authoritie in law. A communi observantia non est recedendum." * These maxims undoubtedly owe their origin to the period when the common law, that creature of custom, was formed,when, in the absence of printing, public opinion being feeble and insufficient, and government divided and distracted, the strong practical minds of the times saw that the best, perhaps the only mode of creating order and system was, to give all possible force and effect to usage, to legalize and establish general habits and practices, and thus to turn custom into law. (a) In a case of the House of Lords, on the statute 27 Henry VIII, Lord Hardwicke said, "The opinion of conveyancers in all times, and their constant course, is of great weight. They are to advise; and, if their opinion is not to prevail, must every case come to law? No; the received opinion ought to govern." And Lord Mansfield said, "Consider also the usages and transactions of mankind upon the statute. The object of all laws with regard to real property is quiet and repose. As to practice there has almost been only one opinion. The greatest conveyancers, the whole profession of the law, Sir Orlando Bridgeman, Lord Nottingham, there was not a doubt at the bar in Harvey v. Ashley-Mr. Fazakerley always took it for granted." + *Coke on Litt. 186, a, note; see Hargrave's note 69, where it is said that this is the origin of the maxim, Communis error facit jus. Earl of Buckinghamshire v. Drury, 2 Eden Ch. R. 61, 64 and 74. See as to usage in the matter of the appointment of overseers of the poor, Rex v. Loxdale, 1 Burrows, 445; where Lord Mansfield directed inquiry to be made into the usage of certain parishes in this respect. The understanding of the bar generally, and especially the usual practice of the conveyancers, bave always had great weight in England, and cases-some even on the construction of statutes-have frequently been decided on the mere weight of their authority. See Smith v. The Earl of Jersey, 2 Brod. & B. 598, where Lords Eldon and Redesdale bear strong testimony on this point; and see, also, on this subject generally, The Science of Legal Judgment; a treatise designed to (a) Where a statute is applicable only to a particular place, doubtful words may be construed with reference to the usage of that place, as general statutes may be construed with reference to general usage. Love v. Hinckley, 1 Abb. Adm. R. 436. But where a statute is sufficient in itself, and is silent as to any existing custom, it overrides such custom, and evidence that the Legislature knew of such custom with a view to show they intended to sanction it, is inadmissible. Delaplane v. Crenshaw, 15 Gratt, 457. Usage cannot be called in except in case of doubtful construction. Bailey v. Rolfe, 16 N. H. 247. So in the Supreme Court of the United States, the practical construction given to an act of Congress, was held to be of great weight in assisting the court to arrive at its true construction.* In New York, where at tax sales the comptroller was directed to execute conveyances in the name of the people of the State, and, disregarding the statutes, deeds were given by the comptroller in his name of office; it was held that these deeds were good to pass a legal title, on the ground of a long and uniform custom to give deeds of this kind in this way.† The Chancellor said, "Lord Coke's expression, that common opinion is good authority in law, does not apply to a mere speculative opinion in the community, as to what the law on a particular subject is; but when such opinion has been frequently acted upon, and for a great length of time, by those whose duty it is to administer the law, and important individual rights have been acquired, or are dependent upon such practical construction of the law, this expression of the learned Commentator upon Littleton is entitled to great weight." But though usage may be employed to construe statutes, it cannot be permitted to defeat the general intent of an act. So said Lord Mansfield: "The use of this practice will avail nothing if meant as an evasion of the statute; for usage certainly will not protect usury." So again, a particular usage cannot be admitted to interpret a general act, as one relating to the English poor rates. So, too, in England, the acts of Parliament fixing one standard of weights and measures have been steadily upheld against all local customs and usages. T So, in this country, a contract for the sale of lands by the acre, means the statute acre; and parol evidence of a general understanding to the contrary is inadmissible.** In Pennsylvania, show the materials whereof, and the process by which the Courts of Westminster Hall construct their judgments, by James Ram, of the Inner Temple; an able and instructive work. It was re-published in 1835, in the 9th vol. of the Philadelphia Law Library. [A new edition, annotated by John Town shend, Esq., was published in 1872.] *U. S. Bank v. Halstead, 10 Wheat, pp. 51, 63. Bank of Utica v. Mersereau, 3 Barb. C. 530, 577. Floyer v. Edwards, Cowper, 112. The King v. John Hogg, 1 T. R. 721. Noble v. Durell, 3 T. R. 271; Master, &c. of St. Cross v. Lord Howard De Walden, 6 T. R. 338. ** Paull v. Lewis, 4 Watts, 402. L where a statute directs that twenty hundred pounds shall make one ton, a contract was made to delivery forty tons of pig metal; and an effort was made to show that the usual custom of dealers in the article was to buy and sell by a gross ton of two thousand two hundred and sixty-eight pounds; but the court held that the statute entered into the contract, and formed an essential part of it: "It is a statute which ought to be enforced; and the local customs up the Alleghany river are certainly insufficient to repeal it." * So in Maine, it has been decided that no prescriptive right can be claimed against an existing statute.