ther, that, to lay down one general rule of interpretation so absolute as to be indispensible, would be making legal interpre tation to torture like the bed of the fabulous attic robber Procustes, and so, every instrument would be cruelly stretched or curtailed into the same meaning. All this is plain sense as to the interpretation of words, and, more or less ever has been, the language of our judges in deciding upon conveyances and written instruments of every kind, with, however, a peculiar extension of indulgence to last wills and testaments."

But when they come to construe, or apply the rule, even judge Blackstone, in the case of Perrin and Blake talks of rules more or less flexible, accommodating or obedient which I cannot comprehend; and I am happy to find that Hargrave in his observations is of the same opinion. Intention or technical term must govern; there cannot be a compound of both. It has been on this principle that I have been under the necessity of dissenting in some cases of a devise of real estate, from the decision of the court of which I am a member, looking at a will as I would at any other writing by persons not supposed to know any thing about law terms; and also looking at all that can be collected from the will relative to the family of the devisor, and the nature of the property devised. Dehors the will I would not go; or bring evidence aliunde as to the construction; and this is the only limit I would put to my interpretation. I would certainly consider, whether, from the language of the will, it appears to have been drawn by a person technically learned or ctherwise; and I would assist myself by what I could collect, or had collected of the popular use of terms; as also of the common usage in employing persons to draw wills, such as schoolmasters, or half learned persons in the society where the will was drawn.

There are a variety of things I would consider; in short from whatever sources I might draw my knowledge or information, I would take up a will as I would a letter or any other paper coming from the person, and inquire what was Intention with me should be absolute; and I would fetter it with nothing deducible from art or science of which

meant.

I could not suppose the person writing to have a correct know. ledge.

Under this head let me refer to judge Tucker's note, 2 Bl. Com. 381; particularly the remarks which he cites from Pendleton, president, to wit, "that the intention of the tes tator is declared by all the judges both ancient and modern, to give the rule of construction: but after laying down the true rule built upon intention, they admit that if there were no words of limitation, the common law rule must prevail; by which they tied a gordian knot, which they have since struggled to untie. It would have been better to have cut it at once."

He cites 1 Wash. Rep. 102, 103, 271, 302, 338. 1 Call's Rep. 13, 14, 16, illustrating this that the intention must be collected from the will itself; "which is true," says he, "if we admit those words to be explained by the relative situation of the parties; and the circumstances of the testator; which a multiplicity of cases prove ought to be considered. But it is said, the intention is not to prevail against settled and fixed rules of construction. If we could discover those settled rules, continues the president, we would pursue them; but, after all our researches, we are much inclined to affirm what was said by judge Wilmot, 3 Bur. 1533, that cases on wills served rather to obscure, than illumine questions of this sort. So it is said by the court, 3 Wil. 141. that cases on wills may guide as to general rules of construction, but, unless a case cited, be, in every respect, directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills."

"Upon the two principles of inconvenience and hazard, compar❝ed together, different nations have at different times, established "different rates of interest." II Black. Com. 462.

BY the statute of the 12th Anne, c. 16. (1713) entitled "an act to reduce the rate of interest," which remains the English law, no lender upon any contract, shall take directly or indirectly for loan of any monies, wares, merchandise, or other commodities whatsoever, above the value of 5 pounds for the forbearance of 100 pounds for a year and so after that rate for a greater or a lesser sum, or for a longer or shorter time; and that all bonds, contracts, and assurances whatsoever for payment of any principal, or money to be lent or covenant to be performed upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of 5 pounds in the hundred shall be utterly void; and that all and every person or persons whatsover which shall, upon any contract to be made, take, accept and receive, by way or means of any corrupt bargain, loan, exchange, chevizance, shift or interest of any wares, merchandise, or other thing or things whatsoever, or by any deceitful way or means, or by any covin, engine, or deceitful conveyance, for the forbearing or giving day of payment for one whole year of and for their money or other thing, above the sum of 5 pounds for the forbearing of 100 pounds for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter term, shall forfeit and lose for every such offence the treble value of the monies, wares, merchandises and other things so lent, bargained, exchanged or shifted."

