and, consequently, that his reason for adding this condition was to make a provision for his own child, and not for any one else, in preference to Curius. If, therefore, we make this clause operate so as to exclude Curius, though there is no posthumous child to be provided for; we shall give it such an operation, as is not agreeable to the intention of the testator. His words, indeed, are-If my posthumous child dies. But if we interpret his will by the reason upon which he proceeded, his meaning is If I have no posthumous child that lives. If the law has prescribed a particular method of recovering possession, where the owner of any lands has been turned out of them by force; it may be a question, whether the same method is to be made. use of, where a number of armed men have taken possession of his field in his absence, who, upon his attempting to come into it, bid him come in at his peril, and he withdraws without persisting in his attempt? The words of the law may be urged on one side; because he cannot be said to have been turned out of his lands, as he was not upon them. But the reason of the law is on the other side. The end or design of it is, not merely to place him upon his own lands, but to give him possession of them. If, therefore, where it speaks of his being turned out of his lands, we collect the meaning of it from this purpose; his being turned out of his lands, must mean, not merely his being put out of the lands themselves, but his being put out of the possession of them. And he is as much put out of possession, when he is hindered by force from coming upon them, as if he had been upon them, and had been driven off by force. What the law intends to restore him to, is what it supposes him to have been turned out of. But it intends, not merely to bring him into his lands again, but to bring him into the possession of them. When, therefore, it says,-if a man is turned out of his lands; it must be understood to mean,-if he is turned out of the possession of his lands. * The Mosaic laws says, If a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or an ass fall therein; the owner of the pit shall make it good, and give money unto the owner of them; and the dead beast shall be his. In our author's opinion, the reason of the law will extend it beyond the words, to any ditch, or to any tame animal. But this may well be doubted of: because the same reason does not extend to all ditches and to all tame animals. A ditch may be intended as a fence for a man's grounds: and the law cannot be sup posed, either to require, that a ditch, when it is made for this purpose, should be covered, or to charge the owner of the grounds with the loss of any beast, which falls into such ditch, in attempting to come into a place, where it ought not to be. If the owners of sheep, in the country, where this law was made, were always used to have shepherds to take care of them; there is not the same reason, why the owner of a pit should be charged with the loss of a sheep, which falls into it, that there is, why he should be charged with the loss of any other tame animals, which usually stray without a keeper. Meaning of the XII. † When we would restrain the meaning of a writer, how re- writer, and show, that it is less comprehensive than his strained in rational words, or that some particular case, which is included in his words, is not within his meaning; we must argue, † Grot. Lib. II. Cap. XVI. § XXII. XXIX. interpretation. * Exod. XXI. 28, &c. either for an original, or for an accidental defect in his intention; either we must argue, that according to the state of things, which came within the notice of the lawmaker, or testator, or contractor, at the time of making the law, or the will, or the contract, he could not intend, originally, to include the case in question, however he may have so failed in his expression as to include it in his words; or else we must argue, that the case is an accidental one, which probably was not foreseen originally; and that, if the writer had foreseen it, if the present state of things had come within his notice, he would have limited his expression, and have particularly excepted the case in question. In contending for an original defect in the meaning of the writer, the topics are the same with those, which we make use of in mixed interpretation; we argue from the effect, from the matter, or from the circumstances. Under the first of these topics may be comprehended what Grotius considers as a distinct topic, and calls the reason or ultimate design of the writer. For when we argue, that a particular case could not, originally, be included in the meaning of the law; either because some absurd consequence will follow from including it, or because some consequence will follow, which is inconsistent with the reason or end of the law; we plainly argue, in both instances, from the effect: in the former instance we contend, that the effect, which would be produced, by including the case in the meaning of the law, will be contrary to reason in general; and in the latter we contend, that it would be contrary to the reason of the legislator in particular. Our Saviour proves, from the reason of the law, that the fourth commandment, which prescribes the observance of the sabbath, admits of some exceptions, though the words of the law are general. When he reasons from the practice of the Jews themselves, who, upon that day, led their beasts to water; his argument may seem to conclude in favour only of works of necessity: but when he reasons from the end of the law, that the sabbath was made for man, and not man for the sabbath; the conclusion is more comprehensive, and takes in all works of pure charity. The law says, that they, who in a storm forsake the