guide in practice than mere policy and convenience. Men, on such subjects, complexionally differ from each other; the same men differ from themselves at different times. The policy of one age may ill suit the wishes or the policy of another. The law is not to be subject to such fluctuations." This is sound doctrine: where the intention is clear, the judge must not on the ground of inconvenience reject that intention, for he is not to make but to interpret and apply the law. But the rule holds good which I have already cited from the Pandects : Inambigua voce legis, ea potius accipienda est significatio quæ vitio caret. Where the law is capable of more than one meaning, that is to be preferred which is liable to no inconvenience and leads to no vicious effect. And this is the way of discovering the real intention. Celsus adds,-præsertim cum etiam voluntas legis ex hoc colligi possit. And thus Gajus says (L. lvi., ff. De Reg. Jur.), Semper in dubiis benigniora præferenda sunt. And Celsus says (L. xxiii., ff. De Legib.), that laws are to be interpreted mildly, that is to say so as to produce no hardship, or in favour of mercy, provided the intention be preserved. Benignius leges interpretandæ sunt, quo voluntas earum conservetur. We shall see in the next Reading the application of this rule to penal statutes.

SIXTH READING.

ON THE CONSTRUCTION OF STATUTES.

WITH this Reading I shall conclude the subject of the construction of statutes. It may perhaps be observed, at the termination of this Reading, that I have by no means exhausted the subject; and that I have omitted cases and rules respecting this branch of law. I have done so advisedly,-and for this reason:-I never proposed to read to you a complete treatise on the subject in question; and I do not suppose that my Readings can be made a substitute for the diligent perusal of books of reference, such as Sir F. Dwarris's book on Statutes, and reference to the cases cited there and collected in the digests. My object is of another nature. It is to present to you a comprehensive view of a particular branch of law, in a form different from that of the text-books; to expound it by a process of comparison with other systems of law; to explain doctrines and theories, with their grounds and consequences; and for those purposes to proceed with an argumentative and dialectical method.

By these means I hope to furnish you with such scientific knowledge as will materially assist you when you go to the text-books themselves. Thus you will be furnished not only with a general plan of the subject, but with a clue to its details. When you have to argue on contradictory cases, you will the more readily see their bearing and the use which you may make of them, because you have applied your minds to the principles which are the reasons of those cases, or from whence those reasons are drawn. It is by this species of study, based on reasoning and argument, that a legal mind is acquired, which is most valuable, not only to a lawyer, but to persons in every station and in every profession. How often do we find men, learned, highly educated, and well-meaning, but who for want of this power of argument and dialectical thought, are bad men of business, because they take a narrow and one-sided view of things, or keep going over the same ground, not seeing the bearing of arguments against the view which they have adopted. Much that we commonly call obstinacy may be traced to this defect. To avoid it, I believe the best remedy

is to exercise the mind in the dialectical study of Law-treated as a practical branch of philosophy.

I shall perhaps here be answered by a claim in favour of mathematical science, as the best training for the mind of a lawyer and a judge. To this claim I make the following reply :—

It is undoubted, that without strong reasoning powers, it is impossible to excel in legal or in mathematical science, and a proficiency in mathematics may therefore be a good ground of prognosticating success in legal study. On the same principle, mathematics, by exercising the reasoning faculties, and thus strengthening them, must be a good means of training for legal study. But these are not sufficient grounds for arguing either that a lawyer must be a mathematician, or that mathematical studies are the best of all preparations for legal studies; if mathematics be considered not merely as an exercise calculated to strengthen the reasoning part of the mind, but as a model on which to form a legal habit of the intellect. Jurisprudence and mathematics are both abstract sciences; but the former is a moral science as contradistinguished from the latter, which is an exact science. Now, in exact or mathematical science, the train of reasoning is single, and composed of certain positive indivisible propositions, each of which is capable of being insulated, and is absolutely true or false in itself. Hence it can be looked at in but one point of view. Every mathematical truth is capable of being tried by an invariable rigid and infallible test. But the characteristics of moral science are the very reverse. Thus, upon almost every legal question, the arguments by which the disputed point is to be discussed are several and multifarious. Every question is to be looked upon in a variety of points of view, and the abundance of arguments shows the talent and learning of the jurisconsult. Thus Burke says, "The excellence of mathematics is to have but one thing before you but he forms the best judgment in all moral disquisitions, who has the greatest number and variety of considerations in one view before him, and can take them in with the best possible consideration of the mere results of all.” a

This observation is confirmed by Grotius, b. ii., chap. xxiii., § 1, of his great work. And the same distinction is thus well expressed by that learned and profound Italian writer, Cremani, in his treatise on Criminal Law (lib. i., pars ii., cap. xiii., § 3): "It is necessary to observe, that things of a moral nature do not always appear so absolutely or so clearly as those that belong to mathematical science, which so separates form from matter, that there is no mesne between two forms, as, for instance, there is nothing between a right line and a

a Burke's Speech in the House of Commons, May 8, 1780.

curve.

