possible. But to establish a positive and permanent rule, giving such a power to such a minority over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.

"It is to be recollected that the Constitution was proposed to the people of the States as a whole, and unanimously adopted by the States as a whole, it being a part of the Constitution, that not less than three fourths of the States should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases where peculiar interests were at stake, a proportion even of three fourths is distrusted, and unanimity required to make an alteration.

When the Constitution was adopted as a whole, it is certain that there were many parts which, if separately proposed, would have been promptly rejected. It is far from impossible that every part of a constitution might be rejected by a majority, and yet taken together as a whole, be unanimously accepted. Free constitutions will rarely, if ever, be formed without reciprocal concessions, without articles conditioned on and balancing each other. Is there a constitution of a single State out of the twenty-four that would bear the experiment of having its component parts submitted to the people and separately decided on?

"What the fate of the Constitution of the United States would be, if a small proportion of the States could expunge parts of it particularly valued by a large majority, can have but one answer.

"The difficulty is not removed by limiting the doctrine to cases of construction. How many cases of that sort, involving cardinal provisions of the Constitution, have occurred? How many now exist? How many may hereafter spring up? How many might be ingeniously created, if entitled to the privilege of a decision in the mode proposed?

"Is it certain that the principle of that mode would not reach further than is contemplated? If a single State can, of right, require three fourths of its co-States to overrule its exposition of the Constitution, because that proportion is authorized to amend it, would the plea be less plausible that, as the Constitution was unanimously established, it ought to be unanimously expounded?

"The reply to all such suggestions seems to be unavoidable and irresistible; that the Constitution is a compact; that its text is to be expounded according to the provisions for expounding it, — making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as may accrue, it must grow out of abuses of the compact releasing the sufferers from their fealty to it."

CHAPTER V.

RULES OF INTERPRETATION.

§ 397. IN our future commentaries upon the Constitution we shall treat it, then, as it is denominated in the instrument itself, as a CONSTITUTION of government, ordained and established by the people of the United States for themselves and their posterity.1 They have declared it the supreme law of the land. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of certain powers, and reserved all others to the States or to the people. It is a popular government. Those who administer it are responsible to the people. It is as popular, and just as much emanating from the people, as the State governments. It is created for one purpose, the State governments for another. It may be altered and amended and abolished at the will of the people. In short, it was made by the people, made for the people, and is responsible to the people.2

§ 398. In this view of the matter, let us now proceed to consider the rules by which it ought to be interpreted; for, if these rules are correctly laid down, it will save us from many embarrassments in examining and defining its powers. Much of the difficulty which has arisen in all the public discussions on this subject has had its origin in the want of some uniform rules of interpretation, expressly or tacitly agreed on by the disputants. Very different doctrines on this point have been adopted by dif

1 "The government of the Union," says Mr. Chief Justice Marshall, in delivering the opinion of the court in McCulloch v. Maryland, 4 Wheat. 316, "is emphatically and truly a government of the people. It emanates from them; its powers are granted by them, and are to be exercised directly on them and for their benefit." Id. 404, 405; see also Cohens v. Virginia, 6 Wheat. R. 264, 413, 414.

"The government of the United States was erected," says Mr. Chancellor Kent, with equal force and accuracy, "by the free voice and the joint will of the people of America for their common defence and general welfare." 1 Kent's Comm. Lect. 10, p. 189.

2 I have used the expressive words of Mr. Webster, deeming them as exact as any that could be used. See Webster's Speeches, p. 410, 418, 419; 4 Elliot's Debates, 338,

ferent commentators; and not unfrequently very different language held by the same parties at different periods. In short, the rules of interpretation have often been shifted to suit the emergency; and the passions and prejudices of the day, or the favor and odium of a particular measure, have not unfrequently furnished a mode of argument which would, on the one hand, leave the Constitution crippled and inanimate, or, on the other hand, give it an extent and elasticity subversive of all rational boundaries.

§ 399. Let us, then, endeavor to ascertain what are the true rules of interpretation applicable to the Constitution; so that we may have some fixed standard by which to measure its powers and limit its prohibitions, and guard its obligations, and enforce its securities of our rights and liberties.

