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In Martin v. Hunter's Lessee, Justice Story, after holding that the appellate power of the United States extends to cases pending in the State courts, and that the 25th section of the Judiciary Act, which authorized its exercise, was supported by the letter and spirit of the Constitution, proceeds to say: “ Strong as this conclusion stands upon the general language of the Constitution, it may still derive support from other sources.

It is an historical fact, that this exposition of the Constitution, extending its appellate power to State courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings both in and out of the State conventions. It is an historical fact, that at the time when the Judiciary Act was submitted to the deliberations of the First Congress, composed, as it was, not only of men of great learning and ability, but of men who had acted a principal part in framing, supporting, or opposing that Constitution, the same exposition was explicitly declared and admitted by the friends and by the opponents of that system. It is an historical fact, that the Supreme Court of the United States have from time to time sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of many of the most important States in the Union, and that no State tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence by enlightened State courts, and these judicial decisions by the Supreme Court through so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken without delivering over the subject to perpetual and irremediable doubts.” The same doctrine was subsequently supported by Chief Justice Marshall in a case involving the same point, and in which he says that “great weight has always been attached, and very rightly attached, to contemporaneous exposition.” 2

In Bank of United States v. Halstead the question was made, whether the laws of the United States authorizing the courts of the Union so to alter the form of process of execution used in the Supreme Courts of the States in September, 1789, as to

11 Wheat. 351. See Story on Const. § 405–408.
? Cohens v. Virginia, 6 Wheat. 418.
8 10 Wheat. 63.

[* 69] subject to * execution lands and other property not thus

subject by the State laws in force at that time, were constitutional; and Mr. Justice Thompson, in language similar to that of Chief Justice Marshall in the preceding case, says: “If any doubt existed whether the act of 1792 vests such power in the courts, or with respect to its constitutionality, the practical construction given to it ought to have great weight in determining both questions.” And Mr. Justice Johnson assigns a reason for this in a subsequent case: “ Every candid mind will admit that this is a very different thing from contending that the frequent repetition of wrong will create a right. It proceeds upon the presumption that the contemporaries of the Constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the Constitution, and of the sense put upon it by the people when it was adopted by them." I

Great deference has been paid in all cases to the action of the executive department, where its officers have been called upon, under the responsibilities of their official oaths, to inaugurate a new system, and where it is to be presumed, they have carefully and conscientiously weighed all considerations, and endeavored to keep within the letter and the spirit of the Constitution. If the question involved is really one of doubt, the force of their judgment, especially in view of the injurious consequences that may result from disregarding it, is fairly entitled to turn the scale in the judicial mind.2

Where, however, no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow extrinsic

1

Ogden v. Saunders, 12 Wheat. 290. See Pike v. Megoun, 44 Mo. 499; State v. Parkinson, 5 Nev. 15.

· Union Insurance Co. v. Hoge, 21 How. 66; Edward's Lessee v. Darby, 12 Wheat. 210; Hughes v. Hughes, 4 T. B. Monr. 42; Chambers v. Fisk, 22 Texas, 504; Britton v. Ferry, 14 Mich. 66; Plummer v. Plummer, 37 Miss. 185; Burgess v. Pue, 2 Gill, 11; State v. Mayhew, ib. 487; Coutant v. People, 11 Wend. 511; Baltimore v. State, 15 Md. 376 ; Farmers and Mechanics Bank v. Smith, 3 S. & R. 63; Norris v. Clymer, 2 Penn. St. 277; Moers v. City of Reading, 21 Penn. St. 188; Washington v. Page, 4 Cal. 388; Surgett v. Lapice, 8 How. 68; Bissell v. Penrose, ib. 336; Troup v. Haight, Hopk. 267; United States v. Gilmore, 8 Wall. 330; Hedgecock v. Davis, 64 N. C. 652; Lafayette, &c. R.R. Co. v. Geiger, 34 Ind. 203.

circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the * law-makers.

“ Contemporary construction [* 70] can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries."1 While we conceive this to be the true and only safe rule, we shall be obliged to confess that some of the cases appear, on first reading, not to have observed these limitations. In the case first cited of Stewart v. Laird, the practical construction was regarded as conclusive. To the objection that the judges of the Supreme Court had no right to sit as circuit judges, the court say: “ It is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction.

It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed." This is certainly very strong language ; but that of a very similar character was used by the Supreme Court of Massachusetts in one case where large and valuable estates depended upon a particular construction of a statute, and very great mischief would follow from changing it. The court said that, " although if it were now res integra, it might be very difficult to maintain such a construction, yet at this day the argument ab inconvenienti applies with great weight. We cannot shake a principle which in practice has so long and so extensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law. The legal ground on which this provision is now supported is, that long and continued usage furnishes a contemporaneous construction which must prevail over the mere technical import of the words.” 3 Language nearly as strong was also used by the Supreme Court of Maryland, where the point involved was the possession of a certain power by

Story on Const. § 407. And see Evans v. Myers, 25 Penn. St. 116; Sadler v. Langham, 34 Ala. 311; Barnes v. First Parish in Falmouth, 6 Mass. 417.

