selves, 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 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.1 The Common Law to be kept in View. It is also a very reasonable rule that a State constitution shall be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still 1 See Jenkins v. Ewin, 8 Heisk. 476. 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. 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 have 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. p. 1184. 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 his country to little purpose. 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 beginning 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,2 a maxim which we fear is sometimes perverted to the overthrow of the legislative intent; but there can seldom be either propriety or safety in applying this maxim 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, as do 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 question is, what the people meant, and not how meaningless their words can be made by the application of arbitrary rules.3 1 State v. Noble, 21 N. E. Rep. 244 construction of constitutional principles (Ind.). 2 Broom's Maxims, 33; Sedg. on Stat. & Const. Law, 313. See Harrison v. Leach, 4 W. Va. 383. 8 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 hus band, 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 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. 333; McKee v. Wilcox, 11 Mich. 358; Farr v. Sherman, 11 Mich, 33; Watson . Thurber, 11 Mich. 457; Burdeno v. Amperse, 14 Mich. 91; Tong v. Marvin, 15 Mich. 60; Tillman v. Shackleton, 15 Mich. 447; Devries v. Conklin, 22 Mich. 255; Rankin v. West, 25 Mich, 195. The common law 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.1 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 supposе 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.2 Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having 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." 3 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 instru ment. Where a constitution is revised or amended, the new provisions come into operation at the same moment that those they take the place of cease to be of force; and if the new instrument re-enacts in the same words provisions which it supersedes, it is a reasonable presumption that the purpose was not to change the law in those particulars, but to continue it in uninterrupted operation. 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 fully to 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 Bishop, Law of Married Women, §§ 18-20 and cases cited; McGinnis v. State, 9 Humph. 43; State v. Lash, 16 N. J. 380; s. c. 32 Am. Dec. 397; Cadwallader v. Harris, 76 Ill. 370; Moyer v. Slate Co., 71 Pa. St. 293. 1 Brien v. Williamson, 8 Miss. 14. If in one place in a statute the meaning of a word or phrase is clear, it will generally be taken in the same sense throughout the act. Rhodes v. Weldy, 20 N. E. Rep. 461 (Ohio). 2 See remarks of Johnson, J., in Ogden v. Saunders, 12 Wheat. 213, 290. 8 Story on Const. § 454. And see Cherokee Nation v. Georgia, 5 Pet. 1, 19. This is the rule in the case of statutes, and it sometimes becomes important, where rights had accrued before the revision or amendment took place. Its application to the case of an amended or revised constitution would seem to be unquestionable. 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 in cases where there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively." Retrospective legislation, except when designed to cure formal defects, or otherwise. 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.3 1 Laude v. Chicago, &c. R. R. Co., 33 Wis. 640; Gilkey v. Cook, 60 Wis. 133; Blackwood v. Van Vleit, 30 Mich. 118. 2 Moon v. Durden, 2 Exch. 22. See Dash v. Van Kleek, 7 Johns. 477; Brown v. Wilcox, 22 Miss. 127; Price r. Mott, 52 Pa. St. 315; Broom's Maxims, 28; post, p. 455 and note. * In Allbyer v. State, 10 Ohio St. 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 act previously in force applicable to Hamilton County only, and the question was, whether that act was not inconsistent with the provision above quoted, and therefore repealed by it. The court held that the provision quoted evidently had regard to future and not to past legislation, and therefore was not repealed. A similar decision was made in State v. Barbee, 3 Ind. 258; Evans v. Phillipi, 117 Pa. St. 226; Pecot v. Police Jury, 6 Sou. Rep. 677 (La.). So as to the effect of a provision allowing compensation for prop erty injured, but not taken, in course of public improvements. Folkenson v. Easton, 116 Pa. St. 523. See also State v. Thompson, 2 Kan. 432; Slack v. Maysville, &c. R. R. Co., 13 B. Monr. 1; State v. Macon County Court, 41 Mo. 453; N. C. Coal Co. v. G. C. Coal & Iron Co., 37 Md. 557. In Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9, 12, Denio, J., says: "The rule laid down in Dash v. Van Kleek, 7 Johns. 477, and other cases of that class, by which the courts are admonished to avoid, if possible, such an interpretation as would give a statute a retrospective operation, has but a limited application, if any, to the construction of a constitution. When, therefore, we read in the provision under consideration, that the stockholders of every banking corporation shall be subject to a certain liability, we are to attribute to the language its natural meaning, without inquiring whether private interests may not be prejudiced by such a sweeping mandate." The remark was obiter, as it was found that enough ap peared in the constitution to show clearly that it was intended to apply to existing, as well as to subsequently created, banking institutions. Implications. The implications from the provisions of a constitution are sometimes exceedingly important, and have large influence upon its construction. In regard to the Constitution of the United States the rule has been laid down, that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. The same rule has been applied to the State constitution, with an important modification, by the Supreme Court of Illinois. "That other powers than those expressly granted may be, and often are, conferred by implication, is too well settled to be doubted. Under every constitution the doctrine of implication must be resorted to, in order to carry out the general grants of power. A constitution cannot from its very nature enter into a minute specification of all the minor powers naturally and obviously included in it and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule, that when a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one or the performance of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is. further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient." 2 The rule applies to the exercise of power by all departments and all officers, and will be touched upon incidentally hereafter. Akin to this is the rule that "where the power is granted in general terms, the power is to be construed as coextensive with the terms, unless some clear restriction upon it is deducible [expressly or by implication] from the context." 3 This rule has been so frequently applied as a restraint upon legislative encroachment upon the grant of power to the judiciary, that we shall content ourselves in this place with a reference to the cases collected upon this subject and given in another chapter.4 Another rule of construction is, that when the constitution 1 Story on Const. § 430. See also United States v. Fisher, 2 Cranch, 358; McCulloch v. Maryland, 4 Wheat. 316; Northwestern Fertilizing Co. v. Hyde Park, 70 Ill. 634. See 2 Field v. People, 3 Ill. 79, 83. Fletcher v. Oliver, 25 Ark. 289. In Nevada it has been held that a constitutional provision that the counties shall provide for their paupers will preclude a State asylum for the poor. State v. Hallock, 14 Nev. 202; s. c. 33 Am. Rep. 559. 3 Story on Const. §§ 424-426. See Du Page County v. Jenks, 65 Ill. 275. See post, pp. 104-136. |