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books, essays, arguments, opinions, speeches, debates in conventions and legislative bodies, by jurists and statesmen, and by some who were neither; which would not be offered, or suffered to be read in any court, as entitled to respect in construing an ordinary act of legislation, or a contract between individuals. This reference has not been confined to expositions cotemporaneous or near to the time of the adoption of the constitution, the views of its framers, or those opinions to which courts of justice can consistently with their duty defer their own; but the range has been of the widest kind, embracing whatever has appeared in print on the various subjects involved, either here or abroad, and up to the present time, while these suits have been depending in this Court for re-argument. The history and spirit of the times, past and present, admonish us that new versions of the constitution will be promulgated, to meet the ever varying course of political events, or aspirations of power; and that if we suffer our judgments to be influenced by what has been pressed upon us as authority for present adjudication, we must pay the same respect to the same kind of authority, when future opinions shall be formed, and new expositions be announced. We have listened to the disquisitions of late writers on the constitution of England, to the decisions of their courts, nay, to the opinions of their judges given within the last year; as rules to guide us to the true intention of the framers of the constitution, in a most solemn instrument, carefully and most deliberately reduced to writing, in 1787. If we look to these as safe sources whence to now draw our knowledge of constitutional law, or respect them as a rule of present decision, they must be so taken in future; and though the legislative authority of Westminster-hall over us has been extinct for more than sixty years, this tribunal must continue to still look to its emanations, whether in treatises or judicial decrees, to ascertain the meaning of our own supreme law. I have long since been convinced that there are better and safer guides to professional and judicial inquiries after truth, on constitutional questions, than those which have been so often resorted to, without effecting the desired result; a clear and settled understanding of the terms and provisions of an instrument of writing, which operates with supreme authority wherever it applies. To me it seems that it can be made intelligible in all its parts, by applying to it those established rules and maxims of the common law, in the construction of statutes, and those accepted definitions of words, terms, and language, in which they had been used, and been received, as well known and understood, in their ordinary, or legal sense, according to the subject matter. In appealing to the common law, as the standard of exposition, in all doubts as to the meaning of written instruments; there is safety, certainty, and authority. The institutions of the colonies were based upon it; it was their system of jurisprudence, with only local exceptions, to suit the condition of the coIonists, who claimed it as their birth-right and inheritance, 9 Cr. 333, in its largest sense, as including the whole system of English jurisprudence, 1 Gall. 493; the inexhaustible fountain from which
we draw our laws, 9 S. & R. 330, 39, 58. So it continued after the colonies became states, in most of which the common law was adopted by acts of assembly, which gave it the force of a statute, from the time of such adoption, and as it was then; so that in the language of this Court—“At the adoption of the constitution, there were no states in this Union, the basis of whose jurisprudence was not essentially, that of the common law in its widest meaning; and probably no states were contemplated, in which it would not exist." 3 Pet. 446,8. It is also the basis on which the federal system of jurisprudence was erected by the constitution, the judiciary and process acts, which refer to
cases in law and in equity,” “suits at common law,” “the common law, the principles and usages of law," as they had at the time been defined and settled in England; 5 Cr. 222; 3 Wh. 221; 4 Wh. 115, 16; 7 Wh. 45; 10 Wh. 29, 32, 56, 8; 1 Pet. 613: and were adopted as then understood by the old states.
