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tion of those who made the instrument, and of the instrument itself, as the deliberate, written, agreed intention therein expressed. When thus ascertained, they will be applied to those parts of the constitution, which bear on the subject matters of these cases, as this Court has heretofore applied them: and believing that my opinion in each of these cases, is in perfect consistency with the former adjudications on kindred subjects, they will be referred to in their aid, with no other qualification than that the authority of those adjudications shall be deemed no farther binding than the Court itself has declared. “This opinion is confined to the case actually under consideration.” 4 Wh. 207. “It is a maxim not to be disregarded, that general expressions in any opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the Court, is investigated with care and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided; but their possible bearing on all other cases, is seldom completely investigated.” 6 Wh. 399, 400. such cases only in its view, the Court lays down a principle which is generally correct in terms, much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle.” Ib. 40; S. P. 12, Wh. 273, 333. Thus qualified, the judgments of this Court will be taken as the rule for mine, as to the principles and reasoning on which they are founded: but as to terms or names which are used for designation merely, I shall consider them as not affecting the substance of the subject matter referred to by the Court in using them, in a literal, or figurative sense.

The fundamental rule of construction, is to ascertain the intention of a law, a grant, charter, or contract in writing. “If the law expresses the sense of the legislature on the existing law, as plainly as a declaratory act, and expresses it in terms capable of effecting the object; the words ought to receive this construction. If this interpretation of the words should be too free for a judicial tribunal; yet if the legislature has made it, and explained its own meaning too unequivocally to be mistaken, courts may be justified in adopting that meaning." 12 Wh. 148 to 150. Laws and acts which tend to public utility, should receive the most liberal and benign interpretation to effect the object intended or declared, est res majis valeat quam pereat; 1 Bl. Čom. 89; so as to make the private yield to the public interest, and in favour of public institutions, and all establishments of piety, charity, education, and public improvement; 11 Co. 70 to 78; Hob. 97, 122, 157; 1 Ser. 55; Dy. 255; 5 Co. 14, b.; 10 Co. 28, a; 9 Cr. 331; 3 Pet. 140, 481; 6 Pet. 436, 7; 10 Ch. 340. Courts will look to the provisions of a law to discover its objects, to meet its intention at the time it was made, which they will not suffer to be defeated; it will be sought in the cause and necessity of

making the law, the meaning thus extracted, will be taken to be the law intended, as fully as if expressed in its letter; and a thing which is within the letter, but not within the intention of the law maker, is not within the statute. i Bl. Com. 60; 15 Johnson's Reports, 380; 14 Mass. 92, 3; 5 Wh. 94; 12 Wh. 151, 2; 6 Pet. 644.

“ When the whole context demonstrates a particular intent in the legislature, to effect a certain object, some degree of implication may be called in to effect it." 6 Cr. 314; 1 Bl. Com. 92. The whole statute, and those on similar subjects, as the context, will be taken in aid, according to the apparent meaning of their provisions. 1 Bl. Com. 60; 1 Pick. 154, 5. The history and situation of the country will be referred to, to ascertain the reason and meaning of a provision, so as to enable the Court to apply the rule of construction. i Wh. 121; 4 Pet. 432. In doubtful cases, the title and preamble will be resorted to, to explain the law. 3 Wh. 631; 4 S. & R. 166. The old law, the mischief, and the remedy, will be examined, and the new law be so far expounded as to suppress the mischief, and advance the remedy. 11 Co. 72, &c.; 1 Bl. Com. 87; according to the subject matter. 1 Bl. Com. 229.

As the meaning and intention of the legislature when thus ascertained, is the law itself, the rule of action prescribed by legislative power, it follows necessarily, that such intention must be referred to the time of its enactment; and the terms and language used to express the intention, must be taken as then understood by those who so employed them, and not according to any subsequent definition or acceptation, varying from their then settled received meaning. 1 Bl. Com. 59, 60.

There is another source from which the intention of a law can be truly extracted, the condition of the country. 6 Wh. 416. Its usages and customs. 6 Pet. 714; 12 Wh. 437.

