may not be amiss to add a few observations concerning the interpretation of laws.

When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions, which had only the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise," and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals. [Note 24, page 160.]

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions* at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.†

1. Words are generally to be understood in their usual and most known signification; ‡ not so much re

n Inst. 1. 2. 6.

**Cited 18 Wall. 301; 10 Watts, 182; 1 Yeates, 483; 1 Winst. 469; 2 Winst. 114.

*+ Quoted 44 Ala. 426; 10 Minn. 121. Commented 26 Cal. 182.

Quoted 6 Mo. 12, 100; 28 Pa. St. 36; 4 Watts & S. 393; 5 Hill, 364; 1 Conn. 303; 8 R. I. 419; 5 Conn. 46; 5 Humph. 122; 3 Halst. 334; 8 Gratt. 676.

garding the [60] propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbad a layman to lay hands on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia, and the heirs of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her body;" which in a legal sense comprize only certain of her lineal descendants. 9 Lastly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges posteriores priores contrarias abrogant is a maxim of universal law, as well as of our own constitutions. And accord

ingly it was laid down by a law of the twelve tables at Rome, quod populus postremum jussit, id jus ratum esto.9

2. If *words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and when the

o L. of N. and N. 5. 12. 3.

*Quoted 11 Conn. 197; 26 Cal. 182. Cited 39 Ind. 71; 5 Mont. 128; 53 Conn. 413.

9 This passage, appearing in all editions from the first to the eighth, has been in the ninth and all subsequent editions transferred to page 89, post.

common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. As to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions [61] directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.‡

5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author p L. 5. c. 12. ? 8.

*Quoted 1 Munf. 210; 5 Conn. 46, 52. Cited 1 Munf. 207.

+ Quoted 8 Gratt. 676. Commented on 5 Conn. 61.

Cited 2 Ga. 256.

Quoted 21 Pa. St. 246; 2 Conn. 114. Cited 23 Wall. 380; 2 Wood. & M. 7; 1 Winst. 469; 26 Cal. 182.

of the rhetorical treatise inscribed to Herennius.q There was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel; but this is a merit [62] which he could never pretend to, who neither staid in the ship upon that account, nor contributed anything to its preservation.*

From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius,r "the correction of that, wherein the law (by reason of its universality) is deficient." For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases, which according to Grotius, “lex non exacte definit, sed arbitrio boni viri permittit."† [Note 25, page 163.]

Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid

q L. 1. c. 11. [This case is also discussed by Puffendorf, lib. 5, c. 12, 10, and by Wolf, Jus Naturæ, pars. 6, 489. It has been a favorite illustration with all recent writers.j

r De æquitate. ? 3.

Cited 4 Hill, 403.

Cited 1 Ga. Dec. pt. 2, 85; 16 Ga. 267; 39 Ga. 282, 9 Omitted in ninth edition.

down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

NOTES OF THE AMERICAN EDITOR.

10) Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational, page 38.

The unity of law. No passage in the Commentaries has been more severely criticised than this. The writer of the article on Sir William Blackstone in the ninth edition of the Encyclopædia Britannica, vol. 3, pp. 800– 802 (an article which deserves attention as a compendious and succinct statement of all that has been or could be said in dispraise of its subject), evidently refers to it when he speaks of B. as "falling into the common error of identifying the various meanings of the word 'law,' ," and says that "he has only the vaguest possible grasp of the elementary conceptions of law. He evidently regards the law of gravitation, the law of nature, and the law of England as different examples of the same principle, as rules of action or conduct imposed by a superior power on its subject." (pp. 801, 802.)

Now there are two distinct questions suggested here. One is, whether the different forms of law can all be