bounded carelessness in the matter of legislation. There can be little inducement to caution or precision in drawing legisla tive enactments, if it is understood that all errors can be supplied, and, indeed, all provisions be overridden, by the mere exercise of the powers of judicial construction.

These considerations apply, as I have said, where the language of statutes is clear. If, however, by reason of ambiguity or contradiction, the intent cannot be ascertained, then, as I have said, the case alters, and the duty of the judge is very different. The judge must decide; but the law has not spoken. It is evident that his functions necessarily become to a certain extent legislative. There is no alternative, he must make the rule in a new matter; and these cases present some of the most embar rassing questions that can occur in the whole range of juridical science; for to the responsibilities of a judge they add those of a legislator. To these cases the rules and nomenclature of strict and equitable construction properly apply, and to these they should carefully be restricted. Where the judge has an admitted and necessary discretion, considerations of policy and wis dom, hardship and inconvenience, become as indispensable as they are out of place where the matter has been definitively decided by the Legislature. Such, however, has not been the language of our law; and the notion of a restricted or an enlarged construction has been introduced and practiced upon rather with reference to the kind or class of laws to which the statute in question belonged than to the clearness or ambiguity of the letter of the enactment. The subject will be better understood after a careful examination of the decisions that have been made upon various classes of statutes.

We shall, then, first consider in what cases it has been held that statutes are to be strictly construed, next examine the cases in which it has been said that they are to be equitably interpreted, and thus finally endeavor to discover the true boundaries of the judicial and legislative attributes.

Statutes Conflicting with a Constitution or with a Fundamental Law. It has been said that it is a safe and wholesome rule, to adopt the restricted construction of a statute when a more lib

eral one will bring us in conflict with the fundamental law.* (a) So in England it has been held that acts of Parliament which take away the trial by jury, or abridge the liberty of the subject, ought to receive a strict construction. So there, too, it has been said in regard to the Court of King's Bench, that it cannot be ousted of its jurisdiction but by express words or by necessary implication, any more than an heir at law of his inheritance. Yet where a clause was clearly inserted for the bene fit of parties prosecuted, saying, that it "shall and may" be lawful for justices to hear complaints under the statute, it was held that the penalty could be recovered only before a justice, because otherwise the defendant might be saddled with unmerciful costs by a merciless prosecutor.

Statutes in Derogation of the Common Law.-It has been repeatedly declared that statutes which alter common-law remedies or affect common-law rights must be strictly complied with. (b) Says Lord Coke: "The wisedom of the judges and

* People v. Board of Education of Brooklyn, 13 Barb. 400, 409.

Looker v. Halcomb, 4 Bing. 183; Dwarris, p. 646; a case on the act of 1 Geo. IV, c. 56, empowering justices of the peace to award satisfaction for damages done by malicious and wilful trespassers.

Cates v. Knight, 3 Term R. 442. See Crisp v. Banbury, 8 Bing. 394, where it was held that proceedings against the trustee of a benefit society could be taken by arbitration only, the courts being ousted of their jurisdiction by the express words of the act.

(a) of two constructions that must be adopted which will render the statute constitutional, even though it be not the most obvious, provided that violence is not done to the language and terms of the act, French v. Teschemaker, 24 Cal. 518; People v. San Francisco, &c. R. R. 35 Cal. 606; Bigelow v. West, Wisc. R. R. 27 Wisc. 478; and if a statute is capable of a construction which will make it constitutional, this construction will and must be adopted, Duncombe v. Prindle, 12 Iowa 1; Colwell v. May's Landing, &c. Co. 4 C. E. Green. 245; Iowa, &c. Co. v. Webster County, 21 Iowa, 221; Roosevelt v. Godard, 52 Barb. 533. But a construction must not be forced upon a statute doing violence to the plain import of its language, in order to render it constitutional. A court will doubtless and should, on the principle of ut res magis valeat, strive to uphold a statute by any reasonable method of interpretation, and even by being astute in finding a valid meaning and intent, but it cannot make a new statute. As an illustration of this principle, see the celebrated legal tender case of Hepburn v. Griswold, 8 Wall. 603, which has not been overruled so far as it proceeds upon this doctrine.

