Imágenes de páginas
PDF
EPUB

v. Le

their political institutions are based upon sections, and the general cussedness of the a fundamental statute emanating from this thing is, that it not only temporarily increases power. The author has treated the subject the number of persons in those States, but objectively in a rigorously scientific and impar- afterwards depopulates them to the same extial manner; the method he employs is largely tent. historical.

If marriage is to be a relation which

may

be “Modern constiutions are not the systematic voluntarily ended at the volition of the parties, work of jurists. They have sometimes been let us enact in the laws of the State of New the result of theoretical speculations. We can York such provisions as exist in some of the only judge constitutional system correctly by statutes of the western States - the more lenistudying the origin of the fundamental law ent the better. upon which that system is based, or by tracing If, however, some of the old-fashioned, good the evolution of the customary law to which it ideas of the sacredness of the relation and the conforms. The aim of the book before us is indissolubility of the tie yet remains in the to show the possibilities of such an investiga- public mind, let us endeavor to stop this boomtion, beginning with the origin, growth and ing of population in some States by enacting character of written constitutions, then with uniform statutes which will not allow the royal charters and constitutional compacts rich man greater privileges than his poorer divided into the German group and the Latin

brother. Scandinavian group, lastly, with Democratic

The recent case of Le Mesurier Constitutions, viz., the United States of Amer- Mesurier decided by the Privy Council in ica, France and Switzerland. The two books England does away with the theory which has before us should be found in the hands of every existed in England since the decision of Jack jurist and student of constitutional history."

v. Jack, of Matrimonial Domicile in Jurisdiction

for Divorce. In Jack v. Jack, 24 D. 483 it was The unfortunate lack of uniformity in the well recognized that the domicile of the party divorce laws of the different States is a subject was mainly to be looked after in considering on which we have written considerably. The the competency of the court to decree divorce. effect of this condition of the States' statutes In that case the husband, a domiciled Scotchis two-fold. First, divorce is made easy for the man had married Scotswoman in Scotland, rich, and hard to secure for the poor ; and, and had been wronged by her committing second, the judgment of the court of the State adultery there. He had gone to America withgranting the divorce, loses all force and effect out any idea of returning to Scotland, and the outside of the boundaries of the State.

Scotch courts were much inclined to grant the The historical, philosophical and analytical decree, although his wife claimed that her resischools differ greatly in their conception as to dence was his, which was in America. how far moral law may influence the judicature The new doctrine of matrimonial domicile of any locality, but, it is certain that public was then most fully expounded by the late Lord opinion will, in the end, frame legislative en- President Inglis who argued that the true actments in accordance with its ideas.

foundation of jurisdiction and divorce must If similar divorce laws were enacted in every have some actual relation to (1) the wrong to State, and if these statutes contain, first, a re- be redressed, (2) the remedy to be applied and quirement that the person seeking a divorce (3) the character of the union which it is the must have a residence of five years, and, second, effect of the decree to dissolve, and that it was that the divorced party should not marry within not therefore necessary that the husband should five years, it would seem that proper restric- at the date of the action have such a domicile tions were placed upon parties, and that indi. within the territory as would regulate his sucviduals would not in the present light and fickle cession at death. In short, the court held that fashion, seek marriage and again divorce. a man could have a matrimonial domicile sepa

The divorce laws of several States have been rate and apart from any other. The decision used as a sort of boom to populate growing I of Jack v. Jack, however, was followed in many

later cases and it has only been the decision of 1857 and provides that no minister of any Le Mesurier v. Le Mesurier which has ex- church or chapel of the Church of England pounded the new doctrine.

wherever marriages may be lawfully solemnized, The last named decision has been followed in shall be liable to any set penalty or censure for Dombrowizky v. Dombrowizky. These de- refusing the marriage of any person whose for cisions and the evolution of the theory of domi mer marriage shall have been dissolved on the cile in England are perhaps mostly instructive ground of his or her adultery or crime, to be because they show that the trend of English de solemnized in such church or chapel, or for recisions is to give more force to the permanent, fusing to proclaim or permit the publication of actual, absolute domicile of the party seeking a the bans of marriage of any such person in any divorce.

such chapel or church. There should be no statutes allowing a six

The later amendment to this bill by Lord months' residence to entitle a person to have Grimthorpe's proposition provides that no such a domicile as is necessary to sue for a

marriage of a person found guilty of adultery, divorce, and the power of the courts of many shall be solemnized in any church or chapel in States should be greatly lessened and limited the Church of England within five years after

It is also worthy of comment to write as to such finding. the status of persons who have been divorced in England, that all prohibitions which could that a restriction on marriage when one of the

Can we not learn from our English brethren be placed in the statutes, should be enacted to

parties has been divorced will prevent many of prevent the divorced from again marrying.

the scandals which now grace the columns of the It is a matter of history that in 1857, Mr. daily newspapers, some of which openly anGladstone was the leader of the party who en

nounce the intention of divorced parties to deavered to defeat the bill which gave to one

marry even before any proceeding has been betribunal the power to grant divorces instead of the cumbersome method which had before been gun for a dissolution of the marriage ties. necessary, namely, the common law action enjoined to an ecclesiastical decree and a bill in

A married man living at Port Hadlock with Parliament. The effect of this legislation was his wife and four children enticed a girl barely really to gain simplicity in procedure rather sixteen years old to run away to Victoria, B.C.

