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written and statute law, being of old duly and formally promulgated to the people, could never be what Lord Bacon says of Henry the Seventh's laws, " as a nemo scit," and of these rules of conduct no judge, producing a manuscript decision, can say, Lo! I have the law in my side pocket."(a)
§ 436. No one can be punished without an injury or fault having been committed. Nemo punitur sine injuria, facto sine defalto. Where a statute provided that, in case of a disseisor alienating lands, and not being able to satisfy the damages, they to whose hands the lands and tenements shall come should be charged with the damages, &c. Now, if the tenant cometh to the lands by act of law, which he cannot withstand, and where there is no act or default on him, he shall not be charged. For instance, if the disseisor aliened to A. and his heirs, and A. dieth without heirs, the law cast the land upon the lord, to the end that there may be a tenant to the præcipe. In this case, if the lord doth not take any profits of land, in a suit brought against him for the land, the lord may plead the special matter, and to discharge himself from damage; for although he be tenant of the land, yet he is no tenant, (against his will) within the meaning of this statute, because there is no wrong or default in him.(b)
§ 437. Actus legis nemini est damnosus. An act of law is damage to no one. Where an act for enlarging the term granted to a patentee for the enjoyment of his patent, provided that in case the power, privilege, or authority granted by the letters patent should become vested in more than five persons, or their representatives, at any one time, otherwise than by devise, or succession, all liberties, privileges, &c., should cease. The paten
(a) Watkins on Conveyances, preface. 1 Steph. Ele. L. 14. (b) 2 Inst.
tees having become bankrupts, it was held, that this clause applied only to an assignment by act of the party, and not to an assignment by operation of law.(a) Absoluta sententia expositere non indiget. Lord Coke says this is the case where the words are plain without any scruple, and absolute without any saving.(b)
(a) Bloxam and another, assignees, v. Elsce, 6 B. & C. 169. (b) 2 Inst. 533.
OF INTERPRETATION AND CONSTRUCTION.
§ 438. We shall now enter upon the main and most important question which arises under this branch of our subject that of interpretation and construction of statutes. Under this head, we shall have occasion, in the prosecution of our inquiries, to go somewhat into the doctrines and rules adopted by ethical writers, and writers upon the civil law, and incidentally, to some extent consider the rules that obtain in the interpretation, and construction of written instruments, and commercial contracts. We should remark, however, that the rules adopted in the latter class of instruments, do not always prevail in the construction of statutes.
§ 439. Interpretation and construction, when applied to statutes, have been sometimes considered as synonymous terms. Lieber, in his admirable work on Legal and Political Hermeneutics, defines interpretation thus:"Interpretation is the art of finding out the true sense of any form of words-that is, the sense which their author intended to convey-and of enabling others to derive from them the same idea which the author intended to convey. Construction is the drawing of conclusions respecting subjects that lie beyond the direct expressions of the text, from elements known from, and given in the text-conclusions which are in the spirit, though not in the letter of the text. Interpretation only takes place if the text conveys some meaning or other. But construction is resorted to, when, in comparing two different writings of the same individual or two different enactments
by the same legislative body, there is found contradictions where there was evidently no intention at such contradictions one of another, or where it happens that part of a writing or declaration contradicts the rest. When this is the case, and the nature of the document or declaration, or whatever else it may be, is such as not to allow us to consider the whole as being invalidated by a partial or other contradiction, then resort must be had to construction. So too, if found to act in cases, which have not been foreseen by the framers of those rules, by which, we are nevertheless obliged, for some binding reason, faithfully to regulate as well as we can an action respecting the unforeseen case.
§ 440. In politics it signifies generally the supplying of supposed, or real imperfections, or insufficiencies of a text, according to proper principles and rules. By insufficiency is to be understood, both imperfect provisions for the cases, which might, or ought to have been provided for, and the inadequateness of the text for cases, which human wisdom could not foresee. He illustrates this, in the instance of the application of a very ancient charter, to cases arising out of entirely and radically new relations, which have since sprung up, and which cases nevertheless clearly belong to that province of human action for which the charter was intended. This definition of construction, in its application to text of inferior authority or importance which partially militate with the demands of superior authority, will show us, that construction is the causing of the text to agree and harmonize with the demands or principles of superior authority, although they are not, according to the immediate and direct meaning of the words constituting the text, contained in it. Thus it is construction which saves in many instances from sacrificing the spirit of the text, or the object, to the letter of it, or the means by which that object was to be obtained.
§ 441. It has been very justly said by him, that without construction, written laws, in fact any laws or other texts containing rules of action, specific or general, would in many cases become fearfully destructive to the best and wisest intentions-nay, frequently produce the very opposite of which it was purposed to effect. After laying down the rule, that the constructor is not allowed to proceed without rule, or arbitrarily, but is to draw conclusions from the elements given in the text, he holds that the proper principles of construction are those which ought to guide us in good faith and conscience, and that they may be two-fold. 1st. If the text itself is the declaration of fundamental principles, which we are bound to follow in a certain sphere of action, and of certain fundamental forms, which are to regulate our actions, in this case, construction signifies the discovery of the spirit, principles and rules that ought to guide us according to the text, with regard to subjects on which that declaration is silent, but which nevertheless belongs to its province. If, for instance, a political constitution or charter, has been adopted or granted to regulate our political actions, and a case occurs which has not been provided for, but which is of an undoubted political character, we have to search for its true spirit and act accordingly in the case under consideration. 2d. Or there may exist principles or rules of superior authority, and the problem of construction then is, to cause that which is to be construed to agree with them. In this case the principles and rules of superior authority are, the subjects that lie beyond the direct expressions of the text, mentioned in his previous definition. For instance, if a law be passed, parts of which are contrary to the fundamental law of the state, it is called construing the law, when the proper judges declare those parts to be invalid. In its most general adaptation of the term, construction