(b) Statutes in Derogation of the Common Law to be Strictly Construed.-That statutes are not to be presumed to alter the common law farther than they expressly declare, see Sullivan v. La Cross, &c. Co. 10 Minn. 386; Blackman v. Wheaton, 13 Minn. 326; Bennett v. Hollman, 44 Miss. 323. And a transaction must be both within the letter and spirit of the statute which derogates from the common law in order to be governed by it. Dewey v. Goodenough, 56 Barb. 54. Even a constitutional pro

sages of the law have alwayes suppressed new and subtile inventions in derogation of the common law."* So of a statute

* Coke, Inst. 282, b. L. 3, § 485; Crayton v. Munger, 11 Texas, 234.

vision in derogation of the common law, it is said, ought not to be extended by construction, e. g., a provision securing to married women their separate property. Brown v. Fifield, 4 Mich. 322. This particular doctrine, however, is plainly opposed to the whole theory of State government; it makes the common law in theory superior to the Constitution, and represents the Constitution as something imposed upon and drawing its life from the common law. On the contrary, the true conception of the State government regards the Constitution as the fundamental law of the State, and the common law as existing in and part of the jurisprudence of the State by the express or implied consent of that Constitution; in other words, the Constitution recognizes the common law, and not the common law the Constitution.

There has been great conflict of opinion as to the rule of construction which should be applied to the statutes altering the legal status of married women and giving them additional power over their property. Some courts, because these statutes change the common law, have said that they should be construed strictly, and not extended beyond the letter. Perkins v. Perkins, 62 Barb. 531. Other courts regarding them as highly remedial, and looking at the general intent, have been inclined to follow their spirit beyond the letter. De Vries v. Conklin, 22 Mich. 255. We shall add a few observations upon these statutes, and upon the principle of construction, at the close of this note, simply saying that it is impossible to reconcile the decisions upon any principle, and some of them are undoubtedly wrong. The reader should be cautious in relying upon these decisions, for many of them have been reversed on appeal, and not a few of them have been overruled, this being notably the case in New York. As a general proposition, although there are exceptions upon one or two points of construction, the New York Court of Appeals, since the passage of the first act in 1848-9, has given these statutes a liberal construction, following their intent with reasonable freedom, and refusing to apply the rule which is the subject-matter of this note, and in doing so has many times reversed the decision of the supreme and other inferior courts in that State which were, as a whole, inclined to construe the statutes strictly. Thus, in a recent case, the Supreme Court of N. Y. said, that the acts authorizing married women to contract in relation to their separate estate, and to sue and to be sued, are to be construed strictly, and refer to, and recognize such forms of contract only, and such forms of action and kinds of remedy as were in existence and legal in respect to such persons and their property at the time the statutes were passed; and a wife intending thereby to become her husband's surety, having indorsed his promissory note, and having added to the indorsement this stipulation, "For value received I hereby charge my individual property with the payment of this note," and an ordinary legal action having been brought against her, seeking to recover an ordinary common-law personal judgment for the amount of the note, the court held that the action could not be maintained, that the only action contemplated by the statute was a suit in equity to charge the separate property of the wife, and that the stipulation quoted was not sufficiently specific in pointing out and describing the property intended to be affected with the lien to create any equitable charge which could be enforced according to the settled doctrines of equity. Corn Exchange Ins. Co. v. Babcock, 57 Barb. 222. It is very plain that this decision nullified the statute, for it virtually said that after all its labors, and notwithstanding

extending the common-law right of distress by preferring the landlord over an execution creditor, provided notice was given

the strong express provisions it had enacted, the Legislature had simply left the law as to married women's contracts and the remedies to enforce them exactly where it was when the statute was passed. On appeal, the Court of Appeals held that the statutes were to be construed liberally as remedial statutes according to their fair intent; that they provided for a legal action and a personal judgment against a married woman; that they simply required as a condition to her liability, if the contract was not made in her business or was not for the benefit of her property, that she should indicate in the contract an intention to charge her property; and that the statute had nothing to do with the old equitable doctrines as to remedy against the wife's property instead of against her personally. Corn Exch. Ins. Co. v. Babcock, 42 N. Y. 613. We have thus stated these two decisions at large, because they illustrate in a striking manner the working of the rule that statutes in derogation of the common law are to be construed strictly, and show how an application of it may override positive mandates of a Legislature and destroy a highly remedial measure, the intent and general object of which were as clear as could be made by appropriate language.

We give other examples of statutes to which the rule in question has been applied, and in which it has been held, and often with plain propriety, that the construction must be strict; a statute providing for constructive service of process, Stewart v. Stringer, 41 Mo. 400; Gray v. Larrimore, 2 Abb. U. S. R. 542; authorizing one to be a witness in his own cause, Warner v. Fowler, 8 Md. 25; Dwelly v. Dwelly, 46 Me. 377; relaxing the rule of evidence as to what constitutes an adverse possession, Thistle v. Frostburg Coal Co. 10 Md. 129; creating statutory remedies different from those at the common law, Bailey v. Bryan, 3 Jones Law, 357; e. g., giving mechanics a lien on chattel interests, Esterley's Appeal, 54 Penn. St. 192; giving a summary mode of obtaining possession of land, Baldwin v. Cooley, 1 Rich. N. S. 256; providing for sale of land of decedent for payment of debts, Hollman v. Bennett, 44 Miss. 323; providing for arbitrations, Burnside v. Whitney, 21 N. Y. 148; but per contra see Tuskaloosa Bridge Co. v. Jemison, 33 Ala. 476; changing the commercial law, Crowell v. Van Bebber, 18 La. Ann. 637; allowing a debtor of a judgment debtor to pay his debt to the sheriff in discharge thereof, Howey v. Miller, 67 N. C. 459; giving a remedy against public officers by motion on their official bond, Hearn v. Ewin, 3 Cold. 399.

