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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.

In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. Says Marshall, Ch. J.: “ 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 understood what they meant.” 2 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 [* 59] question; but the attempt is so often made 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.3 Narrow and technical reasoning is misplaced when


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· 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 v. Sherman, 5 Texas, 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.

2 Gibbons v. Ogden, 9 Wheat. 188. See Settle v. Van Enrea, 49 N. Y. 281.

3 State v. Mace, 5 Md. 337; Manly v. State, 7 Md, 135; Green v. Weller, 32 Miss. 650; Greencastle Township v. Black, 5 Ind. 570; People v. N. Y. Central Railroad Co., 34 Barb. 137, and 24 N. Y. 488; 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 gener: ally 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 different signification plainly appears in the particular part of the act alleged to be an exception to

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 well-understood meaning, which the people must be supposed to have had in view in adopting them. We cannot understand these provisions unless

we understand their history; and when we find them [* 60] 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. the general meaning indicated. Ibid. 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. 678.

' 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 withdrawing 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. The Common Law to be kept in View.

In the same connection it may be remarked that the constitutions are to be construed in the light of the common law, and of the fact 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 common-law 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 begin- [* 61] ning 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 such limitations and restrictions as that instrument imposes. It is a maxim with the courts that statutes in derogation of the common law shall be construed strictly ;' a maxim which we fear is sometimes perverted to the

1 overthrow of the legislative intent; but the same maxim could seldom be properly applied to constitutions. When these instruments assume to make any change in the common law, the change designed is generally a radical one; but as they do not go minutely into particulars, like the statutes, it will sometimes be easy to defeat a provision, if courts are at liberty to say that they will presume against any intention to alter the common law further than is expressly declared. A reasonable construction is what such an instrument demands and should receive; and the real

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 bave 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.

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 bis country to little purpose.

· Broom's Maxims, 33; Sedg. on Stat. & Const. Law, 313. See Harrison v. Leach, 4 W. Va. 383.

p. 1181.

question is, what the people meant, and not how meaningless their

words can be made by the application of arbitrary rules. [* 62] * As a general thing, it is to be supposed that the same

word is used in the same sense wherever it occurs in a constitution. Here again, however, great caution must be observed in applying an arbitrary rule; for, as Mr. Justice Story has well observed, “ It does not follow, either logically or grammatically, that because a word is found in one connection in the Constitution with a definite sense, therefore the same sense is to be adopted in every other connection in which it occurs. This would be to suppose that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical reasoners. And yet nothing has been more common than to subject the Constitution to this narrow and mischievous criticism. Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having

"Under a clause of the Constitution of Michigan which provided that “ the real and personal estate of every female acquired before marriage, and all property to which she may afterwards become entitled, by gift, grant, inheritance, or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations, or engagements of her husband, and may be devised or bequeathed by her as if she were unmarried,” it was held that a married woman could not sell her personal property without the consent of her husband, inasmuch as the power to do so was not expressly conferred, and the clause, being in derogation of the common law, was not to be extended by construction. Brown v. Fifield, 4 Mich. 322. The danger of applying arbitrary rules in the construction of constitutional principles might well, as it seems to us, be illustrated by this case. For while on the one hand it might be contended that, as a provision in derogation of the common law, the one quoted should receive a strict construction, on the other hand it might be insisted with perhaps equal reason that, as a remedial provision, in furtherance of natural right and justice, it should be liberally construed, to effect the beneficial purpose had in view. Thus arbitrary rules, of directly opposite tendency and force, would be contending for the mastery in the same case. The subsequent decisions under the same provision do not appear to have followed this lead. See White v. Zane, 10 Mich. 3:33; McKee v. Wilcox, 11 Mich. 358; Farr v. Sherman, 11 Mich. 33;

Vatson v. Thurber, 11 Mich. 457 ; Burdeno v. Amperse, 14 Mich. 91; Tong v. Marvin, 15 Mich. 60; Tillman v. Shackleton, 15 Mich. 447. The common law is certainly to be kept in view in the interpretation of such a clause, since otherwise we do not ascertain the evil designed to be remedied, and perhaps are not able to fully understand and explain the terms employed; but it is to be looked at with a view to the real intent, rather than for the purpose of arbitrarily restraining it. ? See remarks of Johnson, J., in Ogden v. Saunders, 12 Wheat. 290.

found in the Constitution a word used in some sense, which falls in with their favorite theory of interpreting it, have made that the standard by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning when it seemed too large for their purposes, and extending it when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled where they have sought only to adjust its proportions according to their own opinions."1 And he gives many instances where, in the national Constitution, it is very manifest the same word is employed in different meanings. So that, while the rule may be sound as one of presumption merely, its force is but slight, and it must readily give way to a different intent appearing in the instrument.


Operation to be Prospective.

We shall venture also to express the opinion that a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. This is the rule in regard to statutes, and it is “one of such obvious convenience and justice, that it must always be adhered to in the construction of statutes, unless there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively.”2 Retrospective legislation, except * when designed to cure formal defects, or other. [*63] wise operate remedially, is commonly objectionable in principle, and apt to result in injustice; and it is a sound rule of construction which refuses lightly to imply an intent to enact it. And we are aware of no reasons applicable to ordinary legislation which do not, upon this point, apply equally well to constitutions.8

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Story on Const. $ 454. And see Cherokee Nation v. Georgia, 5 Pet. 19. • Moon v. Durden, 2 Exch. 22. See Dash v. Van Kleek, 7 Johns. 477; Sayre v. Wisner, 8 Wend. 661; State v. Atwood, 11 Wis. 422; Hastings o. Lane, 3 Shep. 134; Brown v. Wilcox, 14 S. & M. 127; Price v. Mott, 52 Penn. St. 315; Ex parte Graham, 13 Rich. 277; Merwin v. Ballard, 66 N. C. 398; Broom's Maxims, 28.

3 In Allbyer v. State, 10 Ohio, N. s. 588, a question arose under the provision of the constitution that “ all laws of a general nature shall have a uniform operation throughout the State.” Another clause provided that all laws then in force, not inconsistent with the constitution, should continue in force until amended or repealed. Allbyer was convicted and sentenced to imprisonment under a crimes


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