† We have thus enumerated the modes by which the true interpretation of doubtful legislative provisions is to be arrived at. In the first place, if the act be strictly a remedial one, a clear idea is to be had of the law as it existed before the statute, and of the mischief which it was meant to prevent, for the purpose of ascertaining the remedy which the Legislature intended to give. In order to arrive at this result, the whole statute is to be taken together, and all its parts are to be consulted; acts on the same subject-matter are to be examined; contemporaneous and subsequent legislative exposition may throw some light upon the point; judicial construction may be appealed to; and finally, established custom will perhaps determine the question. If the law relates to entirely new matter, as for instance a railroad act, the mind must be steadily turned in the same direction, and its efforts employed to ascertain the true intent of the Legislature. But in no other case than those above specified, can mere extrinsic facts either be proved or in any way taken into view: the intention of the Legislature is to be learned from the language they have used. If, after all these legitimate aids are called in, the intention of the legislator, as happens in many cases of hopeless ambiguity or of irreconcilable contradiction, is still involved in *Evans v. Myers, 25 Penn. R. 114, 116. Ham v. Sawyer, 38 Maine, 37. + "We think it much the safer course," said Lord Tenterden, in a case on the Poor Laws, "to adhere to the words of the statute The construed in their ordinary import, than to doubt, it necessarily results that the task of arriving at the meaning of the act, i. e., the meaning of the legislator, is an idle effort; the duty of the judge then becomes different, and he must resolve the doubt by the exercise of his authority, upon what are called the principles of strict or liberal construction, and which we have to consider in the next chapter. The office of the judge then necessarily changes its character, and he assumes to a certain extent the duties of a legislator. He ceases to occupy himself with an endeavor to ascertain the legislative intention, and proceeds to decide the question before him, arising under the statute, as in his judgment it should, as a matter of right and reason, be determined. Though the term construction may be still applied to this exercise of his authority, it is evident that the mental operation is a very different one from the endeavor to ascertain the intention of the law maker. The judge practically says, this statute is on its face doubtful. I cannot tell what the Legislature intended; but in my judg ment they ought to have intended this-the statute ought to read thus-and so I decide. This is really legislation—a subordinate exercise of the power, but still legislation. Of the mode of exercising this power, of the extent to which it can rightly be carried, and of its frequent abuse, we shall speak more fully in the next chapter. In the mean time, however, we have to examine the rules which govern the interpretation of particular words, or as it is called, The Language of a Statute.-The rules which we have been thus far considering, relate to ambiguity and contradiction in regard to the general scope and purport of a statute; but serious questions may arise in regard to single words, and with reference to the precise meaning of the language used. The rule in regard to this is expressed in the maxim, à verbis legis non est recedendum-the meaning of which is, that statutes are to be read according to the natural and obvious import of their language.* In an early case, the judges said, "They ought not to make any construction against the express letter of the statute, for nothing can so express the meaning of the makers of an act * Forrest v. Forrest, 10 Barb. S. C. R. p. 46. ! as their own direct words; for index animi sermo." The rule is well expressed by Parke, B., in the English Exchequer. "The rule which the courts have constantly acted on of late years, in construing acts of Parliament, or other instruments, is to take the words in their ordinary grammatical sense, unless such a construction would be obviously repugnant to the inten tion of the framers of the instrument, or would lead to some other inconvenience or absurdity." + "The current of authority at the present day," says the Supreme Court of New York, "is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation. Courts cannot correct what they may deem either excesses or omissions in legislation, nor relieve against the occasionally harsh operation of statutory provisions, without the danger of doing vastly more mischief than good." + The fundamental reason of the rules, in regard to the language of statutes, which we have thus stated, is to be found in the consideration, that unless the courts, as a general thing, construe language in the same sense in which it was used by the Legislature, that is, according to its ordinary and natural import, it would be in vain to attempt to preserve any harmony between these two great co-ordinate branches of government; and the contrary doctrine would open the door to intolerable looseness of construction. If the courts could give to phrases new, unusual, forced, or strained interpretations; if they could insert a word here or strike out a word there,—all idea of conforming to the legislative intent would be lost, and cases turning on the construction of doubtful statutes would soon come to be decided either on judicial notions of policy or on the peculiar equities of the particular matter in hand. (a) Edrich's Case, 5 Co. p. 118. Jones v. Harrison, 6 Exch. 328, 333; s. c. 2 Lowndes, M. & P. 257-see also, Macdougall v. Paterson, 11 C. B. 755. Waller v. Harris, per Bronson, J., 20 Wend. 555, 556, 557. Words are to be taken in the natural and obvious sense, and not in a sense unnecessarily restricted or en (a) The familiar rule noscitur a sociis, is as applicable to the construction of statutes as to that of contracts. See State v. McGarry, 21 Wisc. 496, where power to remove for incompetency, improper conduct, "or other cause satisfactory to the board," was held to mean other "kindred" cause. |