They cannot be said to control the construction of a statute, inasmuch as a British statute is itself part of the supreme law of the land and overrides any pre-existing rules with which it is inconsistent. A rule of construction, whether of will, deed, or statute, is not inflexible, and with reference to a statute must always be cast in the following form: "If a given proposition or phrase A may mean B, C, or D, it must be taken to mean B when occurring in an Act relating to a particular subject, unless the context (or the circumstances under which the Act was passed so far as they may be proved or judicially noticed) exclude that meaning." c. 63. In recent legislation this description of a rule of construction is substantially recognised both by the form in which interpretation clauses are usually drafted and by the Interpretation Act, 1889, which, though mainly in- 52 & 53 Viet. tended as an aid to the draftsmen of future Acts and to the expurgation and revision of the statute book, has given statutory authority to a series of rules of construction, not as being inflexible rules of law, but as presumptively applicable "unless a contrary intention. appears." between 3. There is a distinction sometimes forgotten between Distinction the judicial construction of statutes and mere casuistry interpretation or metaphysics. In some recent decisions the Courts and casuistry. have been tempted to discuss the limits of free will in deciding what voluntary meant in a revenue Act,(ƒ) and in construing the Roman maxim volenti non fit injuria as applied to the Employers' Liability Act, 1880.(g) Foreknowledge and the foundations of rational belief came in question in Penny v. Hanson (1887),(h) 18 Q. B. D. 478, where the Court had to decide whether an astrologer could sanely or honestly believe in his power to tell fortunes. (f) Re New University Club (1887), 18 Q. B. D. 720. (g) Smith v. Baker (1891), App. Cas. 325. The workman exposes himseli to risk ἑκὼν ἀέκοντι γε θυμῷ. (h) See 3 Law Quarterly Review, 359. This treatise not theoretical, of rules. And in Reg. v. Clarence (k) and Reg. v. Dee (1) the grammar of assent on the part of married women to sexual intercourse has been somewhat casuistically discussed by the many judges before whom those cases were heard. 4. There are two very clear divisions into which but mere index law books may be divided-namely, into those which treat of the theory of a certain subject, and those which contain the actual positive rules in force," deduced from statutes and case law. The present treatise professes to come under the second category, being designed for the use of those readers, be they students or practitioners, who wish to know the rules by which statutes are interpreted, and the effect which statutes produce upon persons and things in general. "The proper mode of writing a law book of this kind," it has been also said, "is undoubtedly to place the subject-matter in a series of distinct propositions, then, if each of these propositions be clearly understood, they can be applied to various different sets of facts, and form a well-defined basis for legal arguments."(m) This is what has been aimed at in the following pages, and this work claims to be nothing more than an index, by means of which persons may be enabled readily to get at the information or dictum they require. Importance of sity of know- 5. The importance of collecting together and succinctly stating the "legal rules for the interpretation of British statutes,"(n) arises in the first place from the fact that as Sir William Scott said in The Charlotta (1814), 1 Dods. Adm. 392, "the subjects of this country are bound to (k) (1888) 22 Q. B. D. 23. Casuistry has also been applied to the common law of larceny in Reg. v. Ashwell (1885), 16 Q. B. D. 190, and of libel in Reg. v. Adams (1888), 22 Q. B. D. 76. (1) (1884) 14 L. R. Ir. 468, 15 Cox Cr. Cas. 579. (m) Spectator, Sept. 23, 1876, p. 1191. (n) "Our province," said Lord Westbury, in Williams v. Bishop of Salisbury (1863), 2 Moore P. C. N. S. 376, 424,"is to ascertain the true construction of those articles of religion according to the legal rules for the interpretation of statutes." A similar phrase was adopted by Lord Blackburn in Gairdner v. Lucas (1878), L. R. 3 App. Cas. 603: "we must construe the Act," said he, "according to the legal rules of construction." And in Fletcher v. Hudson (1880), 5 Ex. D. 293, Brett, L.J., said, "We must construe Acts of Parliament according to the well-recognised rules of construction." construe rightly the statute law of the land; to aver in a court of justice that they have mistaken the law is a plea no Court is at liberty to receive."(o) Another reason why it is of importance to know these rules is, that while all British statutes "must," as Bramwell, B., said in Att.-Gen. v. Sillem (1863), 2 H. & C. 537, "be construed on the same principles," whether the objects of the statute be (like the Foreign Enlistment Act, 59 Geo. 3, c. 69) of the utmost national importance, or whether the Act be merely an Act "regulating the merest points of practice or some such trifling matter," those principles are not wholly the same as those which govern the construction either of Scotch or colonial statutes, or of other written instruments, such as wills, deeds, or parol agreements. It may be said that the rules for the construction of all written instruments, whether of a public or private character, are almost, if not entirely, the same. Sir George Jessel (p) and Lord Justice Bowen (q) have both expressed this view; but while it is valuable to correct any tendency to set up narrow distinctions, documents expressing the will of a