CHAPTER XII. STRICT CONSTRUCTION. § 329. The Rule of Strict Construction Applied to Penal Statutes. § 330. Results of Application of the Rule. § 334. Degree of Strictness to be Applied. Illustrations. § 335. Exclusion of New Things by Rule of Strict Construction. $336. Treatment of Omissions in Acts within Rule of Strict Construc tion. $337. Qualifications of Rule of Strict Construction. Modern Tendency. § 340. Acts Encroaching on Rights. § 341. Common Law Rights of Persons and Property. § 344. Summary Proceedings. § 345. Acts Imposing Burdens. § 347. Acts Allowing Costs. $348. Acts Regulating Form and Execution of Contracts. § 349. Acts Creating Monopolies, etc. 350. Acts Creating Exceptions from Recognized Liabilities, etc. § 351. Acts Creating New or Special Jurisdictions. § 352. Acts Delegating Powers. § 354. Acts Investing Private Persons with Privileges. Corporations. § 356. Acts Conferring Exemptions from Common Burdens or Surrendering Public Rights. $329. The Rule of Strict Construction applied to Penal Statutes. -The rule which requires that penal' and some other stat See U. S. v. Hall, 6 Cranch, 171; U. S. v. Sheldon, 2 Wheat. 119; U. S. v. Starr, Hemps. 469: U. S. v. Dist. Spirits, 10 Blatchf. 428; U. S. v. Clayton, 2 Dill. 219; The Enterprise, 1 Paine, 32; Andrews v. U. S., 2 Story, 202; Whitney v. Emmett, Baldw. 303; Matter of Baker, 29 How. Pr. (N.Y.) 485; Hankins v. People, 106 Ill, 628; Bettis v. Taylor, 8 Port. (Ala.) 564; Gunter v. Leckey. 30 Ala. 591; Lair v. Killmer, 25 N. J. L. 522; State v. Newton (N. J.) 8 Centr. Rep. 623, 624; Philadel phia v. Davis, 6 Watts & Serg. (Pa.) 269; Gallagher v. Neal, 3 Pen. & W. (Pa.) 183; Warner v. Com'th. 1 Pa. St. 154; Bucher v. Com'th, 103 Id. 528 Simms v. Bean, 10 La. An. 346 State v. Whetstone, 13 Id. 376 Rawson v. State, 19 Conn. 292; Pierce's Case, 16 Me. 255; Hall v. State, 20 Ohio, 7; Ramsey v. Toy, 10 Id. 493; Steel v. State, 26 Ind. 82; West. Union Tel. Co. V. Steele, 108 Id. 163; State v. Solo utes shall be construed strictly was more rigorously applied in former times, when the number of capital offences was one hundred and sixty or more (a); when it was still punishable with death to cut down a cherry tree in an orchard, or to be seen for a month in the company of gipsies (b). But it has lost much of its force and importance in recent times, since it has become more and more generally recognized that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning, and to promote its object. It was founded, however, on the tenderness of the law for the rights of individuals, and on the sound principle that it is for the Legislature, not the Court, to define a crime and ordain its punishment (c). It is unquestionably a reasonable expectation, that, when the former intends the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in "cloudy and dark words" only (d), [-for an offence cannot be created or inferred by vague implications'-] but will manifest it with reasonable clearness. The rule of strict construction does not, indeed, require or sanction that suspicious scrutiny of the words, or those hostile conclusions from their ambiguity, or from what is left unexpressed, which characterize the judicial interpretation of affidavits in support of ex parte mons, 3 Hill (S. C.) 96; Hines v. fully carried into effect,"-a provision, which, it was there said, though applying to all statutes, does not require the court to bring cases of a like nature, not named in terms, or by implication, into a statute, nor yet to give a narrow and restricted meaning to the language employed, but fairly and reasonably to carry out the legis tative intent. (a) 4 Bl., Comm. 18. According to Sir S. Romilly, it was, in his time, two hundred and thirty. (b) 4 Bl., Comm. 4. S. v. Wiltberger, 5 (c) U. * Atlanta v. White, 33 Ga. 229. applications (a), or of magistrates' convictions, where the ambiguity goes to the jurisdiction (6). Nor does it allow the imposition of a restricted meaning on the words, wherever any doubt can be suggested, [or an ambiguity imagined,'] for the purpose of withdrawing from the operation of the statute a case which falls both within its scope and the fair sense of its language. This would be to defeat, not to promote, the object of the Legislature (c); to misread the statute and misunderstand its purpose (d). A Court is not at liberty to put limitations on general words which are not called for by the sense, or the objects, or the mischiefs of the enactment (e); [nor so to narrow the construction as to exclude cases which the words of the statute, in their ordinary acceptation and plain meaning, or in the sense in which the Legislature obviously used them, would comprehend ;] and no construction is admissible which would sanction an evasion of an act (ƒ), [or would defeat the obvious intention of the Legislature. In order to avoid such a result, as has been seen, it is even allowable to reject what is clearly surplusage in an act. "It is true that a penal law must be construed strictly, and according to its letter. But (a) See ex. gr. Perks v. Severn, 7 East, 194; Fricke v. Poole, 9 B. & C. 543. (b) See R. v. Davis, 5 R. & Ad. 551; R. v. Jones, 12 A. & E. 684; per Coleridge, J., in R. v. Toke, 8 A. & E. 227; per cur. in Lindsay v. Leigh, 11 Q. B. 465; R. v. Stainforth, Id. 75; Fletcher v. Calthrop, 6 Q. B. 880. 