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In concluding this subject, it is proper to observe that this preliminary legislative or executive interpretation of constitutional powers having such an importance as we have seen attached to it, the responsibility for its proper exercise is proportionately great. Those legislators, therefore, who vote for a measure without being honestly convinced of its constitutionality, and excuse themselves upon the ground that, if their action is not valid, the courts have the opportunity to so declare, are recreant to their duty. Not only, as we have seen, may serious consequences follow from these acts before their invalidity is judicially determined, but, what is of still more importance, an unfortunate burden is thrown upon the courts. No popular government can successfully endure in which the decisions of its courts do not receive the general approval of the citizen body. But if legislatures recklessly pass measures ostensibly for the benefit of the masses, but invalid when tested by the fundamental law, the odium of defeating these measures is thrown upon the courts, and a popular objection to and distrust of these courts created. For, of course, the people generally cannot be expected to appreciate the constitutional questions involved. All that they can see and appreciate is that their legislative representatives have enacted a measure in their interests, which the courts have declined to recognize as valid.

§ 11. The Force of Contemporaneous or Long Continued Legis

lative Interpretation. The presumption of constitutionality which attaches to an act of Congress is increased when the legislative interpretation has been frequently applied during a considerable number of years, or when it dates from a period practically contemporaneous with the adoption of the Constitution, or when, based upon a confidence in its correctness, many and important public and private rights have been fixed.

In United States v. State Bank2the court, speaking through Justice Story, say: “It is not unimportant to state that the construction which we have given to the terms of the act is that

21 6 Pet. 29; 8 L. ed. 308.

which is understood to have been practically acted upon by the government, as well as by individuals, ever since its enactment. Many estates, as well of deceased persons, as of persons insolvent who have made general assignments, have been settled upon the footing of its correctness. A practice so long and so general would, of itself, furnish strong grounds for a liberal cohsideration, and could not now be disturbed without introducing a train of serious mischiefs. We think the practice was founded in the true exposition of the terms and intent of the act, but if it were susceptible of some doubt, so long an acquiescence in it would justify us in yielding to it as a safe and reasonable explanation.”

The foregoing had reference to the construction of a statute, but the same reasoning is applicable to the Constitution.

In Lithographic Company v. Saronyề2 the court declare: “The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the Convention who framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost conclusive 23

$ 12. Legislative and Executive Practice Not Absolutely Bind

ing. The Supreme Court has, however, never held itself absolutely bound by a legislative or executive construction (political questions excepted) however long acquiesced in, or however nearly contemporaneous its first statement with the adoption of the Constitution.


22 111 U. S. 53; 4 Sup. Ct. Rep. 279; 28 L. ed. 349. 23 See also Stuart v. Laird, 1 Cr. 299; 2 L. ed. 115.

24 In Swift v. United States (105 U. S. 691 ; 26 L. ed. 1108) the court say: " The rule which gives determining weight to contemporaneous construction put upon a statute by those charged with its execution applies only in cases of ambiguity and doubt.”

Contemporary construction,” says Story, in his Commentaries ($ 407), "is properly resorted to, to illustrate, and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and

§ 13. Extrinsic Evidence.

Generally speaking, in the construction of the Constitution the well known distinctions between latent ande patent ambiguities, and between the use of extrinsic and intrinsic evidence apply. Where the language of the instrument is itself indefinite or is such that more than one meaning may, by grammatical construction, be drawn from its terms, the courts base their determinations upon the language and provisions found within the four corners of the instrument, and without resort to extrinsic evidence. The governing point is as to what is actually written. If a given power may rationally, logically, and grammatically be construed as granted by a given provision, then it is of no countervailing force to adduce the fact that such was not the intention of those by whom the instrument of government was established. Thus, six years after the adoption of our Constitution, the judicial power of the federal courts was construed to extend to a case in which a State was defendant in a suit brought by a private individual, and support for such construction was undoubtedly supplied by the written word. That such, however, was not the intention of those by whom the Constitution was framed and ratified is quite certain, as was demonstrated by the promptness and unanimity with which the Eleventh Amendment was adopted, preventing a future similar construction,

talents of those, by whom it was given, is the credit to which it is entitled. It can never abrogate the text; it can never fritter away the obvious sense ; it can never narrow down its true limitations, it can never enlarge its natural boundaries.”