Sovereign Legislature, and the result of political strife and compromises, can never be regarded in quite the same light as private documents, however solemnly prepared and authenticated. ence of rules No doubt, there are certain general principles, on (2) To differwhich," as Lord Blackburn said in River Wear Commis- for construcsioners v. Adamson (1877), L. R. 2 App. Cas. 763,(^) "the (0) In Cooper v. Phibbs (1867), L. R. 2 H. L. 170, Lord Westbury said, In the maxim, Ignorantia juris haud excusat, the word jus is used in the sense of denoting general law, the ordinary law of the country. But when the word jus is used in the sense of denoting a private right, that maxim has no application. Private right of owner may be the result of matter of law, but if parties contract under a mutual mistake as to their respective rights, that agreement is liable to be set aside as having proceeded upon a common mistake.” Similarly, in Spread v. Morgan (1864), 11 H. L. C. 588, at p. 602, Lord Westbury observed that this maxim will not be carried so far as to expect every person to know the rules of equity on a subject, for instance, like that of election. "This Court has power," said Turner, L.J., in Stone v. Godfrey (1854), 5 De G. M. & G. 76, at p. 90,"to relieve against mistakes in law as well as against mistakes in fact." On this subject see Pollock on Contracts (5th ed.), p. 419. (p) Parl. Rep. 1875, No. 208, p. 88. (1) In Curtis v. Stovin (1889), 23 Q. B. D. 513. (r) See also Caledonian Ry. v. North British Ry. (1881), L. R. 6 App. Cas. tion of British statutes from to colonial or those relating courts of law act in construing instruments in writing, and Scotch Acts or a statute is an instrument in writing. In all cases the object to contracts or is to see what is the intention expressed by the words used. wills. Scottish Acts. Colonial Acts. But, from the imperfection of language, it is impossible to know what that intention is without inquiring further, and seeing what the circumstances were with reference to which the words were used, and what was the object appearing from those circumstances which the person using them had in view." But at the same time we find that with regard to each particular kind of written instrument there are certain special rules which govern their construction. The statute law of Scotland prior to the Union is not construed in precisely the same way as that of England. "The law of Scotland," said Lord Eldon, in Johnstone v. Stott (1802), 4 Paton (Sc. App.) 274, at p. 285, “admits of more departure from the letter of its statutes than we have any idea of in this country. We have seen that the Courts of that country superadded provisions to their statutes, and they also do not scruple to enforce their statutes at times as gently as the statutes admit of being interpreted. We see here, too, that a Scotch statute may be lost by desuetude." With regard to colonial Acts,(s) we find that in H.M.'s Procureur v. Bruneau (1866), L. R. 1 C. P. 181,191, where the question to be decided was as to the meaning of a certain word in the Civil Code of the Mauritius, the Judicial Committee had in the first place "to ascertain the general principles by which the [French] Courts are governed in the construction of the Code;" and, having ascertained these principles, they then had to apply them in interpreting the particular word in dispute. But where the law of the Colony is based on the common or statute ¡ law of England, no reason exists for any exceptional rule. (8) But in Trimble v. Hill (1880), L. R. 5 App. Cas. 344, the Judicial Committee held that in colonies where an enactment has been passed which is similar to an English enactment, if the English enactment has been judicially interpreted by an English court of law, the colonial courts should govern themselves by that English judicial interpretation, when called upon to construe the colonial enactment. With regard to the interpretation of Canadian Acts, see the Interpretation Act, 49 Vict. c. 1(1 Revised Statutes of Canada, p. 1). 1 Again, in the construction of a contract, there cannot Contracts be said to be any rules of law applicable, but "the governing principle is to ascertain the intention of the parties to the contract through the words they have used," (t) which words "are to be taken in the sense which the common usage of mankind has applied to them in reference to the context in which they are found."(u) It is seldom, in construing "mercantile contracts, that any technical or artificial rule of law can be. brought to bear on their construction; the question really is the meaning of the language,"(a) and "the grammatical meaning is, as in other cases, the meaning to be adopted, unless there be reason to the contrary."(y) The main rules of construction applicable to contracts are well laid down by Mr. Elphinstone (Conveyancing, 3rd ed. p. 29; and 1 L. Q. R. 466) with reference to deeds: First. "When the words used in an instrument are in their primary meanings unambiguous, and when such meanings are not excluded by the context, and are sensible with respect to the circumstances of the parties to the instrument at the time of execution, such primary meanings must be taken to be those in which the parties used the words." This, with the modifications already indicated, is applicable to statutes. Second, "Extrinsic evidence is admissible for the purpose of determining the primary meanings of the words employed, and for no other purpose whatever." Third. "Where the primary meaning of a word (t) In M'Connel v. Murphy (1873), L. R. 5 P. C. 203, 218. (y) Per Jessel, M.R., in Southwell v. Bowditch (1876), 1 C. P. D. 374, at p. 376. |