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$ 113b, Elsewhere — we saw what this doctrine is.?

Here — we are to consider something of its practical forms and methods.

$ 114, Ordinary modes of procedure.- A statute being, as we have seen, a fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it, "where,” said Kent, C. J., it “admits of two constructions, it is advisable to give it that which is consonant to the ordinary mode of proceeding.” Therefore, in the case of an enactment defectively worded, one part of it apparently providing a summary process for the recovery of a penalty, and another indicating the ordinary method, the court pronounced for the latter.) Again,

$ 115. Foreign statutes. In those circumstances in which the tribunal acts for the occasion on foreign laws as its own," and generally where laws are adopted from a foreign country, no distinction is made between the written and the unwritten. Both are looked upon as mingled into one mass. And,

Interpreting statutes of another jurisdiction. In thus acting on or adopting foreign statutes 6 or those of a sister state,


1 Ante, S 86 et seq.

Clifford, 2 McCord, 31; Drew v. Wake2 Ante, S$ 4-7, 86.

field, 54 Me. 291; Scott v. Lunt, 7 3 Bennett v. Ward, 3 Caines, 259. Pet. 596; Plumleigh v. Cook, 13 Ill. And see Minet v. Leman, 20 Beav. 669. 269.

6 Hoyt v. Thompson, 3 Sandf. 416; 11 Bishop, Mar., Div. & S., SS 855, Bloodgood v. Grasey, 31 Ala. 575; 1089; Caldwell v. Vanvlissengen, y [Int. Com. v. R. R. Co., 43 Fed. R. 37.] Hare, 415.

i Carlton v. Felder, 6 Rich. Eq. 58; 5 Huber v. Steiner, 2 Scott, 304, 2 Hale v. Lawrence, 3 Zab. 590, (57 Am. Bing. N. C. 202; Smith v. Bartram, D. 420:] Davis v. Robertson, 11 La. 11 Ohio St. 690; Ruckmaboye v. Mot- An. 752; Johnston v. South Western tichund, 8 Moore P. C. 4; Alves v. R. Bank, 3 Strob. Eq. 263; [Hamilton Hodgson, 7 T. R. 237, 241; Bristow v. R. R. Co., 39 Kan. 56, 18 Pac. R. 57; v. Sequeville, 5 Exch. 275; Pemble v. Nicollet v. Bank, 38 Minn. 85, 35 N.

the court receives with them the foreign interpretation, which is unwritten law, not distinguishing the written from the unwritten. So our national tribunals follow, with the statutes of the several states, the meanings given them by the state courts, when either furnishes the rule for their decision. And, as a broad proposition

§ 116. Origin of law immaterial in interpretation.- In the interpretation of the laws their origin is immaterial. The unwritten, in all their forms, and from whatever sources arising, and all forms of the written, at whatever different dates ordained, are by interpretation blended into one mass, as rounded and perfect as the several natures of the less flexible will permit. And, as observed in part in a previous chapter, —

Au laws require interpretation.— There is no law, written or unwritten, which does not require to be interpreted in its administration. A statute, recent and in general terms, presents greater difficulties than an old and often-adjudicated doctrine of the common law; but neither the one nor the other can be W. R. 577; Savings Co. v. O'Brien, 51 Louisville R. R. Co. v. Miss., 133 U. S. Hun, 45, 3 N. Y. Sup. 764; Stutsman 587, 33 L. ed. 784; Peters v. Bain, 133 1: Wallace, 142 U. S. 293, 35 L ed. U. S. 670,33 L ed. 696; Amy v. Water1018; Coulter v. Stafford, 48 Fed. R. town, 130 U. S. 301, 32 L. ed. 946; Mo

v. Flow, 48 Fed. R. 152; Fadden v. Blocker, 54 S. W. R. (I. T.) Barnes v. Lynch (Okl.), 59 Pac. R. 995; 873. The rules established by the Requa v. Graham, 86 111. Ap. 566; highest courts of a state for deterBlaine v. Curtis, 59 Vt. 120, 7 Atl. R. mining the validity of a state statute 708. Where a statute is adopted, under the state constitution are bind

amendment lately ing on the federal courts. New York added, it takes the construction it Co. v. Board. 99 Fed. R. 846.] bad before amendment. Lindley v. 2 Ante, & 71. Davis

, 6 Mont. 453, 13 Pac. R. 118. * This proposition, properly underThis rule does not hold where the stood, is not in conflict with another, policy of the two states is entirely which is, that, in the words of Vatdifferent. Frankel v. Creditors, 20 tel, “ It is not allowable to interpret Nov. 49, 14 Pac. R. 775.]

what has no need of interpretation." Ante, S 35b; De Wolf v. Rabaud, 1 Vattel, Law of Nations, b. 17, S 263. Pet. 476; Bell v. Morrison, 1 Pet. 351; And see ante, s 72. The meaning of Gardner v. Collins, 2 Pet. 58; Elmen- which is, that a passage should not dorf v. Taylor, 10 Wheat. 152; Har- be bent from its obvious sense. But pending v. Dutch Church, 16 Pet. 455; however plain a writing may be, its Porterfield v. Clark, 2 How. (U. S.) 76; application to facts in controversy is (McElwaine v. Brush, 142 U. S. 155, always a question of interpretation, 35 L ed. 971; So. Branch Co. v. Ott, equally permissible and commend142 U. S. 622, 35 L ed. 1136; Gormly able. v. Clark, 134 U. S. 338, 33 L ed. 009;