From the very beginning, till the consummation of the revolution, the people of the colonies and states, in all successive congresses, took their stand upon the common law and constitution of England, as the “ heirs of freedom;" “ English freemen, whose custom it is, derived from their ancestors, to make those tremble who dare to think of making them miserable.” 1 Journ. Cong. 60, 65, 138. In the spirit and like the descendants of Britain, ib. 143, 9, who procured "the inestimable advantages of a free English constitution of government, which it is the privilege of all English subjects to en
“Englishmen reared up this fabric,” “ of such strength as for ages to defy time, treachery, internal and foreign wars.” “They gave the people of their colonies the form of their own government." “In this form, the first grand right is, that of the people having a share in their own government, by their representatives chose by themselves,” &c. 1 Journ. 56. It is a bulwark defending their property, as trial by jury and the writ of habeas corpus defends their liberty; "as a part of our mild system of government, that sending its equitable energies through all classes and ranks of men; defends the poor from the rich, the weak from the powerful, the industrious from the rapacious, the peaceable from the violent, the tenants from the lords, and all from their superiors.” “These are the rights without which a people cannot be free and happy, and under the protecting and encouraging influence of which, these colonies have hitherto so amazingly flourished and increased. These are the rights a profligate ministry are now striving by force of arms to ravish from us, and which we are, with one mind, resolved never to resign but with our lives." Ib. 56, 57. The very rights which placed the crown of Great Britain on the heads of the three princes of the house of Hanover, 170. Such was “the equitable system of English laws," ib. 30, 41, 50; "the inheritance left us by our forefathers," 66; "the great bulwark of our constitution," 148;“ the first and best maxims of the constitution, venerable to Britons and to Americans," 163; “ whose forefathers participated in the rights and liberties they boasted of, and conveyed the same fair inheritance
to them. By that system the colonists claimed all the benefits secured to English subjects, whether they lived “ 3000, or 300 miles from the royal palace,” 37; and the several colonies as constituent members of the British empire, rested for the perfeet security of their natural and civil rights, on the salutary and constitutional principles” it contained, 61. It was the covenant chain” between the mother country and them; the charters of the king were their written civil constitutions of government, and the colonies would not part with, or loose their hold of this old covenant chain which united their fathers; 153, 4.
On this system, the congress, the people, and the colonies relied. They claimed as their indubitable right, the benefit of the common law of England, its constitution, and their several charters; in their Declaration of Rights, in 1774; 1 Journ. 77, &c.; in July, 1775; 1 Journ. 134, 176, 8; in December, 1775; ib. 263; and on the 4th July, 1776. Among the other grievances set forth in the Declaration of Independence, are the following: “ He,” (the king,)“ has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws, giving his assent to their acts of pretended legislation," &c. &c.
“For abolishing the free system of English laws in a neighbouring province.” Vide 1 Journ. 30, 58, 9, 64, 61, 174.
“For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our government.” i Laws, 8, 9; 1 Journ. 125, 178.
The common law was not merely the basis of the revolution, in opposing the oppression of England, or deemed incompatible with the genius of the people after the revolution was effected, as a burthen imposed upon them; but the contrary. By the ordinance of 1787, it was declared to be “the basis whereon these republics, their laws, and constitutions, are erected; and which congress therein fixed and established, as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the territory north-west of the Ohio. It was secured to them as a blessing whereby “ to extend the fundamental principles of civil and religious liberty;" “that the inhabitants shall always be entitled to the benefits of," &c. and" of judicial proceedings according to the course of the common law." i Laws U. S. 479. That system, which had effected in England, what it was one of the declared objects of the present constitution to effect—" to establish justice," and "secure the blessings of liberty to ourselves and our posterity, by the judicial power of the United States; which shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish." To be administered in all cases in law or equity, as it had been, and then was in England, in all the states and territories of the United States: and the judges were directed, by the judiciary act, to take an oath “ to do equal right to the poor and to the rich;” i Story, 56; as the judges in England had been enjoined by an ancient statute; 1 Ruff, 246.
In thus recurring to the source of those great principles, on which all our governments are founded, it is clear that they must be traced beyond the instrument which created them, to that great charter of English liberty, which embodied the common law; and from 1774, to 1787, was equally revered by the Britons of both continents. The great men of the revolution, in their first meeting in congress, on the 5th September, 1774, and in their proceedings till the 26th October, when“ the congress then dissolved itself;" did not merely declare in their resolutions and letters, on what ground they stood in asserting the rights of the people and colonies, but pointed to it as their rallying point. To the journal published by their order, and verified by the autograph of their secretary, is prefixed, in the title page; a medallion of which the following is a fac simile.
The magna charta of England, was the pedestal on which the column and cap of liberty was raised, supported by the twelve colonies, assembled by their delegates; declaring that “on this we rely,” “this we will defend."
