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meaning, though not within the words of the legislature, and others, which may fall within the letter, may be contrary to his meaning, though not expressly excepted. These cases thus out of the letter, are often said to be within the equity, of an act of parliament; and so cases within the let ter, are frequently out of the equity. Here, by equity, we mean nothing but the sound interpretation of the law; though the words of the law itself may be too general, too special; or otherwise inaccurate or defective. These then are the cases which, as Grotius says, "lex non exacte definit sed arbitrio boni viri permittit," in order to find out the true meaning of the law given, from every other topic of construction." 3 Bl. Com. 430.

We have an English statute, 28 Hen. 8. c. 7. Sec. 28, which provides" that the present act shall be taken and accepted according to the plain words and sentences therein contained." It might as well have enacted that the words should be plain, and have no ambiguity; and the arrangement of a sentence or sentences, be so intelligible that no misunderstanding in the case, should take place; or have enacted that all judges whose province it was, to construe them, should have no difference of opinion; or, that all judges should have legal knowledge, and good sense. Notwithstanding such a statute, it might puzzle a king in that country, to find judges who would all agree, if they exercised their individual judgments; or, that would understand a statute precisely, as each one of the legislature might say, they had intended; for, perhaps even the members of parliament among themselves, might not agree, as to what, in their opinions, the meaning of the statute was.

The truth is, it is one of the most difficult things to ex press an idea in such manner that there can be no mistaking, Let any one think of giving an order, or direction to an agent; or, of having given instructions to an intelligent person relative to the most common business; and, how often will he find that he has not been sufficiently comprehended. Or, in the case of receiving instructions from an intelligent person, how often will he find that the meaning is somewhat to be guessed at. But how much will the chances of an up

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certain meaning occur when the subject of the direction is on a matter not familiar to the common mind, and involves a great scope of action that is to be embraced by the rule. Cases that occur, will often prove that the highest powers of thehuman mind are not adequate to the anticipating of them. It is not in human nature to foresee every thing. It is under a sense of the difficulty, I have heard it said, that the wisest head could not frame a law, but a cart and horses might be driven through it. If it can be at all done, it must certainly be by one who understands the use of terms; the arrangement of words; the remedy to be provided, or the duty enjoined; and can foresee, like a skilful general, when he lays the plan of a campaign, or disposes his troops for an engagement, where it is that the adversary may find a weak part, or make an impression.

But from the number of minds that are to be consulted before a bill can pass the chambers of the legislature, were it even drawn in the most skilful manner, it will be disturbed by amendments. According to the proverb, many cooks spoil the soup. In the nature of the case, it is impossible, always, to avoid ambiguity where alterations, by additions or by striking out, are made. There will be as many different meanings to be extracted, as there are spellings of the word Sunbury on the hand-boards, on the road from the town of Reading to that place. Of this we have a remarkable instance in the construction put upon the 9th section of the act of 3d April, 1792. The judges of the supreme court adhered to the letter; and even these differed among themselves. The judges of the state (supreme court) endeavoured to reach what they considered the intention, and even these as to the intention, differed; some adhering less or more to the letter, others rejecting the letter, and following what they took to be the meaning altogether. The ambiguity of what is expressed, has led to much difference of opinion. on the bench, and has been the source of litigation to the people. Where

"More is meant than meets the ear,"

will be the case, in all diction. But if the letter is to go

vern; and if what is said must be taken strictly, the substantial meaning and intention will oftentimes be lost.

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A difference of inclination to construe according to the letter or intention, divided the Roman lawyers. There were those who contended for a strict adherence to the letter and forms of the law; others for a benign interpretation of it, and for allowing great latitude in the observance of its forms." Butler's Horæ Juridicæ, 49.

I always thought, says lord Mansfield, in a report of the case of Perrin v. Blake, which has come into my hands,“ that the strict adherence of courts of justice to the letter of the law, is productive of the worst consequences. In all ages there will be strict lawyers. But it is to be hoped that, in all ages, there will be lawyers of a different bent of genius, and a different course of education."

