signifies the representing an entire whole from given elements by just conclusions.

§ 442. He divides interpretation into close, extensive, extravagant, limited or free, predestinated, and authentic ; -close interpretation is, where for just reasons connected with the formation and character of the text, we are induced to take the words in their narrowest meaning. Extensive interpretation, interpretatio extensiva, is where it inclines us towards adopting the more, or most comprehensive signification of the words. Extravagant interpretation, interpretatio excedens, is that mode of interpreting which substitutes such meaning as is evidently beyond the true meaning, and hence not genuine interpretation. Free or unrestricted, interpretatio soluta, is that which proceeds simply on the general principles of interpretation in good faith, not bound by any specific or superior principle. Limited or restricted interpretation, interpretatio limitata, takes place, if other rules or principles than the strictly hermeneutic ones limit us. destinated interpretation, interpretatio predestinata, is that where the interpreter, either consciously or unknown to himself, yet laboring under a strong bias of mind, makes the text subservient to his preconceived views, or some object he desires to arrive at. An instance of this is where cunning and art are exerted in attempts to show that the text means something which was not, according to the interpreter's own knowledge, the meaning of the author or utterers. This latter species he denominates artful. Authentic interpretation is that which proceeds from the author or utterer of the text himself. The latter is, more properly speaking, but a declaration, and not an interpretation.


§ 443. If a legislature or monarch give an interpretation, it is called authentic, though the same individual who issued the law to be interpreted, may not give the interpretation. This proceeds upon the reason that the

successive legislators or monarchs, are considered as one and the same, making the law and giving the interpretation in their representative and not in their personal cha


§ 444. He divides construction into close, comprehensive, transcendant or extravagant, and defines them thus-1. Close construction is that which inclines to the directest possible application of the text, or the principles it involves, to new or unprovided cases, or to contradictory parts-in short, to words which lie beyond the words of the text. 2. Comprehensive construction is that which inclines to an extensive application of the text, or the principles which it involves to new, unprovided, or not sufficiently specific cases or contradictions. 3. Transcendant construction is that which is derived from, or founded upon, a principle superior to the text, and nevertheless aims at deciding on subjects belonging to the province of the text. Extravagant construction is that which carries the effects of the text beyond its true limits, and therefore not any longer genuine construction, as the previous species becomes of a more and more doubtful character the nearer it approaches to this. The difference between the two is, the former remains, in spite of its transcendency, within the spirit of the law, or document to be construed, whilst the latter abandons it. The learned and valuable work of this author on this subject, is one which should be perused, studied and understood by every legal student, and should find a place in every law library.

§ 445. Rutherforth divides interpretation into three kinds; literal, rational and mixed. He defines literal interpretation, where we collect the intention from the words only, as they lie before us. Rational, where the words do not express that intention perfectly, but exceed it or fall short of it, and we are to collect it from rational or probable conjecture only. Mixed, where the

words, though they do express the intention when they are rightly understood, are of themselves of doubtful meaning, and we are bound to have resort to like conjecture to find out in what sense they are used. In literal interpretation the rule which should govern, is, to follow that sense, both in respect of the words, and of construing them which is agreeable to common use without attending to etymological fancies or grammatical refinements. In mixed interpretation, which supposes the words to admit of two or more senses, each of which is agreeable to common usage, we are obliged to collect the sense partly from the words, and partly from conjecture of intention. The rules there adopted are to construe the words according to the subject matter, in such a sense as to produce a reasonable effect, and with reference to the circumstances of the particular act. Light may also be obtained in such cases from contemporary facts, or exposition from antecedent mischiefs, from known habits, manners, and institutions, and from other sources almost innumerable, which may justly affect the judgment in drawing fit conclusions in the particular


§ 446. He also says, that interpretation may be strict or large, though the same thing is not always meant when we speak of a strict or large interpretation. When common usage has given two senses to the same word, one of which is more confined, or includes fewer particulars than the other, the former is called its strict sense, and the latter, which is more comprehensive, or includes more particulars, is called the large sense. If we find such a word in a law, and we take it in a more confined sense, we are said to interpret it strictly. If we take it in its more comprehensive sense, we are said to interpret it largely. But whether we do the one or the other, we still keep to the letter of the law. But strict and large intepretations are frequently opposed to each other in a

different sense. The words of the law may sometimes express the meaning of the legislature imperfectly; they may, in their common acceptation, include more or less of their intention, and, as on the one hand, we call it a strict interpretation when we contend that the letter is to be adhered to precisely; so, on the other, we call it a large interpretation when we contend, that the words ought to be taken in such a sense as common usage will not fully justify, or that the meaning of the legislature is something different from what the words in any usage would import. In this sense a large interpretation is synonymous with what has been termed a rational interpretation, and a strict interpretation in this sense, includes both literal and mixed interpretation, and may, as contradistinguished from the former, be called a close, in opposition to a free or liberal interpretation.

§ 447. In mixed interpretation, where the intention of the legislature is expressed in their words, but the words are ambiguous, and will admit of more senses than one, so that we are forced to have recourse to rational conjecture, in order to determine in which of the senses the words are used; these conjectures may be drawn from the subject matter, or the circumstance connected with it. The reason why resort is had to the subject matter is, that we are sure, on the one hand, that the subject matter was in the mind, and on the other, that there can be no reason for thinking that any thing different from it was intended. Vattel, speaking of extensive interpretation, founded on the reason of the act, says: "The consideration of the reason of a law or promise not only serves to explain the obscure or ambiguous expressions which occur in the piece, but also to extend or restrict its several provisions independently of the expressions, and in conformity to the intention and views of the legislature or the contracting parties, rather than to their words. For, according to the remark of Cice

ro, (a) the language, invented to explain the will, ought not to hinder its effect. When the sufficient and only reason of a provision, either in a law or a promise, is perfectly certain, and well understood, we extend that provision to cases to which the same reason is applicable, although they be not comprised within the signification of the terms. This is what is called extensive interpretation. It is commonly said, that we ought to adhere rather to the spirit than to the letter. Thus the Mahomedans justly extend the prohibition of wine, in the Koran, to all intoxicating liquors; that dangerous quality being the only reason that could induce their legislator to prohibit the use of wine. Thus also, if, at the time when there were no other fortifications than walls, it was agreed not to inclose a certain town with walls, it would not be allowable to fortify it with fossés and ramparts, since the only view of the treaty evidently was, to prevent its being converted into a fortified place. But we should here observe the same caution above recommended,(b) and even still greater, since the question relates to an application in no wise authorized by the terms of the deed. We ought to be thoroughly convinced that we know the true and only reason of the law or the promise, and that the author has taken it in the same latitude which must be given to it in order to make it reach the case to which we mean to extend the law or promise in question. As to the rest, I do not here forget what I have said above,(c) that the true sense of a promise is not only that which the person promising had in his mind, but also that which has been sufficiently declared,-that which both

(a) Quid? verbis satis hoc cautum erat? Minime. Quæ res igitur valuit? Voluntas: quæ si, tacitis nobis, intelligi posset, verbis omnino non uteremur. Quia non potest, verba reperta sunt, non quæ impedirent, sed quæ indicarent voluntatem.-Cic. Orat. pro Cacina.

(b) Vattel, sec. 287.

(c) Ib. 268.

« ForrigeFortsett »