Sunday, October 23, 2011

Cooley on the Origin of Rights

"In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them.  These instruments measure the powers of the rulers, but they do not measure the rights of the governed."

Sunday, October 2, 2011

Herbert Broom on the Interpretation of Legal Documents

In his Selection of Legal Maxims, Herbert Broom summarized many of the best-established rules for the interpretation of documents, of which rules many ought to be used in constitutional interpretation (though he did not say so, himself).

“The rules of construction and interpretation separately considered in this chapter are the following:—1st, that an instrument shall be construed liberally and according to the intention of the parties; 2dly, that the whole context shall be considered; 3dly, that the meaning of a word may often be known from the context; 4thly, that a deed shall be taken most strongly against the grantor; 5thly, that a latent ambiguity may, but a patent ambiguity cannot, be explained by extrinsic evidence; 6thly, that, where there is no ambiguity, the natural construction shall prevail; 7thly, that an instrument or expression is sufficiently certain which can be made so; 8thly, that surplusage may be rejected; 9thly, that a false description is often immaterial; l0thly, that general words may be restrained by reference to the subject-matter; llthly, that the special mention of one thing must be understood as excluding another; 12thly, that the expression of what is implied is inoperative; 13thly, that a clause referred to must be understood as incorporated with that referring to it; 14thly, that relative words refer to the next antecedent; 15thly, that that mode of exposition is best which is founded on a reference to contemporaneous facts and circumstances; 16thly, that he who too minutely regards the form of expression, takes but a superficial, and, therefore, probably an erroneous view of the meaning of an instrument.”

A 17th rule, which I have often seen, is that where specific words have a general rationale, they are to be given the more general effect.  However, like many of the old maxims, this ought to be used with caution.  It is possible that words that were chosen do not match the intention, but it is also possible that the words were specifically, deliberately chosen, and in that case, the rule should not be changed by a judge (or anyone else) to fit what he believes to be the rationale.  After all, interpretation should begin with the text, and end there, unless the text is ambiguous (no. 18, or else nos. 2, 3, and 6, combined).

Saturday, October 1, 2011

Herbert Broom on Self-Defense

Here is yet another legal scholar (whose work is, conveniently for us, in the public domain, now) concerning the natural right of self-defense:

"Under the first of the above three clauses falls the remedy by self-defence, which is founded on the right derived to us from the law of nature to repel force by force.  But although the law permits this to be done in certain cases, it behoves one who thus undertakes his own protection, or that of his dependents, not to overstep the bounds of moderation, nor use force exceeding in degree what may be necessary for effecting the end in view; for, by so doing, he may perchance constitute himself an aggressor.  The licence thus conceded, is not, however, restricted to a defence of the person merely: for the rightful owner, in peaceable possession of property, may defend such possession by force, and will be therein justified."


"So also on the principle of self-defence; for if one strikes me first, or even only assaults me, I may strike in my own defence, and if sued for it may plead son assault demesne, or that it was the plaintiff's own original assault that occasioned it.  So, likewise, in defence of my goods or possession; if a man endeavours to deprive me of them, I may justify laying hands upon him to prevent him, and, in case he persists with violence, proceed to beat him away."