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or even probable meanings, when one is plainly declared in the

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are as broad in their signification as any which could have been selected for the occasion from our vocabulary, and there is not a syllable in the whole instrument tending in the slightest degree to limit or qualify the universality of the language. If the clause can be so construed that it shall not extend alike to all corporations, whether public or private, it may then, I think, be set down as an established fact that the English language is too poor for the framing of fundamental laws which shall limit the powers of the legislative branch of the government. No one has, I believe, pretended that the Constitution, looking at that alone, can be restricted to any particular class or description of corporations. But it is said that we may look beyond the instrument for the purpose of ascertaining the mischief against which the clause was directed, and thus restrict its operation. But who shall tell us what that mischief was? Although most men in public life are old enough to remember the time when the Constitution was framed and adopted, they are not agreed concerning the particular evils against which this clause was directed. Some suppose the clause was intended to guard against legislative corruption, and others that it was aimed at monopolies. Some are of opinion that it only extends to private without touching public corporations, while others suppose that it only restricts the power of the legislature when creating a single corporation, and not when they are made by the hundred. In this way a solemn instrument for so I think the Constitution should be considered is made to mean one thing by one man and something else by another, until, in the end, it is in danger of being rendered a mere dead letter; and that, too, where the language is so plain and explicit that it is impossible to mean more than one thing, unless we first lose sight of the instrument itself, and allow ourselves to roam at large in the bound

less fields of speculation. For one, I dare not venture upon such a course. Written constitutions of government will soon come to be regarded as of little value if their injunctions may be thus lightly overlooked; and the experiment of setting a boundary to power will prove a failure. We are not at liberty to presume that the framers of the Constitution, or the people who adopted it, did not understand the force of language." See also same case, 4 Hill, 384, and State v. King, 44 Mo. 285. Another court has said: "This power of construction in courts is a mighty one, and, unrestrained by settled rules, would tend to throw a painful uncertainty over the effect that might be given to the most plainly worded statutes, and render courts, in reality, the legislative power of the State. Instances are not wanting to confirm this. Judge-made law has overrode the legislative department. It was the boast of Chief Justice Pemberton, one of the judges of the despot Charles II., and not the worst even of those times, that he had entirely outdone the Parliament in making law. We think that system of jurisprudence best and safest which controls most by fixed rules, and leaves least to the discretion of the judge; a doctrine constituting one of the points of superiority in the common law over that system which has been administered in France, where authorities had no force, and the law of each case was what the judge of the case saw fit to make it. We admit that the exercise of an unlimited discretion may, in a particular instance, be attended with a salutary result; still history informs us that it has often been the case that the arbitrary discretion of a judge was the law of a tyrant, and warns us that it may be so again." Perkins, J., in Spencer v. State, 5 Ind. 41, 46. 'Judge-made law," as the phrase is here employed, is that made by judicial decisions which construe away the meaning of statutes, or find meanings in them the legislature never held. The phrase is sometimes used as meaning, simply, the law that becomes established by precedent. The uses and necessity of judicial legislation are considered and explained at length by Mr. Austin, in his Province of Jurisprudence.

instrument itself, the courts are not at liberty to search for elsewhere.

"Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add to or take away from that meaning." 1

The Whole Instrument to be examined.

Nor is it lightly to be inferred that any portion of a written law is so ambiguous as to require extrinsic aid in its construction. Every such instrument is adopted as a whole, and a clause which, standing by itself, might seem of doubtful import, may yet be made plain by comparison with other clauses or portions of the same law. It is therefore a very proper rule of construction, that the whole is to be examined with a view to arriving at the true intention of each part; and this Sir Edward Coke regards as the most natural and genuine method of expounding a statute.2 If any section of a law be intricate, obscure, or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another. And in making this comparison it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. The rule applicable here is, that effect is to be given, if possible,

1 Newell v. People, 7 N. Y. 9, 97, per Johnson, J.; Chesapeake, &c. Ry. Co. v. Miller, 19 W. Va. 409. And see Denn v. Reid, 10 Pet. 524; Greencastle Township r. Black, 5 Ind. 566; Bartlett v. Morris, 9 Port. 266; Leonard v. Wiseman, 31 Md. 201, per Bartol, Ch. J.; Way v. Way, 64 Ill. 406; McAdoo v. Benbow, 63 N. C. 461; Hawkins v. Carrol, 50 Miss. 735; Cearfoss v. State, 42 Md. 403; Douglas v.

