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alent to an enactment, that previous offences be punished by the common law; deciding therefore the case on the just principle, that the punishment is to be regulated by the law existing at the time of sentence pronounced. Where a statute operated as a repeal of the common law itself, not merely of the punishment,2 the court held, that a revival of the common law, by a repeal of this statute, could not subject one to the old law, which was not in force when he did the act.3
§ 108. The general doctrine, that the punishment of offences must follow the law existing at the time of judgment rendered, though a punishment differing from this prevailed in the law when they were committed, is limited, moreover, in this country, by the constitutional inhibition against ex post facto laws, binding both the federal and State legislatures. A statute, to be obnoxious to this constitutional rule, need not require that acts innocent when done be punished; it is equally so if it imposes a heavier penalty than was then provided in the law. If, however, the statute is in mitigation of punishment, it is not liable to this objection. And where, at the time of a conviction for forgery, the penalty was death; but the prisoner appealed, and pending his appeal it was reduced to fine, whipping, and imprisonment; the milder sentence was pronounced. So, by a statute of Indiana, the punishment being changed from whipping not exceeding one hundred stripes, to imprisonment not exceeding seven years, the court held, that this was in mitigation, and therefore constitutional. But certainly the court
5 Story Const. § 1345; Commonwealth v. Mott, 21 Pick. 492, 500, 501; Strong v. The State, 1 Blackf. 193; Keene v. The State, 3 Chand. 109; Boston v. Cummins, 16 Ga. 102.
The State v. Williams, 2 Rich. 418.
7 Strong v. The State, 1 Blackf. 193. And see Clarke v. The State, 23
went far in this last case. Where the nature of the punishment is entirely changed, there is difficulty in saying that the one penalty is less than the other; though anything not extending to the life is clearly milder than death.1
§ 109. When a repealing statute is itself repealed, the old law, statutory or common, is revived thereby. This is so even where the statute thus repealed had merely superseded the old law by its implied force. But where the repealing act expires under its own limitation, a different rule prevails; the old law not reviving in this case. If there is a temporary statute, subsequently continued, made perpetual, or revived by another, after its period has elapsed, or of course before, all things done are to be considered as done under the first statute; though, if there is an intermediate time in which it had no force, such time, unless saved by a special provision, is lost.",
Missis. 261; Dawson v. The State, 6 Texas, 347; Holt v. The State, 2 Texas, 363; Herber v. The State, 7 Texas, 69.
1 However, in Herber v. The State, 7 Texas, 69, the court observe : "Among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more degrading than death itself." Still a punishment is not to be estimated, as to its weight or severity, exclusively by its degrading nature.
The State v. Rollins, 8 N. H. 550, 567; Commonwealth v. Churchill, 2 Met. 118; Commonwealth v. Mott, 21 Pick. 492; Directors of the Poor v. Railroad Company, 7 Watts & S. 236; James v. Dubois, 1 Harrison, 285; 1 Kent Com. 466. And see Commonwealth v. Marshall, 11 Pick. 350, 351. The rule of the text has been partly changed in Illinois, by a statute which provides, that "no act or part of an act repealed by another act of the general assembly, shall be deemed to be revived by the repeal of such repealing act." Sullivan v. People, 15 Ill. 233.
'Hastings v. Aiken, 1 Gray, 163.
* United States v. Twenty-five Cases of Cloths, Crabbe, 356.
ELASTICITY OF STATUTES.
General Views of the Doctrine,
The Rule of Strict Interpretation as against Defendants.
§ 110. We have already considered,1 how the principles of the common law and the various provisions of the statutes so act on one another as to bring the whole into one harmonious system. Likewise we have seen, in general terms, that the courts in expounding statutes look outside both of them. and of the common law. And the object of the present chapter is to explain, how the views of these outside things, and of the general objects of the statutes themselves, influence the judges in their exposition. We speak of the statutes as being elastic; because their sense is made more or less large, according to their internal natures, and the pressure of these external matters. And some are more elastic than others.2 It would seem also to be the tendency of the law in modern times, to adhere more closely, yet less captiously, to the letter than formerly. Courts likewise are less ready to extend stat utes to include cases within the mischief but not the words, than to restrain them, so as to exclude cases within the words, but not the mischief.3
§ 111. It has been said, that cases out of the letter of a statute, yet within the mischief or cause of making it, should be brought within the remedy by construction; for the reason that the lawmakers could not set down all cases in express
1 Ante, § 74 et seq.
* Ante, § 67.