, than any loosening of the rules of law to enable where he joined her. The runaways were dispersons to be divorecd. Several sections were

covered and the man arrested.

He relied upon placed in the bill to appease Mr. Gladstone's

the want of jurisdiction of the British court, party. The two which were thought most

but after some consideration the judge sentenced highly of were sections fifty-seven and fiftyeight which provided (1) that no clergyman him to the extreme punishment allowed by law. shall be compelled to solemnize the marriage of

Commenting upon the law and the facts in any person whose former marriage may

the case, the court said:

have been dissolved on the ground of his or her

“You brought the girl here, but the abducadultery, or shall be liable to any set penalty or

tion never took place until she landed here and

You might censure for solemnizing or refusing to solemnize you gave her the chance to return. the marriage of any such person and (2) that have receded from your wrong intention, but if the minister of any church shall refuse to you chose to take her away, and the abduction perform the service for persons who, but for took place here and the court here has jurissuch refusal, would be entitled to have it diction. I fail to observe any redeeming feaperformed in such church, he shall permit ture. You were living at Port Hadlock with any other minister entitled to officiate within your wife and children, and in one of your the diocese to perform the service in his letters you said you had to leave there at once, church.

as you were accused of a most horrible crime, Lord Halifax's bill now pending in Parlia- and as a fugitive from justice you came to ment repeals section fifty-eight of the act of Canada. You also said you were about to get

a divorce, which was not true. After you left the attending circumstances are important. you wrote letter after letter breathing, not love, It drew to the place a large and noisy and but criminal sensuality, and you induced the boisterous crowd. The nature of the thing itgirl to come here to her ruin. You knew her self is important. It was run by a steam engine. age and begged her to put on long dresses to The whistle blew every few minutes. The make her look older. Yours is a crime aimed music played, the gallery ran around, the at by the laws of all nations. The family circle crowd hallooed, etc., until ten o'clock at must be protected from such as you, who are night. That it was a mere idle amusement, nothing more than fiends dressed in human perfectly legitimate in a proper place or at a shape. There is no reason that your sentence proper time, is not wholly unimportant. That should be any less than the full term the law which calls together a disorderly crowd in a allows, and you are sentenced to five years in public place was held to be a public nuisance the penitentiary.”

in King v. Moore, 3 Barn. & Ald. 184. The It is true that the crime is one aimed at by making of loud music, with instruments or the law of all nations, and the sentence will be otherwise, in the night time, to the disturbance hailed with satisfaction by everybody who re- of a neighborhood, was held to be a public nuiscognizes the need of protection for his family ance in Rex v. Higginson, 2 Burrows, 1233 ; against such villains.

Com. v. Oaks, 113 Mass. 8; Com. v. Smith, 6
Cush. 8o. Those who participated did not re-

gard it as a nuisance. Some of the witnesses In line with the piano case decided in New

attended. Some permitted their children to York city is the “merry-go-round" case of attend. They thought it a harmless amusement West Virginia, in Town v. Davis, decided in the for the children. It did them good, rather than Supreme Court of Appeals of West Virginia, 21

harm, and the proprietor was careful, polite, S. E. R., 906, it was held that a “merry-go- and kept good order. This, I take for granted, round," run by a steam engine, the whistle of is true, at a proper time and in a proper place. which blew every few minutes, accompanied by other witnesses lived at a distance. They, of a band. and attended by a large, noisy and course, were not annoyed, and they thought it boisterous crowd till after ten at night, disturb was not a nuisance to those who lived near by. ing some of the people living near it, is such a Four witnesses who lived close by say that it nuisance as a town council has power to abate. was a nuisance, disturbed and annoyed them

