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 adminis tration 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 legisla tion 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 estate would not give a settlement, where the appraisement and assess ment had not been made. Monson v. 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 interconvertible (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.

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 case of doubt arises in regard to a statute, the first duty of the judge is to ascertain the meaning of the legislator who framed it, that is, to construe or to interpret the statute as the legislator himself would have done; and so long as by any legitimate means the intent of the legislator can be ascertained, the judge is not permitted to seek any other mode of solving the difficulty. But if the language employed is such, or for any other reason the case is such, that the judge cannot pretend to say what the meaning of the lawgiver was, his duty becomes different.

The question is still to be decided, but he must resolve the doubt on some other principle. The judge then ceases to explore and discover the purpose of another mind; he acts on the case before him by his own intellect, he determines the question as he thinks it ought to be determined. In doing this he acts, truly, not as a judge, but as a legislator. An attempt has been made to frame a rule: from the ambiguity of language or other causes, the attempt has failed; and what the lawgiver has not succeeded in doing, the judge proceeds to do. But, as I have said, this proceeding is only legitimate in cases where the effort to ascertain the intent of the legislator must be abandoned as hopeless.

Now, in exercising this truly legislative power, it is evident that two leading considerations will have weight. First, the general policy of a given construction will be contended for; and, secondly, the hardships of the particular case will be urged. Pressed by these arguments, and really embarrassed by the very greatness of their power, the courts have frequently attempted to define and limit it, by declaring in what cases statutes are to be strictly construed, and in what to be liberally interpreted. Indeed, in no other sense than in this which I

have here stated, can the terms strict and liberal construction be used; for to admit as a general thing, that statutes are to be loosely or rigidly construed as the judges think fit, without reference to the intention of the Legislature, in cases where that intention can be arrived at in a legitimate way, is really to place all legislation in the power of the judiciary, or in other words, to efface the line between these two branches of the government.

But notwithstanding all the efforts which have been made. to set bounds to this authority, we shall find, as might naturally be supposed, that a power so liable to abuse has often been warped and perverted; and this we shall better understand when we examine the adjudged cases. We shall see that the exercise of the power has not been confined to its legitimate sphere, those cases where the task of discovering the legisla tive intent was hopeless; but that the judges, pressed by considerations of policy on the one hand and of hardships on the other, have often entirely disregarded all the legitimate modes of discovering the meaning of the lawmaker, and have even decided against that intention expressed as plainly as words can express it.

I suppose the true rules to be, first, that the intention of the legislator is to be learned from the words he has used, and the other legitimate aids enumerated in the last chapter; second, that if that intention is expressed in a manner devoid of contradiction and ambiguity, there is no room for interpretation or construction, and the judiciary are not at liberty, on consideration of policy or hardship, to depart from the words of the statute; that they have no right to make exceptions or insert qualifications, however abstract justice or the justice of the particular case may seem to require it. Let us now see how the matter stands upon authority.

The idea of an authority vested in the judges to disregard the letter of a statute, in order in a given case to attain the ends of justice, is familiar to the authors of the civil law; and by them this vague and undefined power is called Equitas. Puf fendorff says, Circa rectam applicationem sententiæ legis ad casus particulares in qua officium judicis vertitur, diligenter

observanda quæ communiter dicitur æquitas. Hæc in eo consistit, ut prudenter declaretur, casum aliquem peculiaribus vestitum circumstantiis a legislatore sub generali lege non fuisse comprehensum. Sæpenumero enim contingit, ut ex litera legis in applicatione ad casus speciales sequatur absurdum aliquod, eo quod legislatores eos ob varietatem ac multitudinem perspicere et peculiariter excipere non potuerint. Cum, autem, nemo præsumatur absurda lege constituisse, intelligitur utique legislator tales cases noluisse comprehendere; ideoque non adversatur legislatori judex, sed potius prudenter voluntatem ejus ex analogia et sensu cæterarum legum colligit, qui universalitatem literæ per æquitatem restringit.*

This idea of a natural equity to be observed in the construction of a statute, runs through all the great authors of the civil law; and we have also had occasion to observe it in connection with the distinction between things odious and things favorable, insisted on in the copious extracts from Vattel, in the last chapter.

