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true, that the Courts set their faces against this citation. They were impelled to that, by the consideration, often expressed by them, "that though the Revisers so intended, the Legislature might have had a different intent."
The profession however, have all along felt that in those notes, they have often found, in the language of Lord Coke: "The very lock and key to set open the windows of the Statute," and they have persisted in referring to them until at length in the lapse of time, the Courts have ceased their repugnance to hearing them quoted, and it has become quite common for even our Judges to refer to them.
I cannot persuade myself that this is not right. I have therefore inserted in this compilation such of the notes as would be calculated, in the eye of good sense, to throw light on the true meaning of the Statutes.
Eules Of Interpretation.
In the same spirit, which prompts me to give the Revisers' notes as a means of getting at the meaning of the Statutes, I am promptedto go a step further and give a brief synopsis of some of the leading rules of Interpretation which are well established in our Courts.
To the profession, who are well instructed on that subject or who have in their libraries the books from which they can learn the canons of construction, my synopsis may be of little value.
But there is a large class of inferior magistrates and local officers, to whom it may be serviceable and it is for them that I have prepared it and to their attention I commend it, in the hope that I may be able to aid them in the performance of duties, which though humble and obscure in their operation, do, nevertheless, largely affect the peace, good order and well being of the whole people.
Any one can readily appreciate the value of this consideration who will pause long enough to imagine what would be our condition, if we should strike from existence the power now wielded by Justices of the Peace and our numerous town and county officers, or if we should be doomed to see it wielded by corrupt or weak or ignorant functionaries.
1. The primary object is to discover the true intention of the law and whenever that can be clearly ascertained, it must govern, whatever the language and whatever the opinion of its wisdom or policy.
2. A matter clearly within the intention of the Act is within its scope, for the intention prevails over the literal sense of the words used, and that which is within the intention is as clearly within an act as if within its very letter, and that which is within the letter and not within the intention is not in the act.
3. To get at the intention of an Act, recourse must first be had to its words and next to the occasion and necessity of its enactment.
4. The true inquiry is: L What was the former law? 2. What was the mischief or defect to be remedied! 3. What was the remedy proposed 1 and, 4. The reason of that remedy I
5. The effort must always be to suppress the mischief and to advance the remedy.
6. The mischief or the defect intended to be remedied, may be ascertained from the act itself or from extrinsic circumstances, but the remedy must be ascertained only from the act itself.
7. The intention of an act is not to be presumed, but is to be gathered from its language, and if that can be done, the policy of the enactment is not to be regarded.
8. Words in an act are to be construed in their ordinary and familiar signification as in general and popular use; except where terms of art are used, and then they are to be received in their technical sense.
9. Where the meaning of the words used is under inquiry, regard must be had to the subject matter, in respect to which the words are used.
10. General words may be qualified by subsequent special clauses.
11. General words are to be taken as distributive where the sense requires it and in furtherance of the intention.
12. The collocation of words is often material to be attended to. If they are at the beginning of a sentence, they may govern the whole. If at the end they do refer to the whole. If in the middle and sensibly applying to a particular branch, they cannot be extended to that which follows.
13. Words of permission are obligatory— (for instance, "may"
means "shall,") whenever the enactment is for the sake of justice
or for the public benefit. I.— c.
14. The word "and" in an act is generally conjunctive, but may be read in the disjunctive as "or," when such is the clear intention.
15. Relative words, such as "aforesaid," "said," "such," "in like manner," &c, are to be construed as limited to matters precedent, and as carrying forward the sense and extending its operation
16. When in the same Statute, different words are used, though synonymous, or nearly so, a different meaning is to be understood.
17. So the omission of a clause previously used is to be understood as done purposely.
18. The principles of the common law are never to be lost sight of. Their abrogation is never to be presumed, but to be tolerated only when the enactment is clear and specific; the intendment being that the common law was to be altered no further than the case absolutely required.
