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legislature. The legislature makes its statutes, knowing of the rules, which it does not repeal. It therefore requests the courts, as distinctly as if it spoke in words, to apply them to its statutes. If it desired a different course' pursued, it would enact other rules; as indeed legislatures sometimes do, regarding particular provisions of statute law.
$ 144. At the same time we should remember, that the words of a statute are our primary guide to its meaning.? On this point, Shaw, C.J., in a Massachusetts case, observed, that “it is not unusual in legislation, when a particular apprehended wrong or grievance is the immediate occasion for the passing of an act, to extend it to other wrongs of the like kind, and make a general instead of a special provision.” 2 Therefore, in the case before the tribunal, an act, the motive for which was probably to prevent colored people from being kidnapped, and reduced to slavery in other States, was held applicable to the seizure and carrying away of white men for a different purpose.
$145. Care should be taken neither to misapply our rule, 4 nor carry it too far. Thus, where a statute forbids trading with a slave without a permit from his master in writing, a person is not justified in acting on a verbal permit. And an inhibition of marrying minors, “unless the parent be present and consent to the marriage, or give a certificate in writing under his hand,” is violated by a clergyman who per
Ante, $ 67, 88. • Commonwealth v. Blodgett, 12 Met. 56, 79. But see Rex v. Williams, 1 Leach, 4th ed. 529.
Commonwealth v. Blodgett, supra. And see for a further statement of this case, ante, $ 123. * Stated ante, $ 141. And see,
besides the other cases cited to this section, Rex v. Ledbitter, 1 Moody, 76; The State v. Findley, 1 Brev. 107.
* The State v. Hart, 4 Ired. 246; The State v. Stroud, 1 Brev. 551. As to what words in a permit are sufficient, see Hurt v. The State, 19 Ala. 19.
forms the ceremony in the absence of the parent; though the parent had expressed verbally to third persons his approbation of the marriage, of which he was cognizant. So a general prohibition against doing worldly business on the Lord's day, extends to persons who conscientiously observe the seventh day of the week as the Christian sabbath.?
§ 146. Nor should we be surprised at finding some contrariety of decision under this rule. The minds of judges, as of other men, differ; some seeing the same thing differently from the rest, and some esteeming themselves more closely bound than the rest to the letter of the law. Thus, in Massachu. setts, under the statutes against selling intoxicating drinks without license, the terms being general, it has been decided, that no necessity of the purchaser to use the liquor, even if prescribed by a physician as an indispensable medicine, which no person in the county has authority to sell, will protect the vendor. In Indiana, on the other hand, under a similar provision, the court, entering more into its spirit and following the principle of legal interpretation we are considering, held, that a druggist is justified, upon a proper occasion, bond fide, and with due caution, in retailing liquor to be used merely as a medicine. The statute of Tennessee against permitting slaves "to go about the country under the pretext of practising medicine, or healing the sick,” is interpreted to embrace all circumstances of medical practice, even those in which the slave is competent to exercise the healing art, and undertakes it, with his master's encouragement, from
1 Wyckoff v. Boggs, 2 Halst. 138. See ante, $ 141 and note.
Specht v. Commonwealth, 8 Barr, 312. : See, besides the other cases cited to this section, The State v. Griffin, 3 Harring. Del 560; The State v. Isaacs, 1 Speers, 223.
* Commonwealth v. Sloan, 4 Cush. 52; Commonwealth v. Kimball, 24 Pick. 366.
6 Donnell v. The State, 2 Cart. Ind. 658. See also on this point, People v. Safford, 5 Denio, 112; Wood v. Smith, 23 Vt. 706. And see, as illustrative, Brown v. Maryland, 12 Wheat. 419; Bode v. The State, 7 Gill, 326 ; Hall v. The State, 4 Harring. Del. 132. See further, Vol. II. $ 998.
motives of humanity. In Indiana, the law against carrying weapons concealed about the person is held to be broken by so carrying a pistol for the purpose of merely exhibiting it as a curiosity. These several cases evidently lie close to the line dividing the two methods of interpretation, and we need not be surprised at seeing different views entertained concerning them.
$ 147. Secondly. Criminal statutes are expanded in favor of defendants, not only as explained in our chapter before the last, but also after the manner of remedial laws. This proposition is illustrated in those cases, already referred to, where acts general in terms are construed to require the concurrence of a wrongful intent with the thing done; and in most of the cases cited to the point that a statute will not be suffered to extend beyond the mischief contemplated by it,e — the court in fact inserting, by construction, a clause in favor of the accused.
So under Stat. 1, Edw. 6, c. 12, $ 10, - which takes away clergy from persons convicted of “breaking any house by day or by night,” any one being therein put in fear, and also from the perpetrators of certain other enumerated crimes, which were felonies; and then adds, that clergy shall be allowed " in all other cases of felony," - it was held, that, to bring a defendant within the former clause, the breaking must be such as amounts to a felony. “So that,” observes Mr. East, “ the general words of it ought to be applied with an intendment; namely, where the party is convicted of breaking the house in the night burglariously, or in the day, and steal
Macon v. The State, 4 Humph. 421. • Walls v. The State, 7 Blackf. 572. . Ante, $ 79, 82, 83.
* See 1 East P. C. 248. And see Duchess of Kingston's case, 1 Leach, 4th ed. 146.
* Ante, $ 80, 140;. Reg. v. Allday, 8 Car. & P. 136; Smith v. Kinne, 19 VL. 564.
. Ante, $ 141, 142.
ing therein."1 So it is a general proposition, that, whenever a statute makes the second offence a felony, the first being a misdemeanor; or punishes the second more heavily than the first, — this must be enlarged to mean, after a conviction for the first, and not merely after it is committed. 3
1 2 East P. C. 625, 631.
$147 a. In the foregoing chapters of statutory interpretation, we have examined the leading doctrines on the subject, in connection with their leading illustrations. But the order of the discussion which was found to be most convenient has left us some principles for our after consideration. We shall look at them in the present chapter.
$ 148. In obedience to the doctrine, that when the legislative meaning is plain, the exact grammatical construction and propriety of language may be disregarded, even in a penal statute, - the courts have interpreted the word “and” as disjunctive, and the word “or” as conjunctive, when the sense absolutely required it;2 and this, in extreme cases, in criminal statutes against the accused. So the word " such,” when evidently it has no reference to any thing preceding it, may be disregarded.
Ante, $ 128. · The State v. Mitchell, 5 Ired. 350; Hall's case, Cro. Eliz. 307; Creswick v. Rooksby, 2 Bulst. 47; Waterhouse v. Kean, 4 B. & C. 200, 6 D. & R. 257; Dwar. Stat. 2d ed. 682; Smith Stat. & Const. Law, 732; Barker r. Esty, 19 Vt. 131.
* The State v. McCoy, 2 Speers, 711; The State v. Miles, 2 Nott & MeCord, 1; Foster v. Commonwealth, 8 Watts & S. 77. Contra, The State v. Kearney, 1 Hawks, 53. It has on the other hand been said, by way of dictum, that “and,” in a penal statute, can never be construed to mean "or." United States v. Ten Cases of Shawls, 2 Paine, C. C. 162. • The State v. Beasley, 5 Misso. 91.