Whenever there is the smallest chance of incurring the smallest evil, the expression of a wish amounts to a command, and imposes a duty (p. 9). Command and duty are correlative terms (p. 7).

Command and duty, or obligation and sanction, are inseparably connected terms (p. 11).

Thus far, Mr. Austin's laws are undoubtedly a species of commands, and this division of laws is accurate, though the nomenclature is perhaps inapt. But is the definition of command entirely correct? Command implies a duty, it is said. What of illegal, criminal, or merely hostile commands? Take the decree of a revolutionary or usurping power; the "stand and deliver" of a highwayman; the "surrender" of an enemy; do these impose duty or obligation? If so, in what sense of the word?

In one place in Mr. Austin's work (p. 6), command implies power and purpose to enforce itself, and in another (p. 9), the least chance of the enforcement makes it a command. Is not this a contradiction?

I proceed with the analysis of Mr. Austin's work.

Third Class (p. 143). The positive moral rules which are laws properly so called, are:

First. Those imperative rules set by men living in a state of nature.
Second. Those set by sovereigns, but not as political superiors.

Third. Those set by subjects as private persons, and not in pursuance of legal rights.

1st. As an instance of this, any imperative rule imposed by man in a state of nature; though, because he is in a state of nature, it is not imposed in pursuance of any legal right.

2d. Laws imposed by one sovereign or supreme government, on another sovereign or supreme government.

3d. Laws or rules set by parents to children, masters to servants; by lenders to borrowers; by patrons to parasites; rules of clubs. These all proceed from determinate sources, but they are set by persons, as private persons, and not in pursuance of legal rights. I may remark, that to class rules set by patrons to parasites, under positive moral rules (p. 146), seems not a very happy nomenclature.

The positive moral rules which are laws improperly so called, are such as laws of honor, laws of fashion, law of nations set by opinions current among nations. Here there is no determinate author and no strict sanction; and their chief analogy to a law is that the party violating will suffer some evil consequence, and hence uniformity is produced.

Sect. 6th, p. 196.-In order to complete the explanation of the marks distinguishing positive laws, the author in this chapter defines various terms -such as sovereignty, subjection, independent political society, unconstitutional; and in this he incidentally discusses the division of powers into legislative and executive, or administrative. I cannot but think that this chapter would have been fuller, the analogies more ample, and objections, which naturally suggest themselves, more completely answered, if the writer

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 legislature, 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 exposition— Judicial construction-Usage-Language used in statutes-Technical terms -Liberal and strict construction.

It 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

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 page, 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 Пlparre." 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 interpretation, 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,