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CHAPTER XI.

CARDINAL RULE OF INTERPRETATION AND CON

STRUCTION OF WRITTEN CONSTITUTIONS.

It is a noteworthy fact, that in the earlier stages of development of a system of jurisprudence, when the knowledge of the meaning of words is crudest and least certain, greater stress is laid in interpretation upon the letter of the law than in the more advanced judicial age. The written word is held in reverential awe, and is treated as containing every element of the law. This tendency, in the inquiry into the operation and meaning of writings, to confine one's attention to the written word, is without doubt caused by a popular ignorance of the real

1“A close adherence to the letter is a mark of unripeness everywhere, and especially so in law. The history of law might write over its first chapter, as a motto, 'In the beginning was the word.' To all rude peoples the word appears something mysterious, whether it be written or solemnly uttered as a formula, and their simple faith fills it with supernatural power.' v. Ihering, “ Geist des R. Rechts,” Bd. II., Theil 2, p. 441. In the subsequent pages Prof. v. Ihering undertakes an elaborate explanation of the metaphysical origin of the two kinds of interpretation, which is not only attractive for its beauty, but also for its value to the jurist.

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character of words as “vehicles of thought.” The object of all communications is to enable one mind to learn the thoughts of the other; and the popular notion is that the spoken or written word is literally the “vehicle of thought ”; that the thought is actually conveyed by the word from one mind to another. Of course this is altogether false. Thought is a mental operation, and the intended effect of words is to reproduce the same operation in the brain of another. But the word does not impart or transmit the movement from one brain to the other. It is also true that words are not the only means of communication of thought. Smiles, frowns, nods of the head, winks, and all kinds of gesturing, serve to communicate thought often as well as words; and where the words are accompanied by such gestures, their meaning is often materially modified, and sometimes completely changed. To take note under such circumstances simply of the spoken word would give to the mind of the hearer a very wrong impression of the thought of the speaker, and hence the actual thought would not have been communicated. In other words, the movements in the brain of the writer or speaker would not be accurately reproduced in the brain of the reader or hearer. Words, therefore, when considered separate from surrounding circumstances, do not always act as reliable vehicles of thought. To secure at all times a correct appreciation of the meaning of the writer or speaker, one must take into consideration every fact, external and internal, which exerted an influence upon him at the time of writing or speaking—his characteristics as well as his environment,--for a word used by one man does not necessarily have the same shade of meaning which it might have when used by another. But every word must be understood roughly to have a certain and common meaning; else it would be impossible for one mind to communicate with another. But within the limits of the general meaning of a word, there may be, and usually are, various shades of meaning, which the word alone cannot unfold, and which must be learned from other sources. Now the literal or grammatical interpretation can only disclose this rough general meaning; while the finer shades of meaning are only brought out by a liberal or logical interpretation, i.e., by a consideration of every fact, having more or less connection with, and influence over, the writer. It is needless to add that the latter interpretation is alone relied upon by educated peoples.

Applying these fundamental principles to the interpretation of constitutional and statutory law, it may be stated that in the pursuit of the meaning of the law, every fact or circumstance, surrounding the lawgiver, when the law was promulgated, is required by our rules of interpretation to be inquired into; so that the cardinal rule of interpretation of laws may be said to be, that the intention of the lawgiver, when the law was enacted, must prevail. The same rule of interpretation is made to apply to statutes and constitutions, as is applied to private contracts.

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In recognition of the soundness of this rule, as explained by our books upon constitutional and statutory construction, we expect a law to be enforced in the sense in which the legislators intended, whether the legislators be members of a constitutional convention or of an ordinary legislature; and the student is directed, in his effort to ascertain the meaning of a statute or clause of a constitution, to read the history of the times, the journal of the convention or legislature, and the speeches of its members. From these extraneous sources one ex. pects to learn every thing necessary to an under. standing of the exact meaning of the lawgiver.

But would a strict observance of this rule enable a student to get an accurate knowledge of what the law is now? If the illustrations heretofore given in support of my thesis teach any one thing with precision, it is that the intention of the legislator, whether he be Congressman or a member of a constitutional convention, is only effectuated, so far as it has found lodgment in the written word. The writ. ten word stands alone as the embodiment of his intention; and if it is possible for the court, in the enforcement of the law, to find in the written word two or more shades of meaning, it does not enforce that shade of meaning which was intended by the lawgiver, but that shade which best reflects the prevalent sense of right. And, in securing that concordance of the written law and the prevalent sense of right, all these rules of interpretation as generally understood are thrown to the winds. Even the ordinary and plain meanings are twisted out of the words; and, although public opinion usually commands an adherence to the word, if the case should be distressing, and the necessity for a repudiation of the written word be great, in obedience to popular demands, it is done by governmental authority. Still, as explained in the first chapter, the cases are rare in which a court safely disregards the written word of the legislature, for the prevalent sense of

1 “No statute ever resisted, in the end, the unfavorable opinion of the profession. Whether he intends it or not, the judge's hand grows weak, the arm of justice loses its power, acute interpretation lends all its means to evade and undermine such a statute, to introduce conditions not found in the text or to contract its language, and, as it were, by a silent conspiracy, to invent and recommend the most forced constructions, till even the rules of logic bend to the claims of interest. This silent war of the profession against the positive law is repeated wherever that law becomes out of date without being formally repealed. It is in this manner that our instincts of right naturally react against the legislator's disregard of them."--Lieber's neutics,” Appendix, by Dr. Hammond, pp. 272, 273.

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