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all cases where the legislature means to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject, further than that that exposition ought to be adopted in this, as in other cases, which carries into effect the true intent and object of the legislature."1 It is often only permissive.2 "Private statutes, made for the accommodation of particular citizens or corporations, ought not to affect the rights or priv ileges of others, unless such construction results from express words, or from necessary implication. Kent, C. J., once observed, that, "where a statute admits of two constructions, it is advisable to give it that which is consonant to the ordi nary mode of proceeding;" and so, an act being defectively drawn, one part seeming to provide for a summary proceed. ing, and another for a proceeding in the ordinary way, he held the latter to be the authorized one. The supreme court of the United States, in construing the statutes of the States, is governed by the decisions of the State tribunals; except on the question of their being in conflict with the con stitution, laws, or treaties of the United States. In like manner do the State tribunals follow the decisions of the State whose statutes they are construing. And the statute: laws of a foreign country receive the meaning given them in that country.7

1 Minor v. Mechanics Bank, 1 Pet. 46, 64. And see Ex parte Simonton, 9 Port. 390; Newburg Turnpike v. Miller, 5 Johns. Ch. 101; Commonwealth v. Gable, 7 S. & R. 423; Rex v. Commissioners Flockwold Inclosure, 2 Chit.


* Ex parte Yeager, 11 Grat. 655. And see Leigh v Westervelt, 2 Duer,


3 Parsons, C. J., in Coolidge v. Williams, 4 Mass. 140, 145; Wales v. Stetson, 2 Mass. 143; Hood v. Dighton Bridge, 3 Mass. 263; Perry v. Wilson, 7 Mass. 393; Sprague v. Birdsall, 2 Cow. 419.

Bennett v. Ward, 3 Caines, 259.

"De Wolf v. Rabaud, 1 Pet. 476; Bell v. Morrison, 1 Pet. 351; Gardiner v. Collins, 2 Pet. 58; Elmendorf v. Taylor, 10 Wheat. 152; Harpending v.

Dutch Church, 16 Pet. 455; Porterfield v. Clark, 2 How. U. S. 76.


Carlton v. Felder, 6 Rich. Eq. 58; Hale v. Lawrence, 3 Zab. 590.
Hoyt v. Thompson, 3 Sandf. 416.


§ 154 a. Concerning the computation of time in statutes, various rules have been laid down by the courts. Thus, generally, no fractions of a day are to be made. But where the question of priority between different things done is involved, the court inquire which was the first done.2 And the rule has other necessary exceptions. There are other rules relating to the computation of time; but a reference to some of the authorities will suffice as to them.3

§ 155. In concluding our statements of doctrines on the subject of statutory interpretation, we may venture the suggestion to those readers who are engaged in the study of the law, that, in their future course of legal learning, they give a particular attention to this subject. There is no day in the practice of a lawyer when he is not called upon to construe some statute; and the call is a double one; first, to consider what the legislature really intended; secondly, what the judges will suppose it intended. With a single further observation, we shall pass to the next division of our subject. There are many English statutes and some American ones, which contain what is called an interpretation clause; and, in many of the States, there are a few rules of interpretation provided by general legislative enactment. These clauses and provisions the legal practitioner should be careful not to overlook.

1 Ante, § 59; Reg. v. Edwards, 9 Exch. 32, 23 Law J., N. S., Exch. 42.
Lang v. Phillips, 27 Ala. 311.

*The State v. MeLendon, 1 Stew. 195; Garner v. Johnson, 22 Ala. 494;
Boyd r. Commonwealth, 1 Rob. Va. 691; Owen v. Slatter, 26 Ala. 547;
The State v. Schnier, 5 Rich. 299; Barr v. Lewis, 6 Texas, 76; Common-
wealth v. Jones, 2 Jones, Pa. 365; Abrahams v. Commonwealth, 1 Rob. Va.
675; Kimm v. Osgood, 19 Misso. 60; Peables v. Hannaford, 18 Maine, 106;
The State v. Godfrey, 3 Fairf. 361; Pulling v. People, 8 Barb. 384.

* See ante, § 118.





SECT. 156-158. Introductory Views.

159-162a. The Person Acting.

163-184. The Time and Place.

185-196. The Thing Done,

197-222. The Objects acted upon and the Instrumentalities.
228-225. The Proceedings.

§ 156. EVERY thoughtful person has reflected, how almost infinite is the variety of things. From this immense variety come two facts, to be noticed introductorily to the present chapter. One fact is, that the minds of men so differ, in their original conformation, and superadded habits of thought, that no two will attach precisely the same meaning to any word or combination of words. The other fact is, that there is no limit to the varieties of thoughts which human language may have occasion to utter; while necessarily the number of words is comparatively small. And to convey these numerous thoughts with these few words requires every individual word to have numerous meanings. Practically, there-fore, the meanings of words are not absolute and fixed; but vary in form and degree and aspect, with the subjects to which they are applied, with the relations they sustain to other words in the same sentence or paragraph, with the particular development of the language at the time of using them, with the mental conformation of the speaker, and with an infinite variety of other things. The dictionaries give us only a few of their leading significations. We may therefore state, that no man ever expressed with entire accuracy any one idea of his own mind; and that no two men ever understood any one expression of thought precisely alike.


