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ity; that standing armies are not to be maintained in time of peace; that representation shall be in proportion to population ; that the people shall have the right freely to assemble to consult of the common good, to instruct their representatives, and petition for redress of grievances; and the like.

2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness; that

the right to property is before and higher than any consti[* 36] tutional * sanction; that the free exercise and enjoyment

of religious profession and worship, without discrimination or preference, shall for ever be allowed ; that every man may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defence of himself and of the State ; that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like.

3. Those declaratory of the principles which ensure to the citizen an impartial trial, and protect him in his life, liberty, and property against the arbitrary action of those in authority: as that no bill of attainder or ex post facto law shall be passed ; that the right to trial by jury shall be preserved ; that excessive bail shall not be required, nor excessive punishments inflicted ; that no person shall be subject to be twice put in jeopardy for the same offence, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without compensation ; and the like.

Other clauses are sometimes added declaratory of the principles of morality and virtue; and it is also sometimes expressly declared — what indeed is implied without the declaration — that every thing in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto shall be void. Many other things are commonly found in these charters of government;1 but since, while they continue in force, they are to remain absolute and unchangeable rules of action and decision, it is obvious that they should not be made to embrace within their iron grasp those subjects in regard to which the policy or interest of the State or of its people may vary from time to time, and which are therefore more properly left to the control of the legislature, which can more easily and speedily make the required changes.

In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed. ** What is a constitution, and what are its objects ? It is [* 37] easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private riglits ; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the framework of the political government, and necessarily based upon the preexisting condition of laws, rights, habits, and modes of thought. There is nothing primitive in it: it is all derived from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant

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1 - This, then, is the office of a written constitution: to delegate to various public functionaries such of the powers of government as the people do not intend to exercise for themselves; to classify these powers, according to their nature, and to commit them to separate agents; to provide for the choice of these agents by the people ; to ascertain, limit, and define the extent of the authority thus delegated; and to reserve to the people their sovereignty over all things not expressly committed to their representatives.” E. P. Hurlbut in Human Ri_hts and their Political Guaranties.

in every nation, and are boundless in extent, and incapable of definition.” 1

| Hamilton v. St. Louis County Court, 15 Mo. 13, per Bates, arguendo. And see Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9; Lee v. State, 26 Ark. 265–6. “ Written constitutions sanctify and confirm great principles, but the latter are prior in existence to the former.” 2 Webster's Works, 392. See, also, 1 Bl. Com. 124; 2 Story, Life and Letters, 278; Sidney on Government, c. 3, sec. 27 and 33. “If this charter of State government which we call a Constitution were all there was of constitutional command; if the usages, the customs, the maxims, that have sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility in neighborhood interests; the precepts that have come to us from the revolutions which overturned tyrannies; the sentiments of manly independence and self control which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or legislature at a distance to do so, - if a recognition of all these were to be stricken from the body of our constitutional law, a lifeless skeleton might remain, but the living spirit, that which gives it force and attraction, which makes it valuable, and draws to it the affections of the people; that which distinguishes it from the numberless constitutions, so called, which in Europe bave been set up and thrown down within the last hundred years, many of which, in their expressions, seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give, - this living and breatbing spirit which supplies the interpretation of the words of the written charter would be utterly lost and gone." People v. Hurlbut, 24 Mich. 107.

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* CHAPTER IV.

[* 38]

OF THE CONSTRUCTION OF STATE CONSTITUTIONS.

The deficiencies of human language are such that if written instruments were always carefully drawn, and by persons skilled in the use of words, we should not be surprised to find their meaning often drawn in question, or at least to meet with difficulties in their practical application. But these difficulties are greatly increased when draughtsmen are careless or incompetent; and they multiply rapidly when the instruments are to be applied, not only to the subjects directly within the contemplation of those who framed them, but also to a great variety of new circumstances which could not have been anticipated, but which must nevertheless be governed by the general rules which the instruments establish. Moreover, the different points of view from which different interests regard these instruments incline them to different views of the instruments themselves. All these circumstances tend to render the subjects of interpretation and construction prominent in the practical administration of the law, and often suggest questions of no little difficulty.

Interpretation differs from construction in that the former “ is the act of finding out the true sense of any form of words; that is, the sense which their author intended to convey; and of enabling others to derive from them the same idea which the author intended to convey. Construction, on the other hand, is the drawing of conclusions respecting subjects that lie beyond the direct expressions of the text, from elements known from and given in the text; conclusions which are in the spirit, though not in the letter of the text. Interpretation only takes place if the text conveys some meaning or other. But construction is resorted to when, in comparing two different writings of the same individual, or two different enactments by the same legislative body, there is found contradiction where there was evidently no intention of such contradiction one of another, or where it happens that part of a writ

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ing or declaration contradicts the rest. When this is the case, and the nature of the document or declaration, or whatever else it may be, is such as not to allow us to consider the whole as being invalidated by a partial or other contradiction, then resort must be had to construction; so, too, if found to act in cases which have not been foreseen by the framers of those rules, by which we are nevertheless obliged, for some binding reason, faithfully to regulate as well as we can our action respecting the unforeseen case.”] In common use, however, the word construction is generally employed in the law in a sense embracing all that is properly covered by both when used in a sense strictly and technically correct; and

we shall so employ it in the present chapter. [* 39] From the earliest periods in the history of * written law,

rules of construction, sometimes based upon sound reason, and seeking the real intent of the instrument, and at other times altogether arbitrary or fanciful, have been laid down by those who have assumed to instruct in the law, or who have been called upon to administer it, by the aid of which the meaning of the instrument was to be resolved. Some of these rules have been applied to particular classes of instruments only; others are more general in their application, and so far as they are sound, may be made use of in any case where the meaning of a writing is in dispute. To such of these as seem important in constitutional law we shall refer, and illustrate them by references to reported cases, where they have been applied.

A few preliminary words may not be out of place, upon the questions, who are to apply these rules ; what person, body, or department is to enforce the construction; and how far a determination, when once made, is to be binding upon other persons, bodies, or departments.

We have already seen that we are to expect in every constitution an apportionment of the powers of government. We shall also find certain duties imposed upon the several departments, as well as upon specified officers in each, and we shall likewise dis

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Lieber, Legal and Political Hermeneutics. See Smith on Stat, and Const. Construction, 600. Bouvier defines the two terms succinctly as follows: Interpretation, the discovery and representation of the true meaning of any signs used to convey ideas." Construction, in practice, determining the meaning and application as to the case in question of the provisions of a constitution, statute, will, or other instrument, or of an oral agreement.” Law Dic.

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