3 See Com'th v. Martin, 17 Mass. 359; Com'th v. Keniston, 5 Pick. (Mass.) 420. (c) Bac. Ab. Stat. I. 9 ; R. v. Hodnett, 1 T. R. 101. (d) Per Martin, B., in Nicholson v. Fields, 31 L. J. Ex. 236, 7 H. & N. 710; and Bramwell, B., in Foley v. Fletcher, 3 H. & N. 781. (e) U. S. v. Coombs, 12 Peters, 80. 4U. S. v. Wilson, Baldw. 78; State v. Lovell, 23 Iowa 304; Huffman v. State, 29 Ala. 40; Walton v. State, 62 Id. 197; Pike v. Jenkins, 12 N. II. 255. (f) Com. Dig. Parl. R. 28; Bac. 6 Per cur. Ab. Stat. J.; 2 Rol. 127. 5 See U. S. v. Wiltberger, supra; Amer. Fur Co. v. U. S., supra; U. S. v. Morris, 14 Pet. 464; U. S. v. 84 Boxes of sugar, 7 Id. 453; Jones v. Estis, 2 Johns. (N. Y.) 379; Sprague v. Birdsall, 2 Cow. (N. Y.) 419; Com'th v. Loring, 8 Pick. (Mass.) 370; Reed v. Davis, Id. 514; Crosby v. Hawthorn, 25 Ala. 221; Broadwell v. Conger, 2 N. J. L. 210; Bartolett v. Achey, 38 Pa. St. 273; Daggett v. State, 4 Conn. 61; State v. Main, 31 Id. 572; Butler v. Ricker, 6 Greenl. (Me.) 268; Parkinson v. State, 14 Md. 184; Doe v. Avaline, 8 Ind. 6; Hines v. R. R. Co., 95 N. C. 434; Bish., Wr. L., § 237. See ante, 302, U. S. v. Stern, 5 Blatchf. 512. 998 this strictness, which has run into an aphorisın, means no more than that it is to be interpreted according to its language. Literal interpretation is but a figurative expression, meaning, perhaps, that we are to adhere so closely to the language, we are not to change the signification by dropping even a letter. The purpose of the rule is to prevent acts from being brought within the scope of punishment, because courts may suppose they fall within the spirit of the law, though not within its terms." The strictness, then, with which acts falling under the rule of strict construction are to be interpreted, is what in one place is called a "reasonable strictness.' "It is not the exact converse of liberal construction, and does not consist in giving words the narrowest meaning of which they are susceptible." The meaning of the rule is, "that acts of this kind are not to be regarded as including anything which is not within their letter as well as their spirit," which is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the Legislature." That is,] the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment (a). To determine that a case is within the intention of a statute, its language must authorize the Court to say so; but it is not admissible to carry the principle that a case which is within the mischief of a statute is within its provisions, so far as to punish a crime not specified in the statute, because it is of equal atrocity or of a kindred character with those which are enumerated (b). [In this characteristic, the difference between liberal and strict constructions is clearly presented. Whilst the letter of a remedial statute may be extended to v. Sondes, 3 Bing. 580; Bracey's Case, 1 Salk. 348; R. v. Harvey, 1 Wils. 164; Dawes V. Painter, Freem. K. B. 175; Scott V. Pacquet, L. R. 1 P. C. 552; Ellis v. M'Cormick. L. R. 4 Q. B. 271; The Gauntlett, L. R. 4 P. C. 191, per James, L. J. (b) U. S. v. Wiltberger, 5 Wheat. 96. [U. S. v. Ragsdale, Hempst. cases clearly within the same reason and within the mischief the act was designed to cure, unless such construction does violence to the language, a consideration of the old law, the mischief and the remedy, though proper in the construction of criminal as well as other statutes," is not in itself enough to bring a case within the operation of the former class of statutes; their language, properly given its full meaning, must, at least by that meaning, expressly include the case; and in ascertaining that meaning the court cannot go beyond the plain meaning of the words and phraseology employed in search of an intention not certainly implied in them." In other words, whilst a case may come within the purview of a remedial statute unless its language, properly construed, excludes it, it is excluded from the reach of a criminal statute, unless the language includes it:" unless the proper meaning of the language of the statute brings a case within its letter, the rule of strict construction forbids the court to create a crime or penalty by construction, and requires it to avoid the same by construction ;" and, although the court may be unable to conceive any reason why the case in question should have been omitted, and considers it highly improbable that an omission was intended, it is not at liberty to extend the enactment to cases not included within the clear and obvious import of the language; so that, for instance, under an act, which, in its eighth section provided for the punishment of certain offences, among which manslaughter was not mentioned, committed upon the high seas, or in any river, haven, basin or bay, and in section twelve, punished manslaughter on the high seas, no indictment could be maintained against one for manslaughter committed on board an American vessel, in the River Tigris, in China, sixty-five miles from its mouth." If the Legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which 12 See ante, § 27; post, § 337. 13 Hines v. R. R. Co., 95 N. C. 431. 14 State v. Powers, 36 Conn. 77. 15 West. Un. Telegr. Co. v. Axtell. 69 Ind. 199; Lair v. Killmer, 25 N. J. L. 522; Com'th v. Cooke, supra; Philadelphia v. 16 U. S. v. Wiltberger, 5 Whcat. 76, 105. 17 Ibid.; U. S. v. Ragsdale, Hempst. 497; State v. Peters, 37 La. An. 730. 18 U. S. v. Wiltberger, supra. |