SEC. 740-743.] SILENCE. § 740. A presumption is sometimes raised from the silence of a party, which seems to fall under the head of deportment. The old maxim is Qui tacet consentire videtur; or as we popularly say, silence gives consent. But little reliance can be placed on this circumstance. A prudent man will generally prefer silence, till he is actually put upon his defence at his trial. § 741. We have thus run through the principal sources whence arise presumptions. It is only necessary here to repeat the caution already more than once expressed, against the danger of straining presumptions too far. In every case, much must be left to the discretion and experience of the Judge, and as no two cases are altogether similar in their circumstances, the presumptions in each individual case will be stronger or lighter, amounting sometimes to all but conclusive proof, sometimes being utterly valueless, according to the particular facts proved in evidence.(y) § 742. Having thus shown what presumptions the law raises and directs to be drawn; as well as classified the more important species which the mind naturally draws independent of any direction of the law; it remains to see how the Judge should deal not only with presumptions, but in the appreciation of all evidence of whatever class or quality which comes before him. § 748. Before proceeding to consider what is to guide him in the appreciation of testimony, whether real or personal, it may be useful to specify the principal rules for the construction of documents, especially of Statutes, since the increasing activity of the Legislative Council is constantly promulgating new Laws, which it is the province of the Judge to construe: and as there can scarcely be a case, especially in civil matters, in which some documentary evidence does not form part of the materials, on which the Judge has to form his opinion. The observations which I shall make on Statutes will be found to apply in a great measure to the construction of all documents; some of the rules are of comparatively technical nature, but the study of one and all will be found not misplaced. (2) (y) This portion of the Lectures (on Presumptions), is principally taken from Mr. Best's admirable work; aided by illustrations from Mr. Will's work on Circumstantial Evidence : two books of which should be in the library of every lawyer. (2) The principal rules for the construction of Wills have already been given. (See ante, § 636, note e.) CHAPTER XLII. RULES FOR THE CONSTRUCTION OF STATUTES, &c.(a) §744. 1st. Construction according to the letter.-The intention of the Legislature is always to be gathered, if possible, 1st, from the words used by the Legislature: 2nd, from a reference to contemporary expositions; that is to say, decisions which may have been made upon the subject at or near about the time of the passing of the Act. Itisobvious that this second source of exposition applies principally to the case of old Statutes. On this second point, the maxim of the Lawis Contemporanea expositio est optima et fortissima in lege. Contemporaneous explanation is the best and most powerful in law. (b) $ 745. The leading case upon the exposition of Statutes is Heydon's case,(c) which furnishes us with the following rules. In determining on the meaning of a Statute, we are told to consider, 1st. What was the law before the passing of the Statute. 2nd.—What was the mischief which the new Act was intended to remedy or repress. 3rd. What was the remedy applied. 4th. What is the true reason of the remedy. And having satisfied himself on all these points, it is the duty of the Judge, says Parke, B., (d) to make such construction as "shall suppress the mischief and advance the remedy." With regard to the first of these, Lord Coke tells us in another place(e) that it is, to use is own quaint phraseology, the lock and key to set upon the windows of a Statute. § 746. The intention of the Legislature is to be gathered from a consideration of the whole Statute; or as Lord Coke expresses it, ex visceribus statuti, nemo enim aliquam partem recte intelligere possit (a) These remarks are chiefly compiled from the excellent work of Sir Fortunatus DwarrS on Statutes. The maxims on construction of documents are collected by Broom in his Legal Maxims, and should be there studied at large. (b) See Phillimore Jurisp. p. 323, as to the effect of usage. (c) 3 Reports, p. 7, Lord Coke's Reports are known par exellence as 'Reports,' and are usually so cited. (d) 2 Exch. R. 273. (e) 2 Inst., p.301. antequam totum iterum atque iterum perlegerit ;(f) for no one can rightly understand a part until he has again and again read through the whole. On this point, &c., Doe v. Brandling(s) per Lord Tenterden, C. J., may be consulted. "In construing Acts of Parliament, we are to look not only at the language of the preamble, or of any particular clause, but at the language of the whole act. And if we find in the preamble, or in any particular clause, an expression not so large and extensive in its import as those used in other parts of the Act, and upon a view of the whole Act we can collect, from the more large and extensive expressions used in other parts, the real intention of the legis lature, it is our duty to give effect to the larger expressions, notwithstanding the phrases of less extensive import in the preamble, or in any particular clause." § 747. The primary or "golden" rule, as it has been called, for the interpretation of Statutes, is to give all the words of a Statute their plain ordinary meaning, secundum jus et norma loquendi, unless absurdity or injustice would be the result of so doing. On this head, Parke, B., in the case of Percy v. Skinner,(h) says: "The rule by which we are to be guided in construing Acts of Parliament, is to