ship, shall lose their right in the ship, and the lading; and that such ship and lading shall be the property of them who stay in it. A ship is quitted in a storm by all who were in it, except one sick man, who was not able to get out; and the ship, by accident, comes safe into port. The sick man claims the ship as his own, by the law, and the owners claim against him. Puffendorf makes use of this as an example of mixed interpretation, where the particular sense, in which words of more senses than one are used, is to be ascertained. But it seems rather to be an example of rational interpretation, where the writer's words express his meaning imperfectly, and the sense of them being too general, is to be restrained by the end which he had in view. Staying in the ship are words which, if we adhere to the letter, have only one sense; but this sense is very extensive, and would support the sick man's claim. The reason of the law, or the encouragement which the legislator designed to give those, who would expose their lives to save the ship, is what limits this extensive sense of the words, and shows the legislator to have meant, not any staying in the ship, as his words, unless we were thus to restrain them by the reason of the law, would import, but a voluntary staying there, for the purpose of contributing to save it. Whatever case is not within the subject matter of what is spoken or written, is not within the meaning of the speaker or writer; though his words, if they were construed in their full extent, would include it: for nothing can be within his meaning, which was not in his mind; and the subject matter, upon which he spoke or wrote, is what his mind was employed about, at the time of speaking or writing. You sell me goods, and oblige yourself to defend me in the possession of them, under a certain penalty. If these goods are taken from me by force, and you refuse, upon my request, to defend me against such force, I have no claim to the penalty. By engaging to defend me in the possession of the goods, you could not mean to ensure my possession against such accidents as these. For though the words have this extensive sense, yet the subject matter of the agreement limits the sense of them. In a contract, which transfers your right in the goods to me, this right is the subject matter. Any loss of possession, therefore, in which this right never came into question, as it has no relation to the subject matter of the contract, could not, originally, be included within your meaning. The circumstances, by which the meaning of a law is so restrained by rational interpretation, as to exclude cases, which are contained within the letter of it, are of the same sort with those, which are made use of to settle the sense of an ambiguous word in mixed interpretation: they are such as are connected with it, either in origin, or in place, or in time. Other laws, which were made by the same legislator, or some clauses in the same law, or the contemporary practice, by which is meant, either the practice which obtained, at the time of making the law, and which the law was designed to prevent, or the practice which followed, upon making it, among those who were under its authority, and were, in all appearance, disposed to comply with it; any, or all of these are circumstances, which will help to show, whether the meaning of the legislator was as extensive as his words; or whether any cases are to be excepted out of his meaning, which come within his words. The arguments, which are drawn from these topics, sometimes conclude so strongly, that little can be said against them, with any appearance of reason. But sometimes they may be so urged, on both sides, as to leave room to doubt, on which side the truth lies. Thus, where the law forbids or commands any thing in general words, and then goes on to enumerate the several particulars, which are included under such general words; if it omits any one particular, it may be a question, whether the meaning of the legislator extended to this particular or not. Now this enumeration of particulars being a circumstance, which is connected, in place, with the general words; as they are both found in the same law; we may urge, that it was designed to explain the general words, and to show how far the legislator intended to extend them, that, when he was enumerating the several particulars, if he had intended to take in any others, besides what he has expressed, he would have mentioned them, as well as these; and, consequently, that, * Puffendorf, Book V. Chap. XII. § XIII. 5. however extensive the general words of the law may be in themselves, the meaning of the legislator must be limited to these particulars, which are contained in such enumeration. On the contrary, we might argue from the effect, according to the rules of mixed interpretation; that, if any doubt concerning the legislator's meaning arises upon his words, we are to construe all his words in such a manner, as to give them some significancy, and to make them produce some effect. But if no particulars are to be included within his meaning, besides those, which are expressed in the enumeration, his general words would stand for nothing, and no effect would be produced by them. This argument will conclude most strongly, where the general words follow the enumeration. When the legislator begins his command or his prohibition with general words, and then goes on to enumerate particulars; there is some ground for surmising, that the enumeration of particulars is designed to be explanatory of the general words, and that his meaning stops, where he stops in his enumeration. But if he first mentions a number of particulars, which he commands or forbids, and then concludes with such general words, as