The student when he reads the decisions of the English. courts upon this statute, will be naturally led to enquire whether this statute has been introduced, or made the law here. It has not been introduced, or acted upon; for we have an act of assembly of our own of the 11th March, 1723, which is different, and varies in some particulars from the English statute. With a view therefore to be enabled to compare our act with the British statute, I will extract what is material of it, as has been done above, totidem verbis in the Stat. of Anne; that, "no person shall, directly nor indirectly, for

U

any bonds or contracts, take for the loan or use of money or any other commodities, above the value of 6 pounds for the forbearance of 100 pounds, or the value thereof, for one year, and so proportionably for a greater or lesser sum; and that if any person, &c. shall receive or take more, &c. on any such bond or contract upon conviction thereof the person or persons so offending shall forfeit the money and other things lent, the one half to the governor, the other half to the person who shail sue for the same."

A diff rence in one particular will be observed here that th bond or contract is not declared void as by the English statute; so that though an interest of more than 6 per cent. could not be recovered, yet the sum originally lent might be recovered on the bond.

But by Sect. 2. the taking more than 6 per cent. is rendered highly penal. But it is not an indictable offence, though the word conviction is used; for the kind of conviction is stated in the act upon which the forfeiture shall be recoverable, and that is by action of debt, &c. It is called a qui tam action from the words of the writ, qui tam pro republica quam pro se ipso sequitur. These words of the writ as in other cases, are recited in the declaration.

The Jews were prohibited from taking interest from each other; Thou shalt not lend upon usury to thy brother; usury of money, usury of victuals, usury of any thing that is lent upon usury. Unto a stranger thou mayest lend upon usury; out unto thy brother thou shalt not lend upon usury." Deut. xxiii. 19, 20.

I can find but little concerning usury among the Greeks. It does not appear that any legal standard was established. Money lenders were enjoined to be moderate in their profits; which were in general previously stipulated by the par

ties.

Among the Romans, the interest of money was called Foenus, Usura, fructus, merces, and impendium. It would seem to have been discouraged by the Decemvirs: "Primo 12 tabulis sancitum est nequis unciario foenore amplius exerceret." Tac. An. Lib. VI—16.

The rate of interest, which was an inveterate grievance of the city (veterem duram and gravissimam molem) increased and fell as the influence of the wealthy, orclamours of the populace were most predominant. At one time (A. U. 408) 6 per cent. (foenus semiunciarum) was usual. Towards the end of the Republic, and under the first Emperors, 1 per cent (usura centesima) was tolerated. After the death of Anthony and Cleopatra, it fell to 4 per cent. Dio. Lib. 21. Finally Justinian took up the subject and regulated it. Parsons. of illustrious rank were confined in all cases to the moderate profit of 4 per cent. Manufacturers, and persons in other employments were allowed 8 per cent. In contracts of insurance (trajectitiis contractibus) twelve was permitted: and six (dimidiam centesima) was made the ordinary and legal profit to all other descriptions of persons, and in all other Contracts. Code 4. 32, 26.

It is on this principle, the prohibition of our statute, that the licence of the state, by a charter of incorporation becomes necessary, in order to take the case out of the statute, in case of discounts upon money lent by banks. What is called a bonus is usually given by the company for such a privilege. There is an inconsistency between this law, and the taking more than 6 per cent. upon bank stock. It would seem that this statute ought to be repealed or enforced against the money lenders of a self-constituted company..

The opinions of abstract writers on the subject of usury are different. Those who are enemies to interest in general, hold any encrease of money to be indefensibly usurious. Principally resting on the prohibition of it to the Jews by Moses, the school divines have exclaimed against the practice; and the canon law has absolutely forbidden it as a heinous sin. But the precept of Moses is clearly a political and not a moral injunction. His permission of it to strangers, proves that he did not think it malum in se.

Grotius seems to condemn it in a moral point of view, although he grants (De Jur. Bell. and pac. I. 11. c. 22) that a compensation allowed by law not exceeding the proportion