Page:Harvard Law Review Volume 2.djvu/201

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given after the word had been used in the Constitution, still it was con- fessedly intended to be an explanation applicable to the Constitution, and to the U. S. Statutes then in existence ; still more would it seem to apply to the interpretation of statutes passed by Congress subsequent to the adoption of the Fourteenth Amendment.

Lord Chancellor Halsbury, in the recent House of Lords case of Leader v. Duffey, 13 App. Cas. 294, at 301, uttered a vigorous protest, by way of dictum, against '* rules of construction " for the interpretation of written instruments. He says: "All these refine- ments and nice distinctions of words appear to me to be inconsistent with the modem view — which b, I think, in accordance with reason and common sense — that, whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained. . . . But it appears to me to be arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself, and having made that fallacious assumption, to bend the language in favor of the assumption so made."

A " rule of construction " is not, as was pointed out by Mr. Haw- kins,^ a rule which gives to certain words a certain definite meaning, entirely independent of intention, as, for example, the rule in Shelley's Casey which is a rule of substantive law ; it is a rule " determining the construction which the courts are bound, in the absence of a sufficiently declared intention to the contrary^ to put upon particular words," giving to those words a certain prima facie meaning, but always containing the saving clause, "unless a contrary intention appear." That is to say, a " mle of construction " is a rule of presumption, giv- ing to certain words a prima facie meaning, which is binding upon judge and jury until contradictory evidence, and, in some cases, a certain amount of contradictory evidence, has been introduced to show that another meaning was intended.

In regard to these rebuttable presumptions the Lord Chancellor seems to think that such is the danger that judges will bend the other evidence of intended meaning to fall in with the presumed meaning, that it would be better to abolish these presumptions altogether. The dictum can scarcely be supported fh)m this point of view, these pre- sumed meanings being generally based upon motives of policy and upon what experience has shown to be a probability in fact, in regard to the intention of parties ordinarily using such words. They not only furnish a convenient starting-point for ascertaining the intended meaning, but they rest upon such a basis of policy and of probable fact that they should be conclusive in the absence of conflicting evidence.

The dictum, however, is valuable, in so far as it points out the danger of twisting the other evidence of intention to accord with the presumption, and calls to mind the often-forgotten fact that when evi- dence of a contrary intention has been introduced, the presumed mean- ing falls to the ground, and the meaning is to be ascertained from all the evidence of intention in the case, the presumed meaning having no greater weight as evidence of intention than that to which it is entitled by the evidentiary force of the probabiUty upon which it rests,

1 Hawkins on Coottniction ol Wills, Sword's ed., Preface, p. v.