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its own reasons; mixed motives of power, justice, and policy influence its action; and it is always justifiable and laudable to lean against a violation of the constitution. Indeed cases must some

times occur when a court should refrain from declaring a [* 54] statute * unconstitutional, because not clearly satisfied

that it is so, when if the judges were to act as legislators upon the question of its enactment, they ought with the same views to withhold their assent, from grave doubts upon that subject. The duty is different in the two cases, and presumptions may control in one which do not exist in the other. But those cases where new legislation is sought stand by themselves, and are not precedents for those which involve only considerations concerning the constitutional validity of existing enactments. The general acceptance of judicial decisions as authoritative, by each and all, can alone prevent confusion, doubt, and uncertainty, and any other course is incompatible with a true government of law.

Construction to be Uniform.

A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed; and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. Those beneficent maxims of the common law which guard person and property have grown and expanded until they mean vastly more to us than they did to our ancestors, and are more minute, particular, and pervading in their protections; and we may confidently look forSupreme Court, and President Lincoln expressed similar views regarding the conclusiveness of the Dred Scott decision upon executive and legislative action. See Story on Const. 4th ed. $ 375, note.

ward in the future to still further modifications in the direction of improvement. Public sentiment and action effect such changes, and the courts recognize them; but a court or legislature which should allow a change in public sentiment to influence it in giving construction to a written constitution not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty; and if its course could become a precedent, these instruments would be of

, * little avail. The violence of public passion is quite as [* 55] likely to be in the direction of oppression as in any other; and the necessity for bills of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced by temporary excitements and passions among the people to adopt oppressive enactments. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass

upon it.

The Intent to govern.

The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. " Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.” 3 Possible or even probable meanings, when one

· People v. Morrell, 21 Wend. 584; Newell v. People, 7 N. Y. 109; Hyatt v. Taylor, 42 N. Y. 259.

· Campbell, J., in People v. Blodgett, 13 Mich. 138.

3 United States v. Fisher, 2 Cranch, 399; Bosley v. Mattingley, 14 B. Monr. 89; Sturgis v. Crowninshield, 4 Wheat. 202; Schooner Paulina's Cargo v. United States, 7 Cranch, 60; Ogden v. Strong, 2 Paine, C. C. : 84; United States v. Ragsdale, 1 Hemp. 497 ; Southwark Bank v. Commonwealth, 26 Penn. St. 446;

[* 56] is * plainly declared in the instrument itself, the courts

are not at liberty to search for elsewhere.

Ingalls v. Cole, 47 Me. 530; McCluskey v. Cromwell, 11 N. Y. 593; Furman v. New York, 5 Sandf. 16; Newell v. People, 7 N. Y. 83; People v. N. Y. Central R.R. Co., 24 N. Y. 492; Bidwell v. Whittaker, 1 Mich. 479; Alexander v. Worthington, 5 Md. 471; Cantwell v. Owens, 14 Md. 215; Case v. Wildridge, 4 Ind. 51; Spencer v. State, 5 Ind. 49; Putnam v. Flint, 10 Pick. 504; Heirs of Ludlow v. Johnson, 3 Ohio, 553; District Township v. Dubuque, 7 Iowa, 262; Pattison v. Yuba, 13 Cal. 175; Ezekiel v. Dixon, 3 Kelly, 146; In re Murphy, 3 Zab. 180; Attorney-General v. Detroit & Erin P. R. Co., Wal. Ch. 394; Smith v. Thursby, 28 Md. 244; State v. Bladsdel, 4 Nev. 241 ; State v. Doron, 5 Nev. 399. The remarks of Mr. Justice Bronson in People v. Purdy, 2 Hill, 35, are very forcible in showing the impolicy and danger of looking beyond the instrument itself to ascertain its meaning, when the terms employed are positive and free from all ambiguity. “It is said that the Constitution does not extend to public corporations, and therefore a majority vote was sufficient. I do not so read the Constitution. The language of the clause is : •The assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill creating, continuing, altering, or renewing any body politic or corporate.' These words 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 bas, 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 boundless 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

T*

* “ Whether we are considering an agreement between [* 57] 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

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 0. 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.” Spencer o. State, 5 Ind. 76. “Judge-made law,” as 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 at length by Mr. Austin, in his Province of Jurisprudence.

Newell o. People, 7 N. Y. 97. And see Den v. Reid, 10 Pet. 524 ; Greencastle Township v. Black, 5 Ind. 569; Bartlett v. Morris, 9 Port. 266; Leonard v. Wiseman, 31 Md. 204, per Bartol, Ch. J.; McAdoo v. Benbow, 63 N. C. 464; Broom's Maxims (5th Am. ed.), 551, marg.

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 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 the most natural and genuine method of expounding a statute. “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."2 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 [* 58] part of * the law. The rule applicable here is, that effect

is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.3

This rule is especially applicable 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 justifiable in declaring any portion of a written constitution nugatory because of ambiguity. One part

i Co. Lit. 381, a.
? Stowell v. Lord Zouch, Plowd. 365; Broom's Maxims, 521.

3 Attorney-General v. Detroit and Erin Plank Road Co., 2 Micb. 138; People. v. Burns, 5 Mich. 114; District To hip 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, 1 Harrison, 285; Den v. Schenck, 3 Halst. 34; Bigelow v. W. Wisconsin R.R., 27 Wis. 478.

+ Wolcott v. Wigton, 7 Ind. 49; People v. Purdy, 2 Hill, 36, per Bronson, J.; Greencastle Township o. Black, 5 Ind. 570; Green v. Weller, 32 Miss. 650.

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