In United States v. Alger (152 U. S. 384; 14 Sup. Ct. Rep. 635; 38 L. ed. 488) the court say: “As the meaning of the statute as applied to these cases, appears to this court to be perfectly clear, no practice inconsistent with that meaning can have any effect.”

In Fairbanks v. United States (181 U. S. 283; 21 Sup. Ct. Rep. 648; 45 L. ed. 862) the constructive force to be given to legislative and executive practice is reviewed at length. With reference to the principle that the judiciary cannot be conclusively bound thereby the court say: “From this resumé of our decisions it clearly appears that practical construction is relied upon only in cases of doubt.”

$ 14. Technical Terms.

When, however, there is no ambiguity of grammatical construction, but the words themselves require definition, recourse is properly had to extrinsic evidence. Here it is necessary to learn from extrinsic sources the meaning usually attached to these words at the time the Constitution was framed and, presumably, by those who framed and adopted the Constitution. Examples of such technical terms are “letters of marque and reprisal,” “ ex post facto,” “ bill of attainder,” “ bankruptcy," "admiralty," " equity," “ direct tax," “ duties," "imposts," "excises," “ piracy,” “ habeas corpus," "citizen,” “alliance,” “confederation,” “republican form of government,” « infamous crime," " commerce," etc. The technical term “ treason” is defined in the Constitution itself.

One of the principal questions involved in the Dred Scott case was as to the definition of the term “ citizens of different States” as employed in Article III of the Constitution. The Insular Cases in considerable measure turned upon the meaning to be ascribed to the expression “United States.” In Texas v. White it was necessary to enter into a careful definition of the terms and “ government” in order clearly to distinguish them.

As has been repeatedly declared by the courts the best rule for interpreting the technical terms employed in the Constitution is to give to them the meaning which they had at the time that instrument was framed and adopted. When the terms are technical law terms they are to be given the meaning attached to them in the English common law.?



25 The Supreme Court in South Carolina v. United States (199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261) states this doctrine as follows: “ It must also be remembered that the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men dealing with the facts of political life as they understood them; putting into form the government they were creating and prescribing, in language clear and intelligible, the powers that government was to take. Mr. Chief Justice Marshall, in Gibbons v. Ogden (9 Wheat. I, 188; 6 L. ed. 23) well declared: * As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to

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In a few instances it is, however, to be observed, that the Supreme Court has refused to give to technical terms the meanings attached to them in 1789 by the common law. This has been so especially with reference to the words “admiralty” and “ bankruptcy” both of which terms have been given a broader meaning than that furnished by the English common law. Commenting upon this Pomeroy properly says: “ The true rule would seem to be this: Where words having a well known, technical sense by the English law are used in the Constitution, and these words are keys to the clauses which protect the private rights and liberties of the people, and especially of clauses which impose direct restraints upon the government in respect of such rights and liberties, and the technical sense itself is necessary for the complete protection of the individual citizen, this signification must still be retained in any interpretation of these provisions. But on the other hand, where words which had a technical meaning by the English law, are used in clauses which relate to the general functions of legislation and administration, and to the political organization and powers of the government, such sense must be


have intended what they have said.' One other fact must be borne in mind, and that is, in interpreting the Constitution we must have recourse to the conimon law. As said by Mr. Justice Matthews in Smith v. Alabama (124 U. S. 465; 8 Sup. Ct. Rep. 564; 31 L. ed. 508): "The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.' And by Jr. Justice Gray in United States v. Wong Kim Ark (169 U. S. 649; 18 Sup. Ct. Pep. 456 ; 42 L. ed. 890): “In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett (21 Wall. 162; 22 L. ed. 627); Ex parte Wilson (114 U. S. 417; 5 Sup. Ct. Rep. 935; 29 L. ed. 89); Boyd v. United States (116 U. S. 616; 6 Sup. Ct. Rep. 524; 29 L. ed. 746) ; Smith v. Alabama (124 U. S. 465; 8 Sup. Ct. Rep. 564; 31 L. ed. 508). The language of the Constitution, as has been Well said, could not be understood without reference to the common law. 1 Kent, Com. 336; Bradley, J., in Moore v. United States (91 U. S. 270; 23 L. ed. 346).' To determine the extent of the grants of power, we must, therefore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants.”

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