CHAPTER XIII.

OF CONTEMPORANEOUS EXPOSITION.

§ 620. FOR the purpose of ascertaining the intention of the legislature, and for putting a construction on a statute, resort in some cases may be had to contemporaneous exposition. Lord Coke has laid down the rule, that great regard, in the exposition of statutes, ought to be paid to the construction that sages of the law, who lived about the time, or soon after it was made, put upon it; because they were best able to judge of the intention of the makers when the law was made, regard being first had to the true import and meaning of the words themselves. It is undoubtedly true, in cases of doubt as to the intent, recourse should be had to the old authors who wrote at the time, or soon after the passing of the law. This rule is founded on the presumption that they must have had the fittest opportunity, and are. the most likely to understand the circumstances which led to its enactment; and, hence, what was the intent and meaning of the law-makers. It is apprehended that the degree of light which contemporaneous exposition will throw upon a statute, or the weight of influence it should have upon the mind, must depend very much upon the agreement of such expositors, as to the cause which moved to the enactment of a particular statute, and the object which it had in view, and from which the intent is to be spelt out, and that such resort should never be had, except in doubtful cases, or where the words of the statute are obscure. In such cases, considerable stress will

be laid upon the light in which it was received and held by the contemporary members of the profession.

§ 621. In this case, as in all other cases, the object of such a resort is to ascertain the intention of the legislature, and to carry into effect their true intent and meaning, according to the spirit of the enactment; and, as such intent may be collected from various sources of information, foreign circumstances may be considered as evidences of the reason, cause, necessity, object and spirit of the law. (a) Resort may also be had, in cases of doubt, to the history and situation of the country, which sometimes will shed some light on the meaning of some of the provisions of an act.

§ 622. So, too, the history of the legislation in the state, in reference to the subject-matter of a particular statute, may be referred to, as tending to aid in the construction to be given to a statute.(b) Contemporaneous practice, which, as we have seen, consists in what was usually done in the place where the law was made, at or near the time of making it, is a circumstance so intimately connected with a law, that it will many times be taken into consideration, and influence the construction.

§ 623. McKeen v. Delancy's Lessees(c) affords a familiar illustration of this rule. The question in that case arose under the Act of Pennsylvania of 1715, which required deeds to be acknowledged before a justice of the peace of the county where the land lay; and it had been the long established practice, before 1775, to acknowledge deeds before a judge of the supreme court of Pennsylvania. Although the act of 1715 did not authorize such a practice, yet as the practice had prevailed, it

(a) 4 Gill & J. 6.

(b) Henry v. Tilson, 17 Verm. R. 479.

(c) 5 Cranch Rep. 22.

was held that it must be considered as a correct exposition of the statute; that long and uninterrupted practice under a statute was good evidence of such construction. In Stuart v. Laird, (a) it was also held that a contemporary exposition of the constitution of the United States, practiced and acquiesced in for a period of years, commencing with the organization of the judicial system, fixed the construction. It was a contemporary interpretation of the most forcible nature; and such a practical exposition was too strong and obstinate to be shaken or controlled. Ch. J. Vaughan, in one case,(b) held, that when the meaning of a statute is dubious, long usage is a just medium to expound it by; for jus et norma loquendi are governed by usage. The meaning of things spoken or written must be, as it hath been constantly received to be, taken from common acceptation.

§ 624. There are two sorts of contemporary practice, and either of them may be applied for the purpose of explaining any ambiguous words or expressions in a statute. The first is the common practice, which prevailed among the people when the law was made. The second consists in what was done upon the law, in the time immediately after the making of it. From the practice which prevailed among the people at the time the law was made, we may, with some degree of probability, collect with what view it was made; what good the legislature designed to advance or secure, or what harm it designed to prevent or restrain. But this sort of contemporary practice, since this is the only use that can be made of it in interpreting laws, is only a remote means of interpretation; it helps us in our conjectures about the meaning of the law, and then from the reason of the law we ascertain the meaning of the legislature in any am

(a) 1 Cranch R. 299.

(b) Sheppard v. Griswold, Vaugh. R. 169; cited 1 Kent, 465.

biguous words or expressions that it has made use of. By what has been done upon a law soon after it was made, is not meant what has been done by courts of judicature, who are the authorized interpreters of the laws of the country. But the practice which it produced among the people, or what was done in consequence of it by those who were obliged, and might be supposed willing, to comply with it. The practice of courts or their determination of any question which has arisen upon a law, instead of being means which will help to interpret it, are themselves authentic interpretations of it. Thus far indeed the practice of such courts might be considered as evidence, but not as a means of interpretation.

§ 625. Though the persons, who for the time being preside in later times, may have the same authority to interpret a law, yet what their predecessors have done, who were contemporaneous with the legislature, will help to restrain them in the use of their authority, because it will show them in what sense the law was understood by those who had the best opportunity of knowing its true sense, either from the legislators themselves, or by seeing the situation of things which led to the making of the law. In like manner the effect which the law produced in the behavior of those who were obliged by it, and who lived at the time of making it, will help to form a judgment about the meaning of the legislature, when the words used have left that meaning doubtful, both because they had an opportunity either of finding out the reason of the law by their own observation, or of hearing it in their discourse with others, and because it is probable that if their practice had not been agreeable to the sense of the legislature, care would have been taken to correct it, or to explain its meaning more precisely.(a)

(a) See Ruth. b. 2, ch. 7, sec. 8, 9.

§ 626. Although general usage, under an act where the words are doubtful, may be called in to explain it; yet where they are clear, it is said the usage of a particular case cannot control them.(a) So, too, in the construction of a statute, great deference is certainly due to a legislative exposition of a constitutional provision, especially when it was made almost contemporaneously with such constitutional provision, and may be supposed to result from the same views of policy and mode of reasoning which prevailed among the framers of the instrument expounded. (b) Although in cases of real doubt as to the meaning of a particular clause in the constitution, a legislative construction, if deliberately given, is entitled to much weight, yet it is by no means conclusive on the judicial tribunals. (c)

§ 627. We have already shown, it is obvious that contemporary interpretation of a constitutional provision must be resorted to with much qualification and reserve. The private interpretation of any particular man or body of men must be manifestly open to much observation. Contemporary construction is properly resorted to, to il•lustrate and confirm the text, to explain a doubtful phrase, or to expound an obscure clause, and in proportion to the uniformity of that construction, and the known ability and talents of those by whom it is given, is that credit to which it is entitled. It can never narrow down its true meaning, it can never enlarge the national boundaries. Such, we have seen, was the opinion of Mr. Justice Story. Other able judges have held, that while great deference is due to a legislative exposition of a constitutional provision, when it is made contemporaneously with such constitution, and may be supposed to result

(a) Rex v. Hogg, 1 T. R. 728.

(b) The People v. Green, 2 Wendell's Rep. 274. (c) Coutent v. The People, 11 Wend. Rep. 513.