attributed to them as will best carry out the design of the whole organic law, whether that signification be broader or narrower than the one which had received the sanction of the English Parlianent and courts." 97 26

§ 15. The Interpretative Value of Debates in Constitutional Conventions.

When it is necessary and proper to resort to extrinsic evidence in interpreting the Constitution, an important source of such evidence is to be found in the history of the events which led up to its adoption. Of special importance are the recorded proceedings of the convention which drafted, of the state conventions which ratified, and the public utterances of the men who played an influential part in the establishment of, the Constitution. Resort is to be had, however, to these sources only with caution, and only where latent ambiguities are to be resolved. Cooley has stated in a manner not to be improved upon the weight properly to be ascribed to debates in conventions. He says: "When the inquiry is directed to ascertaining the mischief designed to be remedied, or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory; but where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a convention in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of a convention as to require neither discussion nor illustration; and the few remarks made concerning it in the convention might have a plain tendency to lead directly away from the meaning in the minds of the majority. It is equally possible for a part

26 Constitutional Law, 10th ed., p. 607. See also idem, p. 345.

of the members to accept a clause in one sense and a part in another. And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally and obviously convey. For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings, therefore, are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives. The history of the calling of the convention, of the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered from the proceedings of the convention." 27

§ 16. The Federalist.

What has been said regarding the interpretative value of the debates in the conventions that framed and ratified the Constitution, and the value of contemporary interpretation thereof by Congress and the Executive, applies to the collection of essays published under the title of The Federalist. This is true peculiarly of these essays not only because of their respective authors

Hamilton, Madison and Jay- -but because of the purpose for which they were prepared and published, namely, to persuade the several state conventions to ratify the Constitution. Having this construction of the Constitution before them, there are consider27 Constitutional Limitations, 7th ed., p. 101.

able, though not conclusive, grounds for holding that, where the meaning thus published was not repudiated, this was the construction intended by those who put the Constitution into force.

The case of Chisholm v. Georgia29 is, however, a conspicuous instance in which a view advanced in The Federalist (that a State would not be suable in the federal courts at the instance of a citizen of another State) was repudiated by the Supreme Court.

§ 17. History of the Times.

The case of Prigg v. Pennsylvania30 illustrates the value of a resort to the "history of the times" and to the general object sought to be obtained, in interpreting an ambiguous constitutional provision. In this case, which involved the question as to the exclusiveness of the power granted to the Federal Government under the fugitive slave clause of the Constitution," Justice Story said: Historically it is well known that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. How then are we to interpret the language of the clause? The true answer is, in such a manner, as, consistently with the words, shall fully and completely effectuate the whole object of it. If by one mode of interpretation the right must become shadowy

28 In Cohens v. Virginia (6 Wh. 264; 5 L. ed. 527) Marshall says: "The opinion of The Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the Constitution, puts it very much in their power to explain the views with which it was framed. These essays having been published while the Constitution was before the nation for adoption or rejection, and having been written in answer to objections founded entirely on the extent of its powers, and on its diminution of state sovereignty, are entitled to the more consideration where they frankly avow that the power objected to is given, and defend it."

29 2 Dall. 419; 1 L. ed. 440.

30 16 Pet. 539; 10 L. ed. 1060.

31 Art. IV, Sec. II, Cl. 3.

and unsubstantial, and without any remedial powers adequate to the end, and by another mode it will attain its just end and secure its manifest purpose, it would seem upon principles of reasoning absolutely irresistible that the latter ought to obtain. No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction equally accordant with the words and sense thereof will enforce and protect them."

Here it is to be observed that Story properly introduces the qualifying condition that the construction supported by the history of the times in which, and the purpose for which, it was formed, must, as compared with another possible construction, be "equally accordant with the words and sense thereof." It is thus to be emphasized that extrinsic evidence may never be used to support an interpretation which the written word does not upon its face reasonably permit. In other words, extrinsic evidence may properly be used to decide between two possible constructions of the written word, but not to add to or subtract from its express provisions.32

§ 18. The Interpretative Value of Legislative Debates.

As in the case of the examination of the Constitution itself, the courts in considering the constitutionality of a statute hold themselves bound by the words of the statute, that is, they determine the intent of the legislature by the words it has employed. And, therefore, they will not resort to legislative debates except where necessary to resolve a latent ambiguity.

In Maxwell v. Dow the court say: "Counsel for plaintiff in error has cited from the speech of one of the Senators of the United States, made in the Senate when the proposed Fourteenth Amendment was under consideration by that body. . . . What speeches were made by other Senators and by Representatives in the House

32 Query, as to whether the resort to "history of the times was legitimate in the Slaughter House Cases for the interpretation of the clause of the Fourteenth Amend nent that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." 33 176 U. S. 581; 20 Sup. Ct. Rep. 448; 44 L. ed. 597.

upon this subject is not stated by counsel, nor does he state what construction was given to it, if any, by other members of Congress. It is clear that what is said in Congress upon such an occasion may or not express the views of the majority of those who favor the adoption of the measure which may be before that body and the question whether the proposed amendment itself expresses the meaning which those who spoke in its favor may have assumed that it did, is one to be determined by the language actually therein used, and not by the speeches made regarding it. What individual Senators or Representatives may have urged in debate, in regard to the meaning to be given to a proposed constitutional amendment, or bill, or resolution, does not furnish a firm ground for its proper construction, nor is it important as explanatory of the grounds upon which the members voted in adopting it. In the cases of a constitutional amendment it is of less materiality than in that of an ordinary bill or resolution. A constitutional amendment must be agreed to, not only by Senators and Representatives, but it must be ratified by the legis latures, or by conventions, in three-fourths of the States before such an amendment can take effect. The safe way is to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the Amendment was adopted. This rule could not, of course, be so used as to limit the force and effect of an amendment in a manner which the plain and unambiguous language used therein would not justify or permit."35

34 Citing United States v. Trans-Missouri Freight Association (166 U. S. 290; 17 Sup. Ct. Rep. 540; 41 L. ed. 1007); Dunlay v. United States (173 U. S. 65; 19 Sup. Ct. Rep. 319; 43 L. ed. 616).

35 In United States v. Trans-Missouri Freight Association (166 U. S. 290; 17 Sup. Ct. Rep. 540; 41 L. ed. 1007) both the majority and inority opinions detail at some length the congressional history of the so-called Anti-Trust Act of 1890, but both admit that this is not a legitimate source of information. The majority justices after their review of the course of the bill through Congress and the debates attendant thereupon, argue that it is impossible in fact to say what were the views of the majority of the menbc.'s of each House of