From the civil the maxim was imported into the common law. Lord Coke, partly speaking for himself and partly citing Bracton, says, "Equitie is a construction made by the judge, that cases out of the letter of a statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedie that the statute provideth; and the reason hereof is for that the lawgivers could not possibly set down all cases in express terms. Equitas est convenientia rerum quæ cuncta coæquiparat, et quæ in paribus rationibus paria jura et judicia desiderat. And againe, Equitas est perfecta quædam ratio quæ jus scriptum interpretatur et emendat, nulla scriptura comprehensa, sed solum in verd ratione consistens. Equitas est quasi æqualitas. Bonus judex secundum æquum et bonum judicat, et æquitatem stricti juri præfert. Et jus respicit æquitatem." And the proposition, that in construing a

* Puffendorff, Elem. Jur. Univ. lib. i, def. tension; 2, sometimes by restriction; 3, somexiii, § 22.

+ Coke, Inst. 24 b.

The rules of interpretation given by Lord Chancellor Ellesmere in the Postnati Case are often referred to, as exhibiting the latitudinary ideas of construction that at one time infested the judicial minds of England. He says, "Words are taken and construed-1, sometimes by ex

times by implication; 4, sometimes a disjunctive for a copulative; 5, a copulative for a disjunctive; 6, the present tense for the future; 7, the future for the present; 8, sometimes by equity out of the reach of the words; 9, sometimes words taken in a contrary sense; 10, sometimes figuratively as continens pro contento; and many other like." And of all

statute the judges have a right to decide in some cases even in direct contravention of its language, has been repeatedly asserted and practiced upon by the highest authority. (a)

these he says, "Examples be infinite, as well in the civil law as common law."-Petyt, Jus Parl. ch. v, p. 66.

(a) The Literal Meaning, when Not to be Followed.-Effects and consequences of a construction are to be considered, and where, from a literal interpretation, an effect would follow contrary to the whole intent and spirit of the statute, the intent and not the literal meaning must be regarded. Ryegate v. Wardsboro, 30 Vt. 746. Thus a statute providing that upon a decision that a pauper had been improperly removed, the town to which he was removed should be reimbursed for the cost of his support, was held not to apply to a case where, the decision not being upon the merits, the town would, by a literal interpretation, be repaid the expense of maintaining its own pauper. Ibid. And where a statute will operate unjustly, or absurd consequences will follow, if the literal meaning is taken, the intention as gathered from the whole will prevail. Ex parte Ellis, 11 Cal. 222, in which it was held that the writ of habeas corpus could not run out of the county, although by the letter of the act it might. And under a statute prohibiting the purchase and holding of real estate by banks, but allowing them to hold mortgages and liens as security for existing debts, a purchase of real estate by a bank at sheriff's sale under an execution for a debt to itself, was held valid. Ingraham v. Speed, 30 Miss. 410. Where the right of appeal was given in equity cases pending in a certain Court on the first day of July, and there could be no such cases pending therein on that day, but there could be on the first Monday of July, it seems the statute should be construed to mean the first Monday. Burch v. Newbury, 10 N. Y. 374, per Jewett, J. If following the literal meaning will lead to absurd consequences, the literal meaning will be controlled; e. g., a statute against "wilfully destroying " a fence, was held to apply only to an act which was a trespass. State v. Clark, 5 Dutch. 96. The principle that the intent rather than the letter is to be followed was applied in determining whether an instrument was a "consent" to the erection of a building within the statute as to mechanics' liens, and the writing not being executed with the forms contemplated by the act, and obviously having a different purpose, was held not to be within the statute, in Jersey Co. v. Davison, 5 Dutch. 415. A statute for keeping clear the bed of a stream, and prohibiting the placing any "building, erection, or thing," within a certain distance of its centre, was held not to prohibit the laying of stones along the bottom where it was scooped out by a freshet, so as to raise it to its old height. Colbran v. Barnes, 11 C. B. (N. S.) 244. Where the Constitution required the vote of a "majority of the electors" of a county at a general election as the pre-requisite of a change of the county seat, held that a majority of those actually voting at such election was sufficient, as they must be presumed to be the electors, and as any other construction would lead to absurd consequences. Taylor v. Taylor, 10 Minn. 107; see Bayard v. Klinge, 16 Minn. 249. Although in an act imposing joint and several liability for the debts of the corporation upon the trustees thereof for default in making and publishing certain annual returns, the terms are broad enough to include debts to an individual trustee, yet such a construction was rejected on the ground of its unjust results. Briggs v. Easterly, 62 Barb. 51. A constitutional provision as to giving canal contracts to the lowest bidder is, it seems, to be construed not according to its strict letter. Frost v. Fay, 3 Lans. 398.