Freeholders, &c., 38 N. J. 214; Gold v.
Fite, 2 Bax. 237; State v. Gammon, 73
Mo. 421; Broom's Maxims (5th Am. ed.),
551, marg.

2 Co. Lit. 381 a.

8 Stowell v. Lord Zouch, Plowd. 365; Chance v. Marion County, 64 Ill. 66; Dyer v. Bayne, 54 Md. 87; Broom's Maxims, 521.

If

to the whole instrument, and to every section and clause. different portions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make some words idle and nugatory.1

2

This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.3

In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. As Marshall, Ch. J., says: The framers of the constitution, and the people who adopted it, "must be understood to have employed words in their natural sense, and to have intended what they have said." 4

1 Attorney-General v. Detroit & Erin Plank Road Co., 2 Mich. 138; People v. Burns, 5 Mich. 114; District Township v. Dubuque, 7 Iowa, 262; Manly v. State, 7 Md. 135; Parkinson v. State, 14 Md. 184; Belleville Railroad Co. v. Gregory, 15 Ill. 20; Ogden v. Strong, 2 Paine, C. C. 584; Ryegate v. Wardsboro, 30 Vt. 746; Brooks v. Mobile School Commissioners, 31 Ala. 227; Den v. Dubois, 16 N. J. 285; Den v. Schenck, 8 N. J. 29; Bigelow v. W. Wisconsin R. R., 27 Wis. 478; Gas Company v. Wheeling, 8 W. Va. 320; Parker v. Savage, 6 Lea, 406; Crawfordsville, &c. Co. v. Fletcher, 104 Ind. 97, 2 N. E. 243. See Sams v. King, 18 Fla. 557. [That the title may be considered in order to throw light upon an other wise obscure provision, see Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. Rep. 747. See also People v. McElroy, 72 Mich. 446, 40 N. W. 750, 2 L. R. A. 609, and note.]

2 Wolcott v. Wigton, 7 Ind. 44; People v. Purdy, 2 Hill, 31, per Bronson, J.; Greencastle Township v. Black, 5 Ind. 557; Green v. Weller, 32 Miss. 650.

8 People v. Wright, 6 Col. 92. It is a

general rule in the construction of writings, that, a general intent appearing, it shall control the particular intent; but this rule must sometimes give way, and effect must be given to a particular intent plainly expressed in one part of a constitution, though apparently opposed to a general intent deduced from other parts. Warren . Shuman, 5 Tex. 441. In Quick v. Whitewater Township, 7 Ind. 570, it was said that if two provisions of a written constitution are irreconcilably repugnant, that which is last in order of time and in local position is to be preferred. In Gulf, C. & S. F. Ry. Co. v. Rambolt, 67 Tex. 654, 4 S. W. 356, this rule was recognized as a last resort, but if the last provision is more comprehensive and specific, it was held that it should be given effect on that ground.

The rule applies to constitutions that a later amendment operates to repeal an earlier provision inconsistent with it. People v. Angle, 109 N. Y. 564, 17 N. E. 413.

4 Gibbons . Ogden, 9 Wheat. 1, 188. See Settle v. Van Evrea, 49 N. Y. 281; Jenkins v. Ewin, 8 Heisk. 456; Way v.

This is but saying that no forced or unnatural construction is to be put upon their language; and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their framers never held, that it frequently becomes necessary to re-declare this fundamental maxim. Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.

But it must not be forgotten, in construing our constitutions, that in many particulars they are but the legitimate successors of the great charters of English liberty, whose provisions declaratory of the rights of the subject have acquired a wellunderstood meaning, which the people must be supposed to have had in view in adopting them.

Way, 64 Ill. 406; Stuart v. Hamilton, 66
Ill. 253; Hale v. Everett, 53 N. H. 9;
State v. Brewster, 42 N. J. 125; Carpenter
v. People, 8 Col. 116, 5 Pac. 828.

