terms extensive and restrictive interpretation; Rutherforth, liberal, natural, and mixed; and Mackeldey, authentica, usualis, and doctrinalis. Professor Lieber has endeavored to carry this refinement to still greater length. He distinguishes between interpretation and construction, and divides the former into close, extensive, extravagant, limited or free, predestinated and authentic; and the latter into close, comprehensive, transcendent, and extravagant.

*

Under these classifications it has been attempted to frame formal rules for the various modes of interpretation, as-It is not allowable to interpret what has no need of interpretation.-. When we see what is the sense that agrees with the intention of the instrument, it is not allowable to wrest the words to a contrary meaning. No text imposing obligations is understood to demand impossible things.

And to elucidate the use of these definitions, and the application of these rules, cases actual or possible are resorted to, exhibiting many varieties of doubt and difficulty. So, if by the terms of a treaty, a town is not to be surrounded by walls, the question is asked, whether, upon a proper construction, it may be inclosed with fosses and ramparts. So the law condemns to death him who strikes his father. Shall we punish him who strikes and shakes his father to recover him from a fit? So, where it was enacted that whosoever drew blood in the public highway should be severely punished, a

this day, in some parts of Germany, speaking loud and monotonously. Prædicare, and the Greek past, belong to the same family of words. It is very possible that pretari and prating are of the same root with broadGerman, breit-speak broadly, plainly. The present German word for interpreting is auslegen, laying out, laying open, unfolding.”

The following is Prof. Lieber's derivation of the word Interpret: "To interpret, as is well known, is derived from the Latin interpres, interpretari, a compound of inter and pretari. The latter belongs, as nearly all truly Latin words, according to its root, to that language which was spoken by the original inhabitants or settlers of Europe, and of which the Gothic, ancient High German, Swedish, Ice--Lieber's Legal and Political Hermeneutics landic, Latin, &c., are but descended, and which was likewise either the first foundation of the Greek, or so strongly influenced it, that the root of innumerable words is easily traced through all these languages." "Pretari is of the same root with many words in Teutonic languages: Prata, in Swedish, is speaking. We have prating and prattling. The German reden (pronounced raden), speaking, is the same; for d and t easily change, while a consonant before another (a p in this case) is frequently dropped; or it may be that reden is the original. Praten signifies to

*

(1839), p. 20, in note. The etymologists, however, do not agree. Richardson's Dictionary (1839) says, "Interpret, interpretari, of uncertain etymology," and gives, with a query, "Pretari, from Ilparrt." I have annexed to this chapter copious extracts from the works of Vattel, Domat, and Professor Lieber, which will serve to illustrate their mode of reasoning on the subject, and to compensate for any error that I may make in underrating the value of the careful classifications and nicely drawn rules of the writers of this class.

barber opened a vein of a person taken in the street with apoplexy. Was he guilty or not?

These and similar discussions have amused the fancy and exhausted the arguments of text writers. I cannot, however, consider them of much value for the student of jurisprudence. Ours is eminently a practical science. It is only by an intimate acquaintance with its application to the affairs of life, as they actually occur, that we can acquire that sagacity requisite to decide new and doubtful cases. Arbitrary formulæ, metaphysical subtleties, fanciful hypotheses, aid us but little in our work.

Nor do I believe it easy to prescribe any system of rules of interpretation for cases of ambiguity in written language, that will really avail to guide the mind in the decision of doubt. It is with the utmost difficulty, if at all, that we can define or direct any one intellectual process. How is it to be expected that we can, with success, lay down rules which are generally to govern the operations of the mind? The attempt is ingenious, metaphysically curious, but of little practical utility in the study or the application of the science of the law. What is required in this department of our science is not formal rules, or nice terminology, or ingenious classification; but that thorough intellectual training, that complete education of the mind, which lead it to a correct result, wholly independent of rules, and, indeed, almost unconscious of the process by which the end is attained. It would seem as vain to attempt to frame positive and fixed rules of interpretation, as to endeavor in the same way, to define the mode by which the mind shall draw conclusions from testimony.

Still, although we may reject the curious nomenclature, and the arbitrary rules to which I have referred, it is not to be supposed that a subject so important as the construction and interpretation of laws is to be left to the mere arbitrary discretion of the judiciary. This would be to put in their hands power really superior to that of the Legislature itself. There must be some general principles that control the matter; and I believe it will be found that the principles which control the interpretation of statutes may, for all practical purposes, be

not unaptly arranged under the same heads, and reduced analytically to the same elements, as all other branches of legal inquiry. In all cases of judicial examination we have two great heads of investigation:

1st. The object to be attained. This is, in all cases, a question of fact. We do, indeed, distinguish in our ordinary legal language between questions of fact and questions of law; but this is only with reference to the tribunal, i. e., the judge or the jury, which is to decide. The question is always one of fact. The only difference is the nature of the fact. It is not always a physical fact, but it must be a fact. So we say the construction of a doubtful provision in a will is a question of law, but the point to be decided is really one of fact; it is, generally, what was the intention of the testator? So in regard to the construction of statutes, the questions that arise are, in one sense, questions of law, that is to say, they are to be decided by the court; but in reality, as we shall see, the court have, as a general rule, only to discuss and determine a question of fact.