In looking too to the names of the members of that congress, six of whom, thirteen years afterwards, in a convention of twelve
* A number of the delegates, chosen and appointed by the several colonies and provinces in North America, to meet and hold a congress at Philadelphia, assembled at the Carpenters' Hall. Present, From New Hampshire, Major John Sullivan, Col. Nathaniel Fulsom, Esqs. From Massachusetts-Bay, Hon. Thomas Cushing, Samuel Adams, John Adams, Robert Treat Paine, Esqs. From Rhode Island and Providence Plantations, Hon. Stephen Hopkins, Hon. Samuel Ward, Esqs. From Connecticut, Hon. Eliphalet Dyer, Silas Deane, Hon. Roger Sherman, Esqs. From the City and County of New York, and other counties in the province of New York, James Duane, John Jay, Philip Livingston, Isaac Low, Esqs. From the county of Suffolk, in the province of New York, Col. William Floyd, Esq. From New Jersey, James Kinsey, William Livingston, John Dehart, Stephen Crane, Richard Smith, Esqs. From Pennsylvania, Hon. Joseph Galloway, Samuel Rhoads, Thomas Miflin, Charles Humphreys, John Morton, Edward Biddle, Esqs. From New Castle, Kent, and Sussex, in Delaware, Hon. Cæsar Rodney, Thomas M-Kean, George Read, Esqs. From Maryland, Robert Goldsborough, William Paca, Samuel Chase, Esqs. From Virginia, Hon. Peyton Randolph, George Washington, Patrick Henry, Richard Bland, Benjamin Harrison, Edmund Pendleton, Esqs. From South Carolina, Henry Middleton, John Rutledge, Christopher Gadsden, Thomas Lynch, Edward Rutledge, Esqs. 1 Journ. Cong. 35, 36.
of those colonies, then states, signed the proposed constitution; I find a weight of political authority, which my mind cannot resist: and so feel bound to trace the great work of the fathers of the revolution and the country, back to its source in the common law, the magna charta, and constitution of England; the basis and pattern of
In so doing, I feel well assured that in following their “ via tuta,” by which the constitution was established, and has consummated all its beneficent purposes, there will be found a “via tuta,” to my judgment, on its true meaning in these parts that bear on the cases which have been before us for adjudication. I shall do it without the aid of any commentator, .except this Court, as the sworn interpreter, appointed by the constitution itself, not only to expound the meaning of its provisions, but to pronounce final judgment on their results, on all cases in law and equity arising under" it. Nor shall I consult any other commentaries upon it than those which are found in the opinions of the Court; delivered, with few exceptions, by the late venerated Chief Justice.
In thus adhering to the old maxim, “ Sed melius et tutius est, petere fontes, quam sectare rivulos," I am well aware of departing from the modern mode of construing our ancient charters, and grants of governments; but if it should lead to their true interpretation, I may be permitted to ask of those who may have the patience to read and consider the general views of the constitution, herein presented to explain the grounds of my concurring judgment in these cases, “ Si quid novisti, rectius istis candide imperti, si non hic utere mecum?” In the full conviction, that by this mode of investigating constitutional questions, there will be found standard rules by which to measure the different parts of the supreme law, and extract its true intentions, and that any other mode will be an abortive attempt, “ ex humo dare lucem;" I proceed to give my general views. Taking it as already apparent, that in 1774, and 1776, our constitution was the English constitution, and the free system of English laws was the common law then; and that system to yet be the law of the land, by the authority of the states, the constitution, the acts of congress, and the adjudications of this Court. It is in this law, that we find the rules of interpretation of acts of assembly and of congress; of public and private grants, charters, compacts, contracts; and to which we resort, as the standard by which to make our decisions in all cases, where it has not been altered by established usage, or legislative power. I know no other guide which is safer, which better conducts the mind to certainty; nor do I feel at liberty to follow any other than the principles of the common law, that are well established and applicable to a case arising under the constitution, and which turns upon its interpretation; their adoption has been, in my judgment, most clearly made by every authority which can impose the obligation of obedience. My course then will be, to first ascertain what are the settled rules and principles of the common law, in the exposition of writings, public and private, in the definition of terms and language, used to denote the meaning and inten