Sir William Blackstone. “Vinerian Lectures”
The fairest and most rational method to interpret the will of the legislator, is by exploring
his intentions at the time when the law was made, by signs the most natural and probable;
And these signs are either the words, the context, the subject-matter, the effects and
consequence, or the spirit and reason of the law. Let us take a short view of them all.
1. Words are generally to be understood in their usual and most known signification; not
so much regarding the propriety of grammar, as their general and popular use. Thus the
law mentioned by Puffendorf‡, which forbad a layman to lay hands on a priest was
adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or
technical terms, must be taken according to the acceptation of the learned in each art,
trade, and science. So in the act of settlement, where the crown of England is limited "to
the princess Sophia and the heirs of her body, being protestants" it becomes necessary to
call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her
body;" which in a legal sense comprize only certain of her lineal descendants.
‡ L. of N. and N. 5.12. 3.
2. If words happen to be still dubious, we may establish their meaning from the context;
with which it may be of singular use to compare a word, or a sentence, whenever they are
ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help
the construction of an act of parliament. Of the same nature and use is the comparison of a
law with other laws, that are made by the same legislator, that have some affinity with the
subject, or that expressly relate to the same point. Thus, when the law of England declares
murder to be felony without benefit of clergy, we must resort to the same law of England
to learn what the benefit of clergy is: and when the common law censures simoniacal
contracts, it affords great light to the subject to consider what the canon law has adjudged
to be simony.
3. As to the subject-matter, words are always to be understood as having a regard thereto;
for that is always supposed to be in the eye of the legislator, and all his expressions
directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons
to purchase provisions at Rome, it might seem to prohibit the buying of grain and other
victuals; but what we consider that the statute was made to repress the usurpations of the
papal see, and that the nominations to benefices by the pope were called provisions, we
shall see that the restraint is intended to be laid upon such provisions only
4. As to the effects and consequence, the rule is, that where words bear either none, or a
very absurd signification, if literally understood, we must a little deviate from the received
sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "
that whoever drew blood in the streets should be punished with the utmost severity," was
held after a long debate not to extend to the surgeon, who opened the vein of a person
that fell down in the street with a fit.
l. 5. C. 12.$8.
5. But, lastly, the most universal and effectual way of discovering the true meaning of a
law, when the words are dubious, is by considering the reason and spirit of it; or the cause
which moved the legislator to enact it. For when this reason ceases, the law itself ought
likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever
was the author of the treatise inscribed to Herennius* There was a law, that those who in
a storm forsook the ship, should forfeit all property therein; and that the ship and lading
should belong entirely to those who staid in it. In a dangerous tempest all the mariners
forsook the ship, except only one sick passenger, who by reason of his disease was unable
to get out and escape. By chance the ship came safe to port. The sick man kept
possession, and claimed the benefit of the law. Now here all the learned agree, that the
sick man is not within the reason of the law; for the reason of making it was, to give
encouragement to such as should venture their lives to save the vessel: but this is a merit,
which he could never pretend to, who neither staid in the ship upon that account, nor
contributed any thing to its preservation.
* l. 1. c. 11.
From this method of interpreting laws, by the reason of them, arises what we call equity;
which is thus defined by Grotius,** “the connection of that, wherein the law (by reason of
it's universality) is deficient." For since in laws all cases cannot be foreseen or expressed, it
is necessary, that when the general decrees of the law come to be applied to particular
cases, there should be somewhere a power vested of defining those circumstances, which
(had they been foreseen) the legislator himself would have expressed. And these are the
cases which, according to Grotius, "lex non exacte definit, sed arbitrio boni viri
permittit."
** de aequitate, ß. 3.
Equity thus depending, essentially, upon the particular circumstances of each individual
case, there can be no established rules and fixed precepts of equity laid down, without
destroying its very essence, and reducing it to a positive law. And, on the other hand, the
liberty of considering all cases in an equitable light, must not be indulged too far; lest
thereby we destroy all law, and leave the decision of every question entirely in the breast
of the judge. And law, without equity, though hard and disagreeable, is much more
desirable for the public good, than equity without law: which would make every judge a
legislator, and introduce most infinite confusion; as there would then be almost as many
different rules of action laid down in our courts, as there are differences of capacity and
sentiment in the human mind. |
