United Kingdom House of Lords Decisions

As I have said, I think the discussion lies within very narrow limits, and I am not disposed to extend those limits. I am very loth to get out of the actual language of the statute into what may be considered more reasonable provisions, if one were drawing the statute oneself. Such phrases as are here selected by the Legislature seem to me intentionally to exclude the deductions which are insisted upon. I do not mean to say that it is a conclusive argument against a construction of a statute to say that the Legislature might have used clearer words if they had intended such and such to be the construction. I am afraid one cannot always say that statutes are passed with such a degree of logical precision that that argument is conclusive. But when you have the Legislature here selecting words which I think it cannot be denied are in their ordinary acceptation inappropriate to the deductions now claimed, and when the thing meant according to the construction contended for by the appellant was so obviously capable of being very readily expressed in simple language, such as “deducting all reasonable outgoings,” or something of that sort, an argument may be drawn from the absence of such words, and the special emphasis which the statute appears to place on the word “burdens,” “the yearly amount of other burdens of what nature soever affecting and burdening the said lands and estates.” I cannot help thinking that language of that sort must have been used intentionally, and must have been used with the intention of excluding the very thing we are discussing. One need not go further into the inquiry when one has come to the conclusion that those words do not include the deductions claimed, but I can conceive that it may have been in the mind of the Legislature that to use such phrases as “reasonable outgoings and expenditure upon the estate” might introduce an amount of litigation on these questions which it was not desirable in the interests of the State should be promoted.

However that may be, I only make that observation in passing to enforce what I consider to be the canon of construction of a statute. I am always disposed to read a statute very strictly. I must take the language as it is, and taking it in the sense in which any lawyer, Scotch or English, reading those words would interpret them, I think these deductions would not fall within it. That really is the whole of my reasoning upon the subject. I am governed by the force of the language itself; I cannot go out of it; I do not desire to go out of it. What has been suggested, and very fairly suggested, as a more reasonable statute to pass, is not a guide to the interpretation of this statute which is passed. I must therefore adhere to the language of the statute as it is, and under those circumstances I think your Lordships ought to affirm the judgment of the Court below and dismiss the appeal with costs.

Lord Macnaghten—I am of the same opinion. I do not see my way to differ from the judgment of the majority of the Court below. With regard to the argument of Mr Blackburn, that according to the construction which they have placed upon the words of the statute the expression “free” is unnecessary, I think that possibly is so. I think probably the proviso would have had the same meaning if the word “free” had been left out; but I think, reading the whole of that section, it is pretty clear that the words which follow were intended to explain what was meant by “free rent” or “free value.” I think the Legislature has carefully chosen those words so as to exclude these outgoings which it would, no doubt, have been perfectly reasonable to have provided for; I think the framers of the statute, as the Lord Chancellor said, deliberately determined to exclude them.

Lord Shand—I am entirely of the same opinion.

Lord Davey—I also am of the same opinion. I cannot myself get over the word “burdens”—“the yearly amount of other burdens of what nature soever affecting and” (not “or”) “burdening the said lands and estates or the yearly rents or proceeds thereof.” I cannot say that these expenses are “burdens” which “burden the said estates” in any legitimate use of those words.

Lord Robertson—I am also of opinion that the upkeep of the estate buildings and the management and superintendence of the estate are not, in the sense of the statute, “burdens affecting” either the estate or its rent. This is a statute relating to Scotland, and in the legal phraseology applicable to Scotch landed estates these expenses are not burdens and do not affect the rents. They are simply contract debts. In Scotch legal language they would be properly described as expenses or outgoings, and the outgoings now in question figure so largely in the practical aspect of questions of jointure that it is impossible to suppose that if they were intended to be deducted the Legislature, not usually so parsimonious in language, should have veiled them under words primarily at least descriptive of entirely heterogeneous subjects.

On the appellant's other argument I shall only say one word. The word “free” seems to me to do no more than describe the sum to be handled after deduction of the burdens, which are enumerated in more or less comprehensive

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