19. When an act alters the common law, the meaning shall not be strained beyond the words, except in cases of public utility, when the aim of the act appears to be larger than the enacting words.
20. Whenever the words used are general and declaratory of the common law, they extend beyond the persons and things named in the act and embrace all persons and things within the purview of the act.
21. All parts of an act are to be construed together, and are to receive such interpretation as will enable all its clauses to be operative.
22. All acts on the same subject, whenever passed, are, what is termed, in pari materia, are to be construed as if constituting one act, and are to be so interpreted that all of them and all their clauses may be operative.
23. An act repeals all prior enactments on the same matter, so far as they are inconsistent with each other, excepting only, that where it is the manifest intention that a subsequent act shall not control a former, it shall not do so, though the words strictly and grammatically would repeal it
24. When a repealing act expires, the original act is revived.
25. The repeal of a repealing act revives the act first repealed unless the contrary is clearly manifest.
26. Contemporary expositions are to be regarded in getting at the meaning of an Act and have force in proportion to the universality with which they have prevailed and the length of time during which they have continued without question.
27. When the meaning of an act is doubtful the consequences may be considered, but when the meaning is plain, no consequences are to be regarded in the interpretation.
28. Punctuation is not to be regarded, for it is generally the work of the printer and not of the legislator.
29. Where the reason of an enactment is general, its application is so, though its provisions are special.
30. The title and the preamble are no part of an act; they cannot limit or restrict its operation, but can be referred to only as a means of getting at its true meaning. And it is the same with any words introductory to the enacting clause.
31. Where an act has a general intent and a particular intent, which are in conflict, the particular intent does not override the general intent, but is an exception to it.
32. A proviso is dependent on a precedent and not on a subsequent clause unless the manifest intention is otherwise.
33. A saving clause may restrain or qualify an enactment but can never overturn it If directly repugnant, the saving clause is to be rejected.
34. Acts relating to private corporations and passed on their application, are in the nature of contracts and cannot be impaired by any subsequent legislation without consent, or unless the right so to do has been expressly reserved. Our constitution reserves that power in the case of all corporations created since 1846.
35. When a right is given by an act, the remedy necessary to enforce that right is also given.
36. When a form is given in an act it must be strictly followed.
37. When power is given to hear and determine, the power to summon the party to appear and stand trial is also given.
38. When a power is given to take an examination, an examination on oath is meant, unless otherwise expressed, and the power to bind the person over, conveys the power to commit in case of failure to give bonds.
39. When words restrictive are used, they exclude all persons and things not named.
40. The comparison of one act with another passed by the same legislator, or upon the same subject or relating expressly to the same point, may be made to help the interpretation or fitly to expound the meaning.
41. The rights of the Government, are not to be taken away by ambiguous words, but only by clear and unequivocal language.
42. Acts are sometimes peremptory and sometimes directory only. When they are peremptory, anything done not in compliance with them is absolutely void. When they are directory, such violent consequences of a departure from them do not follow.
It is not easy to lay down a general rule that will clearly define the distinction between the two. But this much may be asserted, that negative words make an act peremptory, and so affirmative words may, if they are absolute, explicit and peremptory, and show that no discretion is intended to be given.
43. Certain acts are to be liberally construed, so as to embrace within their action all cases within their equity or spirit, and others are to be strictly construed so as to embrace only those which arc within the literal meaning.
The following are to be liberally construed: All remedial acts, so as to advance the remedy. All having the general welfare in view, so as to attain the end proposed.
Acts aiming at the expedition of justice or the prevention of litigation.
Acts to prevent frauds.
The following are to be strictly construed:
Acts to discharge a debtor from his debts or the consequences of them.
Acts cutting down, abridging or restraining written instruments.
Acts conferring new jurisdiction unknown to the common law, including herein all cases of summary proceedings.
Acts conferring new powers affecting property or granting exemptions from burdens generally imposed.
Acts taking private property.
Acts imposing taxes.
Acts taking away jury trials.
Acts abridging personal liberty.