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“Persuading to enlist” —(Treason).— Where it was made criminal knowingly and willingly to "aid or assist any enemies, at open war with this state, by persuading others to enlist for that purpose,” the offense was adjudged not complete until the person persuaded had actually enlisted. In like manner,
“ Administer poison” – (Attempt to murder).— A statute against administering poison with intent to murder is not vio. lated until something more is done than a mere delivery of it from the party administering; though perhaps it need not bo taken into the stomach. Again,
“ Coin resembling,” etc.—(Counterfeiting).- Under a statute against buying “any false or counterfeit coin, resembling, or apparently intended to resemble or pass for, any of the king's current gold or silver coin, at or for a lower rate or value than the same by its denomination imports,” the offense is possible only where the counterfeits have been finished ready for circulation.
1 Respublica v. Robert, 1 Dall. 39. into the stomach; Moody says they
2 Rex v. Cadman, 1 Moody, 114; Car. “ seemed to think swallowing not es Crim. Law (3d ed.), 237. Carrington sential.” See post, $ 747. says the judges thought it neces- Reg. v. Bradford, 2 Crawf. & Dix sary that the poison should be taken C. C. 41.
THE LIBERAL INTERPRETATION WHICH MINGLES WITH THE
STRICT. $ 226. Already - Here. We have already seen, in general,
, how the liberal interpretation mingles with the strict, as applied to different clauses and parts, and even to the same parts, of the same statute. Here we are to extend the doctrine into some details.
Doctrine defined.-- The doctrine is that when, from any of the recognized reasons, the main provisions of a statute are to be construed strictly, the same reasons require those which create exceptions, exemptions and the like to be interpreted liberally. And, beyond this, the strict construction as well as, and even more than, the liberal, excepts and exempts, without the aid of any statutory words, whatever, while within the terms of a statute, is not within its motives and purposes.
To what clauses. The most familiar applications of this doctrine are to criminal statutes, and from them the illustrations of this chapter will be chiefly drawn. But it is applied equally to all other statutes which are strictly construed. Thus,
§ 227. Liberal for defendants.— As already seen, while a criminal statute is to be construed strictly in those parts which are against defendants, its construction is to be liberal in those which are in their favor; that is, for their ease or exemption.' And an entire statute, made for their benefit or defense, is equally to be rendered in the same liberal way. To illustrate,
Counsel in treason.- While, in England, the common law denied counsel to persons on their trials for treason or felony,' the statute of 7 Will. 3, ch. 3, § 1, was passed. It provided that, in indictments for high treason, “all and every person, etc., shall be received and admitted to make his and their full 1 Ante, SS 196–198.
Com., 6 Dana, 338; Dull v. P., 4 Denio, 2 Ante, SS 196, 197. And see Hew- 91. ard v. S., 13 Sm. & M. 261; Sneed v. * Crim. Pro., I, SS 14–19; 5 How. St.
Tr. 471, note
defense by counsel, etc.; and the court, etc., is required immediately, upon his or their request, to assign to such person and persons such and so many counsel, not exceeding two, as the person or persons shall desire.” This provision, the reader perceives, was in favor of the accused; to be, therefore, liberally construed. So it was held that, where more persons than one were indicted jointly, each was entitled to two counsel.' Again,
$ 228. “ Name subscribed” —(Threatening letters).— Under the English statutes of 9 Geo. 1, ch. 22, § 1, and 27 Geo. 2, ch. 15, against sending threatening letters? “ without any name subscribed thereto, or signed with a fictitious name," a threatening letter, to be within the inhibition, must be not only within these statutory words but within their spirit also. If the letter in question, while not signed by any name real or fictitious, is in the undisguised handwriting of the accused, and the person threatened is familiar with it, - or, if it contains allusions showing that the sender meant to make known who he was,the statutory offense is not committed; because, although the letter is “ without any name subscribed thereto" within the words of the act, it is still not unsigned within its spirit.” The provision requiring the name to be fictitious or unsigned, the reader perceives, creates an exemption in favor of the prisoner; so that, by the liberal construction demanded, facts within the spirit of the words are equivalent to those within the words. So, on the other hand,
$ 229, “ Divorced (Proviso in polygamy).— If the statute has an exception or proviso in the defendant's favor, he, for his proteetion, need only bring himself within its letter, regardless of its spirit. For example, the first English act against polygamy excepted out of its penalties persons "divorced;" and this was held, correctly, yet contrary to the entire policy of the law, to shield from punishment those who should contract second marriages after a judicial separation from bed and board, such a separation being called a divorce. “It is also,
11 East, P. C. 111. And see Crim, • Post, $ 579; 1 Bishop, Mar., Div. Pro., I, § 1010.
& S., $ 715. 2 Crim. Law, II, $ 1200.
83 Inst. 89; 1 Hale, P. C. 694; Por3 Rex v. Heming, 2 East, P. C. 1116, ter's Case, Cro. Car. 461; Middleton's 1 Leach, 445, note.
