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• 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.”i
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 v. 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 bas 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 v. 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
1 Co. Lit. 381, a.
3 Attorney-General v. Detroit and Erin Plank Road Co., 2 Mich. 138; People v. Burns, 5 Mich. 114; District Township v. Dubuque, 7 Iowa, 262; Manly v. State, 7 Md. 135; Parkinson v. State, 14 Md. 184; Belleville Railroad Co. v. Gregory, 15 II. 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.
4 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.
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
· 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.