« ПредыдущаяПродолжить »
law,1 will ordinarily be construed by us the same as in the law from which it was taken. But we are not in any absolute sense bound by the foreign exposition,2 which is considered less controlling than the domestic.3
§ 72. Since the rule requiring the technical meaning to be given to technical words and phrases is but an evolution from other rules for ascertaining the true legislative intent, it cannot prevail where it would defeat the purpose of the statute, or violate its obvious signification. Thus when a Connecticut act forbade the giving of credit, except on certain conditions, to "any student of Yale College, being a minor," the word "student" was held to embrace one not matriculated, or admitted to regular membership; matriculation only taking place after a residence of six months, and evidence of unblemished moral character. This case is evidently one in which the popular sense must have been meant; for persons giving credit could not be presumed to know the terms on which young men studying at the college were received by its officers. The English courts consider, that, where techni cal words are sought to be expanded into the larger popular meaning in a penal statute, this intent of the legislature must plainly appear.
§ 73. Thus we have taken a general survey of the doctrines governing the interpretation of statutes. The subject wears a forbidding aspect, as treated usually in our books. As
1 United States v. Jones, 3 Wash. C. C. 209, 215.
2 Snoddy v. Cage, 5 Texas, 106.
* Rigg v. Wilton, 13 Ill. 15; Ingraham v. Regan, 23 Missis. 213.
Ante, § 62, 66, 69, 70.
Morse v. The State, 6 Conn. 9. And see as to the word "purporting," The State v. Harris, 5 Ired. 287. See also United States v. Gooding, 12 Wheat. 460, 467; United States v. Twenty-Four Casks, Bald. 502, 505. And see Jesson v. Wright, 2 Bligh, 1, 57; Winter v. Perratt, 6 Man. & Gr. 314, 379; Commonwealth v. Buzzell, 16 Pick. 153, 161; Waring v. Clarke, 5 How. U. S. 441.
Stephenson v. Higginson, 3 H. L. Cas. 638, 18 Eng. L. & Eq. 50.
treated there, it seems to be very technical, and not reduced to any order. But a proper view of it presents to us a system of rules springing naturally out of the soil of our jurisprudence, and flowing in much beauty through all the field. Indeed there is no department of our law into which more natural reason and true science have been infused than into this. The difficulty with the books on the subject is, that their writers have not considered those reasons inherent in the nature of human language, and in the nature of our jurisprudence, out of which the rules have sprung.
§ 73a. Human language is a wonderful thing. It emanates from the most wonderful of all created objects with which we are acquainted, the mind of man. It is the spontaneous utterance, the outward sign, of that wonderful condition of the mind, called thought. And as thought wears a multifarious form and hue, never presenting itself twice alike, the outward sign must be multifarious also. The increase of thought goes on step by step with the march of the universe; yet apparently the outward sign remains substantially the same. In fact, however, it progresses also both in its partic ular terms, and especially in their combinations. Moreover the mind itself, in its onward progression, follows rules adapted to its development: language follows rules likewise. As we cannot, on the one hand, grasp the mind, and extort from it a confession of its laws; so, on the other hand, we cannot human language. But, by patient study and close watching, we may learn much both of mind and its language. The latter has always been a subject of judicial consideration. In every instance, the inquiry resolves itself into the proposition, -how did the mind of the lawgiver operate when he made the law, to reduce his intent to words? Because a resolution backward of this operation leads us to the stand-point whence we behold his true meaning.
§ 736. In determining this matter, a judicial way of thinking has been adopted by the courts, on the assumption, that the legislator's mind was in a judicial frame when he made
the law. And though we know, that, in fact, many members ' of our legislatures possess not legal culture, still we know others possess it; and the safe way to interpret their common acts is to presume all the members to have proceeded from the legal point of departure. Let us go on in the path of our investigations.
THE STATUTES AND COMMON LAW TOGETHER.
SECT. 74-77. General Views.
78-88. Particular Propositions and Illustrations.
§ 74 UNDER the present title, we shall consider the mutual influence of the statutes upon each other and upon the common law, and the influence of the common law on the statutes. Under the title, "Elasticity of Statutes," further on, will be discussed the influence of other things; such as the general reasons of the law, the cause of making it, the penal or remedial character of it, and the like. In this chapter, we look at the several parts of the legal system as combined into one whole; in that chapter, we examine how the external pressure and the internal nature result together in the expansion and contraction of the parts.
§75. A statute is practically, what it purports to be, an addition to the law. It removes nothing of old law, further than its terms require, either expressly or by necessary implication. Into the mass of the law it falls, like a drop from the clouds into the ocean, mingling with the mass, and forming with it one entire body. The present chapter will unfold the doctrine applied when there is not a repeal of what before was the next chapter will treat of repeal.
§ 76. And the doctrine, when there is neither express nor implied repeal of the prior law, may be stated thus: that all provisions of law, statutory and common, at whatever several dates established, are to be construed together, as contracting, expanding, enlarging, and attenuating one another, into one
harmonious system of jurisprudence. In the books we find the doctrine variously expressed, in part by the proposition already mentioned,1 that all statutes in pari materia, that is, relating to the same subject, are to be construed together; and in part by another proposition, namely, that we are to construe statutes according to the rules and reasons of the common law. But these two propositions are plainly fragmentary; and we hardly need inquire whether their combined result is sufficient to produce the more general doctrine enunciated above, since it is the clear deduction both of reason and of the collective authorities.
§ 77. Legal propositions are like moral and ethical ones in this, that they do not lie in parallel straight lines. On the contrary, they converge and diverge, now intercepting one another, now blending together, and now operating unconnected. This truth is variously seen: it appears in the different provisions of statutory law, at whatever times enacted, as viewed relatively to one another and to the common law; and in the common law as viewed relatively to itself and to the statutes. Let us see how the foregoing doctrines are practically illustrated in the law.
§ 78. First. One statutory provision is cut short by another. In other words, there are often clauses in the same act, or in different acts, which may well stand together to a certain point; but, arrived there, one must give way. To determine which must give way is often a nice matter. The question is not dependent solely on the priority of the acts; though this consideration is sometimes important. One rule is: that the more specific provision controls the general one; or,
1 Ante, § 66, where the authorities are cited.
* 2 Inst. 301; Harbert's case, 3 Co. 11, 13 b; The William Gray, Paine, 16;' post, § 86.
Dwar. Stat. 2d ed. 513, 668. See also Brown v. Commissioners, 9 Harris, Pa. 37, 43, in which the court held, that, though the provisions of two statutes are different, one of them, general in terms, but containing no nega