Εικόνες σελίδας
Ηλεκτρ. έκδοση

law originally, and a decision now by one of the higher courts of Great Britain as to what the common law is upon any point is certainly entitled to great respect in any of the States, though not necessarily to be accepted as binding authority any more than the decisions in any one of the other States upon the same point. It gives us the opinions of able judges as to what the law is, but its force as an authoritative declaration must be confined to the country for which the court sits and judges. But an English decision before the Revolution is in the direct line of authority; and where a particular statute or clause of the constitution has been adopted in one State from the statutes or constitution of another, after a judicial construction had been put upon it in such last-mentioned State, it is but just to regard the construction to have been adopted, as well as the words, and all the mischiefs of disregarding precedents would follow as legitimately here as in any other

case. 1

It will of course sometimes happen that a court will find a former decision so unfounded in law, so unreasonable in its deductions, or so mischievous in its consequences, as to feel compelled to disregard it. Before doing so, however, it will be well to consider whether the point involved is such as to have become a rule. of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by any change; for in such a

case it may be better that the correction of the error be [* 53] left to the legislature, which can control its action so * as

to make it prospective only, and thus prevent unjust consequences.

Commonwealth v. Hartnett, 3 Gray, 450 ; Bond v. Appleton, 8 Mass. 472 ; Rutland v. Mendon, 1 Pick. 154; Campbell v. Quinlin, 3 Scam. 288; Little v. Smith, 4 Scam. 402; Riggs v. Wilton, 13 III. 15; Ingraham v. Regan, 23 Miss. 213; Tyler v. Tyler, 19 Ill. 151; Pennock v. Dialogue, 2 Pet. 18; Adams v. Field, 21 Vt. 266; Turnpike Co. v. People, 9 Barb. 167 ; Drennan v. People, 10 Mich. 169; Myrick v. Hasey, 27 Me. 9; People v. Coleman, 4 Cal. 46; Attorney-General v. Brunst, 3 Wis. 787; Langdon v. Applegate, 5 Ind. 327; Hess v. Pegg, 7 Nev. 23. But it does not necessarily follow that the prior decision construing the law must be inflexibly followed, since the circumstances in the State adopting it may be so different as to require a different construction. Little v. Smith, 4 Scam. 402; Lessee of Gray v. Askew, 3 Ohio, 479.

? " After an erroneous decision touching rights of property has been followed thirty or forty years, and even a much less time, the courts cannot retrace their steps without committing a new error nearly as great as the one at the first.” Bronson, J., in Sparrow v. Kingman, 1 N. Y. 260. See also Emerson v. Atwater,

Whenever the case is such that judicial decisions which have been made are to be accepted as law, and followed by the courts in future cases, it is equally to be expected that they will be followed by other departments of the government also. Indeed in the great majority of cases the officers of other departments have no option ; for the courts possess the power to enforce their construction of the law as well as to declare it; and a failure to accept and follow it in one case would only create necessity for new litigation with similar result. Nevertheless, there are exceptions to this rule which embrace all those cases where new action is asked of another department, which that department is at liberty to grant or refuse for any reasons which it may regard as sufficient. We cannot conceive that, because the courts have declared an expiring corporation to have been constitutionally created, the legislature would be bound to renew its charter, or the executive to sign an act for that purpose, if doubtful of the constitutional authority, even though no other adverse reasons existed. In the enactment of laws the legislature must act upon

[ocr errors]

We are

7 Mich. 12 ; Loeb v. Mathis, 37 Ind. 306. “It is true that when a principle of law,doubtful in its character or uncertain in the subject matter of its application, has been settled by a series of judicial decisions, and acquiesced in for a considerable time, and important rights and interests have become established under such decisions, courts will hesitate long before they will attempt to overturn the result so long established. But when it is apparently indifferent which of two or more rules is adopted, the one which shall have been adopted by judicial sanction will be adhered to, though it may not, at the moment, appear to be the preferable rule. But when a question involving important public or private rights, extending through all coming time, has been passed upon on a single occasion, and which decision can in no just sense be said to have been acquiesced in, it is not only the right, but the duty of the court, when properly called upon, to re-examine the questions involved, and again subject them to judicial scrutiny. by no means unmindful of the salutary tendency of the rule stare decisis, but at the same time we cannot be unmindful of the lessons furnished by our own consciousness, as well as by judicial history, of the liability to error and the advantages of review.” Per Smith, J., Pratt v. Brown, 3 Wis. 609. Kneeland v. Milwaukee, 15 Wis. 458; Taylor v. French, 19 Vt. 49; Bellows v. Parsons, 13 N. H. 256; Hannel v. Smith, 15 Ohio, 134; Day v. Munson, 14 Ohio, N. s. 488; Green Castle, &c., Co. v. State, 28 Ind. 382; Harrow v. Myers, 29 Ind. 469; Mead v. McGraw, 19 Ohio, N. 8. 62; Ram on Legal Judgment, c. 14, $ 3.

In the celebrated case of the application of the Bank of the United States for a new charter, President Jackson felt himself at liberty to act upon his own view of constitutional power, in opposition to that previously declared by the

And see

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 for

Supreme 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. 66 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


[ocr errors]

· 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;

[ocr errors]

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

are not at liberty to search for elsewhere.

[ocr errors]

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. 214; 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 suflicient.
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
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 willl soon come to be regarded as of little

- for so

« ΠροηγούμενηΣυνέχεια »