266; Sanger




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practically available in litigation except as it is interpreted for the particular instance. For no case can proceed to judgment without compelling from the bench so much interpretation of the law, whether written, un written, or both, as will determine whether or not the proven or admitted facts are within its terms or operation. And no more than this is ever done in the interpretation of any statute. Hence

$ 117. Written and unwritten follow like rules. The written law and the unwritten are interpreted by substantially the same rules. For example,

Minority.-- The common law, for the protection of minors, disables them in general to bind themselves by contract, yet permits it in exceptional circumstances, and with cautiouslydevised limitations. Now, whatever their power of contract may be in a particular class of circumstances, it is precisely the same whether the contract in question is under a statute or at the common law. Again,

Infantile incapacity for crime. — At the common law, a child under seven years of age is incapable of crime. Therefore, when a statute creates a crime, its terms, however general, are no more applied to such a child than are similar terms of the common law. And

§ 117a. In general.— This sort of interpretation extends through all our laws, the written and the unwritten alike. The books contain cases in which counsel and the courts forget it; but none in which judicial persons, with their eyes open and duly warned, deliberately reject it. We sometimes read, in judicial opinions, that those pronouncing them deem it due to the legislature to follow its directions, and not to make exceptions where it has made none; but this sort of language should not be taken as a denial of what every person familiar with our reports knows; namely, that no judge ever deliberately undertook to administer a statute without admitting those exceptions to it which are recognized in the other parts of the legal system. Nor did any legislative body ever proceed on the idea that its enactments are to be put in force by courts so ignorant of legal affairs as to deem them meant for independent rules, to be limited by no others, and to override all laws 1 Bishop, Con., SS 892-946.

3 Crim. Law, I, S 368. 2 Id., $ 273.

4 Ante, S 7; post, $ 131

antagon istic to their general words. For legislatures and courts alike recognize the fact, which common sense teaches to every thoughtful person, that it is neither possible nor desirable, in any system of laws, to attach to each particular law every qualification embraced in every other. So voluminous would the laws thus become, and so often would conflicts be found in them in spite of every legislative caution, and so difficult would it be to explore their immense masses, that their usefulness would be indefinitely diminished.'

$118. Ancient and modern interpretations compared.In ancient times, in England, the statutes were commonly brief and general in their terms. Afterward they became more minute and complicated. And the American statutes follow more nearly the later English models than the earlier. When, in England, they were very brief and general, a good deal of bending, restraining and enlarging of meanings was indispensable to their having any just effect, therefore was permissible. But sometimes interpretation was carried to the practical undoing of what was plainly meant by the enacting power. This, of course, was never justifiable. Modern courts in neither country do it. But the fact of its having been done has created some modern prejudice against what is justifiable and necessary. So that in later days the courts oftener interpret the statutes too little than too


$ 118a. Two methods — (Effect - Meaning).— The methods by which interpretation brings the several statutes into harmony with one another and with the rest of the law, and the rest of the law into harmony with them, producing one jurisprudence, are chiefly two. In appearance they are similar, and they are often spoken of without distinction; but, in their natures, the manner of their operating, and their consequences, they are

the most absolutely distinct things in our legal system. The one method consists of curtailing or extending — in other words, cutting short or adding to - effect of the particular provision of statutory or common law in question, by bringing another law of either sort into combination with it, so that the

together will produce a result not within the terms of either one alone; as two diverse propelling forces, applied to an inert

2 Ante, $ 70.



TAnd see post, & 123.


body, will send it to a point which neither one of itself would do. The other method consists of expanding or contracting the meaning of the law in question, by applying to it the various and differing rules of interpretation; such as, that the legislative intent shall be carried out, or that the statute is of a sort requiring a strict construction, or a liberal,' or some other.

$ 118b. The effect — of combining, as just said, diverse written and unwritten laws, so as to produce results not competent to any of them acting severally, will be fully explained in the next chapter. And,

The meaning.- Further on, it will be shown in detail how, under the influence of differing rules of interpretation, variously called into action by the dissimilar natures of the provisions and their objects and circumstances, statutes are enlarged and contracted in their meanings. But, before we proceed to those fuller explanations, something further seems desirable to be said concerning the —

§ 119. Expansion and contraction of meanings:

Keeping within words.— There are classes of statutes the meanings of which the courts restrict to their express terms, allowing nothing by implication. Thus,

Derogation of common right (Private property to public use).— The taking away of rights is not favored by the law. Therefore statutes in derogation of common right are in the construction kept within their express provisions. Of this sort, for example, is a statute permitting the condemnation of private land to public use. So,

Derogation of common law.- A statute which on its face does not profess to repeal anything, being prima facie an addition to the prior body of the law, will not be construed to change such law further than its direct terms require. This rule is variously expressed: a common form of the expression, coverering the doctrine in part, is, that statutes in derogation of the common law are to be construed strictly, as extending

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1 Ante, $ 70.

B Gilmer v. Lime Point, 19 Cal. 47; 2 Post, SS 119, 191.

In re Powers, 29 Mich. 504. And 3 Post, $$ 120, 191, 227.

see In re Washington Park, 52 N. Y. 4 Indianapolis & Cincinnati R. R. 131. Co. v. Kinney, 8 Ind. 402.

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