ral equity, which, being the universal spirit of justice, makes all the rules, and assigns to every one its proper use. From whence we must infer, that it is the knowledge of this equity, and the general view of this spirit of the laws, that is the first foundation of the use, and particular interpretation of all rules. This principle of interpreting the laws by equity, does not only respect the laws of nature, but reaches likewise to the arbitrary laws, they being all of them founded upon the laws of nature, as has been observed in the eleventh chapter of the Treatise of Laws. But to this principle of equity we must add, in so far as concerns the interpretation of arbitrary laws, another principle which is peculiar to them, and that is, the intention of the lawgiver, which determines how far the arbitrary laws regulate the use and interpretation of this equity. For in this kind of laws, the temperament of equity is restrained to what is agreeable to the intention of the lawgiver, and is not extended to whatever might have appeared to be equitable, before the arbitrary law was enacted.(a)

§ 454. In order to make a right use of this fundamental principle for the interpretation of laws, which is equity, it is not enough to observe in each rule what the light of reason finds to be equitable in its expression, and in the extent which it seems to have; but we must join to this a general view of universal equity, that we may discern in the cases which are to be regulated, whether there are not other rules that demand a justice altogether different, to the end we may not pervert any rule from its true use, and that we may apply to the matters of fact, and to their circumstances, the rules that agree to them. And if they are natural laws, we are to reconcile them by the extent and limits of their truth; or

(a) Domat's Civil Law, Prel. B. p. 8, tit. i. sec. 2.

if they are arbitrary laws, we are to fix their equity by the intention of the lawgiver.(a)

§ 455. All rules, whether natural or arbitrary, have their use, such as it is assigned to every one of them by universal justice, which is the spirit of them all. Thus, the application of the laws is to be made, by discerning what it is that this spirit demands; which in natural laws is equity; and in arbitrary laws is the intention of the lawgiver. And it is in this discerning faculty that the science of the law does chiefly consist.(b)(c)

§ 456. If it happens that a natural rule being applied to some case which it seems to include, there follows from such application a decision contrary to equity, we must from thence conclude that the rule is not rightly applied, and that it is by some other rule that this case ought to be judged.(d)

§ 457. If an arbitrary law being applied to a case which it seems to include, there follows a consequence contrary to the intention of the lawgiver, the rule ought not to be extended to that case.(e)

§ 458. We must not take for injustices contrary to equity, or to the intention of the lawgiver, those decisions which seem to have some hardship in them, which is called the rigor of the law, when it is evident that that rigor is essential to the law from which it flows, and that

(a) Domat's Civil Law, Prel. B. p. 9, tit. i. sec. 2.

(b) In omnibus quidem maxime tamen in jure, æquitas spectanda, l. 90, ff. de reg. jur. In summa æquitatem ante oculos habere debet Judex. 1. 4, sec. 1, ff. de eo quod certo loco. Benignius leges interpretandæ sunt, quo voluntas earum conservetur. L. 18, ff. de legib. mens legislatoris; I. 13, sec. 2, ff. de excus. tutor. Scire leges non hoc est verba earum, tenere, sed vim ac potestatem. L. 17, ff. de legib. Ratio naturalis quasi lex quædam tacita. L. 7, ff. de bon. damnat. Jus est ars boni et æqui. L. 1, ff. de just. et jur. (c) Domat's Civil Law, Prel. B. p. 9, tit. i. sect. 2, pl. 1.

(d) Ibid. 10, pl. 2.

(e) Ibid. pl. 3.

no temperament can be applied to the law without annulling it. (a)

§ 459. If the hardship or rigor of a law be not a necessary consequence of the law, and inseparable from it, but that the law may have its effect by an interpretation which mitigates the said rigor, and by some temperament which equity, that is, the spirit of the law, requires; we must in this case prefer equity to the rigor which the letter of the law seems to demand, and follow rather the spirit and intendment of the law, than the strict and rigid way of interpreting it.(b)(c)

§ 460. It follows from the foregoing rules, that we cannot lay it down as a general rule, either that the rigor of the law ought to be always followed, contrary to the temperament of equity, or that it ought always to yield to equity. But this rigor becomes an injustice in the cases in which the law will admit of an equitable interpretation; and it is, on the contrary, a just rule in the cases where such an interpretation would destroy the law. (d) Thus, the word rigor of the law is taken either for a hardship that is unjust and odious, and no ways conformable to the spirit of the laws, or for a rule that is inflexible, but which has nevertheless its justice. And

(a) Domat's Civil Law, Prel. B. p. 10, tit. i. sec. 2, pl. 4.

