Sec 627

Between interpretation and construction several important points of difference are to be noted. In the first place, the office of interpretation is to determine the meaning of words: that of construction to determine the meaning of the whole document of which these words are the ingredients. A foreign word, or a term of art, for instance, appears in a document; or a term that is illegible or otherwise obscure. The meaning of this word must be determined before the meaning of the document of which the word is part can be collected. The word " usance," to take a case elsewhere noticed, appears in a contract; to attempt to construe the contract until this word is interpreted would be futile, and so with regard to the word " danseuse" in a contract by a theatrical manager. Until this word is interpreted the contract cannot be construed;l and the work of interpreting the word is entirely distinct from that of subsequently construing the contract. - Then, secondly, the faculties required for interpretation are very different from those required for construction. The faculties required for interpretation are linguistic; they are such as concern the determining the meaning of words. Of this the simplest illustration is that of the interpreter who is called into court to translate the words of a foreign witness who can-not speak in the vernacular. Or the language of a past era has to be explained; and of this we may take as an illustration a case elsewhere noticed, where, in order to explain the Distinction between construction and interpretation.

1 Gass' App., 73 Penn. St. 39; infra, sec 635.

2 Infra, sec 631, 661.

3 See infra, sec 631, 647 et seq. 4 Wh. on EV. sec 493, 939.

Sec 628

Interpretation has been classified as (1) literal (interpretatio restrictiva), (2) liberal (interpretatio ex-tensiva), (3) arbitrary (interpretatio predestinata), (4) authoritative (interpretatio declarativa). - (1) Literal interpretation is where the letter is closely followed, as where, in interpreting a statute, the term "man" is given an exclusively masculine sense, and where metaphorical terms are construed literally, e. g., the term death by "shedding of blood," in a statute, being held to mean exclusively death by a wound from which blood flows.2 The literal meaning, however, is not to be adopted so as to destroy the meaning.3 Thus the literal meaning of "ten pockets of hops" would make the quantity very small; but evidence is admissible to show that a "pocket" is a hundredweight, and this meaning, when proved, will be accepted.4 (2) Liberal interpretation is the ascription to words of their largest sense. Of this we have an illustration in the interpretation of the words "regulate commerce" in the constitution of interpretation.

1 Dr. Lieber, Legal and Political Hermeneutics (3d edition, 1880,. by Hammond), thus expresses the distinction: "Interpretation is the art of finding out the true sense of any form of words; that is, the sense which their author intended to convey; and of enabling others to derive from them the same idea which the author intended to convey." (p. 11.) " Construction is the drawing of conclusions respecting subjects that lie beyond the direct expression of the text, from elements known from and given in the text - conclusions which are in the spirit though not within the letter of the text." (p. 44.) "That branch of science which establishes the principles and rules of interpretation and construction is called hermeneutics, from the Greek to explain, to interpret; and the actual interpretation of them exegesis, from the Greek explanation. Hermeneutics and exegesis stand in the relation to each other as theory and practice." (p. 52.).

2 See Lieber, op. cit. 57.

3 Infra, sec 654.

4 Spicer V. Cooper, 1 Q. B. 424.

tion of the United States, so as to include the right to establish inter-state railroads and canals, and to charter a bank. (3) Arbitrary interpretation is that which subordinates interpretation to pre-assuraed construction, making the word mean that which the interpreter thinks most consistent with a preconceived scheme of his own. In this way construction is erroneously made the basis of interpretation, and not interpretation the material for construction. (4) Authoritative interpretation is that which accepts the meaning of a term as it has been affixed by the state acting either through its legislature or its judiciary. We have illustrations of this in recent statutes in which terms used are specifically defined, and still more numerous illustrations in those judicial rulings by which technical terms - e. g., tenancies "in fee," "in tail," "after possibility of issue extinct" - have received a settled juridical meaning. When such a meaning has been accepted as giving the meaning of the terms likely to have been taken by the parties, then it controls. But it does not control when the parties used the term in an independent sense of their own.1 - As distinguished from the above kinds of interpretation is the real - e. g., that which seeks to give to each word the sense in which it was used by the party from whom it emanates.2

1 See infra, sec 632, 655.

2 See Lieber, ut supra; Koch, II. 221; Unterholzner, Schuldverhalt. tit. Aus-legung; Ihering, Aufsatze, 1881; Thol, Handelsrecht, III. Bd. tit. Auslegung; Vangerow (substantially following the above analysis), I. 46-53, 158; Thus-sing, uber die Auslegung der Rechts-geschafte; Savigny, Syst. des heut. Rom. Rechts, I. sec 32; Wachter uber Auslegung der unter abwesenden geschlossenen Vertrage; Thibaut, The-orie der logischen Auslegung; Zacharia, versuch einer allgemeinen Hermen.

Dr. Lieber (Hermeneutics, 108) gives the following as " the elementary principles of interpretation": and customary is preferable to the improbable, unfair, and unusual.

"1. A sentence, or form of words, can have but one true meaning.

"2. There can be no sound interpretation without good faith and common sense.

"3. Words are, therefore, to be taken as the utterer probably meant them to be taken. In doubtful cases, therefore, we take the customary signification rather than the grammatical or classical; the technical rather than the etymological - verba artis ex arte; tropes as tropes. In general, the words are taken in that meaning which agrees most with the character of both the text and the utterer.

"4. The particular and inferior cannot defeat the general and superior.

"5. The exception is founded upon the superior.

"6. That which is probable, fair.