Rex v. Parker, 2 East P. C. 592; ante, § 64; post, § 111.
terms.1 But evidently, if this doctrine were freely acted upon, it would prove dangerous as substituting the will of a judge for that of the legislature; therefore it is greatly limited, and subjected to so many exceptions as to be, perhaps, itself the exception rather than the rule. What its limits are, we shall not have occasion in these chapters fully to consider. It clearly does not apply to criminal statutes, except in favor of the accused; and there it has a force, as we shall see further on,3 probably greater than anywhere else in the law. On the other hand, the doctrine is of very extensive applicability in the construction of statutes of every kind, that cases are to be excepted out of their operation, if clearly not within the mischief intended to be remedied.4
§ 112. In applying the rules of statutory interpretation, mentioned in the foregoing chapters, and in this and the following chapters of our present book, we use two dissimilar kinds of interpretation; namely, liberal, or open; and strict, or close. The liberal interpretation is that in which the sense is expanded to cover a larger space than the words import; the strict, is that in which it is contracted within a less space. But both these interpretations are variously modified, according to the requirements of particular cases. For example, in applying the rule, that each specific clause be made to har
1 Broom Leg. Max. 2d ed. 59; Co. Lit. 24 b; 3 Bl. Com. 430, 431; Jenk. Cent. 58, 60, 226; Bac. Ab. Statute, I. 5, 6; Holbrook v. Holbrook, 1 Pick. 248, 254; Brown v. Thorndike, 15 Pick. 388, 402; The State v. Stephenson, 2 Bailey, 334; Brinker v. Brinker, 7 Barr, 53, 55; Van Valkenburgh v. Torrey, 7 Cow. 252.
Smith Stat. & Const. Law, p. 831. Lord Kenyon seems to have had the same doctrine in his mind when he said: "In expounding remedial laws, it is a settled rule of construction to extend the remedy as far as the words will admit." Turtle v. Hartwell, 6 T. R. 426, 429. And see Bac. Ab. Statute, I. 6; Broom Leg. Max. 2d ed. 60; Dwar. Stat. 2d ed. 622 et seq.; ante, $ 67, 87, 88.
'Bac. Ab. Statute, I. 5, 6; Williams v. Pritchard, 4 T. R. 2, 3; Canal Company v. Railroad Company, 4 Gill & J. 1; Holbrook v. Holbrook, 1 Pick. 248, 254; Brown v. Thorn like, 15 Pick. 388, 402.
monize if possible with the general purpose of the entire act,1 we may have to employ, in respect to the several clauses, either a close or an open interpretation; or one of these to one clause and the other to another clause; or resort to a middle course, or blending of the two, as will best accomplish the object. Then, to enlarge the idea, when we construe a particular statute, we look, as we have seen,2 not at it alone, but at the entire body and spirit of the law, statutory and common; and so we may find the general spirit urging to a different interpretation from the one indicated by the particular statute viewed alone; or we may find all the considerations acting together, either to expand the law or to contract it. In the last-mentioned case, the interpretation will be either most strict or most liberal.3
§ 113. There are things the law esteems odious; not as regarding them unnecessary, but odious in the sense in which a father feels it odious to inflict needful chastisement on a child; and, on the other hand, there are things in which the law delights. In respect to things odious, we are to employ a strict interpretation; and, in respect to things favored, a liberal one: as a father, in chastising his child, would keep within the necessity of the case to the letter; while, in bestowing a merited reward, he would cast in something also from affection. The law, for example, loves harmony and right; therefore construes remedial statutes, made to amend some defects in the common law, liberally: it loves honesty and fairdealing, and so construes liberally statutes made to suppress frauds between individuals; 5 and, generally, it em
1 Ante, § 62, 66.
* Ante, § 76.
See also post, § 119.
1 Bl. Com. 86, 87; Broom Leg. Max. 2d ed. 60; The State v. Stephenson, 2 Bailey, 334; Neal v. Moultrie, 12 Ga. 104.
"Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule [that penal statutes are to be construed strictly], most statutes against frauds being in their consequences