The settled course of judicial or professional opinion. 5 Cr. 33; 2 Pet. 85; and legislative usage. 3 Dall. 398; 2 Pet. 656, 7; because these matters enter necessarily into the minds of the law makers, in any new provisions which can affect them. It is also an universal rule in this country, that, when an English statute, or any of its provisions or terms, have been adopted here, that its settled construction at the time of its adoption, is taken with it; but a contrary construction afterwards made, is not regarded. 5 Pet. 280, 1.

An adherence to these rules is called for, by the highest considerations in the construction of the constitution; if they are not followed, there are none others which a Court is at liberty to adopt, as the indiciæ of the intention of the members of the general convention which framed, and the state conventions who ratified it. Hence these rules have, by 'universal consent, been applied to the laws of all the states and of the Union, in their respective courts: and if not applied to that law, which is a rule of supreme authority over the legislatures and courts of both; human ingenuity, reasoning and learning, will only serve to make it the more unintelligible, as the period of its adoption becomes more distant; and time shall develope

Vol. XI.-2

new theories or exigencies, which will make it still more obscure, by new readings, commentaries, and expositions. That those which have been hitherto applied to its construction, even those of this Court, have been insufficient to settle its meaning; is but too apparent in those questions now before us for adjudication, and those numerous ones which agitate and excite other tribunals and the country. Discarding all rules of interpretation, which are inconsistent with those which it has applied to the constitution, I shall follow in the path defined by this Court, and take that instrument, as it has declared it to have been intended by its framers, to endure for ages to come; 1 Wh. 326; 4 Wh. 415; and designed to approach immortality, as nearly as human institutions can approach it. 6 Wh. 387. A law of supreme obligation, made for the purposes it declares, Ib. 381; by enlightened patriots; men, whose intentions required no concealment, employing words which most directly and aptly expressed the idea they intended to convey, as well as the people who adopted it; must be understood to have employed words, in their natural sense, and to have intended what they said. “If any doubts exist, respecting the extent of any given power, it is a settled rule that the objects for which it is given, especially those which are expressed, should have great influence in the construction. The rule is given in the language of the instrument which confers the powers, taken in connection with its purposes." 9 Wh. 188, 9. To The words are to be taken in their natural and obvious sense, not in a sense unreasonably restricted or enlarged,” i Wh. 326;“not that enlarged construction, which would extend words beyond their natural and obvious import; nor that narrow construction, which, in support of some theory, not to be found in the constitution, would cripple the government, and render it incompetent to the objects of its institution.” 9. Wh. 188. “ Its spirit is to be respected not less than its letter, yet the spirit is to be collected chiefly by the words." Where they conflict with each other, where different clauses bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary; and a departure from the obvious meaning of words is justifiable. But if the plain meaning of a provision is to be disregarded, when not contradicted by any other provision in the same instrument, because we believe the framers could not have intended what they say; it must be one, in which the absurdity and injustice of applying the provision to the case, would be so monstrous," that all mankind would unite in rejecting the application. 4 Wh. 262, 3; 1 Bl. Com. 61. S. P.

It is proper to take a view of the literal meaning of the words to be expounded, of their connection with other words, and of the general objects to be accomplished by the prohibitory clause, or by the grant of power. 12 Wh. 437. The intention must prevail: it must be collected from the words of the instrument, which are to be understood in that sense in which they are generally used by those for whom the instrument was intended. Its provisions are not to be

construed into insignificance, nor extended to objects not contemplated by its framers, or comprehended in it. 12 Wh. 332. It was not intended to use language, which would convey to the eye one idea, and, after deep reflection, impress on the mind another. 4 Wh. 420. Words must be taken in connection with those with which they are associated. 4. Wh. 418. The whole clause or sentence is to be taken together, and the intention collected from the whole. 12 Wh. 334. Every part of the article must be taken into view; and that construction adopted, which will consist with its words, and promote its general intention. The Court will not give affirmative words a negative operation, where it will defeat the intention, but may imply it, where the implication promotes the intention. Wh. 398.


