of an earlier statute, the earlier is said to be repealed by implication, the later statute being the more recent expression of legislative intention. Repeals by implication are not favored. Statutes limiting the powers of future legis. latures are void. A legislature can not enact an irrepealable statute unless it is in the form of a contract—such as a charter, under which rights have become vested. Ordinarily the repeal of a repealing statute revives the statute which had been repealed. Some states have by law abolished this rule.
$ 31. Where a literal construction would violate the legislative intention, it will not be adhered to. A saving clause or proviso repugnant to the body of the statute is void. Where a statute contains a word whose meaning is known to the common law, that meaning will be adopted. In construing a doubtful statute, the preamble and title may be consulted. Long-continued practice may affect the construction of a statute, and the contemporaneous construction of a statute is of high authority.
§ 32. Common law.–We have now to speak of the unwritten or common law. The phrase common law is here used in contradistinction to statute law and law as contained in written constitutions, although it may also be appropriately used in contradistinction to the civil or canon law, admiralty and maritime jurisprudence, and very often to equity. In the sense here used it is an unwritten law, which receives its binding force from immemorial usage and universal reception in distinction from written or statute law. Its rules or principles are to be found in the text-books written by men learned in the law, in the records of the courts and in the reports of judicial decisions. As a rule of civil conduct it is of binding obligation upon all until it is modified or overruled by statute law.
§ 33. Sources of the common law.--The origin or source of the common law has been said to be undiscoverable. It is the sum of innumerable accretions from ancient customs and usages which began among the people of England, which customs are sometimes designated as the “ancient Saxon privileges," or the body of laws framed by Alfred the Great and re-affirmed by Edward the Confessor. In
making this compilation, Alfred drew upon the Mercian laws existing in the counties bordering on Wales and retaining old British customs; upon the West Saxon of southern and south western counties of England; and upon the Danish of the western coast, where a Danish settlement had been effected. Some affirm, with apparent good reason, that it was framed in part from the Old Testament; portions of it were undoubtedly taken from the principles of the Roman Pandects. These were compiled by Roman lawyers by command of Justinian from the writings and opinions of the old Roman jurists and formed a part of the body of the civil law of Rome, which has been accepted as the basis of mediæval legislation and of nearly all European law. The spirit of these laws found its way into England through the clergy, who were the only learned class of that period. Some centuries later the laws themselves became embodied in the common law of England in a more positive and extensive form.
§ 34. Growth of the common law.–At the time of the Norman conquest the invaders found the English people living under a code of laws which was compiled by Edward the Confessor, upon the basis of the code of Alfred, which has already been mentioned. The renewal by Magna Charta of the “ ancient Saxon privileges” was the re-enactment of a part of the code of Edward. Although the common law is an unwritten law, its rules and principles have been handed down from generation to generation, and sometimes have almost approached in exactitude the complete and precise form of statute law. An illustration of the adaptability of the com