mittee. It was clear that this was a valid appointment, and no question was ever raised about it in any court of law, but the Legislature, in passing the Act, cannot be supposed to have contemplated the use to which it would be put by the Government.(f)

read in their

passing of

2. The rule that the language used by the Legislature Terms to be must be construed in its natural and ordinary sense requires English meansome explanation. The sense must be that which they ing at date of ordinarily bear in this country; and the words must be Act. construed according to the meaning which they bore at the time when the statute was passed. Said Lord Esher, M.R., in Clerical, &c., Assurance Co. v. Carter (1889), 22 Q. B. D. p. 448, "There has been a long discussion of various puzzling matters in relation to the provisions of the Income Tax Acts, but, after all, we must construe the words of schedule D. according to the ordinary canon of construction; that is to say, by giving them their ordinary meaning in the English language as applied to such a subject-matter, unless some gross and manifest absurdity would be thereby produced." Thus, the word "marriage," as used in an English statute, means the contract into which a man and woman enter in this country, and does not, therefore, include polygamy. "There is no magic in a name," said Lord Penzance (Sir James Wilde) in Hyde v. Hyde (1866), L. R. 1 P. & M. 133 (a case in which the validity of a Mormon marriage was discussed), " and if the relation there (in Utah) existing between a man and a woman is not the relation which in Christendom we recognise and intend by the words 'husband' or 'wife,' but another and altogether different relation, the use of a common term to express these two different relations, will not make them one and the same, though it may tend to confuse them to a superficial observer." And even with reference to marriages contracted abroad by British subjects, the term means monogamous marriages whether Christian or not.(g)

(f) In the House of Commons a motion condemning the appointment was lost by 241 to 268 (Hans. 3rd ser. 209, p. 758), and in the House of Lords by 87 to 88 (Hans. 3rd ser. 209, p. 461).

(g) See Bethell's case (1887), 38 Ch. D. 220 (Stirling, J.); Brinkley v. Att.Gen. (1890), 15 P. D. 76 (Hannen, P.).

In applying this rule to colonial statutes penned in English it must be modified so as to give effect to any difference between English and colonial usage as to the meaning attached to a word or phrase. For the term "marriage" in an Indian or South African statute might include polygamous unions, having regard to the recognition of such unions in those possessions.

Many terms are used in United States and Colonial statutes in a sense different from that attached to them in England.(h) And in the construction of the British North America Act, 1867, some divergence has arisen between the Canadian Courts and the Privy Council as to what is meant by "indirect taxation."(i) Likewise where the colonial statute is penned in French or Dutch as the sole or concurrent language of legislation, it must be read by reference to the colonial dialect of those languages, and not to the mother tongue, in the case of any divergence between the two.

The rule as to contemporanea expositio was first laid down by Sir E. Coke (2 Inst. ed. Thomas, p. 2, note (1)), in speaking of Magna Charta, in the following terms:"This and the like were the forms of ancient Acts and graunts, and the ancient Acts and graunts must be construed and taken as the law was holden at that time when they were made." The earlier statutes were in the form of charters, and no difference was at first made between the construction of a statute and that of any other instrument.() Coke's rule has been adopted by the Courts, and for modern use is best expressed by Lord Esher in Sharpe v. Wakefield (1888), 22 Q. B. D. 241: "The words of a statute must be construed as they would have been the day after the statute was passed, unless some subsequent Act has declared that some other construction is to be adopted or has altered the previous statute."

"It has often been held," said Lord Cranworth in Montrose Peerage (1853), 1 Macq. H. L. (Sc.) 401, at p.

(h) See Bell v. Master in Equity (1877), 2 App. Cas. at p. 565. (i) See Pigeon v. Recorder's Court (1890), 17 Canada 495, 503. (j) Parl. Pap. 1875-C-208, p. 84. Vide supra, pp. 6, 7.

406, "and not unwisely or improperly, that the construction of very ancient statutes may be elucidated by what in the language of the courts is, called contemporanea expositio; (k) that is, seeing how they were understood at the time [they were passed]." "In construing ancient statutes," said Lawrence, J., in Wilson v. Knubley (1806), 7 East 136, "attention is always to be paid to the language of the times. The statute of 4 Edw. 3 speaks of a trespass as of a wrong generally, and when it enacts that executors shall have an action against the trespassers, it means thereby against wrongdoers generally." In Smith v. Lindo (1858), 27 L. J. C. P. 200, Byles, J., said, as to the Act of 6 Anne, c. 16," That statute was passed 150 years ago. Therefore, we must resort to the contemporaneous exposition of the words." The canon is also applied to modern Acts. In Aërated Bread Company v. Gregg (1873), L. R. 8 Q. B. 355, it appeared that, by 6 & 7 Will. 4, c. 37, s. 4, any baker who sold bread otherwise than by weight was liable to a penalty; but there was a proviso that this enactment was not to apply to "bread usually sold under the denomination of French or fancy bread." The appellants had been fined for selling otherwise than by weight a kind of bread which was called in the trade French or fancy bread, but which did not as a matter of fact differ in material from ordinary bread. In confirming the conviction, Blackburn, J., said, " My opinion is that by the proviso the Legislature meant to except such bread as, at the time the Legislature passed this Act, was sold under the denomination of French or fancy bread.' . And that, as the justices have found that the bread in question was not the article called 'French or fancy bread' at that time, they rightly convicted the appellants."