(6) Placuit in omnibus rebus præcipuam esse justitiæ æquitatisque, quam stricti juris, rationem. L. 8, C. de judic. Benignius legis interpretande sunt, quo voluntas earum conservetur. L. 18, ff. de legib. Etsi maxime verba legis hunc habent intellectum, tamen mens legislatoris aliud vult. L. 13, sec. 2, ff. de excus. tut. Hæc æquitas suggerit, etsi jure deficiamur. L. 2, sec. 5, in f. ff. de aqua et aquæ pluv. arc. Ubicumque judicem æquitas moverit. L. 21, ff. de interrog. Naturalem potius in se, quam civilem habet æquitatem. Siquidem civilis deficit actio, sed natura æquum est. L. 1, sec. 1, ff. si is qui test. lib. Benigniorem interpretationem sequi, non minus justius est, quam tutius. L. 192, sec. 1, ff. de reg. jur. Semper in dubiis benigniora præferenda sunt. L. 56, eod. Rapiendi occasio est, quæ præbet benignius responsum. L. 168, eod.

(c) Domat's Civil Law, Prel. B. p. 10, tit. i. sec. 2, pl. 5. (d) This article is a consequence of the foregoing rules.

we must be careful never to confound the use of these two ideas; but we ought to make a right discernment, and to apply either the just severity, or the temperament of equity, according to the preceding rules and those which follow.(a)

§ 461. It is never free and indifferent for us to choose either the rigor of the law, or equity, so as to be at liberty in one and the same case to apply either the one or the other indifferently and without injustice. But in every fact, we must determine ourselves either to the one or to the other, according to the circumstances, and to what the spirit of the law requires. Thus, we must judge according to the rigor of the law, if the law admits of no mitigation; or according to the temperament of equity, if the law will bear it.(b)(c)

§ 462. The obscurities, ambiguities, and other defects of expression, which may render the sense of a law dubious, and all the other difficulties of understanding aright, and applying justly the laws, ought to be resolved by the sense that is most natural, that has the greatest relation to the subject, that is most conformable to the intention of the lawgiver, and most agreeable to equity. And this is discovered by the several views of the nature of the law, of its motive, of the relation it has to other laws, of the exceptions that may limit it, and by other reflections of this kind, which may discover the spirit and sense of the law.(d)(e)

(a) Domat's Civil Law, Prel. B. p. 11, tit i. sec. 2, pl. vi.
(b) This article is also a consequence of the preceding rules.
(c) Domat's Civil Law, Prel. B. p. 12, tit. i. sec. 2, pl. 7.

(d) In ambigua voce legis, ea potius accipenda est significatio quæ vitio caret. Præsertim cum etiam voluntas legis, ex hoc colligi possit. L. 19, ff. de legib. Quoties idem sermo duas sententias exprimit, ea potissimum excipiatur quæ rei gerendæ aptior est. L. 67, ff. de reg. jur. Prior atque potentior est quam vox, mens dicentis. L. 7, in ff. de suppell. leg. Benignius leges interpretandæ sunt, quo voluntas earum conservetur. L. 18, ff. de legib. Scire leges non hoc est verba earum tenere, sed vim ac potestatem. L. 17, eod. (e) Domat's Civil Law, Prel. B. p. 12, tit. i. sec. 2, pl. 9.

§ 463. For understanding aright the sense of a law, we ought to consider well all the words of it, and its preamble, if there be any, that we may judge of the meaning of the law by its motives and by the whole tenor of what it prescribes; and not to limit its sense, to what may appear different from its intention, either in one part of the law taken separately, or by a defect in the expression. But we must prefer to this foreign sense of a defective expression, that which appears otherwise to be evident by the spirit of the whole law. Thus, it is to transgress against the rules and spirit of laws, to make use, either in giving of judgment, or counsel, of any one part of a law taken separately from the rest, and wrested to another sense than what it has when it is united to the whole.(a)(b)

§ 464. If there happens to be omitted in a law any thing that is essential to it, or that is a necessary consequence of its disposition, and that tends to give to the law its entire effect, according to its motive, we may in this case supply what is wanting in the expression, and extend the disposition of the law to what is included within its intention, although not expressed in the words.(c)(d)

(a) Incivile est nisi tota lege perspecta, una aliqua particula ejus proposita, judicare, vel respondere. L. 24, ff. de legib. Verbum ex legibus, sic accipiendum est, tam ex legum sententia, quam ex verbis. L. 6, sec. 1, ff. de verb. sign. Etsi maxime verba legis hunc habent intellectum, tamen mens legislatoris aliud vult. L. 13, sec. 2, ff. de excus. tut. See the preceding articles. See upon the word preamble the 134th Law, sec. 1, ff. de verb. obl. (b) Domat's Civil Law, Prel. B. p. 12, tit. i. sec. 2, pl. 10.

(c) Quod legibus omissum est, non omittetur religione judicantium. L. 13, ff. de testib. Quoties lege aliquid unuin vel alterum introductum est, bona occasio est, cætera quæ tendunt ad eamdem utilitatem, vel interpretatione, vel certe jurisdictione suppleri. L. 13. ff. de legib. Supplet prætor in eo quod legi deest. L. 11, ff. de præser. verb. Licet orationis sub divo Marco habitæ verba deficiant, is tamen qui post contractas nuptias nurui suæ curator da

(d) Domat's Civil Law, Prel. B. p. 12, tit. i. sec. 2, pl. 11.