§ 400. I. The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms and the intention of the parties. Mr. Justice Blackstone has remarked that the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law. He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject-matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes which led to its enactment, are often the best exponents of the words, and limit their application."

1 1 Black. Comm. 59, 60. See also Ayliffe's Pandects, B. 1, tit. 4, p. 25, &c.; 1 Domat, Prelim. Book, p. 9; Id. Treaties on Laws, ch. 12, p. 74.

2 Id. See also Woodes. Elem. of Jurisp. p. 36. Rules of a similar nature will be found laid down in Vattel, B. 2, ch. 17, from § 262 to 310, with more ample illustrations and more various qualifications. But not a few of his rules appear to me to want accuracy and soundness. Bacon's Abridg. title, Statute I. contains an excellent summary of the rules for construing statutes. Domat, also, contains many valuable rules in respect to interpretation. See his treatise on Laws, ch. 12, p. 74, &c., and Preliminary Discourse, tit. 1, § 2, p. 6 to 16.

§ 401. Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. It is only when there is some ambiguity or doubt arising from other sources that interpretation has its proper office. There may be obscurity as to the meaning, from the doubtful character of the words used, from other clauses in the same instrument, or from an incongruity or repugnancy between the words, and the apparent intention derived from the whole structure of the instrument or its avowed object. In all such cases interpretation becomes indispensable.

1

§ 402. Rutherforth 1 has divided interpretation into three kinds, literal, rational, and mixed. The first is, where we collect the intention of the party from his words only, as they lie before us. The second is, where his words do not express that intention perfectly, but exceed it, or fall short of it, and we are to collect it from probable or rational conjectures only. The third is, where the words, though they do express the intention, when they are rightly understood, are themselves of doubtful meaning, and we are bound to have recourse to the like conjectures to find out in what sense they are used. In literal interpretation the rule observed is, to follow that sense in respect both of the words and of the construction of them which is agreeable to common use, without attending to etymological fancies or grammatical refinements. In mixed interpretation, which supposes the words to admit of two or more senses, each of which is agreeable to common usage, we are obliged to collect the sense partly from the words and partly from conjecture of the intention. The rules then adopted are, to construe the words according to the subject-matter, in such a sense as to produce a reasonable effect, and with reference to the circumstances of the particular transaction. Light may also be obtained in such cases from contemporary facts or expositions, from antecedent mischiefs, from known habits, manners, and institutions, and from other sources almost innumerable, which may justly affect the judgment in drawing a fit conclusion in the particular case.

§ 403. Interpretation also may be strict or large; though we do not always mean the same thing when we speak of a strict or large interpretation. When common usage has given two senses to the same word, one of which is more confined, or includes fewer par

1 Book 2, ch. 7, § 3.

ticulars than the other, the former is called its strict sense, and the latter, which is more comprehensive or includes more particulars, is called its large sense. If we find such a word in a law, and we take it in its more confined sense, we are said to interpret it strictly. If we take it in its more comprehensive sense, we are said to interpret it largely. But whether we do the one or the other, we still keep to the letter of the law. But strict and large interpretations are frequently opposed to each other in a different sense. The words of a law may sometimes express the meaning of the legislator imperfectly. They may, in their common acceptation, include either more or less than his intention. And as, on the one hand, we call it a strict interpretation where we contend that the letter is to be adhered to precisely, so, on the other hand, we call it a large interpretation where we contend that the words ought to be taken in such a sense as common usage will not fully justify, or that the meaning of the legislator is something different from what his words in any usage would import. In this sense a large interpretation is synonymous with what has before been called a rational interpretation. And a strict interpretation in this sense includes both literal and mixed interpretation; and may, as contradistinguished from the former, be called a close, in opposition to a free or liberal, interpretation.1

§ 404. These elementary explanations furnish little room for controversy; but they may nevertheless aid us in making a closer practical application when we arrive at more definite rules.

§ 405. II. In construing the Constitution of the United States, we are, in the first instance, to consider what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design, of the

1 The foregoing remarks are borrowed almost in terms from Rutherforth's Institutes of Natural Law, (B. 2, ch. 7, § 4 to 11,) which contains a very lucid exposition of the general rules of interpetation. The whole chapter deserves an attentive perusal.