Изображения страниц
PDF
EPUB

strangers, while within the limits of a city or town, are as much bound by these local regulations as the citizens.

§ 58 a. It seems, that a by-law imposing a penalty for a particular act is not void simply because the act is made penal also under a general law of the State. A statute of Maine having the provision, that, if an officer “shall detain any offender, without warrant, longer than such time as is necessary to procure a legal warrant,” he shall, &c., - the courts hold a town by-law, giving the officer power to detain forty-eight hours without warrant, repugnant to the statute and void. A legislative authority to impose forfeitures does not give to the corporation power to declare the forfeiture without notice to the party.*

$ 58 b. A treaty, duly made and ratified, is a species of law, binding on the courts. But some treaties require the action of congress to carry them into effect; and, until such

· Pierce v. Bartrum, Cowp. 269; Whitfield v. Longest, 6 Ired. 268; Horney v. Sloan, 1 Cart. Ind. 266; Vandine, petitioner, 6 Pick. 187; Willcock Corp. 105; Charleston v. Pepper, 1 Rich. 364. Commonwealth v. Dow, 10 Met. 382, seems to have proceeded upon the language of the statute which authorized the by-law. See further on this point, Commonwealth v. Stodder, 2 Cush. 562, and Commonwealth v. Chase, 6 Cush. 248. Some by-laws were made, pursuant to a statute, "to prevent negroes from hiring their time;" and the court observed: “These laws have no obligatory force beyond the boundary of the corporation; and if the owner of a slave, not residing in Nashville, permit his slave to go at large in Nashville, the only method by which the corporation could protect itself would be, to take hold of the slave and indemnify itself either by his labor for its use, as the State law prescribes, or by its retaining him in custody until the master shall choose to discharge him by the payment of the fine imposed, as the ordinance in this case prescribes.” Hoggatt v. Bigley, 6 Humph. 236. See also on this point, Horney v. Sloan, supra. The subject of by-laws is fully and ably discussed in the excellent work of Angell & Ames on Corporations, to which the reader is referred.

* Rogers v. Jones, 1 Wend. 237; ante, $ 58, note,
* Burke v., Bell, 36 Maine, 317.
* Rosebaugh v. Saffin, 10 Ohio, 31.

2

action, they cannot have a practical force. Other treaties, on the other hand, require no such action.

§ 58 c. The foregoing sections of this chapter disclose the sources of the written law. But they do not show, what is of the highest importance, under what rules of interpretation, and by what processes of court, it is enforced. And let the reader here be reminded, that this is a matter secondary in interest to nothing which concerns the law.. In respect to the interpretation of the statutes, the courts have immense power, almost equal to the power of making them originally. For, in the complication of human affairs, and the limited grasp of the human intellect, the legislature necessarily overlooks many

of the new manifestations of human wickedness lying in the future. And if the courts had no power of moulding the laws to suit unforeseen events, they would not be able to administer justice. More than this, the meaning of the legislature, as actually applying to cases foreseen, is always liable to different interpretations. And the common law, that element which pervades all our institutions and associations, has pfovided for these things, in its rules of interpretation; which rules the statutes themselves do not undertake to change, except in rare instances by express words. And, said Lord Chief Justice Eyre: “There is nothing so clear as, that, let the proposition in an act of parliament be what it may, more or less distinct, it is always a question of law, what is the meaning and the true import of that act of parlia. ment, and whether any case of fact that can be stated is a case that comes within the meaning of that act of parliament.

... No distinction can be taken in this case, because it happens that the description of the offence in the statute is comprised in two or three words; the law may be clearer upon that account; but the rule of construction, with reference to

· Turner v. American Baptist Missionary Union, 5 McLean, 344. See ante, $ 19.

the question whether it should be taken to be the construction of law, a mere matter of fact, is exactly the same.” 1

[ocr errors]

§ 59. By the common law of this country, all statutes take effect from their passage;2 in other words, from when complete validity is given them by the sanction of the legislature, and the signature, if necessary, of the executive. This rule is inexorable; and it is no excuse for a man who violates a written law, that no intelligence of its existence could possibly have reached him then. In England, anciently, the rolls

, of parliament were made up by the judges after its adjournment; no specific dates were attached to the several acts, but, as Dwarris says, they were “strung together” into one statute, with usually only mention of the time and place of the meeting of parliament, and the occasion of its meeting.5 They were all therefore holden to take effect from the first day of the session. Our legislative acts bear each its several date; and, as no divisions of a day are allowable, they go into operation from the first moment of the day on which they receive the executive sanction. These rules are found

[ocr errors]

· Horne Tooke's case, 25 Howell, St. Tr. 1, 726.

