right usually requires a strict observance of the written word, however much violence is done by interpretation to the plain intention of the legislator. Is it a sufficient explanation of the common disregard of legislative intention to say that it is due to the influence of the imperfections of human nature on the administration of the law? To my mind the fault lies in the cardinal rule of interpretation, as given by all our writers. It is true that a true interpretation of the law must disclose the real and full meaning of the lawgiver; but in countries in which popular governments are established the real lawgiver is not the man or body of men which first enacted the law ages ago; it is the people of the present day who possess the political power, and whose commands give life to what otherwise is a dead letter. No people are ruled by dead men, or by the utterances of dead men. Those utterances are only law so far as they are voiced by some living power. Hence, since under a popular government governmental authority rests upon the voice of the people, or the voice of that part of the people which moulds public opinion, that interpretation, in strict conformity with the fundamental rule of interpretation, must prevail which best reflects the prevalent sense of right. For the present possessors of political power, and not their predecessors, are the lawgivers for the present generation. While, therefore, as a general rule, the written word remains unchanged and confines the operations of the popular will to a choice of the shades of meaning, of which the written word is capable-until the written word has been repealed or modified by the proper authority,—the practical operation of the law will vary with each change in the prevalent sense of right; and the judge or practitioner of the law, who would interpret the law rightly, i.e., ascertain with precision the rule of conduct in any case, need not concern himself so much with the intentions of the framers of the Constitution or statute, as with the modifications of the written word by the influence of the present will of the people. Or, in other words, he must find out what the possessors of political power now mean by the written word. This is not a philosophical speculation, having no foundation in fact. Notwithstanding its apparently radical contradiction of the commonly accepted rules of interpretation, it is acted upon and recognized by all the leading American authorities. Dr. Lieber recognizes this factor-unconsciously, it is true,-when, in distinguishing between the interpretation and construction of constitutional provisions, he says that a constitutional "sentence, then, must be interpreted, if we are desirous to ascertain what precise meaning the framers of our Constitution attached to it, and construed, if we are desirous of knowing how they 1 would have understood it respecting new relations, which they could not have known at the time, and which, nevertheless, fall decidedly within the province of this provision." " And the same may be said of Chief-Justice Marshall, where, in his opinion in the Dartmouth College case, he claims that a case may come within the operation of a constitutional provision, even though the framers of the Constitution did not anticipate it, provided there is nothing in the written word to indicate that they would have excluded it if it had been anticipated.' If a law or constitutional provision can by construction be made to cover a case, which the enacter 1 46 Hermeneutics," p. 168. 2 "It is more than possible that the preservation of rights of this description was not particularly in the view of the framers of the Constitution, when the clause under consideration (the provision against impairment of obligation of contracts) was introduced into that instrument. It is probable that interferences of more frequent occurrence, to which the temptation was stronger, and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the State legislatures. But although a particular and rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it may be governed by the rule when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that had this particular case been suggested the language would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operations likewise, unless there be something in its literal construction so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expounded the Constitution in making it an exception."-4 Wheat., pp. 644, 645. of the law or provision did not and could not anticipate, and which he consequently cannot be said to have intended to include within the operation of the rule, then by what will power is the law or constitutional provision made to apply to that case? Is it not the present will of the people? And is not, then, in accordance with the rules laid down by Marshall and Lieber, a law or constitutional rule made to mean what the popular will intends by the written word? The real character of the rule cannot be changed by giving it the name of construction. Construction, as defined by the authorities and distinguished from interpretation, is nothing more than that logical interpretation, whereby the real meaning of the living lawgiver, i.e., the present possessors of political power, is ascertained. This fallacy in interpretation of laws is the result of holding on to a rule, after a change of circumstances has confused its meaning or made its application misleading; and its retention, after it has ceased to be true, is due to the general acceptation of the groundless doctrine of the social contract. Under this doctrine, as well as under the doctrine of the divine right of kings, the popular conception of law was, as indicated in Blackstone's definition, that it emanated from some power above and beyond us, from God in the one case, and from our ancestors in the other case. That being the source of the law, in order to ascertain what the law is, we must discover what the governmental representatives of God, or of our ancestors, meant by the words used in their enactments; in the same manner as we endeavor to ascertain the intentions of parties to a private contract, in order to determine their contractual rights. But as soon as we recognize the present will of the people as the living source of law, we are obliged, in construing the law, to follow, and give effect to, the present intentions and meaning of the people. |