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§ 157. To obviate, in the language of the law, this difficulty, the judges have undertaken to establish meanings to the more common words and expressions employed. The consequence is, that many phrases and single terms have thus acquired a precise legal meaning, more or less broad than the popular one; or a particular precise meaning in one branch of jurisprudence, and another precise meaning, or the popular one, in another branch.1 And we shall find our way through the later pages of this work made easy, if we here traverse, for a little while, this technical field. We shall look as well into the common as into the statutory criminal law; for we have already seen,2 that words and phrases have usually the same signification in both. But writer and reader should alike proceed cautiously here; for, in the midst of the general flexibility of human language, it is a bold and dangerous thing to say of any word or phrase, however technical, such or such is its exact sense, neither more nor less, in every place where it may possibly be found. Nor shall we deem it wise, in this connection, to go over the entire technical language of the criminal law; for much of it is better explained as we proceed with the main subject. Some words and phrases, too, which might seem to demand a particular explanation here, are so modified by the matter to which they relate, and by the other words of the statutes in which they occur, that we could not do them full justice without devoting to them more space than we can spare; while, on the other hand, it will help the practitioner to be referred to the cases, which he may examine for himself.

§ 158. We shall consider the various words and phrases, employed concerning the various things, in the following order: I. The Person Acting; II. The Time and Place; III. The Thing Done; IV. The Objects acted upon and the Instrumentalities; V. The Proceedings.

1 See ante, § 70, 72, 123.


Ante, § 70.

I. The Person Acting.

These words all

§ 159. Agents, Servants, Clerks, &c. admit of a broad signification, yet are often limited by their connection with other words in the statute, and by the subject to which they relate. Thus, it is a familiar principle in civil jurisprudence, that a man who assumes without authority to act as another's agent, may be charged as such; but this rule is not applied to criminal statutes; the agent must be one in fact. So it appears from some of the cases, that in the law of embezzlement he must be an agent generally, not merely employed specially to do a single act in the particular matter; yet he need not devote his whole time or any considerable part of it to his employer, or be regularly or constantly in his service. This question, however, is discussed in our second volume.5 And the various distinctions on this subject will be best considered in connection with the statutes themselves.6

1 See Vol. II. § 286-293.

Rex v. Thorley, 1 Moody, 343.

And see Morse v. The State, 6 Conn. 9. * Rex v. Freeman, 5 Car. & P. 534; Rex v. Haydon, 7 Car. & P. 445; Rex v. Nettleton, 1 Moody, 259; Reg. v. Smith, 1 Car. & K. 423. And see Rex v. Smith, Russ. & Ry. 516; Rex v. Beacall, 1 Car. & P. 310; Reg. v. Gibbs, Dears, 445, 24 Law J., N. s., M. C. 62, 1 Jur., N. s., 118, 29 Eng. L. & Eq. 538.

* Rex v. Spencer, Russ. & Ry. 299; Rex v. Hughes, 1 Moody, 370; Reg. v. Batty, 2 Moody, 257; Rex v. Carr, Russ. & Ry. 198; Rex v. Leach, 3 Starkie, 70.

5 Vol. II. § 291.

See Reg. v. Atkinson, 2 Moody, 278; Rex v. Hartley, Russ. & Ry. 139; Rex v. Squire, 2 Starkie, 349; Reg. v. Atkinson, Car. & M. 525; Rex v. Beacall, 1 Car. & P. 310; Rex v. Prince, 2 Car. & P. 517; Rex v. Snowley, 4 Car. & P. 390; Rex v. Pearson, 4 Car. & P. 572; Rex v. Salisbury, 5 Car. & P. 155; Reg. v. Townsend, Car. & M. 178; Reg. v. Hunt, 8 Car. & P. 642; Reg. v. White, 8 Car. & P. 742; Reg. v. Wilson, 9 Car. & P. 27; Reg. v. Welch, 2 Car. & K. 296; Reg. v. Townsend, 2 Car. & K. 168; Rex v. Rees, 6 Car. & P. 606; Reg. v. Masters, 1 Den. C. C. 332, 2 Car. & K. 930, 1 Temp. & M. 1, 18 Law J., N. s., M. C. 2; Reg. v. Miller, 2 Moody, 249; Rex v. Mellish, Russ. & Ry. 80; Rex v. Burton, 1 Moody, 237; Budd v. The State, 3

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