The court said, in part: “Many of the ques- at their homes, and prevented or interrupted tions raised by the plaintiff in error have al- their sleep. One witness, who lives on the ready been discussed and considered. Was same street, five lots below, says it was a conthe riding gallery a nuisance at that particular siderable annoyance, and, to some extent, kept place and time? is the only one that remains. him awake. Quite a number of witnesses who That depends on the place, the time, the cir- live or do business near by were not annoyed cumstances, the manner in which it was operated by it, and do not regard it as a nuisance. From and the effect it produced. Did the noise and all this, and from the general character of such crowd, and other effects of this riding gallery, machines in operation, with their usual accominvade any public or private right? Did it paniments, it is not hard for one to form a pretty materially interfere with and impair the ordinary accurate opinion on the question involved; physical comfort of any one of normal sensibility that is, that when kept up day and night, for and ordinary mode of living, in his home or days together, in such a place, it was a decided place of business? The place has much to do nuisance to some people, of ordinary sensibility, with it. It seems to have been on a vacant lot who lived or had their place of sleeping adjoinin a populous part of the town, with at least ing or close to the vacant lot, while to those four dwellings near by. The time is important. who lived at a distance, those who participated, It was operated up to ten, and half after ten in and some of those who lived close to the place, the night, tending to prevent and disturb sleep. it was not a nuisance did not annoy them to and had been kept up continuously for six days. I any material extent."

the Ohio State Association.

[ocr errors]

“STATUTORY CONSTRUCTION.” must inquire whether it is a Federal statute, or A paper read by the Hon. F. S. Monnett, of Bucyrus, before

whether it is purely a State statute, for the rule of

interpretation, as seen hereafter, varies according N as much as whole treaties have been written on

to the class referred to. Another division of stat

utes that is necessary to be understood before apexpositors of the law, it is difficult to furnish you plying the rules of interpretation is, first, whether anything new; in fact, on this subject, I anticipate a statute is simply declaratory, which does not proyou would rather have something not new.

But as

fess to make any alteration in the existing law, but . long as Legislatures meet annually, and personal | merely to declare or explain what it is; or, second, and proprietary rights are affected by their acts, remedial, meaning those statutes which are made just so long will this branch of the law be one of to supply such defects, and to abridge such supergreat and vast importance to the profession. The lluities in the common law as arise either from the fundamental division of our government, under its general imperfection of all human laws, whether various constitutions, both national and State, into from the change of time and circumstances, or from three distinct heads: legislative, judicial and the mistakes and wadvised determination of unexecutive, while apparently simple, has grown to learned judges, or from other cause. This modibe a subject of constant litigation to determine the tication being effected either by enlarging the boundaries of each governmental function and to common laws where it is too narrow or restraining prevent the one from usurping or intruding upon it where it is too lax. The English Parliament the other. No more startling illustration of the occasioned a division of remedial statutes into two difficulties and the intricacies involved, in observ- sub-heads, commonly called enlarging and restraining these distinctions, is there than that of the ing statutes. Such is Wharton's definition, and effort of the highest tribunal of the land to con- substantially Blackstone's, of remedial statutes. strue the income tax. Ilere we observe a court of The other branch of my subject perhaps needs a last resort, and of the choicest scholars, dividing brief definition. What is “interpretation," and at one time equally upon great and vital questions what “construction" of statutes ? Interpretation of construction of the fundamental law of the land, differs from construction in that the former is the and subdividing many times on minor questions in art of finding out the true sense of any form of the same decision, and finally reversing themselves words; that is, the sense which their author inand revising their former opinion within a few tended to convey; and of enabling others to do the weeks after their original decision. If thus the

While construction, on the other hand, is doctors of the law do disagree, we disciples of the the drawing of conclusions respecting subjects that law may go free. So that it may not always be | lie beyond the direct expressions of the text, from the mark of an inefficient prosecuting attorney if elements known from and given in the text. he cannot off-hand, on the street corner, give an Interpretation only takes place is a text conveys infallible construction to some county officer of a some meaning or other. But construction is renew law involving the rights of person or property, sorted to when in comparing two different writings for the rules now laiil down by adjudication and of the same individual, or two different enactiuents precedent have grown so numerous that to apply of the same legislative body, there is a contradiction any considerable number to a given case before found where there was evidently no intention of finally deciding it, is an arduous task in itself. such contradiction, or where it happens part of the

To analyze this subject and bring it within the statute contradicts the rest. When this is the case, limit assigned the speaker, we will analyze the sul). and the nature of the document or whatever else it ject itself.

may be, is such as not to allow us to consider the Statute law has been defined as the will of the whole as being invalidated by a partial or other Legislature of a State, or the will of the nation contradiction, then resort must be had to construcexpressed by the Legislature, expounded by the tion. I have used Judge Cooley's distinctivns as courts of justice. The Legislature, as the repre- cited in his Constitutional Limitations, 49–50. In sentative of the nation, expresses the national will common use, however, the word “construction.” is by means of statutes, which with the exposition by generally employed in the law in a sense embracing the court, form the body of the statute law. (Will-all that is probably covered by the terms “conberforce Statute Law, p. 8.)

struction” and “interpretation,” and in the broader Bouvier defines it as the written will of the sense the words “construction " and "interpretaLegislature, solemnly expressed according to the tion are used as synonymous and interchangeable. forms necessary to constitute it the law of the A lawyer in construing a statute, or iu looking State. Before undertaking to interpret a statute, for precedents and judicial construction of statutes, and apply the ordinary rule of interpretation, you must bear in mind the difference between the

same,

Federal statutes and the State statutes, and the departure from the plain meaning of a statute on judicial detrminations under each class, for there is the ground of its imwisdom or public policies. a marked difference a fundamental disserence, in (Sedy. on State on Constitutional Law, 231; Cooley, respect to implied powers between the Federal and | 197.) State constitution.