2d.. The means to be employed. In regard to trials of fact, this is controlled by the rules of evidence; in regard to general questions of law, by positive rules to be found in statutes or in adjudged cases. Such, too, will, I believe, be found the true analysis of our rules in regard to the construction of statutes.

First. The object to be attained. This is, as a general rule, the intention of the Legislature.

Second. The means to be employed; i. e., what facts within and without the statute are to be inquired into to ascertain the intent of the doubtful phraseology. To be more precise:

The object to be attained. We have said that the object of judicial investigation is, as a general rule, to determine some fact. So is it in regard to the construction of statutes, with the exception of constitutional questions, and also of those cases arising under the doctrine of liberal and strict construction, where, as we shall see hereafter, the judicial function is blended with and lost in the legislative attributes. Where a statute appears to be of a doubtful meaning, the courts have

L

the power to construe it. In discharging this duty, the first thing is to have a clear idea of the object in view. What is doubtful? The answer evidently is, the intent of the Legisla ture who passed the act. What did the Legislature in fact intend? The doubt does not refer to the policy of the act; for with that, as we have seen, the judges have nothing to do. They are judges, and not law-makers. Nor does the doubt regard the motive of the legislator, for over that the judges have no right of control. As little does the doubt refer to the motive of the parties, or their knowledge of the law; for of these as we have seen, with the exception of those cases where the essence of crime depends on motive, the judges take no notice. It then follows, necessarily and unavoidably, that if the judges are to execute the will of the Legislature, and if they are to disregard the motives and knowledge of the parties, the only doubt that can arise in applying a statute must be as to the meaning of the Legislature; subject, however, as has been already said, to the exception of those cases, which will be noticed in the next chapter, where there is no guide to the legislative meaning, and where, consequently, the judicial function is really merged in the legislative.

We may, therefore, affirm, as a general truth, that independ ently of constitutional questions, and independently of those doctrines of liberal and strict construction which really, as I have said, vest a sort of legislative power in the judge, the object and the only object of judicial investigation, in regard to the construction of doubtful provisions of statute law, is to ascertain the intention of the Legislature which framed the statute. This rule, though often asserted, has been in practice frequently lost sight of; but there is abundant authority to sustain it. "The only rule," says Lord Ch. J. Tindal, “for the construction of acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the act."* The rule is, as we shall constantly see, cardinal and universal, that if the statute is plain and unambiguous, there is no room for construction or interpretation. The Legislature has spoken; their intention is free from doubt, Dukedom of Sussex, 8 London Jur. 795; Furman v. City of New York, 5 Sandf. 16.

and their will must be obeyed. "It may be proper," it has been said in Kentucky, "in giving a construction to a statute, to look to the effects and consequences when its provisions are ambiguous, or the legislative intention is doubtful. But when the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legisla tive, and not judicial action."* So, too, it is said, by the Supreme Court U. S.: "Where a law is plain and unambig. uous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction." +

Thus it is only when the language is ambiguous that the courts are called on to construe or interpret; and then, as I have said, the object is to ascertain the intent of the Legislature. So, where a statute declared, that if a corporation did not organize and commence its business within a year from the time of the passage of the charter, it should become void, a company, formed under the statute, did not organize or commence its business within the year; but within that time, and eighteen days before its expiration, an act was passed amending the charter, continuing the directors in office for a year, and authorizing the stock subscription books to be again opened. It was held, that the fair construction of the amendatory act, was to give the company one year from the time of its passage for its organization and the commencement of its business, on the ground that it was wholly improbable that the Legislature expected or intended that the company should complete its organization and commence its business within. "the short space of eighteen days.” ‡

"It is a sound principle," say the Court of Appeals in New York, "that such a construction ought to be put upon a statute as may best answer the intention which the makers had in view; and that is sometimes to be collected from the cause

*Bosely v. Mattingly, 14 B. Monroe, Kentucky, 89.

Fisher v. Blight, 2 Cranch, 358, 399; Case v. Wildridge, 4 Indiana, 51.

Johnson v. Bush, 3 Barb. Ch. R. 207 & 238; see also Young v. Dake, 1 Selden, 463.