1 Kent Com. 454, 455 ; Matthews v. Zane, 7 Wheat. 164, 211; Heard v. Heard, 8 Ga. 380; The State v. Click, 2 Ala. 26; Smets v. Wetherbee, R. M. Charl. 537; Rathbone v. Bradford, 1 Ala. 312; Goodsell v. Boynton, 1 Scam. 555; Temple v. Hays, Morris, 9. In Johnson v. Merchandise, 2 Paine, 601, it was said that a statute takes effect from its passage; a private executive instruction, from the time of being communicated to the person.

* In Tennessee, statutes when signed relate back to the time of their passage. Dyer v. The State, Meigs, 237.

* The Ann, 1 Gallis. 62; Branch Bank of Mobile v. Murphy, 8 Ala. 119; post, $ 239.

5 Dwar. Stat. 2d ed. 16, 31, 34, 36, 37, 460. o The Ann, supra.

? Matter of Welman, 20 Vt. 653; United States v. Williams, Paine, 261; Matter of Howes, 6 Law Reporter, 297. Contra, Matter of Richardson, 6 Law Reporter, 392. Possibly the question is still open, whether, in the case of a penal statute, this rule is not objectionable as rendering it ex post facto in respect to offences committed in fact at an hour of the day earlier than sometimes to work practical hardships; and therefore, by special provisions of law in some of the States, statutes do not take effect until a certain time after their passage, or until their publication. Of course the act itself may, as it often does, fix a time different from the general rule, when no constitutional inhibition stands in the way. But when the intent is to fix a different time, the words showing it must be direct and unequivocal.3

a

a

that on which the statute was passed. See United States v. Williams, supra. In People v. Clark, 1 Cal. 406, the majority of the court held the day to be divisible, as respects the time a statute goes into operation, being the moment of its passage. See also United States v. Arnold, 1 Gallis. 348; Lang v. Phillips, 27 Ala. 311; Kimm v. Osgood, 19 Misso. 60.

· Cooper v. Curtis, 30 Maine, 488.
. Tredway v. Gapin, 1 Blackf. 299.
* Wheeler v. Chubbuck, 16 Ill. 361.

[93]

CHAPTER VIII.

GENERAL RULES OF INTERPRETATION.

SECT. 60-62 a. Introductory Considerations.

63-64 a, The Title and Preamble.

65. Other Things outside the Purview.
66-66 e. General Rules concerning the Enacting Part.
67-73 6. Remaining Points.

$ 60. In entering on the subject of statutory interpretation, we must carry in our minds the fact that our discussion concerns the criminal law distinctively, not the common law at large. But the rules are the same in the criminal as in the civil department, except that a few relate to the criminal alone. We shall therefore, in these chapters, bring under review most of the doctrines of this entire subject; illustrating them, however, by references chiefly to criminal cases.

[ocr errors]

§ 61. Preliminarily to our investigation, let us call to mind some observations from a book not properly of the legal class. “No sentence or form of words," says the writer, “can have more than one “true sense;' and this only one we have to inquire for. This is the very basis of all interpretation. Every man or body of persons, making use of words, does so in order to convey a certain meaning; and to find this precise meaning is the object of all interpretation. To have two meanings in view is equivalent to having no meaning, and amounts to absurdity. .... The fictitious law case, composed by Pope and Fortescue, as having ensued in consequence of Sir Jobn Sawle having bequeathed to bis friend Mr. Straggling all my black and white horses, when there were found six black horses, six white ones, and six that were black and white, or pied horses, is certainly entertaining.

« ПредыдущаяПродолжить »