Case, J. Kel. 27.
adds East, “agreed that a second marriage, pending an appeal from a divorce a vinculo matrimonii, is aided by this exception; though the appeal suspends, and possibly may repeal, the sentence; in which case the second marriage would of course be invalid."! Hence,
$ 230, Contract and expand. - The doctrine is that, in favor of accused persons, criminal statutes may be either, according to the form of the provision, contracted or expanded by interpretation in their meanings, so as to exempt from punishment those who are not within their spirit and purpose; while, at the same time, as the last section shows, and as ex. plained in the last chapter, they can never be expanded against the accused, so as to bring within their penalties any person who is not within their letter. Otherwise expressed, whenever the thing done is not within the mischief evidently intended by the statute, though it is within its words, the doer is not punishable; while, on the other hand, one may defend himself by showing, if he can, that either the main part of the enactment, or some exceptive clause thereof, is so unguardedly worded as to open an escape for him through the letter, his act being still a complete violation of its spirit. Further to particularize,
$ 231. First. In favor of defendants, criminal statutes will be contracted by interpretation, so as to avoid punishing those who, though breaking their letter, have not violated also their spirit. Thus,
Cutting short in effect.— Their effect will be cut short, as explained in a previous chapter. Within this principle,
Wilful transgression.— Statutes in general terms may be restricted by interpretation to cases in which the transgression was wilful. In this way, too, 11 East, P. C. 467.
every offense is not universal. Knight 2 Ante, S 122 et seq.
v. S., 64 Miss. 802; Strahan v. S., 68 3 Ante, SS 131, 132; Crim. Pro., I, Miss. 347, 8 S. R. 844; Grand Rapids S$ 522, 523; Reg. v. Cohen, 8 Cox, v. Bateman, 93 Mich. 135, 53 N. W. C. C. 41, 42; S. v. Simpson, 73 N. C. R. 6; S. v. Adams, 108 Mo. 208, 18 S. 269; P. v. Powell, 63 N. Y. 88; Reg. W. R. 1000. Cf., however, P. v. Welch, v. Matthews, 14 Cox, C. C. 5; Marietta, 71 Mich. 548, 39 N. W. R. 747; P. v. etc. R. R. Co. v. Stephenson, 24 Ohio Umlauf, 88 Mich. 274, 50 N. W. R. St. 48; Watson v. Hall, 46 Conn. 204; 251; S. v. Johns, 124 Mo. 379, 27 S. W. White v. S., 44 Ala. 409. [The rule R. 1115.] that an intent is an ingredient of
False pretenses, etc.— Interpretation greatly restricts the statutes against false pretenses;' indeed, the books are full of illustrations of the same principle. And, generally,–
Meaning of makers.— If the thing done is not within the intention of the law-makers, it is not within the law, though within its letter.3
§ 232. Another form of the doctrine.- This doctrine is commonly stated in terms somewhat narrower than the above; namely, that the acts to be punishable must come, not only within the words of the statute, but also within its reason and spirit, and the mischief it was intended to remedy.' Thus,
Slare trade.- An act of congress made it punishable “to import or bring in any manner into the United States or territories thereof, from any foreign kingdom, place, or country, any negro, mulatto, or person of color, with intent to hold, sell, or dispose of such negro, mulatto, or person of color as a slave, or to be held to service or labor.” And this act was adjudged, in the time of slavery, not to be violated by conveying slaves from the United States to Europe, and thence back, to be held again in bondage; because its object was to put an end to the slave trade; so that, though the case was within its letter, it was not within the mischief to be suppressed. Again,
“Selling for slave” –(Consent of injured person).— The sale of a free negro into slavery, with his own consent, under the collusive agreement between him and the seller to divide
1 See ante, $ 133; also P. v. Stetson, begin, 25 Me. 500; 8. v. Lane, 8 Ire. 4 Barb. 151; Rex v. Douglas, 1 Moody, 256; Hancock v. Sturges, 13 Johns. 462; Reg. v. Henderson, Car. & M. 331; Preston v. Hunt, 7 Wend. 53; 328.
Richardson v. Broughton, 3 Strob. 1; 2 See ante, SS 123, 141, 190. And S. v. Johnson, 1 Dev. 360; Rex v. see Reg. v. Marner, Car. & M. 628; Sharpe, 1 Moody, 125; Wood v. Smith, Richardson v. Broughton, 3 Strob. 1. 23 Vt. 706; Com. v. Slack, 19 Pick.
3 S. 1. Clarksville & R. T. P. Co., 2 304; Wragg v. S., 14 Ala. 492; U. S. Sneed, 88.
v. Hiler, 1 Morris, 330; Rex v. Will4 Haynes v. S., 5 Humph. 120; Dag- iams, 1 Leach, 529; (S. v. Botkin, 71 gett v. S., 4 Conn. 60, [10 Am. D. 100;] Iowa, 87, 32 N. W. R. 185; Hanks v. S. v. Sumner, 10 Vt. 587, [33 Am. D. Brown, 79 Iowa, 560, 44 N. W. R. 811; 219;} Com. v. Clark, 2 Ashm. 105. S. v. Bancroft, 22 Kan. 202; Ex parte And see, for illustrations, besides the Bailey, 39 Fla. 734, 23 S. R. 552; R. R. other cases referred to, Reg. v. Mar. Co. v. Jones, 149 Ill. 361, 37 N. E. R. ner, Car. & M. 628; 8. v. Boozer, 5 247; Cearfoss v. S., 42 Md. 403.] Strob. 21; S. v. Mahan, 2 Ala. 340; 5 U. S. v. The Garonne, 11 Pet. 73. Rex v. Corry, 5 East, 372; 8. v. New- 6 Crim. Law, I, SS 257-263.