Lord Blackburn said no court is entitled to deThe Constitution of the United States consists in part from the intention of the Legislature als apa grant of enumerated powers; hence, in interpret-pearing from the words of the act because it is ing it and the statutes under it, the courts presume thought unreasonable. Chief Justice Payton, of the existence of no power not expressly or impliedly Mississippi, laid down the rule that courts have no conferred. On the other hand, a State constitution other duty to perform than to execute the legisproceeds on the idea that all legislative functions lative will without any regard to their own views are in the Legislature, and hence the general assem as to the wisdom or justice of the particular enactbly of the State may exercise all the powers which meut. It is also a universal principle of construcare properly legislative, and which are not taken tion that courts must find the intent of the Legisaway by its own or the Federal Constitution. Con

lature in the statute itself. l'nless some ground gress can pass no laws ut those which the consti

can be found in a statute for restraining or enlargtution authorizes, either expressly or by clear im- ing the meaning of its general words, they must plication, while the State assembly has jurisdiction receive a general construction, and the court canof all subjects on which its legislation is not pro- not arbitrarily subtract therefrom, nor add thereto. hibited. The powers not granted to the Union to

There are some apparent exceptions to this broad legislate are withheld, but the State retains every rule. Vo limitation must be inferred which will attribute of sovereignty which is not taken away. defeat the object of the law. Thus, where two (21 Penn. St. 147, 16; 17 11. 118–119; 52 Id. 174; hundred thousand dollars were appropriated for Cooley C. L. 10-11.)

buildings, which must cost three times that amount, The rules of construction of statutes are the same it was no limitation as to the expenditures. in courts of law and equity. There is always a Conjunctive sentences describing different legal presumption that the Legislature intends branches of the same offense will be construed as nothing unconstitutional, and is an act is suscepti-conjective or disjunctive, as the object and sense of ble of two constructions, that one must be adopted the law must distinctly require. It is, therefore, which is constitutional. But in inconstitntional only in cases where the words of the statute are consequence cannot and must not be avoided by capable of two meanings, or where, by giving them forcing upon the language of the act

meaning their literal interpretation the statute will be inwhich upon a fair test is repugnant to its terms. consistent or ambiguous, that courts have a right (24 Cal. 518; 12 Iowa, 1; 21 Id. 221.)

to resort to the secondary rules of construction to It is an elementary rule of construction that I aid in determining the real intentions of the Legiswords and phrases of an act are used in their proprio lature. (7 N. Y. 97; 11 1d. 593; 10 Pett. Il. S.] lar and common conception, unless the subject 524.) matter or context indicate that they are used in a

Language is rarely so free from ambiguity as to technical sense. If an act is passed with reference be incapable of being used in more than one sense, to a particular trade or business, then the words and to adhere rigidly to its literal and primary have the meaning as defined by that trade or busi- meaning would be to miss its real mean ness, even though the meaning may differ from the instances. It is observed in Blackstone that if a common or ordinary meaning. If the language is literal meaning had been given to the laws forbidclear and admits of but one meaning, there is no ding a layman to lay hands on a priest, and punish room for construction. It is not allowable to inter- all who drew blood on the streets, the layman who pret that which has no need of interpretation. In wounded a priest with a weapon would not have such a case any departure from the language used fallen within the prohibition, and the surgeon who would be an unjustifiable assumption of legislative had bled a person on the street to save bis life would powers. (48 Fed. Rep. 293; 6 Wall. {1, S. 395; | have been liable to punishment. 5 Wheat. 95; 79 Am. Dig. 350.)

So likewise, the German who was greatly annoyed And where the language is susceptible of but one by having his out lot run over by trespassers and meaning, it must receive that meaning, although the village cow and horse, placed the following sign such construction lead to results that are absuril thereon ; “ Any man, woman, child, horse, cow or and mischievous. Courts are not to tamper with dog caught trespassing upon these premises will the clear and unequivocal meaning of words used, have his or her tail cut off, as the case may be." He although the consequences may not be such as were nerer, literally, carried out his threat. So in concontemplated by the Legislature. There can be no struction of statutes, the rules of grammar are less

in many

« AnteriorContinuar »