away from the meaning in the minds of the majority. It is equally possible for a part 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.2 These proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceed

ings of the proper construction of a statute; since in the [* 67] 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, 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 any thing to be gathered from the proceedings of the convention.

Contemporaneous and Practical Construction.

An important question which now suggests itself is this: How far the contemporaneous construction, or the subsequent practical construction of any particular provision of the constitution, is to have weight with the courts when the time arrives at which a judicial decision becomes necessary. Contemporaneous construction may consist simply in the understanding with which the people received it at the time, or in the acts done in putting it in operation, and which necessarily assume that it is to be construed in a particular way. In the first case it can have very little force, because the evidences of the public understanding, when nothing

1

Taylor v. Taylor, 10 Minn. 126. And see Eakin v. Racob, 12 S. & R. 352; Aldridge v. Williams, 3 How. 1; State v. Doron, 5 Nev. 399.

2 State v. Mace, 5 Md. 348; Manly v. State, 7 Md. 147.

has been done under the provision in question, must always necessarily be vague and indecisive. But where there has been a practical construction, which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention. Especially where this has been given by officers in the discharge of their duty, and rights have accrued in reliance upon it, which would be divested by a decision that the construction was erroneous, the argument ab inconvenienti is sometimes allowed to have very great weight.

1

The Supreme Court of the United States has had frequent occasion to consider this question. In Stewart v. Laird, 1 decided in 1803, that court sustained the authority of its members to sit as circuit judges on the ground of a practical construction,

commencing with the organization of the government. In [*68] Martin v. Hunter's Lessee, Justice Story, after holding that the appellate power of the United States extends to cases pending in the State courts, and that the 25th section of the Judiciary Act, which authorized its exercise, was supported by the letter and spirit of the Constitution, proceeds to say: "Strong as this conclusion stands upon the general language of the Constitution, it may still derive support from other sources. It is an historical fact, that this exposition of the Constitution, extending its appellate power to State courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings both in and out of the State conventions. It is an historical fact, that at the time when the Judiciary Act was submitted to the deliberations of the First Congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that Constitution, the same exposition was explicitly declared and admitted by the friends and by the

1 1 Cranch, 299.

? 1 Wheat. 351.

opponents of that system. It is an historical fact, that the Supreme Court of the United States have from time to time sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important States in the Union, and that no State tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence by enlightened State courts, and these judicial decisions by the Supreme Court through so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken without delivering over the subject to perpetual and irremediable doubts." The same doctrine was subsequently supported by Chief Justice Marshall in a case involving the same point, and in which he says that "great weight has always been attached, and very rightly attached, to contemporaneous exposition." 1

In Bank of United States v. Halstead' the question was made, whether the laws of the United States authorizing the courts of the Union so to alter the form of process of execution used in the

Supreme Courts of the States in September, 1789, as to [* 69] subject to * execution lands and other property not thus subject by the State laws in force at that time, were constitutional; and Mr. Justice Thompson, in language similar to that of Chief Justice Marshall in the preceding case, says: "If any doubt existed whether the act of 1792 vests such power in the courts, or with respect to its constitutionality, the practical construction given to it ought to have great weight in determining both. questions." And Mr. Justice Johnson assigns a reason for this in a subsequent case: "Every candid mind will admit that this is a very different thing from contending that the frequent repetition of wrong will create a right. It proceeds upon the presumption that the contemporaries of the Constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the Constitution, and of the sense put upon it by the people when it was adopted by them." 3

1 Cohens v. Virginia, 6 Wheat. 418.

10 Wheat. 63.

8 Ogden v. Saunders, 12 Wheat. 290. See Pike v. Megoun, 44 Mo. 499; State v. Parkinson, 5 Nev. 15.

Great deference has been paid in all cases to the action of the executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed, they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind.1

*

Where, however, no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow extrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the law-makers. "Contemporary construction [*70] can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.” 2 While we conceive this to be the true and only safe rule, we shall be obliged to confess that some of the cases appear, on first reading, not to have observed these limitations. In the case first cited of Stewart v. Laird,3 the practical construction was regarded as conclusive. To the objection that the judges of the Supreme Court had no right to sit as circuit judges, the court say: "It is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the

' Union Insurance Co. v. Hoge, 21 How. 66; Edward's Lessee v. Darby, 12 Wheat. 210; Hughes v. Hughes, 4 T. B. Monr. 42; Chambers v. Fisk, 22 Texas, 504; Britton v. Ferry, 14 Mich. 66; Plummer v. Plummer, 37 Miss. 185; Burgess v. Pue, 2 Gill, 11; State v. Mayhew, ib. 487; Coutant v. People, 11 Wend. 511; Baltimore v. State, 15 Md. 376; Farmers and Mechanics Bank v. Smith, 3 S. & R. 63; Norris v. Clymer, 2 Penn. St. 277; Moers v. City of Reading, 21 Penn. St. 188; Washington v. Murray, 4 Cal. 388; Surgett v. Lapice, 8 How. 68; Bissell v. Penrose, ib. 336; Troup v. Haight, Hopk. 267.

construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed." This is certainly very strong language; but that of a very similar character was used by the Supreme Court of Massachusetts in one case where large and valuable estates depended upon a particular construction of a statute, and very great mischief would follow from changing it. The court said that," although if it were now res integra, it might be very difficult to maintain such a construction, yet at this day the argument ab inconvenienti applies with great weight. We cannot shake a principle which in practice has so long and so extensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is, that long and continued usage furnishes a contemporaneous construction which must prevail over the mere technical import of the words."1 Language nearly as strong was also used by the Supreme Court of Maryland, where the point involved was the possession of a certain power by the legislature, which it had constantly exercised for nearly seventy years.2

It is believed, however, that in each of these cases an examination of the Constitution left in the minds of the judges [*71] sufficient * doubt upon the question of its violation to warrant their looking elsewhere for aids in interpretation, and that the cases are not in conflict with the general rule as above laid down. Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the Constitution was designed to guard against appearing,

1 Rogers v. Goodwin, 2 Mass. 478.

2 State v. Mayhew, 2 Gill, 487. In Essex Co. v. Pacific Mills, 14 Allen, 389, the Supreme Court of Massachusetts expressed the opinion that the constitutionality of the acts of Congress making treasury notes a legal tender, ought not to be treated by a State court as open to discussion after the notes had practically constituted the currency of the country for five years. At a still later day, however, the Supreme Court o the United States held these acts void.