in allowing amendments, have thought it proper to discriminate between what have been regarded as hard and unconscionable defences, and such as have been considered with more favor.* The soundness of this discrimination may well be doubted. The Legislature of this State have thought it wise to declare usury to be a legal defence to an action upon the usurious contract. In doing so they have but followed every other civilized State. With the policy of such laws, courts have nothing to do. When a plaintiff wilfully violates the law by taking a greater amount of interest than it allows, I do not see upon what principle a court should take it upon itself to pronounce the defence with which the law has provided the defendant, hard or unconscionable. But such has been the practice, and perhaps that practice has now become so inveterate that it cannot be disregarded." +

So again, in the Court of Appeals, when an application. was made at the trial under the New York Code of Procedure, to amend a defective allegation of usury in an answer, the Superior Court denied it; but the Court of Appeals held this denial wrong, and said, "We are not, I conceive, warranted in applying a different rule to the defence of usury, from that which we should hold applicable in other cases. It is a defence allowed and provided by law. The defendant did not claim an indulgence from the court, but simply asked for the application of those rules which the Legislature has provided for all cases indiscriminately, whether the party invoking their exercise was seeking to visit his adversary with a forfeiture or not. The law has not made any difference between such defences and those where no forfeiture is involved; and the court can make none. If the sense of the Legislature is plainly expressed, we have no judgment to pass upon the policy of their provisions." +

* Fulton Bank v. Beach, 1 Paige, 429; Utica Insurance Co. v. Scott, 6 Cow. 606; 234. Jackson v. Varick, 2 Wend. 294.

Bates v. Voorhies, 7 How. Pr. Rep.

Catlin v. Gunter, 1 Kern. 368.

We have in this chapter discussed the subject of legislative power in an entirely practical point of view, considering the actual application of laws to the daily affairs of life; but the subject is often treated in a different aspect, and I give in this note a very brief summary of one of the ablest works on abstract jurisprudence, which this century (not fertile in such treatises) has produced; it will serve to give an idea of this sort of investigation. The work to which I refer is, The Province of Jurisprudence Determined, by John Austin, Esq., Barrister at Law, London, 1832. Mr. Austin's object (Pref. pp. 5 and 8), in accordance with his title, is to distinguish positive law, the appropriate matter of jurisprudence, from various other objects to which it is connected by resemblance, and from various other objects to which it is allied by analogy, all being connected and often confounded by the common name of "laws." Mr. Austin's leading propositions are these: Laws are a species of commands (p. 21), but the term is often improperly applied to various objects having really nothing of an imperative character; and the writer classes. laws as follows:

1st. Divine Laws, or the law of God, revealed, and unrevealed or tacit. This branch does not include the natural laws, which come under, the fourth or last head.

2d. Positive Laws, constituting what is commonly known as Jurisprudence : laws set by political superiors to political inferiors (p. 199); set by a monarch or sovereign number, to a person or persons in a state of subjection to the author.

3d. Laws of Positive Morality, embracing positive moral rules proper (distinguished, however, from the laws of God), and also, the moral rules set by opinion, as code of honor, laws of fashion; these last are laws by analogy only; they are really opinions, and are improperly called laws (chap. v, p. 130, note).

4th. Laws Metaphorical or Figurative.-Laws of physics or of matter. These, the author says, are not really laws at all. They are only called laws by a figure or metaphor of speech (p. 183).

The law of God consists of the revealed or express commands, and the unrevealed or tacit. As the index to the tacit commands of the Deity, the author adopts the theory of utility, and prefers it to either that of a moral sense, or to one compounded of the two. This is discussed at great and perhaps disproportionate length.

Laws are a species of commands (p. 12). Commands are of two species, "Laws or Rules," and "occasional or particular commands."

A command is a wish expressed by one rational being to another, that the latter do or forbear something, under the penalty of evil proceeding from the former, and to be incurred by the latter in case of non-compliance (p. 11). Command also implies the idea of superiority on the part of the person uttering it (p. 20). It is a wish, with the power and purpose of enforcing it (p. 6). Wherever 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 a not 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 dis tinguishing 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 Con

struction.

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, as suming 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 differ ent modes or species of interpretation. So, Vattel uses the