But in moral science, adjuncts and circumstances, though very slight, vary the matter, and the forms or propositions in question usually have something mesne which approaches more or less to one or the other extreme." And Grotius (liv. ii., c. xxiii., § 1,) (following the doctrine of Aristotle) shows, on the same principle, the distinction between the degrees of certainty of moral and of mathematical science. And Molineus says, Modica circumstantia facti, magnam diversitatem juris inducit.

Almost every legal position is relative, and its correct appreciation depends upon a power of comparison, or weighing one argument against another, and embracing in the mind all the arguments juxtaposed one to the other. This is legal judgment. There are, indeed, some legal propositions capable of mathematical demonstration; but in by far the greater number of instances, legal questions are only to be decided by comparative appreciation and judgment of and upon a tissue of more or less numerous arguments.

In the science of politics, or government, in all its branches, the same principle is applicable. They depend for the most part on a balance of probabilities, by the comparison of different arguments one with the other. And so it is with a great part of the business of life.

By way of corroboration of these views respecting mathematical studies, it is worth mentioning that the Chancellor D'Aguesseau says nothing of mathematics in his plan of legal education, though himself very skilful in the exact sciences. D'Aguesseau, it is true, speaks of mathematical order in law, and it is obvious that as in both sciences the argument is a cognito ad incognitum, there must be a certain method common to both; but the diversity of their natures must not be forgotten in applying a mathematical method to jurisprudence. The reasoning in both is governed by logic, which is thus a connecting link between them. But that reasoning is of a different nature in each, as Burke shows.a

These reflections sufficiently show that, besides the process of learning what the law of a particular country is (which is best accomplished here by diligent study of books, attendance in Court, and above all in a pleader or counsel's chambers, and then by practice), there is another method highly important as an auxiliary to the former, and as a means of acquiring a legal and judicial mind. I mean the study of the law, in the way which Burke indicates, as the best for the pursuit of all moral science, by bringing a great variety of considerations into one view, by comparison, by the dialectical investigation of doctrines and

a And see Domat, Droit Public, L. i., tit. vii.

principles, and the analysis of the grounds and reasons of the law. This portion of the cultivation of legal science is peculiarly fitted for academic teaching, and I conceive it to be my especial province in the performance of the duties of Reader.

We will now resume the subject of the construction of statutes.

There are two ways of interpreting instruments in cases where the undetermined nature of their expressions admit of some latitude, and in which those expressions may be understood and interpreted ;—either in an extensive sense, or in a strict and confined sense.

To this part of the subject belongs that famous distinction between things of a favourable and things of an odious nature, which has been used by the civilians, jurists, and canonists, and which is adopted in our own law. This distinction between favourable matters, in which a liberal interpretation should be followed, and odious or unfavourable matters, wherein a strict and confined interpretation is requisite, applies to some extent to all instruments, and demands consideration.

Domat thus states the Civil Law: "The laws which are in favour of that which the public good, humanity, religion, the liberty of making contracts and testaments, and other such like motives, render favourable, and those which are made in favour of any persons, are to be interpreted in as large an extent as the favour of these motives joined with equity is able to give them; and they ought not to be interpreted strictly, nor applied in such a manner as to be turned to the prejudice of those persons in whose favour they were made."

"The laws which restrain our natural liberty, such as those which forbid anything that is not in itself unlawful, or which derogate in any other manner from the general law; the laws which inflict punishments for crimes and offences, or penalties in civil matters; those which prescribe certain formalities; the laws which appear to have any hardship in them; those which permit disinheriting, and others of the like sort, are to be interpreted in such a manner as not to be applied beyond what is clearly expressed in the law, to any consequences to which the laws do not extend. And on the contrary, we ought to give to such laws all the temperament of equity and humanity that they are capable of." a And the learned writer cites many texts from the Pandects in support of these propositions.

The following is the doctrine of Grotius.b "Promises regard favourable things, or odious things, or things partly of the one nature and partly of the other. Things favourable are those which are governed by the principle of equality, or which tend to the common utility, so that the greater is that utility, the more favourable is the nature of Domat, Loix Civ. Liv. Prélim. §§ 14, 15.

b Grot. Dr. de la G., liv. ii., ch. xxvi., § 10.