will extend in their common acceptation to some other particulars not expressly mentioned; it seems to be a more reasonable supposition, that he apprehended it to be possible for him to have overlooked several particulars, which he intended to include within the law, and that he added these general words with a design to take in all such particulars, as he might have overlooked. And even where the general words stand first, though the enumeration of particulars, which follows them, must be allowed to be explanatory of such general words; yet there is no necessity for supposing, that the meaning of the legislator extends no farther than the particulars which he enumerates. He might design to explain, not the extent of the law, but the matter of it; to show, not what number of cases, but what sort of cases, was within his meaning. Now a few instances would be sufficient to explain the matter of his law, and to show what sort of cases come within the meaning of it. He might, therefore, leave his enumeration imperfect; not because his meaning stopped where he stopped in his enumeration; but because such an imperfect enumeration would answer the purpose, for which he designed it. The law of Moses commanded, that three cities should be set apart in the midst of the land, that every slayer might flee thither. And this is the case of the slayer, which shall flee thither, that he may live: whoso killeth his neighbour ignorantly, whom he hated not in time past. Thus far it is plainly the intention of the lawmaker that every person who killed another in any manner, if there was no malice, should suffer no punishment, provided he took refuge in one of those cities of protection. But the law, after it has said this in general words, proceeds to mention a particular instance. As when a man goeth into the wood with his neighbour to hew wood; and his hand fetcheth a stroke with the axe to cut down the tree; and the head slippeth from the helve, and lighteth upon his neighbour, that he die; he shall flee unto one of these cities, and live. One can scarce imagine, that the legislator mentioned this particular case, with a design of limiting his meaning to this case only. He did, indeed, design, that it should be *Deut. XIX. 3, 4, 5. explanatory of his general words: but then he designed to explain by it, not the extent, but the matter of the law, to show what sort of cases, and not what number of cases, his meaning took in. But we should observe, in the meantime, that the force of this argument is greatly abated, where the law, instead of contenting itself with mentioning a few cases, mentions a great number. The more perfect the enumeration is, the more likelihood there is, that the legislator designed to limit his meaning to the particulars, which are enumerated. If he only designed to explain the matter of his law, or to point out the sort of cases, to which it belongs; a few particulars would be sufficient for this purpose. When, therefore, he enumerates many, it becomes likely, that he did not design to answer a purpose, which might have been answered with less trouble; but that he designed to mention all the particulars, to which the meaning of the law extends. What is thus urged in abatement, though it may have weight, where the enumeration of particulars follows the general words, will, for a reason, which has already been taken notice of, have little or no weight, where the general words follow the enumeration of particulars. Many more examples of the like sort might be produced: but this, which we have been explaining, will be sufficient to show the reader, that the common topics of interpretation may frequently be alleged on both sides, with such an appearance of probability, as will make it dif ficult to come to any certain conclusion on either. Sometimes a case is to be excepted out of the meaning of a writer, though no original defect of his intention can be shown. The state of things which fell under the notice of the legislator, at the time of making the law, may possibly afford no evidence that he did not intend, from the beginning, to include the case in question, within the obliga tion of the law; whether we were to argue from the effects, from the matter, or from the circumstances. We must, then, have recourse to the present state of things; and must endeavour to prove, that the law is more extensive than the legislator would have made it, if he had foreseen the accidents which have happened since it was made; that it was adapted to the state of things which he had before him; but that the present state of them in this particular instance is such, as makes it reasonable to believe, that, if he had been aware of it, he would have either expressly excepted the case in question out of the law, or would have otherwise provided for it. The like method of reasoning may likewise be applied to wills and to contracts. Though the words of the will, or of the contract, may include the case in question; and though no original defect may appear in the intention of the testator or of the contractors, which might exempt this case from the general obligation produced by the will, or the contract; yet we may argue, that the reason why no such defect appears, is, because the testator or the contractor proceeded upon the state of things which was then before him; and that, if he had been aware of what might arise afterwards, if he had seen things in the same state in which, by accident, they are now placed, he would have added some clause in favour of the case now in question. Great caution is necessary when we thus put ourselves into the place of the lawmaker, or testator, or contractor, and undertake to determine what they would do, if they were to declare their own meaning in a |