2 1 Cranch, 299.
3 Rogers v. Goodwin, 2 Mass. 478.

.

the legislature, which it had constantly exercised for nearly seventy years. It is believed, however, that in each of these cases an examina

tion of the Constitution left in the minds of the judges [* 71] sufficient * doubt upon the question of its violation to

warrant their looking elsewhere for aids in interpretation, and that the cases are not in conflict with the general rule as above laid down. Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the Constitution was designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question ; but these circumstances cannot be allowed to sanction a clear infraction of the Constitution.2 We think we allow to contemporary and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor the doubts which arise on reading the instrument to be construed.3

1

· State v. Mayhew, 2 Gill, 487. In Essex Co. v. Pacific Mills, 14 Allen, 389, the Supreme Court of Massachussetts expressed the opinion that the constitutionality of the acts of Congress making treasury notes a legal tender, ought not to be treated by a State court as open to discussion after the notes had practically constituted the currency of the country for five years. At a still later day, however, the Supreme Court of the United States held these acts void, though they afterwards receded from this position.

· See further, on this subject, the case of Sadler v. Langham, 34 Ala. 311, 334; People v. Allen, 42 N. Y. 381.

8 There are cases which clearly go further than any we have quoted, and which sustain legislative action which they hold to be usurpation, on the sole ground of long acquiescence. Thus in Brigham v. Miller, 17 Ohio, 446, the question was, Has the legislature power to grant divorces? The court say: “Our legislature have assumed and exercised this power for a period of more than forty years, although a clear and palpable assumption of power, and an encroachment upon the judicial department, in violation of the Constitution. To deny this long-exercised power, and declare all the consequences resulting from it void, is pregnant with fearful consequences. If it affected only the rights of property, we should not besitate; but second marriages have been contracted and children born, and it would bastardize all these, although born under the sanction of an apparent wedlock, authorized by an act of the legislature before they were born, and in consequence of which the relation was formed which gave

*

Unjust Provisions.

[* 72] We have elsewhere expressed the opinion that a statute cannot be declared void because opposed to a supposed general intent or spirit which it is thought pervades or lies con- [* 73] cealed in the Constitution, but wholly unexpressed, or be

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them birth. On account of these children, and for them only, we hesitate. And in view of this, we are constrained to content ourselves with simply declaring that the exercise of the power of granting divorces, on the part of the legislature, is unwarranted and unconstitutional, an encroachment upon the duties of the judiciary, and a striking down of the dearest rights of individuals, without authority of law. We trust we have said enough to vindicate the Constitution, and feel confident that no department of state has any disposition to violate it, and that the evil will cease.” So in Johnson v. Joliet and Chicago Railroad Co., 23 III. 207, the question was whether railroad corporations could be created by special law, without a special declaration by way of preamble that the object to be accomplished could not be attained by general law. The court say: “ It is now too late to make this objection, since by the action of the General Assembly under this clause, special acts have been so long the order of the day and the ruling passion with every legislature which has convened under the Constitution, until their acts of this description fill a huge and misshapen volume, and important and valuable rights are claimed under them. The clause has been wholly disregarded, and it would now produce far-spread ruin to declare such acts unconstitutional and void. It is now safer and more just to all parties, to declare that it must be understood, that in the opinion of the General Assembly, at the time of passing the special act, its object could not be attained under the general law, and this without any recital by way of preamble, as in the act to incorporate the Central Railroad Company. That preamble was placed there by the writer of this opinion, and a strict compliance with this clause of the Constitution would have rendered it necessary in every subsequent act. But the legislature, in their wisdom, have thought differently, and have acted differently, until now our special legislation and its mischiefs are beyond recovery or remedy." These cases certainly presented very strong motives for declaring the law to be wbat it was not; but it would have been interesting and useful if either of these learned courts bad enumerated the evils that must be placed in the opposite scale when the question is whether a constitutional rule shall be disregarded; not the least of which is, the encouragement of a disposition on the part of legislative bodies to set aside constitutional restrictions, in the belief that, if the unconstitutional law can once be put in force, and large interests enlisted under it, the courts will not venture to declare it void, but will submit to the usurpation, no matter how gross and daring. We agree with the Supreme Court of Indiana, that in construing constitutions, courts have nothing to do with the argument ab inconvenienti, and should not “ bend the Constitution to suit the law of the hour." Greencastle Township v. Black, 5 Ind. 565; and with Bronson, Ch. J., in what he says in Oakley v. Aspinwall

, 3 N. Y. 568: “It is highly probable that inconveniences will result from following the Constitution as it is written. But that

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