look at the precise words, and to construe them in their ordinary sense, unless it would lead to any absurdity or manifest injustice; and if it should, so to vary and modify them, as to avoid that which it certainly could not have been the intention of the legislature should be done." And the same learned Judge has frequently and forcibly repeated this dictum in many subsequent cases. § 748. And this leading principle is expressed in various maxims. The chief maxim is equally (and indeed more) applicable to all documents as to Statutes. Benigné faciendæ sunt interpretationes, propter simplicitatem laicorum, ut res magis valeat quam pereat; et verba intentioni, non e contra, debent inservire :(i) i. e., construction should be liberal on account of the ignorance of the unprofessional, so that the object may be attained rather than destroyed, and words ought to be made subservient to the intention, not contrary to it. Viperina est expositio quæ corrodit viscera textûs. Poisonous is that construction which corrupts the words of the text. dare. It is the province of the Judge to declare, not to make the law; as was remarked by Parke, B., in the late great case of Egerton v. Lord Judicis est jus dicere non (h) 2 M. and W. 476. Brownlow.(k) It is the province of the Judge to expound the law only: the written from the Statutes: the unwritten from the decisions of his predecessors and the existing Courts, or from text writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference. It is not however the duty of the Judge to speculate upon what may be the best in his opinion for the advantage of the community. Qui hæret in literà hæret in cortice: A man ought not to rest upon the letter only, but rely upon the sense; the one is the rind, the other the kernel. § 749. The construction, it follows from these principles, should be such, that notwithstanding apparent contradictions or incongruities, the whole Statute shall stand; apparent incongruities are if possible to be reconciled or explained, so that effect may be given to every part of the whole. Accordingly Regulation I of 1802, Section XIX expressly provides that, "One part of a Regulation is to be construed by another, so that the whole may stand." Thus, for instance, where the words used are capable of two significations, one of which would render the various parts of the same Statute irreconcileable and the other not, they shall receive that construction which will permit the whole Statute to be operative. $750. So where Statutes are in pari materia, on the same subject matter, all are to be regarded as one Act; one may be referred to for the purpose of construing another; they are all to be read together, and so construed that "the whole may stand." So in the case of R. v. Loxdale. "Where there are different Statutes in pari materia, though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other. So in the laws concerning church-leases; and those concerning bankrupts. And so also I consider all the Statute providing for the poor, as one system relative to that subject." § 751. When the same words are repeated in several parts of the Statute, they are taken to be used in the same sense in all places ; except indeed when they apply to different subjects-matter. § 752. If technical terms are used, they must be taken in their technical sense. Thus I conceive where the word "Heirs" occur in a treaty, as in those with Tanjore, the term must receive its ordinary technical construction of heirs general, and that it is viperina expositio which seeks to contine it to heirs male. § 753. Words may be transposed or read parenthetically, but they cannot be imported, for the purpose of making sense. § 754. Words must be construed with reference to the subjectmatter of the act: secundum subjectam materiem. Thus when an ancient Statute enacted a penalty against malvais procureurs de douseins,' the phrase referred to dozens of jurymen to whom the Statute related. § 755. Words are not to receive an extended signification beyond their ordinary signification, in order to comprehend a case supposed to fall within the intention of the Legislature. Thus, where the 56 Geo. III, ch. 139, s. 2, recited that an indenture of apprenticeship to be binding, must be under the hands and seals of two Justices, it was held that indentures under the hands of two Justices and not under their seals, were void. This was so held in R. v. Stoke Damerel.(m) "The 56 Geo. 3, c. 139, s. 2, recited, that the salutary provisions enacted by the 43 Eliz. were frequently evaded in the binding out of poor children, and that the premium of apprenticeship was clandestinely provided by parish officers, who were thus enabled to bind out poor children without the sanction of Justices of the Peace, and then enacted, 'That no indenture of apprenticeship, by reason of which any expense whatever shall at any time be incurred by the public parochial funds, shall be valid and effectual unless approved by two Justices of the Peace under their hands and seals, according to the provisions of the said Act and of this Act:' Held, that in order to make an indenture by reason of which any expense had been incurred by the public parochial funds valid and effectual, the approval of two Justices should be under their hand and seals, and that such an indenture, approved of by two Justices under their hands only, was void and not voidable, and that no settlement was gained by serving under it." § 756. But there is an exception to this rule in the case of ancient Statutes() which have been occasionally extended to cases not expressly within their words; and the reason given for this is the exceeding (m) B. and C. 563. In This case can never apply to Regulation Law which dates only from the commencement of the present century. |