had been more familiar with our complex political organization For instance, Mr. Austin says, "In the State of New York, the ordinary legislation of the State is controlled by an extraordinary legislature. The body of citizens appointing the ordinary legislature forms an extraordinary and ulterior legisla ture, by which the constitution of the State was directly established, and every law of the ordinary legislature which conflicted with a constitutional law directly proceeding from the extraordinary, would be treated by the courts of justice as a legally invalid act. That such an extraordinary and ulterior legislature, is a good or useful institution, I pretend not to affirm. I merely affirm that the institution is possible, and that in one political society, the institution actually obtains." Not a very audacious affirmation, considering that this "institution " is the fundamental legal idea in thirty-two "political societies" called States of the Union, as well as of the Union itself.

Mr. Austin is a disciple of Bentham. His work is, as I have said, one of the few works which this century has produced in our language, of abstract disquisition on the subject to which it relates. I think his power of reasoning more remarkable than the fitness of his nomenclature. But the work is very valuable, and will well repay a careful perusal. It has never been republished in this country.

CHAPTER VI.

GENERAL RULES FOR THE CONSTRUCTION OF STATUTES.

General rules for the construction and interpretation of statutes-Necessity for construction and interpretation growing out of the ambiguity of language, and other causes- -Various rules given by standard writers-Vattel's rules-Domat's rules-Rutherforth's rules-Mackeldey's-Lieber's-Rules of our law-Intention of the legislature, to govern-Mode of arriving at the legislative intention-Lord Coke's rules-Blackstone's rules-Statutes in pari materia-Contemporaneous exposition-Legislative expositionJudicial construction-Usage-Language used in statutes-Technical terms -Liberal and strict construction.

Ir is hardly necessary to assert the proposition, that in the use of language uncertainty and ambiguity are sure to occur. Contracts, treaties, statutes, and the books of our religion itself, furnish instances that will at once present themselves in numbers to the mind. The imperfection of language is a serious evil when it occurs in those legislative commands on which the repose, discipline, and well-being of society depend. In regard to laws, as in other cases, difficulties will arise, in the first place from the disputed meaning of individual words, or, as is usually said, of the language employed; and in the second place, assuming the sense of each separate word to be clear, doubt will result from the whole context. It is to meet cases of these two kinds that principles of interpretation, or construction, become necessary; and leaving out of view, for the present, the rules by

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which the sense of single words, phrases, and technical terms is arrived at, we shall first consider the general principles of interpretation.

Many efforts have been made to lay down precise and positive rules for the construction of statutes; and in order to facilitate this, a nomenclature has been sought to classify different modes or species of interpretation. So, Vattel uses the terms extensive and restrictive interpretation; Rutherforth, liberal, natural, and mixed; and Mackeldey, authentica, usualis, and doctrinalis. Professor Lieber has endeavored to carry this refinement to still greater length. He distinguishes between interpretation* and construction, and divides

*

* The following is Prof. Lieber's derivation of the word Interpret: "To interpret, as is well known, is derived from the Latin interpres, interpretari, a compound of inter and pretari. The latter belongs, as nearly all truly Latin words, according to its root, to that language which was spoken by the original inhabitants or settlers of Europe, and of which the Gothic, ancient High German, Swedish, Icelandic, Latin, &c., are but descended, and which was likewise either the first foundation of the Greek, or so strongly influenced it, that the root of innumerable words is easily traced through all these languages." * "Pretari is of the same root with many words in Teutonic languages: Prata, in Swedish, is speaking. We have prating and prattling. The German reden (pronounced raden), speaking, is the same; for d and t easily change, while a consonant before another (p in this case) is frequently dropped; or it may be that reden is the original. Praten signifies to this day, in some parts of Germany, speaking loud and monotonously. Prædicare, and the Greek pašer, belong to the same family of words. It is very possible that pretari and prating are of the same root with broad-German, breit-speak broadly, plainly. The present German word for interpreting is auslegen, laying out, laying open, unfolding."—Lieber's Legal and Political Hermeneutics (1839), p. 20, in note. The etymologists, however, do not agree. Richardson's Dictionary (1839) says, "Interpret, interpretari, of uncertain etymology," and gives, with a query, "Pretari, from Iparтeiv." I have annexed to this chapter copious extracts from the works of Vattel, Domat, and Professor Lieber, which will serve to illustrate their mode of reasoning on the subject, and to compensate for any error that I may make in underrating the value of the careful classifications and nicely drawn rules of the writers of this class.

the former into close, extensive, extravagant, limited or free, predestinated and authentic; and the latter into close, comprehensive, transcendent, and extravagant.

Under these classifications it has been attempted to frame formal rules for the various modes of interpreta tion, as-It is not allowable to interpret what has no need of interpretation.— When we see what is the sense that agrees with the intention of the instrument, it is not allowable to wrest the words to a contrary meaning. -No text imposing obligations is understood to demand impossible things.

And to elucidate the use of these definitions, and the application of these rules, cases actual or possible are resorted to, exhibiting many varieties of doubt and difficulty. So, if by the terms of a treaty a town is not to be surrounded by walls, the question is asked, whether, upon a proper construction, it may be inclosed with fosses and ramparts. So, the law condemns to death him who strikes his father. Shall we punish him who strikes and shakes his father to recover him from a fit? So, where it was enacted that whosoever drew blood in the public highway should be severely punished, a barber opened a vein of a person taken in the street with apoplexy. Was he guilty or not?

These, and similar discussions, have amused the fancy and exhausted the arguments of text writers. I cannot, however, consider them of much value for the student of jurisprudence. Ours is eminently a practical science. It is only by an intimate acquaintance with its application to the affairs of life, as they actually occur, that we can acquire that sagacity requisite to decide new and doubtful cases. Arbitrary formulæ,

metaphysical subtleties, fanciful hypotheses, aid us but little in our work.

Nor do I believe it easy to prescribe any system of rules of interpretation for cases of ambiguity in written language, that will really avail to guide the mind in the decision of doubt. It is with the utmost difficulty, if at all, that we can define or direct any one intellectual process. How is it to be expected that we can, with success, lay down rules which are generally to govern the operations of the mind? The attempt is ingenious, metaphysically curious, but of little practical utility in the study or the application of the science of the law. What is required in this department of our science is not formal rules, or nice terminology, or ingenious classification, but that thorough intellectual training, that complete education of the mind, which lead it to a correct result, wholly independently of rules, and, indeed, almost unconscious of the process by which the end is attained. It would seem as vain to attempt to frame positive and fixed rules of interpretation as to endeavor, in the same way, to define the mode by which the mind shall draw conclusions from testimony.

Still, although we may reject the curious nomenclature, and the arbitrary rules to which I have referred, it is not to be supposed that a subject so important as the construction and interpretation of laws is to be left to the mere arbitrary discretion of the judiciary. This would be to put in their hands power really superior to that of the legislature itself. There must be some general principles that control the matter; and I believe it will be found, that the principles which control the interpretation of statutes may, for all practical purposes, be not unaptly arranged under the same heads, and reduced analytically to the