THE CONSTITUTION IS A GRANT. The circumstances under which the constitution was formed, the history of the times, the mischiefs of the confederation, and the motives which operated on the statesmen of the day, are also to be considered, in ascertaining the meaning of the constitution; which was intended to change a system, the full pressure of which was known and felt, by superseding the confederation, and substituting a new government, organized with substantive powers, to act directly on the subjects of their delegated powers, instead of through the instrumentality of state governments. 6 Wh. 308; 12 Wh. 438, 9; 1 Wh. 332.

This change was effected by the constitution, which, in the language of this Court, is a grant. “ The grant does not convey power, which might be beneficial to the grantor, if retained by himself, or which can move solely to the benefit of the grantee; but is an investment of power for the general advantage, in the hands of agents, selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or lie dormant,” 9. Wh. 189. The language of the constitution is the same. “All legislative powers herein granted, shall be vested in a congress of the United States," &c. 66 The executive power shall be vested in a president of the United States of America." The judicial power of the United States shall be vested in one Supreme Court."

Here then, there is something visible to the judicial eye, tangible by judicial minds, reasoning, illustration, and analogy; intelligible by judicial rules and maxims, which, through all time, have prescribed its nature, effect, and meaning. It is a grant, by a grantor, to a grantee, of the things granted; which are, legislative, executive, and judicial power, vested by a constituent, in agents, for the enumerated purposes and objects of the grant. It declares the grantor and constituent, to be “the people of the United States," who, for the

purposes set forth, “ ordained and established” it as a 66 constitution for the United States of America;” “ the supreme law of the land;" creating what its framers unanimously named, the federal

government of these states.Its frame was “done in convention, by the unanimous consent of the states present.” The 7th article whereof declared that, “ the ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution, between the states so ratifying the same.” And, to leave no doubt of their intention, as to what should be deemed a convention of a state, the members thereof, by the unanimous order of the convention, laid it before congress, with their opinions, that it should be submitted to a convention of delegates chosen in each state, by the people thereof, under the recommendation of its legislatures, for their assent and ratification. 1 Vol. Laws U. S. 70, 71. No language can be more plain and clear, than the words of the constitution; nor can the intention of its framers more definitely appear, than by the unanimous order of the convention, submitting it to the old congress, under whose resolution the members had been appointed by the federal states. The intention of congress is equally manifest, in their unanimous resolution, adopted after receiving “ the report of the convention, lately assembled in Philadelphia, in the words following: (the constitution) “That the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures, in order to be submitted to a convention of delegates, chosen in each state, by the people thereof, in conformity to the resolves of the convention, made and provided in that case. 1 Laws, 59, 60. But this coincidence of the words of the constitution, with the expressed and unanimous declaration of the members of the convention, and the congress, is neither the only nor most satisfactory mode, by which to identify the grantor, who conveyed the powers invested by the grant; and the constituent, who appointed the appropriate agents for their execution by delegation.

There are other objects of the grant, besides the delegated powers of agency; the grant imposes conditions, limitations, prohibitions, and makes exceptions on the exercise of the powers of the states, and the people thereof; which form an all important part of that supreme law, which declares, that “the judges in every state shall be bound thereby, any thing in the constitution or laws of any state, to the contrary notwithstanding."

It is therefore, a law, paramount in authority over the people of the several states, who adopted it in their conventions; supreme, as well over their supreme law, ordained by their sovereign power, as those laws enacted in the ordinary course of legislation, by delegated power. The effect of which is, that the constitution, the creature, prescribes rules to its creator, which expressly confine its action within defined limits, and annuls all acts which are prohibited or excepted. Nay, it goes further, it imposes as a condition, that states shall not act by their own law, or compact, or agreement,

with another state, without the consent of congress; which is a creature created by the grant of the people of the states, in their separate conventions : from which it necessarily results, that this grant, this constitution, and appointment of agents, must emanate from

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