A slight confusion, however, at times arises in the application of this canon. It is the business of the judges to find out the contemporary meaning of the terms used in the statute. For this purpose they may have recourse to contemporary exposition, but that exposition is not of necessity conclusive upon them. If ancient

(k) See also Me William v. Adams (1851), 1 Macq. H. L. (Sc.) 120.

as to statutes

error is clearly proved, it acquires no prescription to pass as right in the construction of statutes. With referDifferent rules ence to contracts, it appears to be established that comand contracts. munis error facit jus. Lord Herschell has so held in Tancred v. Steel Co. of Scotland (1889), 15 App. Cas. at p. 141, saying, "I think that that doctrine having been laid down so long ago, whether it rests upon any sound basis or not, it would be most improper to depart from it now, because one would be really altering the law between the parties." It has indeed been contended that an erroneous but well-established construction of a statute, reached when or soon after the Act came into force, is conclusive even upon the highest Courts. But this is not so. In Hamilton v. Baker (1889), 14 App. Cas. at p. 221, Lord Macnaghten said, "The respondent contends that the decision was right, but, whether it was right or not, he contends that it is too late even for this House to interfere. I am sensible of the inconvenience of disturbing a course of practice which has continued unchallenged for such a length of time [since 1865], and which has been sanctioned by such high authority. But if it is really founded upon an erroneous construction of an Act of Parliament, there is no principle which precludes your lordships from correcting the error. To hold that the matter is not open to review would be to give the effect of legislation to a decision contrary to the intention of the Legislature, merely because it has happened, for some reason or another, to remain unchallenged for a certain length of time." This constitutes a judicial approval of the opinion. of Mr. Elphinstone, that "if the words of a statute are clear, an interpretation which contradicts them cannot be supported on the ground of usage."(1)

Old decisions.

But if a decision is old enough it stands a good chance of acceptance even by the highest Courts. Speaking of Bill v. Bament (1841), 9 M. & W. 36, a decision upon s. 4 of the Statute of Frauds, Lord Esher said (m):

(1) Elphinstone, p. 68, citing Sheppard v. Gosnold (1672), Vaughan 159, at p. 169; Dunbar (Magistrates of) v. Roxburghe (Duchess of), (1835), 3 Cl. & F. 335; Att.-Gen. v. Rochester (1854), 5 De G. M. & G. 797. (m) Lucas v. Dixon (1889), 22 Q. B. D, 357, 359.

That case has never been overruled, but has been mentioned in subsequent cases as having been accepted, and it would be wrong that we should now differ from it." And Bowen, L.J., added,(n) "There is thus distinct authority, forty-seven years old, and, so far as I know, not questioned, but acted on and treated as binding; and though it may appear a technical point, I should hesitate to do anything to disturb a rule laid down about the Statute of Frauds, and acted upon for so long."

Courts of justice have always in the past paid great Practice of regard to the uniform opinion and practice of eminent con- conveyancers, veyancers, and in Basset v. Basset (1744), 3 Atk. 208, Lord Hardwicke gave as one of his reasons for a particular construction of 10 Will. 3, c. 22 (10 & 11 Will. 3, c. 16, Ruffhead), that before the passing of the Act the constant method of all skilful conveyancers was to insert a limitation to preserve contingent remainders to posthumous children, and that ever since the Act they had omitted the clause, which the Chancellor regarded as a strong circumstance to show the uniform opinion of eminent conveyancers that the statute gave to the posthumous heir, not only the estate of his ancestor, but the intermediate profits between the death of the ancestor and the birth of the heir.

In the United States the rule is thus stated: "In all U.S. doctrine. cases of ambiguity in an enactment the contemporaneous construction, not only of the Courts, but of the Departments, and even of the officials whose duty it is to carry the law into effect, is controlling." (o) This accords with the view expressed by Lord Macnaghten in Income Tax Commissioners v. Pemsel (1891), A. C. 531, at p. 590. But a construction of a doubtful or ambiguous statute by the executive department charged with its execution, in order to be binding on the Courts, must be long continued and unbroken.(p) And where a statute is free from all ambiguity, its letter is not to be disregarded in favour of

(n) Lucas v. Dixon (1889), 22 Q. B. D. at p. 362.

(0) Per Brown, J., in Schell's Exors. v. Fauché (1890), 138 U. S. 562, at (p) Merrit v. Cameron (1890), 137 U. S. 542, per Lamar, J., at p. 552.

p. 572.

G