It cannot but be supposed, that there will be a wide difference between the penning of an act of the legislature, and that of a last will and testament. In the one case, great deliberation, and by men selected for their understandings; in the other, by the individual presumed to be inops consilii, or unassisted; and in many cases, in a great degree unlettered; and, it may be, in his last sickness. Yet the same principle will apply in one case, as well as the other, viz. that the intention is to govern. That it is oftentimes. difficult to get at this intention, is certain. For where an unlettered individual himself draws or dictates his will, or rather dictates the heads of it; or where an ordinary scrivener, such as may occur, puts it into language, it must, in most cases, defeat his intention to be collected from the whole will, if the letter is to govern. I introduce the case of wills only to illustrate what I mean by construction according to intention, not that I would put an act of assembly to the same extent, on a footing with the construction of wills, for the reasons already given. For in wills there is oftentimes great difficulty. When Satan went on his voyage to the new world, our earth, Milton occupies the fallen angels in his absence, with discussing metaphyscis.

"Others apart sat on a hill retired,

In thoughts more elevate, and reasoned high
Of providence, fore-knowledge, will, and fate,
Fixed fate, free-will, fore-knowledge absolute,

And found no end in wandering mazes lost."

Had last wills and testaments been then, he might have given these to construe. Not that they might not be able to find out the meaning by the mumping, if the intention was to govern, but if adhering to the letter, they would find such contradictions, and inconsistencies, that it would be difficult to know what to make of it.

The English are divided on the subject of construing wills. All agree that the intention is to govern, save where a technical term occurs; and in this case some are governed by the term; or, in other words, by the letter. So that it is not what a man meant, but what he ought to mean by the rules of art, that is to guide. Nor is it even what technical rules will permit him to mean; but it is a compound of the two, what he meant, and what he ought to mean, that constitutes the enigma and comes to be unriddled. This will sometimes be a question worthy of Edipus to the Sphynx. For in one case, it will be said, the intent controuls the technical term; and, in another, the technical term, controuls the intent.

"I am sensible," says sir Joseph Jekyll, (master of the rolls,) 2 Peere Williams, 741, "there is a diversity of opinion among the learned judges of the present time, whether the legal operation of words, in a will; or the intent of a testator shall govern. For my part I shall always contend for the intention; and I think the strongest authorities are on that side. For if the intention is sometimes to govern, as it is admitted, it must, and yot always give way to the legal construction; and, yet at other times, shall not govern, there will then be no rule to judge by; nor, will any lawyer know how to advise his client; a mischief which judges ought to prevent." And, by lord Mansfield, 2 Burr. 770. "No technical words are necessary to convey a testator's meaning; and, whenever that is doubtful, it must be collected from the whole scope of the whole will compared with the several

parts." And in Perrin and Blake's case, he says, "That he always thought, that, as the law had allowed a free communication of intention to a testator, it would be a strange law to say, now that you have communicated that intention so that every one understands what you mean, yet because you have used a certain expression of art, we will cross your intention, and give your will a different construction; though what you meant to have done is perfectly legal; and, the only reason for contravening your intention, is because you have not expressed yourself like a lawyer." Such was the judgment of a majority of the king's bench. But, in the exchequer chamber, on a hearing, it was reversed. The majority of the judges stuck to the strict letter, and the technical terms of the will.

In this country the bulk of judges have followed this decision of the exchequer, because it was that of the majority. Judge Pendleton, in Virginia, did not follow it, as has been already noted.

"Victrix causa diis placuit, sed victa Catoni."

Judge Tucker, in his notes on Blackstone, recognizes this way of thinking of Pendleton. And in his judicial capacity, April, 1810, "that there are no precise words, no precise arrangement of them, nor any thing, in any degree technical, necessary to the discovery of the testator's rea! and legal intention. Whenever, from the whole face, and context of the will, we can collect the testator's intention, we are bound to give it effect." 1 Munford, 541.

So far with respect to the construing last wills and testaments, with a view of explaining the difficulty of reconciling in all cases, the pursuing the strict letter of an act of assembly, with what they must obviously have intended. For such is the imperfection of language, that terms are equivocal : or vary in their meaning, according to their situation in a sentence. There is also what the grammarians call an ellipsis, in language; words used in a preceding clause, which are omitted in a second, and to be understood, or brought forward, and supplied. We have instances of this in last wills and testaments, where the judges in early times, not the best

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