Statutory remedies, especially when the right to be enforced was unknown at the common law, are to be followed with strictness both as to the methods to be pursued and the cases to which they are applied, Lease v. Vance, 28 Iowa, 509; Bailey v. Bryan, 3 Jones Law, 357; Banks v. Darden, 18 Geo. 318); must be "substantially" followed, Ham v. Steamboat Hamburg, 2 Clarke (Ia.), 460; People v. Gates, 57 Barb. 291; as illustrations of such remedies and of the rule applied to them, statutory power of courts under a special statute, e. g., to relieve from disability, State v. Woodson, 41 Mo. 227; conferring additional power on justices of the peace, O'Brian v. State, 12 Ind. 369; allowing constructive service, Stewart v. Stringer, 41 Mo. 400; allowing sale of property for taxes, every provision having the semblance of benefit to owner must be complied with, Newell v. Wheeler, 48 N. Y. 486; tax proceedings, Harley v. Ramsey, 49 Mo. 309; Abbott v. Doling, 49 Mo. 302; one who

to the officer of rent due before the sale, it was held that being in derogation of the common law it must be strictly pursued, and that a notice after the sale would not answer.*

*Bussing v. Bushnell, 6 Hill, 382.

pursues a statutory remedy waives all objections to the constitutionality of the statute in respect of the conditions which it imposes, Burrows v. Bashford, 22 Wisc. 103. There are many cases in which the court has given little weight to the rule under consideration, and, regarding the statute as remedial, has rather favored than restricted its operation. Thus it has been said that statutes giving mechanics a lien are not to be construed strictissimi juris, but so as to do substantial justice, Putnam v. Ross, 46 Mo. 337; and are even to be construed liberally to advance the remedy, Oster v. Rabeneau, 46 Mo. 595; Buchanan v. Smith, 43 Miss. 90. A summary remedy by landlord and tenant process seems to have been held remedial, and to have been treated liberally, in Jackson v. Warren, 32 Ill. 331.

The same law may be liberally construed as to some purposes, and strictly as to others; thus a mechanics' lien law will be strictly construed so far as it imposes a lien on property on account of work for which the owner did not contract. Jersey Co. v. Davison, 5 Dutch. 415. Laws giving a lien to certain classes of creditors in cases of insolvency are to be construed with reasonable strictness. Chapin v. Persse &c. Works, 30 Conn. 461 (mechanics' lien law).

It was said in a recent case by the N. Y. Court of Appeals, that a statute, though in derogation of the common law, if it is not penal or in derogation of natural right, is to be fairly, if not even liberally construed; e. g., the phrase "any goods or merchandise whatsoever" in the act of Congress of March 3, 1851, limiting the liability of ship owners, was held to include baggage. Chamberlain v. Western Trans. Co. 44 N. Y. 305.

This we believe to be the true doctrine, and it suggests a few observations upon the rule under consideration. The rule that statutes in derogation of the common law are to be strictly construed, was introduced at an early day, when the common law was in its integrity; when courts and judges and writers like Coke, ignorant of every other system of jurisprudence, spoke of it as the perfection of human wisdom, and were jealous of every attempt of Parliament to change it in the minutest particular, and defended its most outrageous provisions by arguments which to us are the perfection of unreason and absurdity; when Parliament itself very seldom undertook to modify or add to it. And it would seem that modern courts and judges have repeated the rule without any knowledge of its origin and without any thought of the enormous changes in the relations between the courts and the Legislature which have taken place since the rule was promulgated. In fact, the reason for the rule, or rather the occasion of it, for there never was any reason for it, has entirely passed away. It is a demonstrable proposition, that there is hardly a rule or doctrine of positive practical jurisprudence in England or in the United States to-day, which is not the result, in part at least, of legislation; hardly a rule or doctrine of the original common law which has not been abolished, or changed, or modified by statute. Furthermore, it is conceded that the ancient conception as to the perfection of the common law was absurdly untrue. The great mass of its practical rules as to property, as to persons, as to obligations, and as to remedies, were arbitrary, unjust, cumbersome, barbarous. For the last generation the English Parliament and our State Legislatures have been busy in abolishing these common-law rules, and in substitut