1 State v. Mace, 5 Md. 337; Manly v. State, 7 Md. 135; Green v. Weller, 32 Miss. 650; Greencastle Township v. Black, 5 Ind. 566; People v. N. Y. Central Railroad Co., 34 Barb. 123, and 24 N. Y. 485; Story on Const. § 453. "The true sense in which words are used in a statute is to be ascertained generally by taking them in their ordinary and popular signification, or, if they be terms of art, in their technical signification. But it is also a cardinal rule of exposition, that the intention is to be deduced from the whole and every part of the statute, taken and compared together, from the words of the context, and such a construction adopted as will best effectuate the intention of the lawgiver. One part is referred to in order to help the construction of another, and the intent of the legislature is not to be collected from any particular expression, but from a general view of the whole act. Dwarris, 658, 698, 702, 703. And when it appears that the framers have used a word in a particular sense generally in the act, it will be presumed that it was intended to be used in the same sense throughout the act, unless an intention to give it a

We cannot understand these

different signification plainly appears in the particular part of the act alleged to be an exception to the general meaning indicated. Dwarris, 704 et seq. When words are used to which the legislature has given a plain and definite import in the act, it would be dangerous to put upon them a construction which would amount to holding that the legislature did not mean what it has expressed. It follows from these principles that the statute itself furnishes the best means of its own exposition; and if the sense in which words were intended to be used can be clearly ascertained from all its parts and provisions, the intention thus indicated shall prevail, without resorting to other means of aiding in the construction. And these familiar rules of construction apply with at least as much force to the construction of written constitutions as to statutes; the former being presumed to be framed with much greater care and consideration than the latter." Green v. Weller, 32 Miss. 650, 678. Words reenacted after they have acquired a settled meaning will be understood in that meaning. Fulmer v. Commonwealth, 97 Penn. St. 503. The argument ab inconvenienti cannot be suffered to influence the courts by construction to prevent the evident intention. Chance v. Marion County, 64 Ill. 66.

provisions unless we understand their history; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense. When the Constitution speaks of an ex post facto law, it means a law technically known by that designation; the meaning of the phrase having become defined in the history of constitutional law, and being so familiar to the people that it is not necessary to employ language of a more popular character to designate it. The technical sense in these cases is the sense popularly understood, because that is the sense fixed upon the words in legal and constitutional history where they have been employed for the protection of popular rights.1

The Common Law to be kept in View.

It is also a very reasonable rule that a State constitution shall be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still left in force. By this we do not mean that the common law is to control the constitution, or that the latter is to be warped and perverted in its meaning in order that no inroads, or as few as possible, may be made in the system of commonlaw rules, but only that for its definitions we are to draw from that great fountain, and that in judging what it means, we are to keep in mind that it is not the beginning of law for the State, but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under

1 See Jenkins v. Ewin, 8 Heisk. 476. It is quite possible, however, in applying constitutional maxims, to overlook entirely the reason upon which they rest, and "considering merely the letter, go but skin deep into the meaning." On the great debate on the motion for withdraw ing the confidence of Parliament from the ministers, after the surrender of Cornwallis, a debate which called out the best abilities of Fox and Pitt as well as of the ministry, and necessarily led to the discussion of the primary principle in free government, that taxation and representation shall go together, -Sir James Mariott rose, and with great gravity proceeded to say, that if taxation and representation were to go hand in hand, then Britain had an undoubted right to tax America, because she was represented in the British Parliament. She was represented by the members for the county of

Kent, of which the thirteen provinces were a part and parcel; for in their charters they were to hold of the manor of Greenwich in Kent, of which manor they were by charter to be parcel! The opinion, it is said, “raised a very loud laugh," but Sir James continued to support it, and concluded by declaring that he would give the motion a hearty negative. Thus would he have settled a great principle of constitutional right, for which a seven years' bloody war had been waged, by putting it in the form of a meaningless legal fiction. Hansard's Debates, Vol. XXII. p. 1184. Lord Mahon, following Lord Campbell, refers the origin of this wonderful argument to Mr. Hardinge, a Welsh judge, and nephew of Lord Camden; 7 Mahon's Hist. 139. He was said to have been a good lawyer, but must have read the history of his country to little purpose.

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